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IN RE L.B., No C042530 (Cal. 3d App. Dist. July 31, 2003)
The juvenile court's order terminating parental rights
is affirmed over claims that the court erred by failing
to assure compliance with
variousprovisions of the Indian Child Welfare Act.

To read the full text of this opinion, go to:
http://login.findlaw.com/scripts/callaw?
dest=ca/caapp4th/slip/2003/c042530.html

[unedited  except for spacing,  case follows:[trb 08/01/03]
In re L. B. (2003) , Cal.App.4th
[No. C042530. Third Dist. June 30, 2003.]
In re L. B., a Person Coming Under the Juvenile Court Law.

SHASTA COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff
and Respondent, v. GREGORY N. et al., Defendants and Appellants.

(Superior Court of Shasta County, No. 2364901, William Gallagher,
  Judge.)

(Opinion by Morrison, J., with Blease, Acting P. J., and
Nicholson, J., concurring.)

COUNSEL

Mario de Solenni for Appellant Gregory N.; Sharon S. Rollo
for Appellant Tanya W., under appointments by the Court of Appeal.

Karen Keating Jahr, County Counsel, David M. Yorton, Jr.,
Deputy County Counsel, for Plaintiff and Respondent.

OPINION

MORRISON, J.-

Tonya W. and Gregory N., the mother and father of the minor,
appeal from the juvenile court's order terminating their
parental rights. (Welf. & Inst. Code, §§ 366.26, 395;
further undesignated statutory references are to the
Welfare and Institutions Code.) Appellants contend the
juvenile court erred by failing to assure compliance with
various provisions of the Indian Child Welfare Act (ICWA).
(25 U.S.C. § 1901 et seq.) We shall affirm. {Slip Opn. Page 2}


FACTUAL AND PROCEDURAL BACKGROUND
In November 2001, the Shasta County Department of Social
Services (DSS) filed a dependency petition concerning the
minor after he was born while the mother was in state prison.
The petition alleged the mother had a lengthy criminal record,
including five drug-related convictions. According to the
petition, the mother had failed to reunify with four other
children.

At a hearing in May 2002, the juvenile court denied
reunification services to the mother and set the matter for
a hearing pursuant to section 366.26.

Subsequently, the mother disclosed that Gregory N., who was
in prison, was possibly the minor's father. In July 2002,
Gregory N.'s paternity was confirmed through genetic testing.

The social worker's report for the section 366.26 hearing
disclosed that Gregory N. "may be eligible for enrollment in
the Cherokee tribe." The social worker reported: "Notice (Soc 319) was sent to
the three Cherokee tribes on 7/19/2002." The social worker
also reported that responses had been received from two of
the tribes --- the United Keetoowah Band and the Eastern Band
of Cherokee Indians --- "stat[ing] that the [minor] is not
eligible for enrollment . . . ." Copies of these responses
were attached to the social worker's report. {Slip Opn. Page 3}

At the section 366.26 hearing in October 2002, the juvenile
court found the minor adoptable and terminated appellants'
parental rights. fn. 1


DISCUSSION
The father contends that "reversal and remand is required
because the trial court failed to properly notify the tribes,
appellant, and the Secretary of the Interior of the pendency
of the proceedings." (Capitalization omitted.) We disagree.

Congress passed the ICWA in 1978 "to promote the stability and
security of Indian tribes and families by establishing minimum
standards for removal of Indian children from their families
and placement of such children 'in foster or adoptive homes
which will reflect the unique values of Indian culture . . . .'
" (In re Levi U. (2000) 78 Cal.App.4th 191, {Slip Opn. Page 4}
195; 25 U.S.C. § 1902; Mississippi Choctaw v. Holyfield (1989)
490 U.S. 30 [104 L.Ed.2d 29].)

A major purpose of the ICWA is to protect "Indian children who
are members of or are eligible for membership in an Indian tribe."
  (25 U.S.C. § 1901(3).) For purposes of the ICWA,
"'Indian child' means any unmarried person who is under age
eighteen and is either (a) a member of an Indian tribe or (b)
is eligible for membership in an Indian tribe and is the
biological child of a member of an Indian tribe." (25 U.S.C.
§ 1903(4).)

Among the procedural safeguards included in the ICWA is the
provision for notice. The ICWA provides, in part: "In any
involuntary proceeding in a State court, where the court knows
or has reason to know that an Indian child is involved, the
party seeking the foster care placement of, or termination of
parental rights to, an Indian child shall notify the parent or
Indian custodian and the Indian child's tribe, by registered
mail with return receipt requested, of the pending proceedings
and of their right of intervention. . . ." (25 U.S.C. § 1912(a).)
"Notice shall be sent to all tribes of which the child may be a
member or eligible for membership." (Cal. Rules of Court,
rule 1439(f)(3).) fn. 2

"Determination of tribal membership or eligibility for
membership is made exclusively by the tribe." (Rule 1439(g).)
{Slip Opn. Page 5} "[O]ne of the primary purposes of giving
notice to the tribe is to enable the tribe to determine
whether the child involved in the proceedings is an Indian
child. [Citation.]" (In re Desiree F. (2000) 83 Cal.App.4th
460, 470.) "The Indian status of the child need not be certain
to invoke the notice requirement. [Citation.] Because the
question of membership rests with each Indian tribe, when the
juvenile court knows or has reason to believe the child may be
an Indian child, notice must be given to the particular tribe
in question or the Secretary [of the Interior]. [Citations.]"
(Id. at p. 471.)

Initially, we note that appellants have failed to provide us
a sufficient record to determine whether the juvenile court
engaged in additional inquiry regarding the ICWA notice provided.
Following the filing of the social worker's report containing the
relevant information concerning the minor's possible Indian
heritage, three hearings took place, yet the record on appeal
includes a reporter's transcript from only the last of these
hearings. It is certainly possible that, in response to inquiry
from the court, additional information was provided concerning
the manner and content of the ICWA notice that was provided to
the tribes. It is appellants' responsibility to provide a record
that is adequate for appellate review of their claims
(see Ballard v. Uribe (1986) 41 Cal.3d 564, 574); as they have
failed to do so, we are unable to {Slip Opn. Page 6} fully
evaluate what measures the juvenile court may have taken in
regard to the claimed errors.


In any event, we conclude that the record adequately establishes
  compliance with the relevant provisions of the ICWA. In the pre
sent matter, the social worker discovered that the minor may hav
e Cherokee Indian ancestry through his biological father. This i
nformation was sufficient to trigger the notice provisions of th
e ICWA, requiring notice "to all tribes of which the child may b
e a member or eligible for membership." (Rules 1439(d)(2), 1439(
f)(3).) The Federal Register, which lists the recognized Indian
entities, contains three Cherokee entities: the Cherokee Nation
of Oklahoma, the Eastern Band of Cherokee Indians of North Carol
ina, and the United Keetoowah Band of Cherokee Indians of Oklaho
ma. (61 Fed.Reg. 58211 (Nov. 13, 1996).) Accordingly, the social
  worker reported that notice was sent to "the three Cherokee tri
bes." Responses were received from two of these tribes -- the Un
ited Keetoowah Band of Cherokee Indians in Oklahoma and the East
ern Band of Cherokee Indians. Appellants do not suggest there is
  insufficient evidence that the proper tribes were provided noti
ce.



Instead, the father protests the absence in the record of a proo


f of service establishing that notice was by certified mail and
that a copy of the petition was provided with the notice. (See
25 U.S.C. § 1912(a); rule 1439(f)(1).) He also complains it cann
ot be "ascertain[ed] if the notice set forth current or {Slip Op
n. Page 7} previous addresses of the parents or any other relati
ves." (See 25 C.F.R. § 23.11(a) and (d)(3).)

However, ordinarily, when a social worker's report or other docu
mentation indicates that ICWA notice has been provided, it can p
roperly be presumed that such notice complied with the requireme
nts of the ICWA in the absence of any evidence in the record to
the contrary or any challenge to this representation in juvenile
  court. (See Evid. Code, § 664.) Thus, for example, in In re Lev
i U., supra, 78 Cal.App.4th at page 195, we rejected the mother'
s claim that "'[a] conclusory statement in the social worker's r
eport'" that notice had been sent to the Bureau of Indian Affair
s (BIA) was insufficient to establish compliance with the ICWA.
In that case, the mother suggested DSS was required to submit ev
idence of the actual notice, a proof of service, and the respons
es received. (Ibid.) This court held "[c]ontrary to appellant's
assertion, there is no requirement that [the social services age
ncy] demonstrate it did anything more than send notice . . . . [
Citation.]" (Id. at p. 198.)

The forms utilized by DSS in this case (SOC 318 and SOC 319), wh
ich are issued by the State of California Health and Welfare Age
ncy and the Department of Social Services to provide notice in c
ompliance with the ICWA, direct that a copy of the petition is t
o be attached to the form. There is nothing in the record to ind
icate that notice was in any way deficient and no basis for us t
o conclude that DSS did not follow the required {Slip Opn. Page
8} procedures. Neither the ICWA nor rule 1439 requires copies of
  the notices be made part of the record. fn. 3 Thus, although th
e information in the record is minimal, we find it sufficient to
  establish that notice in compliance with the ICWA was provided
to all possible tribes.





The father also complains that the record does not reflect a
copy of the ICWA notice was sent to the BIA. The father is corr
ect that the Code of Federal Regulations requires copies of the
ICWA notices to be sent to the Secretary of the Interior and the
Area Director of the BIA. fn. 4 (25 C.F.R. § 23.11(a).) There is
  {Slip Opn. Page 9} nothing in the record to indicate there was
compliance with this requirement.

However, the father has failed to demonstrate any prejudice
resulted from this omission. (See In re Antoinette S. (2002)
104 Cal.App.4th 1401, 1411.) "No judgment shall be set aside,
or new trial granted, in any cause, . . . for any error as to
any matter of procedure, unless, after an examination of the
entire cause, including the evidence, the court shall be of the
opinion that the error complained of has resulted in a miscarria
ge of justice." (Cal. Const., art. 6, § 13.) The record, here, i
ndicates that the three federally recognized Cherokee tribes wer
e sent notice months before the section 366.26 hearing. Thus, th
e tribes had ample time to investigate the minor's tribal affili
ation and to request any additional information that might assis
t in this investigation. None of the tribes responded that the m
inor was a member or eligible for membership. The father has fai
led to demonstrate any prejudice flowed from the failure to send
  copies of the ICWA notices to the BIA.

Next, the father complains that he was not provided notice in
compliance with the ICWA. Again, he is correct that the ICWA's
provisions include a requirement that the parent of the Indian
child be provided notice. (25 U.S.C. § 1912(a).) However, by fa
iling to raise this issue in juvenile court, appellant has waiv
ed it. (In re Asia L., supra, 107 Cal.App.4th {Slip Opn. Page 1
0} at p. 508, fn. 4; see also In re Jennifer A., supra, 103 Cal
.App.4th at p. 707.) Furthermore, appellant participated in the
  proceedings, obviating the need to remand based on any claimed
  deficiency in the notice he was provided. (In re Jeffrey A. (2
002) 103 Cal.App.4th 1103, 1109; see In re Kahlen W. (1991) 233
  Cal.App.3d 1414, 1424.)

The father argues that providing ICWA notice to parents "enable
s them to note where the notices are being sent, and what infor
mation is being provided to the tribal entities." This argument
  is flawed because the ICWA does not require that the parents r
eceive copies of the documents sent to the tribes. (See 25 U.S.
C. § 1912(a).) The father's claim that he was precluded from con
testing the sufficiency of the ICWA notice because he was not pro
vided copies
is similarly flawed -- had he requested copies of the notices, h
e could have challenged any perceived inadequacies.

Finally, the mother contends the juvenile court was required to
apply the higher evidentiary standards of the ICWA at the sectio
n 366.26 hearing, citing rule 1439(e). She is incorrect.

Aside from its notice provisions, the ICWA applies only to India
n children. (25 U.S.C. § 1901 et seq.; see rule 1439(b) and (g)(
5).) Only when information before the juvenile court is sufficie
nt to show that the child is a member of a tribe, or is eligible
  for membership and is the child of a member, does rule {Slip Op
n. Page 11} 1439(e) require compliance with all of the provision
s of the ICWA. On the other hand, when no response is received f
rom the tribes after proper inquiry and notice, this is "tantamo
unt to [a] determination[] that the minor [i]s not an 'Indian ch
ild' within the meaning of the [ICWA]." (In re Levi U., supra, 7
8 Cal.App.4th at p. 198.) Under such circumstance, "neither the
court nor [the social services agency] ha[s] any further obligat
ions under the [ICWA]." (Id. at p. 199.)


DISPOSITION
The juvenile court's order is affirmed.

Blease, Acting P. J., and Nicholson, J., concurred.

­FN 1. Respondent has filed a motion to take additional evidence
regarding compliance with the ICWA, which evidence existed but w
as not presented to the juvenile court at the time of the hearin
g in question. Although Code of Civil Procedure section 909 perm
its an appellate court to take additional evidence, "the power c
onferred upon appellate courts by [Code of Civil Procedure] sect
ion 909 is to be used sparingly and has been narrowly construed.
  [Citations.]" (In re Elise K. (1982) 33 Cal.3d 138, 149 (conc.
opn. of Bird, C. J.).) "Decisions limiting the use of this power
  involved attempts to introduce on appeal evidence which (1) exis
ted at the time of trial, (2) was contested on appeal or was cumu
lative of evidence that was contradicted at trial, and (3) was no
t conclusive on the question for which its admission was sought."
  (Ibid.) All of these reasons for limiting the introduction of ne
w evidence at the appellate level apply here. Therefore, we deny
respondent's motion.

­FN 2. Further undesignated rule references are to the California
Rules of Court.

­FN 3. This court has suggested that, "[t]o satisfy the notice pro
visions of the [ICWA] and to provide a proper record for the juve
nile court and appellate courts, [a social services agency] shoul
d follow a two-step procedure" of sending proper notice to all po
ssible tribal affiliations and filing with the court copies of th
e notices, the return receipts and any correspondence from the tr
ibes. (In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740, fn. 4; see also In
re H. A. (2002) 103 Cal.App.4th 1206, 1214-1215; In re Asia L. (2
003) 107 Cal.App.4th 498, 507-508; In re Jennifer A. (2002) 103 C
al.App.4th 692, 702-703.) However, while this practice would head
  off numerous appellate complaints of non-compliance with the ICW
A, the second step of this procedure is not required by the ICWA
or by rule 1439. The BIA's "Guidelines for State Courts; Indian C
hild Custody Proceedings," which are advisory only, would require

  copies of notices and return receipts or other proof of service
to be filed with the court. (44 Fed.Reg. 67584, 67588 (Nov. 26, 1
979).) This Guideline has not been adopted in California.

­FN 4. Notice to the BIA satisfies notice to the Secretary of the Interior. (See
25 U.S.C. § 1a [delegation to the BIA of powers and duties of the Secretary of
the Interior regarding laws governing Indian affairs].)

Issues:  Termination of parental rights pursuant to §§ 19b(3)(c)(i)
and (g); Ineffective assistance of counsel; Whether no contest plea
was made knowingly, understandingly, and voluntarily; Sufficient
factual basis for plea; Trial court's compliance with MCR 5.974(G)
Court:  Michigan Court of Appeals (Unpublished)
Case Name:  In re Hudack
e-Journal Number:  19822
Judge(s):  Per Curiam – Wilder, Griffin, and Gage

Since the record demonstrated respondent-mother's attorney reviewed
both the petition and respondent's rights with her, and it was her
wish, as well as counsel's strategy, to focus on the best interests
phase, respondent's claim of ineffective assistance of counsel in
connection with her no contest plea lacked merit. Nothing in the
record suggested the plea was not made knowingly and understandingly.
The trial court properly advised respondent of her rights and the
allegations, and respondent indicated she understood those rights and
was pleading no contest to the petition. The court further concluded
the plea was voluntary, and there was a sufficient factual basis for
it. The statutory grounds for termination were also established by
clear and convincing evidence. Termination of respondent's parental
rights was affirmed.

Full Text Opinion
http://www.michbar.org/e-journal/080103.html#3

Issues:  Termination of parental rights
Court: Michigan Court of Appeals (Unpublished)
Case Name: In re Rogers
e-Journal Number:  19823
Judge(s):  Per Curiam - Neff, Fort Hood, and Borrello

The trial court erred by terminating respondent-mother's parental
rights to the minor children because the conclusion the children
could not be returned to her care in a reasonable time, in light of
the agency's deficient coordination and omission of services, was
clearly erroneous. Despite the fact the traditional out-patient
treatment programs were unsuccessful, the agency placed her back into
the same program that had previously failed to address her problem.
At the termination proceeding, the caseworker raised the issue of non-
progress with parenting issues, but there was no indication the
mother was referred to parenting classes. Additionally, although
coordination of services was recommended with multiple counselors or
therapists, it was unclear why coordination of services did not
occur. Ultimately, the mother obtained the funding for and entered
into residential treatment without the assistance of those who were
supposed to aid her in reunification with her children. Reversed and
remanded.

Full Text Opinion
http://www.michbar.org/e-journal/080103.html#3

Issues: Termination of parental rights pursuant to §§ 19b(3)(c)(i)
and (g); Best interests of the child
Court: Michigan Court of Appeals (Unpublished)
Case Name: In re Sylvester
e-Journal Number: 19821
Judge(s): Per Curiam – Sawyer, Meter, and Schuette

The trial court did not clearly err by finding the petitioner
established by clear and convincing evidence the existence of one or
more statutory grounds for the termination of the respondent-mother's
parental rights. The child was removed from respondent's custody due
mainly to her longstanding abuse of cocaine and alcohol. The evidence
produced at the permanent custody hearing showed respondent failed to
comply with the parent-agency agreement by obtaining suitable
housing, providing verification of a consistent legal source of
income, and successfully addressing her substance abuse problem.
Respondent completed two inpatient substance abuse treatment
programs, but she continued to abuse cocaine. The evidence did not
establish the termination of respondent's parental rights was clearly
not in the child's best interests. Affirmed.


full text
http://www.michbar.org/e-journal/080103.html#3

--- In Michigan_victims_of_CPS@yahoogroups.com, "harticulate"
<harticulate@y...> wrote:
My youngest son is to come home by 8/27/03 when school starts.  I am
not completely sure this will happen.  I believe it when I see it
when it comes to CPS.  I closest I got to a definitive answer was to
go ahead and enroll him in his regular school.  I do not have
anything in writing yet.

I am wondering for those of you that have lost your kids and then
gotten them back; How hard is the transition?  I don't know what to
expect from CPS once they come home.

-H

--- In Michigan_victims_of_CPS@yahoogroups.com, "harticulate"
<harticulate@y...> wrote:
I finally got our pych eval copies after 9 months.  I asked the
courts, FIA-CPS, counselors, wrote letters with my rights pertaining
to the Freedom of Information Act, my ex-attorney, etc.; all of them
either told me to ask someone else or told me that I couldn't have
them.

Well let's just say that I know why they did not want to give them to
me now!  They are horrible.  They should have just put me in the next
Psycho Thriller!  They either took words out of context, exaggerated,
used hearsay, compared us to statistics or plain flat manipulated our
data.  My new therapist said that my evaluations were not true
evaluations, but CPS investigations.

I am just wondering if anyone had similar experiences with their
evaluations?

-H
--- End forwarded message ---

That and more.

I went back to school to obtain a
paralegal degree for all the "legal abuse" suborned
perjury, false reports, inept lawyers, psychs and
unethical conduct I encountered in anti- family court.

  After going through two jury trials (one started in
family and ended in criminal court because I didn't
hang up the phone when my ex called and put my kid on
the line)and being found not guilty I knew I needed
some legal research skills to counter the legal
community's harrasment.

Working with attorneys onlydemonstrated what we all
know- it is a "good ole boy
system", it isn't what but who you know, the law is a
whore.

As one of my state Senators, Vincent Illuzii a
lawyer/legislator/litgator once delared to me, "the
courts are corrupt - you need to get PUBLICITY!"

Our
cases are not aberations, the abuses are systematic.
The complete lack of accountability for lawyers and
judges allows them to use all the resources of the
state to generate revenue for their fraternity and all
their sacred cows including CPS and all the "psychs".
That is what is all about, money, and the heathens
don't care who gets hurt in their pursuit of it.  I
recommend you check out the site
http://www.cpswatch.com/ they have good information
self help advice, laws, forms, articles,....  Using
the governments own information they demonstrate how
children in the state's care are more at risk of
neglect, abuse, even premature death then children in
the general population.
I found that unless you have enough cash to make a
good payoff you have to fire the lawyers and do it
yourself, especially if there is unethical or illegal
conduct involved, which there usually is with CPS.
Other recommended sites for those who have experienced
the maladministration of justice in our courts and its
ordered processes and programs:
http://www.suecps.com/
Commentaries and published articles from one of the
worlds most published and leading authorities on anti-
family court can be found at:
http://www.rcn.com/baskerville/
Legislation that would put an end to the "legal abuse"
heaped upon us all by our own courts and all its
operatives can be found at http://www.jail4judges.org
Sincere Regards,

Dave Donley, Paralegal, advocate Jail4judges
legislation

--- harticulate <harticulate@...> wrote:
> --- In Michigan_victims_of_CPS@yahoogroups.com,
> "harticulate"
> <harticulate@y...> wrote:
> I finally got our pych eval copies after 9 months.
> I asked the
> courts, FIA-CPS, counselors, wrote letters with my
> rights pertaining
> to the Freedom of Information Act, my ex-attorney,
> etc.; all of them
> either told me to ask someone else or told me that I
> couldn't have
> them.
>
> Well let's just say that I know why they did not
> want to give them to
> me now!  They are horrible.  They should have just
> put me in the next
> Psycho Thriller!  They either took words out of
> context, exaggerated,
> used hearsay, compared us to statistics or plain
> flat manipulated our
> data.  My new therapist said that my evaluations
> were not true
> evaluations, but CPS investigations.
>
> I am just wondering if anyone had similar
> experiences with their
> evaluations?
>
> -H
> --- End forwarded message ---
>
>
>
>


__________________________________
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From: Rjc942@... Date: Sun, 3 Aug 2003 09:55:23 EDT
Subject: appeal rights as a foster parent...
To: attorneybankert@...




Hello ,
My name is Rodney Crevier .I have been a foster parent for a little
over a year now and am in the midst of a case with the family and the
safety of the children involved ..I was wondering. Do  we as foster
parents have a right to appeal a court decision of moving the
children from foster care to a gaurdianship home ?
    If so how do we go about doing this and how much does it cost to
do?

                                                      Thank You ,
                                                       Rodney Crevier
                                                       Very concerned
                                                       foster parent

Father argued "THE FAMILY COURT ERRED BY REFUSING TO RETURN
FATHER FOR THE PERMANENT CUSTODY TRIAL AND FATHER WAS DENIED
HIS RIGHTS OF DUE PROCESS OF LAW AND TO BE PRESENT AT THE TRIAL
AND DENIED THE RIGHT TO CONFRONT THE WITNESSES AGAINST HIM AND
TO BE ABLE TO ASSIST HIS ATTORNEY IN HIS
TRIAL."

"The Trial Court gave Father's attorney ample time to attempt
to coordinate a release of Father for purposes of attending his
trial, but he was unable to do so. "

The court concluded that Father's challenge is without merit.

__________________________________________
The complete case follows [trb 8/2/02]
-------------------------------------------
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI`I

In the Interest of DOE CHILDREN:
JANE DOE, Born on January 10, 1990,
JOHN DOE, Born on February 4, 1991, and
JANE DOE, Born on December 13, 1992, Minors
NO. 24716
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-S NO. 93-03102)

JUNE 6, 2003
  BURNS, C.J., LIM AND FOLEY, JJ.
OPINION OF THE COURT BY BURNS, C.J.

The father (Father) of Jane Doe, born on January 10, 1990, John Doe,
born on February 4, 1991, and Jane Doe, born on December 13, 1992
(collectively, "the Children"), appeals from the family court's (1)
Order Awarding Permanent Custody entered on November 6, 2001, and (2)
order filed on November 16, 2001, denying Father's motion for
reconsideration. We affirm.

At the time of the trial that led to the November 6, 2001 Order
Awarding Permanent Custody, Father was in the legal custody of the
State of Hawai`i's Department of Public Safety (DPS), see Hawaii
Revised Statutes (HRS) Chapter 353 (Supp. 2002), but physically at
the Florence Correctional Center in Florence, Arizona.

Specifically, Father is challenging Judge Linda K. C. Luke's October
8, 2001 order continuing Father's September 27, 2001 Amended Motion
to Return Father for Pre-Trial and Trial, and Judge Marilyn
Carlsmith's October 26, 2001 order denying Father's motion to have
Father brought back to Hawai`i from Arizona for the trial.

Father's sole point on appeal is that

THE FAMILY COURT ERRED BY REFUSING TO RETURN FATHER FOR THE PERMANENT
CUSTODY TRIAL AND FATHER WAS DENIED HIS RIGHTS OF DUE PROCESS OF LAW
AND TO BE PRESENT AT THE TRIAL AND DENIED THE RIGHT TO CONFRONT THE
WITNESSES AGAINST HIM AND TO BE ABLE TO ASSIST HIS ATTORNEY IN HIS
TRIAL.
We conclude that Father's challenge is without merit.
BACKGROUND

On November 2, 1993, Appellee Department of Human Services, State of
Hawai`i (DHS), petitioned, under HRS Chapter 587 (1993), for
temporary foster custody of the Children. On November 15, 1993, the
petition was granted.

On January 6, 1994, Judge Bode A. Uale noted that Father was in
prison and ordered the December 2, 1993 Service Plan and Agreement
into effect. This plan noted, in relevant part, that the Children

were at risk for threatened abuse and neglect following a car
accident in Waianae. [Mother] tested positive for cocaine and alcohol
at Queen's Medical Center following the accident. [Father] and
[Mother] have a history of domestic violence and substance abuse that
contributed to the accident and putting their children at risk.
This plan required Father to participate in (a) an anger management
program, (b) weekly Alcoholic's Anonymous meetings, (c) a drug
treatment program, and (d) a psychological evaluation.
On June 17, 1994, Judge Rodney K. F. Ching ordered the June 2, 1994
Service Plan and Agreement into effect. Regarding Father, this plan
was essentially the same as the December 2, 1993 Service Plan and
Agreement.

On November 29, 1994, Judge Uale ordered the Service Plan and
Agreement, dated November 14, 1994, into effect. Regarding Father,
this plan noted that he "is currently incarcerated at Waiawa
Correctional Facility and is in the process of moving to the Oahu
Correctional Facility's Laumaka Furlough program."

On May 31, 1995, Judge Luke entered an order revoking family
supervision and terminating the family court's jurisdiction.

On June 27, 1997, the DHS filed a Petition for Family Supervision.
Thereafter, the court appointed counsel for Father and Mother and
appointed a Guardian Ad Litem (GAL) for the Children.

On August 28, 1997, Judge Uale ordered Service Plan #1 into effect.
This plan noted that "[Father] is incarcerated at Halawa prison and
his need for further treatment has not yet been identified."

On March 20, 1998, Judge Paul T. Murakami ordered Service Plan #2
into effect. This plan noted that "[Father] has had drug problems in
the past and further assessment is needed to identify his current
need for services. He was recently arrested for injuring a women
[sic] during a shooting." On April 27, 1998, Judge Uale ordered the
continuation of Service Plan #2. An exhibit noted that "[Father]
recently got into domestic argument [with] wife [and] unable to cope
in living environment at Victory Ohana. [Father] unable to deal
[with] people at Victory Ohana [and] getting into personal conflicts.
[Father] relapsed to drugs/alcohol [and] not honest [with] counselor
about his relapse."

On October 27, 1998, Judge Uale ordered Service Plan #3 into effect.
This plan noted that

[Father] was incarcerated at the Halawa Correctional Center. It is
unknown if he is participating in services. There has been no recent
contact with [Father]. He has had drug and violence problems in the
past and further assessment is needed to identify his current need
for services. He was arrested for injuring a women [sic] during a
shooting.
This plan ordered Father to participate in drug treatment programs,
an anger management program, and a psychological evaluation.
On April 13, 1999, Judge Uale ordered Service Plan #4 into effect.
This plan ordered Father to participate in random urinalyses and a
substance abuse treatment program, to abstain completely from the use
or sale of illicit drugs and alcohol, and to learn and demonstrate an
adequate understanding of the Children's needs. On September 28,
1999, Judge Uale ordered Service Plan #5 into effect. Regarding
Father, this plan was essentially the same as Service Plan #4. On
March 11, 2000, Judge Uale ordered Service Plan #6 into effect.
Regarding Father, this plan was essentially the same as Service Plan
#5.

On May 24, 2000, Father moved "for visits [by the Children] at the
prison[.]" On June 6, 2000, Judge Uale granted the motion.

On September 1, 2000, Judge Carlsmith ordered Service Plan #7 into
effect. Regarding Father, this plan was essentially the same as
Service Plan #6.

On February 13, 2001, Judge Luke ordered that "DHS shall file for
Permanent Custody by March 13, 2001 at [the] latest" and ordered
Service Plan #8 into effect. Regarding Father, this plan was
essentially the same as Service Plan #7.

On July 17, 2001, DHS filed a Motion for Order Awarding Permanent
Custody and Establishing a Permanent Plan seeking

an order revoking the existing service plan and revoking the prior
award of foster custody, awarding permanent custody to an appropriate
authorized agency, which permanent custody order will terminate
parental and custodial duties and rights, and establishing a
permanent plan relating to the above-named children, which plan will
propose adoption or permanent custody for the children until
subsequently adopted or the children attain the age of majority.
On September 27, 2001, Father filed an Amended Motion to Return
Father for Pre-Trial and Trial. In this motion, Father noted that
he "was sent to the Florence Correctional Center in Florence,
Arizona, after the last hearing on July 31, 2001," and asked the
family court to return him to Hawaii for pretrial and trial
proceedings. Father further noted that he "feels his Due Process
rights will be violated if he is not brought back for the P. C. Trial
and pre-trial[.]" On October 8, 2001, Judge Luke heard this motion
and ordered, in relevant part, as follows:
1)     Father's Motion to Return Father for Pre-trial and Trial is
continued for further hearing with the pre-trial
              conference on 10/26/01 at 8[:]30.
2)     Father's attorney will check with the prison to ascertain if a
motion before the Circuit Court is required
               to have Father transported for the trial[.] (1)

3)     Father shall provide, in writing, to the Court and all
parties, information regarding his status and when he
               is to be released from incarceration[.]
(Footnote added.)
On October 25, 2001, Father filed his Settlement/Pre-Trial Statement,
stating, in relevant part, as follows: "[Father] should be released
back to Hawaii in Jan. 2002 and he askes [sic] that this trial be
posponed [sic] until the end of Jan. 2002 or Feb. 2002. Father can
then show that he can provide [a] safe home."

During an October 26, 2001 pretrial hearing, Counsel for Father
stated, "I understand that [Father] is supposed to be brought back in
the end of January of 2002. And so I would like to postpone[.]" "[W]e
should postpone this either to the end of January or the end of
February." When asked by the court whether Father knew for sure when
he was going to be released from prison, Counsel for Father
responded, "[Father] thinks the end of January." Judge Carlsmith
denied Father's motions (a) to have him brought back to Hawaii from
Arizona for the trial and (b) for a postponement of the trial.

Judge Lillian Ramirez-Uy conducted the trial on November 5, 2001. The
following were present: Mother, Counsel for Mother, GAL for the
Children, DHS Social Worker, counsel for DHS, and Counsel for Father.
Father participated by speaker-telephone.

Father testified that his maximum term of imprisonment would be
finished in June 2003, his minimum term would be finished on January
4, 2002, and he expected to have a parole hearing via "television" at
the end of November 2001. When asked how long it would take for him
to be able to provide a safe home for the Children if he was paroled
in January 2002, Father noted that he had "been incarcerated for
three and a half years[,]" and responded that he believed "nine
months would be adequate."

In an Order Awarding Permanent Custody filed on November 6, 2001, the
court awarded permanent custody of the Children to DHS. On November
13, 2001, Father filed a motion for reconsideration. In an order
filed on November 16, 2001, the court denied this motion.

On November 26, 2001, Father filed a notice of appeal.

FINDINGS OF FACT AND CONCLUSION OF LAW

On December 14, 2001, the court entered its Findings of Fact and
Conclusions of Law (FsOF and CsOL). The FsOF state, in relevant part,
as follows:

39.     Father participated in trial in this matter via telephone
while incarcerated in the State of Arizona for
                crimes committed in Hawaii. Father was not certain,
but thought that his first parole hearing was going
                to be in January, 2002, before the Hawaii Parole
Authority, and that he faced the possibility of being
                granted a parole hearing as early as mid-2002 [sic].
40.     Father admitted that there was no guarantee that he would be
granted parole even if he was correct in
                stating that his Hawaii Parole Board hearing would be
in early 2002.

. . . .
43.     Father appears to be stuck in a "revolving door" pattern of
incarceration and release, leading the DHS
                and the Court to find that he is not a realistic
alternative for placement of any of the three children.
                Should Father be released for good, he will have his
hands full getting himself re-adjusted to the outside
                world, and would not be able to handle the difficult
task of providing a safe family home for a child, let
                alone three children.

44.     Father was not able, at the time of the trial, to provide
[the Children] with a safe family home, even with
               the assistance of a service plan.

45.     Father was not able to provide [the Children] with a safe
family home, in a reasonable period of time,
                even with the assistance of a service plan.

COL no. 4 states as follows:
Father's argument that the lack of his physical presence in the
Family Court courtroom amounted to a Constitutional due process
violation lacks merit. The Trial Court gave Father's attorney ample
time to attempt to coordinate a release of Father for purposes of
attending his trial, but he was unable to do so. Thus, the Family
Court allowed Father the fair alternative of unlimited participation
by speaker-phone, which eliminated any serious due process
deprivation. Father's attorney was present in the courtroom at all
times, and Father himself was nearly 100% available via telephone
connection from his Arizona prison.
THE ISSUE
We note that Father does not challenge the denial of his request to
postpone the trial. His sole challenge pertains to the denial of his
September 27, 2001 Amended Motion to Return Father for Pre-Trial and
Trial. Father contends that this alleged error requires a new trial
and argues that

[Father's] attorney brought up over and over that [Father] should be
returned for the trial so that [Father] could be present to testify,
to confront the witnesses and to assist his attorney in the trial.
This could not be done by the simple phone-hookup that was allowed.
How can one confront the witnesses against him over the phone? The
State of Hawaii sent [Father] to the Arizona prison, against his
wishes, from prison in Hawaii in order to house prisoners in Arizona.
This was done as a temporary idea by Hawaii but it was not to be done
to deny parents their right to be present at trials or to confront
the witnesses against them, we hope. Father also could not assist his
court-appointed counsel and that in itself is a denial of the
constitutional right to counsel. The family court could have easily
ordered [Father] back to Hawaii. Instead, by refusing to order him
back, [Father] was denied his right to a fair trial and his right to
see and confront the witnesses against him and to properly assist his
court-appointed counsel in the defense of his case.
. . . .

Father was sent to Arizona against his wishes by the State of Hawaii,
then the State of Hawaii ends his rights to his children and refuses
to bring him to the trial denying his constitutional rights.

(Emphasis in the original.)
RELEVANT PRECEDENT OF OTHER JURISDICTIONS

In the case of In re Marriage of Allison, 126 Ill. App. 3d 453, 457,
467 N.E.2d 310, 313 (1984), the court stated, in relevant part, as
follows:

It is obvious that conviction of a crime and incarceration serve to
alter drastically the constitutionally protected status of inmates.
Although the very purpose of imprisonment is to deprive persons of
many of the rights possessed by citizens, the loss is not total.
Chief among the rights that prisoners lose is, of course, the right
to freedom of travel and movement. Accordingly, prisoners are not
free to attend upon trials in civil cases, even though they may be a
party to the proceeding. . . .

But the matter cannot end there. Factors other than isolation of a
prisoner from society must be considered. Oftentimes prison inmates
have knowledge of transactions that may be essential to a proper
adjudication of rights of other parties-litigant before a court in
either a civil or criminal case, or a prisoner's testimony may be
essential to a proper resolution of disputes involving the propriety
of his own conviction and continued detention. It may also be that a
prisoner's legally protected civil interests in property or status
can be properly adjudicated in a civil case only by resort to the
testimony of the prisoner.

In Moeck v. Zajackowski (7th Cir. 1976), 541 F.2d 177, the court
considered the issue of whether a lawfully incarcerated state
prisoner was entitled to be personally present at the trial of a
civil action that did not relate to the terms of his confinement. The
prisoner had filed an action for damages against a police officer in
the district court. At the instance of the prisoner, the district
court at first issued, but later withdrew, a writ of habeas corpus ad
testificandum, electing instead to enjoin the prison warden "from
interfering in any way with the presence of (the prisoner) in the
courtroom of this court (on the stated date and time)." The district
court held that the prisoner, in bringing an action pursuant to 42
U.S.C. § 1983, had a fundamental interest of access to the courts for
a judicial determination of federal constitutional rights and that
that access included the right of personal attendance at trial. The
Circuit Court of Appeals reversed.

"We do not agree with the district court as to the content to be
ascribed to the fundamental interest of a prisoner in access to the
courts. We accord greater weight to the interest of the state in
maintaining the confinement of persons serving sentences at the place
and institution chosen by the state, in avoiding risks of escape, and
in economical administration of custody without incurring expenses
which the state reasonably deems unnecessary. * * *
We find no support in the Constitution or in judicial precedent for
the proposition that a prison inmate has a fundamental interest in
being present at the trial of a civil action to which he is a party,
sufficient to outweigh, as a matter of course, the interest of the
state in avoiding expense. The due process requirements of the Fifth
and Fourteenth Amendments, which guarantee access to the courts, do
not grant a prisoner the right to attend court in order to carry on
the civil proceedings which he initiates." (Moeck v. Zajackowski, 541
F.2d 177, 180.)

The court in the Moeck case noted that in Johnson v. Avery (1969),
393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718, the Supreme Court had
extended to prisoners access to law libraries and jailhouse lawyers
to enable them to establish legal claims and to provide them the
means to file suits. The court also noted that in Wolff v. McDonald
(1974), 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935, the Supreme
Court had declined to extend the right of access to the courts to
include personal attendance at trials or hearings. (See also Bounds
v. Smith (1977), 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72.) The
court concluded its discussion of the issue with an acknowledgment
that in the proper circumstances the fulfillment of the right of
access to the courts may require the personal attendance of a
prisoner-party.
"It can be granted that the right of a prisoner to file a civil
action may have little meaning if success is reasonably dependent on
his immediate presence in court, and such presence is denied. But we
would not accord him an automatic right to be present, and thus
present the state, as was done by the relief granted here, with the
choice of releasing him from custody, or bringing him to court at
substantial expense.
We suggest, although it will be seen that it may not be strictly
necessary to this decision, that the determination whether a
prisoner's interest in being present in court outweighs the state's
relevant interests, is a discretionary one. Some of the relevant
considerations would seem to be: How substantial is the matter at
issue? How important is an early determination of the matter? Can the
trial reasonably be delayed until the prisoner is released? Have
possible dispositive questions of law been decided? Has the prisoner
shown a probability of success? Is the testimony of the prisoner
needed? If needed, will a deposition be reasonably adequate? Is the
prisoner represented? If not, is his presence reasonably necessary to
present his case?" (Moeck v. Zajackowski, 541 F.2d 177, 181.)
The Moeck court remanded the case to the district court for that
court to exercise its discretion in making a determination whether
presence of the prisoner at the trial was reasonably necessary or not
and for further proceedings consistent with the opinion.

We have determined that the approach of Illinois courts to the matter
of attendance of prisoners at court proceedings to which they are a
party is similar to that expressed in Moeck v. Zajackowski, although
never so succinctly stated in any Illinois authority. Illinois has a
statute that empowers circuit courts to obtain the attendance of
prisoners "to testify" at trials, either civil or criminal. That
statute, . . . is, in the Illinois Revised Statutes, entitled "Habeas
Corpus to testify," and parallels the common law writ of habeas
corpus ad testificandum.

Whether the testimony of a prisoner is sought for a civil or a
criminal case, and whether or not the prisoner is a party to the
case, it is a matter that lies within the sound discretion of the
court whether to issue an order of habeas corpus ad testificandum.
(By virtue of ch. 110, par. 2-1501, "writs" are abolished.
Accordingly we use the term "order" of habeas corpus ad
testificandum.)

In re Marriage of Allison, 126 Ill. App. 3d at 457-60, 467 N.E.2d at
313-14.
In the case of In re Cleopatra D., a Minor, 193 Cal. App. 3d 694, 697-
98, 238 Cal. Rptr. 426, 426-27 (Cal. App. 1987), the court stated, in
relevant part, as follows:

The San Diego County Department of Social Services (County)
petitioned to free Cleopatra D. from the custody and control of her
mother, Rosemary D. (Rosemary), alleging cruel treatment and/or
neglect and failure to maintain an adequate parental
relationship. . . . Neither Rosemary nor the presumed father appeared
at trial. Rosemary appeals judgment in favor of the County on grounds
the court's refusal to authorize travel expenses from Saginaw,
Michigan denied her due process, equal protection and effective
assistance of counsel. . . . We affirm the judgment.
DISCUSSION
I

Before trial Rosemary and Cleopatra's presumed father joined in a
motion requesting transportation expenses from their home in Saginaw,
Michigan, to San Diego to attend the trial. Rosemary asked that the
travel costs be paid by the County. The court denied the motion for
lack of statutory authority and because the history of the
case "indicated absolutely no effort by the parents to have any
contact with the child." Rosemary renewed her motion at the close of
the County's case. The court again denied the motion on grounds that:
(1) counsel for the parents had made no pretrial offer of proof of
the parents' anticipated testimony; (2) the parents had failed to
comply with the reunification plan, which constituted abandonment;
and (3) counsel for the parents had sufficient time to file a writ
after the motion was first denied, but failed to do so.
Rosemary's due process and equal protection challenge raises
questions concerning the nature of parental rights and the extent to
which such rights are accorded constitutional protection. Although
our courts acknowledge that parenting is a fundamental right to be
disturbed only in extreme cases of persons acting in a fashion
incompatible with parenthood (In re Angelia P. (1981) 28 Cal.3d 908,
916[, 171 Cal.Rptr. 637, 623 P.2d 198]), the civil nature of section
232 proceedings limits the rights available to parents in that
context. There is no federal constitutional right to counsel in a
section 232 proceeding. (Lassiter v. Department of Social Services
(1981) 452 U.S. 18, 31-32[, 101 S.Ct. 2153, 2161-2162, 68 L.Ed.2d
640].) We have been cited to no case which suggests the court is
constitutionally mandated to order the County to pay Rosemary's
travel expenses here. Civil Code sections 237.5 and 237.7 provide for
appointment of counsel and free transcripts for indigent parents.
However, these are statutory, not constitutional rights. While we may
agree with Rosemary that the right of indigent parents to be present
at a proceeding to permanently sever the parent-child relationship is
at least as important as the right to a transcript on appeal of
judgment in that proceeding, the Legislature has not elected to
authorize use of public funds for that purpose.2 [Footnote 2 states
as follows: "Penal Code section 2625 establishes a procedure through
which state prisoners incarcerated in California are able to attend
section 232 hearings. However, this court has held that a father is
not denied equal protection of the law, even though he is unable to
be physically present at the section 232 proceedings, where he is
confined in an out-of-state prison and therefore not subject to the
rights created under Penal Code section 2625. (In re Gary U. (1982)
136 Cal.App.3d 494, 186 Cal.Rptr. 316.)"] Even if there were a basis
for payment of travel expenses in cases where a parent's testimony is
necessary to insure due process and a constitutionally fair
resolution of a section 232 proceeding, counsel's failure to make an
offer of proof of Rosemary's anticipated testimony permits us to only
speculate on the nature of that testimony. We conclude the court did
not abuse its discretion in denying Rosemary's motion for
transportation costs to attend trial.

Rosemary also argues that denial of her motion for travel expenses
made it impossible for her attorney to provide effective
representation at trial. Her attorney asserts he was unable to
effectively communicate with her either by telephone or by mail.
Rosemary's second argument fails for the same reasons as the first.
Furthermore, a 1984 psychological evaluation determined that Rosemary
had a full scale I.Q. of 66, placing her in the mild range of mental
impairment. The probation report also states that Rosemary did not
have the ability to provide for herself and that she needed support
and guidance in making decisions on a day-to-day basis. Rosemary's
counsel provided no reason Rosemary would be able to communicate more
effectively with him in person than by telephone or mail.
In the case of Levi v. District of Columbia, 697 A.2d 1201, 1205-06
(1997), the court stated, in relevant part, as follows:
But even assuming for the sake of argument that the court should have
considered Mr. Levi's pro se petition to appear at trial and ignored
the contrary prior request of his counsel, the court's denial of the
pro se petition must be affirmed. The Supreme Court has stated:
Lawful incarceration brings about the necessary withdrawal or
limitation of many privileges and rights, a retraction justified by
the considerations underlying our penal system. Among those so
limited is the otherwise unqualified right given by [statute] to
parties in all the courts of the United States to "plead and manage
their own causes personally."
Price v. Johnston, 334 U.S. 266, 285-286, 68 S.Ct. 1049, 1060-1061,
92 L.Ed. 1356 (1948) (citation omitted). This court has not yet
decided whether a prisoner has a right to attend a civil trial in
which he is a party, but several federal courts, reading the Supreme
Court's Price opinion, have held that the decision whether to grant a
prisoner's request to attend his civil trial is within the discretion
of the trial court.See, e.g.,Michaud v. Michaud, 932 F.2d 77, 81 (1st
Cir.1991); Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir.1987);
Holt v. Pitts, 619 F.2d 558, 561 (6th Cir.1980), aff'd after remand,
702 F.2d 639 (1983).4 [Footnote 4 states as follows: "Although the
specific issue in Price was whether a prisoner had the right to
attend an appellate proceeding and argue his own habeas corpus
appeal, federal courts have applied the holding in Price to trial
proceedings as well. Stone v. Morris, 546 F.2d 730, 735 n. 6 (7th
Cir.1976); see Holt v. Pitts, supra, 619 F.2d at 560 ("[g]enerally
speaking, prisoners who bring civil actions . . . have no right to be
personally present at any stage of the judicial proceedings"); see
also Helminski v. Ayerst Laboratories, 766 F.2d 208, 213 (6th Cir.)
("[n]either the Fifth Amendment's due process clause nor the Seventh
Amendment's guarantee of a jury trial grants to a civil litigant the
absolute right to be present personally during the trial of his
case"), cert. denied, 474 U.S. 981, 106 S.Ct. 386, 88 L.Ed.2d 339
(1985)."] Among the factors to be considered are the burden on the
state in transporting and securing the prisoner and the existence of
alternative means for presenting the testimony sought. Michaud,
supra, 932 F.2d at 81. A court may also take into account "whether
the prisoner has any other witnesses to call at trial or
whether . . . the prisoner is the only person who can render
testimony consistent with the allegations of his complaint. . . ."
Stone, supra note 4, 546 F.2d at 736. In addition, prejudice to the
prisoner is minimized when the prisoner-litigant is represented by
counsel, as Mr. Levi was in this case. Helminski, supra note 4, 766
F.2d at 213.
In Taylor v. Taylor, 63 S.W.3d 93, 96-98 (Tex. Crim. App. 2001), the
court stated, in relevant part, as follows:
RIGHT TO APPEAR

Richard argues . . . that the court abused its discretion and
violated his right to due process of law by refusing his request to
be bench warranted to McLennan County for his trial. Valerie
questions whether Richard made a sufficient request for a bench
warrant because his request is "[i]n the middle of the request for a
reset." The Attorney General contends that he did not provide
sufficient justification for his request to personally appear.
In a prior, related proceeding, we discussed at length the law
pertinent to a prisoner's constitutional right of access to the
courts. See In re Taylor, 28 S.W.3d 240, 249 (Tex.App.--Waco 2000,
orig. proceeding); see also In re Taylor, 39 S.W.3d 406, 412
(Tex.App.--Waco 2001, orig. proceeding).4 [Footnote 4 states as
follows: "In the original proceeding reported at 28 S.W.3d 240,
Richard sought a writ of mandamus compelling the trial court to act
on his contempt motion, in which he alleged that Valerie had failed
to comply with the divorce decree which is the subject of this
appeal, and on his application for writ of habeas corpus ad
testificandum by which he sought to appear and present evidence on
the contempt motion. See In re Taylor, 28 S.W.3d 240, 243-44
(Tex.App.--Waco 2000, orig. proceeding). We conditionally granted the
relief requested. Id. at 250. We again conditionally granted mandamus
relief after the trial court denied Taylor's writ application
apparently without considering the factors noted in the prior
mandamus proceeding. See In re Taylor, 39 S.W.3d 406, 412-14
(Tex.App.--Waco 2001, orig. proceeding)."] We observed:

"A prisoner in Texas has a constitutional right of access to the
courts, but only a qualified right to appear personally at a civil
proceeding." Texas courts have followed the lead of the federal
courts in identifying pertinent factors to be considered in deciding
whether an inmate should be permitted to personally appear.
These factors include:

(1) the cost and inconvenience of transporting the inmate to court;
(2) the security risk and danger to the court and the public by
allowing the inmate to attend court; (3) whether the inmate's claims
are substantial; (4) whether a determination of the matter can
reasonably be delayed until the inmate is released; (5) whether the
inmate can and will offer admissible, noncumulative testimony that
cannot be offered effectively by deposition, telephone, or otherwise;
(6) whether the inmate's presence is important in judging his
demeanor and credibility compared with that of other witnesses; (7)
whether the trial is to the court or to a jury; and (8) the inmate's
probability of success on the merits.

Taylor, 28 S.W.3d at 249 (citations omitted); accord Dodd v. Dodd, 17
S.W.3d 714, 717-18 (Tex.App.--Houston [1st Dist.] 2000, no pet.);
Byrd v. Attorney General, 877 S.W.2d 566, 569 (Tex.App.--Beaumont
1994, no writ).
In addition to the eight factors we listed in Taylor, courts have
attached some importance to whether the prisoner initiated the
lawsuit. See Dodd, 17 S.W.3d at 717-18; Armstrong v. Randle, 881
S.W.2d 53, 57-58 (Tex.App.--Texarkana 1994, writ denied); Pruske v.
Dempsey, 821 S.W.2d 687, 689 (Tex.App.--San Antonio 1991, no writ).
It appears that a prisoner's status as a defendant weighs in his
favor on the issue of his right to personally appear at trial. Id.
However, an inmate's status as a defendant standing alone will not
generally suffice to establish his right to appear. Id. Conversely,
the fact that the inmate is the plaintiff will not necessarily
preclude his right to personally appear. See Armstrong, 881 S.W.2d at
58; Nichols v. Martin, 776 S.W.2d 621, 623 (Tex.App.--Tyler 1989, no
writ).

We further observed in Taylor:
Should the trial court determine after considering these factors that
the prisoner is not entitled to appear personally, then the court
should permit him "to proceed by affidavit, deposition, telephone, or
other effective means."

A trial court's refusal to consider and rule upon a prisoner's
request to appear in a civil proceeding personally or by other means
constitutes an abuse of discretion.
Taylor, 28 S.W.3d at 249 (citations omitted); accord Dodd, 17 S.W.3d
at 717-18; Byrd, 877 S.W.2d at 569.
Although, as noted in footnote 1 above, Judge Luke pointed Father in
the direction of the research that needed to be done, it appears that
Father is not aware of HRS Chapter 660 (1993), which covers the
subject of "Habeas Corpus" and states, in relevant part, as follows:
§660-4 For prisoners, for trial or testimony. Nothing in this chapter
shall be construed to restrain the power of any court of record to
issue a writ of habeas corpus ad respondendum, when necessary, to
bring before it any prisoner for trial in any criminal cause,
lawfully pending in the court, or a writ of habeas corpus ad
testificandum, to bring in any prisoner to be examined as a witness
in any action or proceeding, civil or criminal, pending in the court,
when it thinks the personal attendance and examination of the witness
is necessary for the attainment of justice. The writ may be issued
for such purposes by any court of record in the exercise of a sound
discretion, and with due regard to conflicting interests and
liabilities, anything in this chapter to the contrary
notwithstanding.
§660-5 Complaint. Application for the writ or an order to show cause
shall be made to the court or judge authorized to issue the same, by
complaint in writing, signed by the party for whose relief it is
intended, or by some person in the party's behalf, setting forth:

(1)     The person by whom, and the place where, the party is
imprisoned or restrained,
                naming the party and the person detaining the party,
if their names are known, and
                describing them if they are not known;
(2)     The cause or pretense of imprisonment or restraint, according
to the knowledge and belief
                of the applicant;

(3)     If the imprisonment or restraint is by virtue of any warrant
or other process, an annexed
                copy thereof, unless it is made to appear that a
sufficient reason exists for not annexing the
                same;
(4)     That there has been no determination of the legality of the
detention on a prior application
                for a petition for a writ of habeas corpus, or, if
there has been a previous determination,
                the new grounds, if any, not presented and determined
upon the previous application.

The facts alleged shall be verified by the oath of some credible
person, to be administered by any person authorized to administer
oaths.
§660-6 Form of writ. The court or judge to whom the complaint is made
shall, without delay, award and issue the writ unless it appears from
the application that the person detained is not entitled thereto or
an order to show cause is issued under section 660-7. The writ of
habeas corpus may be in the following form:
State of Hawaii.
To . . . . . . . . . . . . . . . . . . . greeting.
We command you that immediately upon the receipt of this writ, you
have and produce before . . . . at . . . . the body of . . . . who is
unjustly imprisoned and restrained of his liberty, as it is said, to
do and receive what shall then and there be considered concerning him
in this behalf. And have you there this writ, with your doings
thereon.
Witness the Honorable . . . . this . . . . day of . . . . 19 . . .
[Seal]
§660-7 Order to show cause in lieu of writ. The court or judge to
whom the complaint is made may issue an order directing the person by
whom the party is imprisoned or restrained, to appear and show cause
for the imprisonment or restraint at such time as the court shall
direct, but not later than five days from the date of the order to
show cause; provided that whenever the record shows that there is a
material issue of fact to be resolved by the taking of evidence the
court shall order that the person detained be produced for the
hearing.
. . . .

§660-15 Costs. If the party is confined in any prison or is in the
custody of any civil officer, the court or judge granting the writ
shall certify thereon the sum to be paid for the expense of bringing
the party from the place where the party is imprisoned or restrained.
The officer to whom the same is directed shall not be bound to obey
it, unless that sum is paid or tendered to the officer. This section
is subject to section 607-3 ["Court costs, waiver of prepayment,
reduction or remission of"], pursuant to which prepayment of the
expense may be waived, or the sum required may be reduced or
remitted.

. . . .

§660-17 Return to be prompt. Any person to whom a writ of habeas
corpus is directed, upon payment or tender of reasonable charges or
expenses for its execution if ordered by the court, and any person to
whom an order to show cause is directed, shall make return thereto
with as much promptness as the nature of the case will permit.
§660-18 Contents. The person making the return shall state therein,
in writing, plainly and unequivocally:

(1)     Whether he has or has not the person designated in his
custody or power, or in any
                manner under his restraint or control;
(2)     If he has the person in his custody or power, or under his
restraint or control, the
                authority, and the time, and whole cause of such
imprisonment or restraint, with a copy of
                any process or warrant under which the person is
detained;

(3)     If he has had the person in his custody or power, or under
his restraint or control, and has
                transferred such custody, restraint, or control to
another, or if he has any knowledge or
                suspicion that any other person exercises or claims to
exercise such custody, power,
                restraint, or control, all that he knows or suspects.

No return shall be adjudged sufficient when the respondent has once
held the person in his custody or power, or under his restraint or
control, unless it states fully all that the respondent knows or
suspects, or alleges unequivocally that he neither knows nor
suspects, nor has any cause to suspect anything as to the custody or
restraint of the person alleged to be detained, up to the time of
making the return.
§660-19 Signature, oath, evidence. The return shall be signed by the
person making it, and sworn to by the person, unless the person is a
sworn public officer making the return in the person's official
capacity. The return shall be evidence in the case, but not
conclusive.

§660-20 Body to be produced, except when. The person making the
return to a writ of habeas corpus shall bring the body of the person,
if in his custody or power, or under his restraint or control,
according to the command in the writ, unless prevented by the
sickness or infirmity of the person. This shall not prevent the
person making the return, if a private person, from demanding in
advance actual necessary expenses of travel and transportation.
§660-21 Procedure in case of sickness, etc. When from sickness or
infirmity of the person, the person cannot properly be brought to the
place appointed for the return, that fact shall be set forth, and if
verified by affidavit and established to the satisfaction of the
court, the hearing may be adjourned to such other time or place or
such order may be made as justice may require.
§660-22 Disobeying writ or order to show cause, penalties. Any person
who neglects or refuses promptly to perform any duty imposed upon
such person by virtue of any writ of habeas corpus or order to show
cause, conformably to this chapter, shall be responsible in a civil
action to any person aggrieved for damages occasioned thereby, and
may be fined not more than $5,000, or imprisoned at hard labor not
more than ten years, or both.
§660-23 Evading service, penalties. The liabilities and penalties of
section 660-22 shall also be imposed upon any person who, having in
his custody or under his power any person entitled to a writ of
habeas corpus, with intent to elude the service of the writ or to
avoid the effect thereof, transfers such person to the custody or
places him under the control or power of any other person, or
conceals him or changes his place of confinement.
As noted above, HRS § 660-4 states, in relevant part, that
[n]othing in this chapter shall be construed to restrain the power of
any court of record to issue . . . a writ of habeas corpus ad
testificandum, to bring in any prisoner to be examined as a witness
in any action or proceeding, civil or criminal, pending in the court,
when it thinks the personal attendance and examination of the witness
is necessary for the attainment of justice. The writ may be issued
for such purposes by any court of record in the exercise of a sound
discretion, and with due regard to conflicting interests and
liabilities, anything in this chapter to the contrary notwithstanding.
HRS § 660-15 states, in relevant part, that
[i]f the party is confined in any prison or is in the custody of any
civil officer, the court or judge granting the writ shall certify
thereon the sum to be paid for the expense of bringing the party from
the place where the party is imprisoned or restrained. The officer to
whom the same is directed shall not be bound to obey it, unless that
sum is paid or tendered to the officer. This section is subject to
section 607-3 (2), pursuant to which prepayment of the expense may be
waived, or the sum required may be reduced or remitted.
(Footnote added.)
Had Father complied with the procedural requirements of HRS Chapter
660, the family court then would have been validly called upon to
exercise its discretion in determining whether to serve a writ of
habeas corpus ad testificandum upon the DPS. Father, however, did not
comply with the procedural requirements of HRS Chapter 660, and the
family court was not validly called upon to exercise its discretion.

CONCLUSION

Accordingly, we affirm the family court's (1) Order Awarding
Permanent Custody entered on November 6, 2001, and (2) order filed on
November 16, 2001, denying Father's motion for reconsideration.


On the briefs:


Joseph Dubiel
   for Father-Appellant.

David McCormick and
   Mary Anne Magnier,
   Deputy Attorneys General,
   for Department of Human
   Services-Appellee.

Dean T. Nagamine,
   Guardian Ad Litem
   for the Children.


1.     In relevant part, the following was stated at the October 8,
2001 hearing:

THE COURT: Could I ask [Counsel for Father] maybe prior to the next
pretrial -- I know in other courts there's a writ that's issued if
someone is subpoenaed to testify. I think it's a writ of testificadum
[sic] or something --
. . . .


THE COURT: But I think that needs to be made to a circuit judge. So
those are alternatives, but what I'm gonna do is continue your motion
to November 6, pending your further efforts to determine whether it's
more appropriate to have a writ taken to a circuit court judge to
guarantee his presence to testify.

[COUNSEL FOR FATHER]: Okay.

THE COURT: And in the alternative -- you see, -- my granting your
motion may be meaningless, --

. . . .

unless the writ is taken to bring the body back. But in the
alternative, I am not inclined to continue the trial, that I think
counsel should assume that the trial will occur as scheduled in the
best interest of the children, but also attempting to protect
parents' rights to be heard.

2.     Hawaii Revised Statutes § 607-3 (1993) states as follows:
The judges of all the courts of the State shall have discretionary
power to waive the prepayment of costs or to reduce or remit costs
where, in special or extraordinary cases, the cost of any suit,
action, or proceeding may, to the judges, appear onerous.

CONSTITUTIONAL LAW, FAMILY LAW
SHARON S. v. SUPERIOR COURT OF SAN DIEGO COUNTY (ANNETTE F.), No
S102671 (Cal. August 04, 2003)
An independent adoption in which the birth parent does not agree to
termination of her parental rights is legislatively authorized, and
neither due process nor the doctrine of separation of powers
constitutes
a bar to adoption.

To read the full text of this opinion, go to:
http://caselaw.findlaw.com/data2/californiastatecases/s102671.doc

To read the full text of this opinion, go to:[PDF File]
http://caselaw.findlaw.com/data2/californiastatecases/s102671.pdf

----------
The full case follows
----------
Filed 8/4/03
IN THE SUPREME COURT OF CALIFORNIA



SHARON S., )
		 )
	 Petitioner, )
		 ) S102671
	 v. )
		 ) Ct. App. 4/1 D037871
THE SUPERIOR COURT OF  )
SAN DIEGO COUNTY, )
	 ) San Diego County
	 Respondent; ) Super. Ct. No. A46053
	 )
ANNETTE F., )
	 )
	 Real Party in Interest. )
	 )

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 alia 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.)  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
parent(s) 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.)  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; see also
Adoption of Barnett (1960) 54 Cal.2d 370, 377; Adoption of McDonald (1954) 43
Cal.2d 447, 459; In re Santos (1921) 185 Cal. 127, 130.)  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.)  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.)
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.)  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.)
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.)  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 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.)  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.)
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 “read[ing] contemporary norms into a 1925 decision” (conc. & dis.
opn. of Brown, J., post, at p. 5; see also id. at p. 6).  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.)  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.)  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.)  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.)
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 [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. 2-3, 6), 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; see also Styne
v. Stevens (2001) 26 Cal.4th 42, 53 [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.)
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 modern 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.)  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.) 
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) 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. 8; see generally id. at
pp. 8-12.)  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.)
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. 10), 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 [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 Assem. 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 Cal.
Reg. Notice Register 96, No. 29, p. 446; Notice of Proposed Changes in
Regulations of the California Department of Social Services (CDSS), 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 Assem. 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. 7), while Justice Brown
inexplicably refers to our supposed “irretrievabl[e] commit[ment] to . . .
the-more-parents-the-merrier view of parenthood” (conc. & dis. opn. of Brown,
J., post, at p. 9).  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 “fost-adopt” 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, 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. 3), 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. 9.)  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
(West); Nancy S. v. Michele G., supra, 228 Cal.App.3d 831 (Nancy S.); Curiale v.
Reagan (1990) 222 Cal.App.3d 1597 (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.)  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 (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.)  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. (3)(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 Matter of Cozza (1912) 163 Cal. 514, 523, 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; see also In re
Yoder (1926) 199 Cal. 699, 701 [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; Lisa M. v. Henry Mayo Newhall Memorial Hosp. (1995) 12 Cal.4th
291, 306.)
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 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.) 
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.
						 WERDEGAR, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
MORENO, J.











CONCURRING AND DISSENTING OPINION BY BAXTER, J.

The majority’s principal holding—which recognizes second parent adoptions  as
valid in California—is unremarkable.  At least 20 other jurisdictions have
already done so (Krause & Meyer, What Family for the 21st Century? (2002) 50 Am.
J. Comp. L. 101, 114, fn. 23), including the highest courts of three sister
states.  (Maj. opn., ante, at p. 30, fn. 21, citing Adoption of Tammy (Mass.
1993) 619 N.E.2d 315; Matter of Jacob (N.Y. 1995) 660 N.E.2d 397; Adoption of
B.L.V.B. (Vt. 1993) 628 A.2d 1271.)  I join fully in that holding.
I part company with the majority, however, over its interpretation of  Family
Code section 8617, which states that from the time of adoption, the birth parent
shall “have no right over the child.”  I would hold that the parties to an
adoption may waive section 8617 in the limited circumstance of a second parent
adoption.  This is sufficient to resolve the case.  Unfortunately, the majority
does not stop there but makes the additional holding that section 8617 is a
nonmandatory consequence of an adoption and can be waived whenever the parties
agree to do so.  (Maj. opn., ante, at pp. 9, 12, 28.)  Under the majority’s
approach, section 8617’s termination of the birth parents’ rights in any type of
adoption—not merely those that seek to add a second parent—can be waived by
mutual agreement, thus permitting a child to have three or more parents.
This makes new law, not only here but nationwide.  Other states—even those
states that have already validated second parent adoptions—have not taken this
step.  (E.g., Adoption of B.L.V.B., supra, 628 A.2d at p. 1274, fn. 3 [declining
to characterize a Vermont termination-of-rights statute as “directory rather
than mandatory”]; see also In Interest of Angel Lace M. (Wis. 1994) 516 N.W.2d
678, 683-684 [construing a similar Wisconsin termination-of-rights statute as
mandatory].)   I find this out-of-state authority persuasive.  (See 3 Singer,
Statutes and Statutory Construction (6th ed. 2001) § 57:6, p. 30 [“The manner in
which similar statutes in other states have been construed may be an element
bearing upon this question”].)  Unlike the majority, but in accordance with our
sister states, I would hold that our termination-of-rights statute can be waived
in the limited circumstance of a second parent adoption.  Just as it has not
been necessary to declare similar provisions to be directory to affirm second
parent adoptions in other states, it is not necessary to make new law to uphold
second parent adoptions in California.
I cannot fathom why the majority has deliberately chosen a rationale that is
unnecessary to the disposition of this case and that has been avoided by other
jurisdictions, but I do understand and fear the effect of the majority’s
additional holding:  to put at risk fundamental understandings of family and
parentage.  Tomorrow, the question may be:  How many legal parents may a child
have in California?  And the answer, according to the majority opinion, will be:
As many parents as a single family court judge, in the exercise of the broadest
discretion in our law, deems to be in the child’s best interest.
As stated, I do concur in the judgment.  But for the reasons that follow, I will
not join the majority opinion.
I
If it is true that you can’t get where you’re going if you don’t know where
you’ve been, then it should come as no surprise the majority finds itself in
uncharted territory.  The majority claims (without any citation) that
“[e]stablished” (maj. opn., ante, at p. 22) administrative interpretation and
practice by the California Department of Social Services (CDSS) supports its
affirmance of second parent adoptions.  It is quite simple, as detailed below,
to verify CDSS’s interpretation and practice during the relevant period.  Unless
“established” is redefined to mean “very recent,” the historical claim made by
the majority cannot be defended.
The first petitions for second parent adoptions were filed in the early 1980’s. 
Between that time and 1999, with only a brief exception, CDSS maintained a
policy of opposing “any petition for adoption in which a child is to be adopted
into an unmarried couple.”  (Doskow, The Second Parent Trap: Parenting for
Same-Sex Couples in a Brave New World (1999) 20 J. Juv. L. 1, 7.)  The lone
exception to this policy lasted “only a few months” and was promptly reversed
when “then-Governor Pete Wilson became aware of the change and ordered [CDSS] to
return to its original policy.” (Id. at p. 7 & fn. 31, citing CDSS, All County
Letter No. 95-13 (Mar. 11, 1995), rescinding CDSS, All County Letter No. 94-104
(Dec. 5, 1994).)  The original policy then continued in force until November 15,
1999.  (Doskow, supra, 20 J. Juv. L. at p. 8; see CDSS, All County Letter No.
99-100 (Nov. 15, 1999).)  Thus, contrary to the assertion in the majority
opinion, CDSS had an established and long-standing administrative interpretation
and practice of opposing second parent adoptions—based on its interpretation of
section 8617—that lasted for well over a decade.  (Doskow, supra, 20 J. Juv. L.
at pp. 12-13; see also Cal. Reg. Notice Register 96, No. 29, p. 446; Notice of
Proposed Changes in Regulations of Cal. Dept. Soc. Services (CDSS), proposing
adoption of Cal. Code Regs., tit. 22, § 35124.)  Moreover, that policy remained
in effect until the year before this litigation commenced.  Accordingly, any
claim that CDSS policy has “for some time” (maj. opn., ante, at p. 28) supported
second parent adoption is demonstrably incorrect.
Even if the new CDSS policy had not been of such recent vintage, the majority
ought to have steered clear of substantial reliance on it.  The majority
correctly recites that deference to administrative interpretation “is
‘situational’ and depends on ‘a complex of factors.’ ”  (Maj. opn., ante, at p.
23, quoting Yamaha Corp. of America v. State Bd. of Equalization (1998) 19
Cal.4th 1, 12 (Yamaha Corp.).)  But the majority then fails to apply those
factors.  Where an agency (like CDSS) is merely construing a controlling
statute, the weight of the agency’s interpretation “ ‘will depend upon the
thoroughness evident in its consideration, the validity of its reasoning, its
consistency with earlier and later pronouncements, and all those factors which
give it power to persuade, if lacking power to control.”  (Yamaha Corp., supra,
19 Cal.4th at pp. 14-15, italics omitted, quoting Skidmore v. Swift & Co. (1944)
323 U.S. 134, 140.)
Analysis of the appropriate factors here would counsel caution, not a kowtow to
the agency’s recent change in policy.  CDSS’s consideration of the applicable
statutes was hardly thorough:  the All County Letter announcing the policy
reversal is less than one page long and nowhere indicates it was issued in
accordance with the Administrative Procedure Act.  (Yamaha Corp., supra, 19
Cal.4th at p. 13.)  The validity of CDSS’s reasoning is impossible to evaluate: 
the All County Letter simply announces a reversal in policy, without providing
any supporting reasons, and rejects the prior long-standing policy based solely
on the fact that it was “an underground regulation inconsistent with the
Administrative Procedure Act.”  (CDSS, All County Letter No. 99-100, supra.) 
This indicates merely that the prior rule was promulgated in an impermissible
manner, not that it misinterpreted the statute.  (E.g., Kings Rehabilitation
Center, Inc. v. Premo (1999) 69 Cal.App.4th 215, 217 [“ ‘underground’
regulations” are “rules which only the government knows about”].)  The new CDSS
policy plainly is not consistent:  the All County Letter abandons long-standing
policy and had been in effect less than 12 months prior to the institution of
this action.  (Cf. Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785, 801
[agency’s interpretation of statute for “almost 20 years” is “ ‘ “long-standing”
’ ”].)  Nor is CDSS’s policy reversal reasonably contemporaneous with the
adoption of the relevant statutes.  (Kelly v. Methodist Hospital of So.
California (2000) 22 Cal.4th 1108, 1118, fn. 4.)
In short, none of these factors supports the majority’s conclusion that the 1999
policy reversal “would appear to be entitled to great weight” and merits
“substantial deference.”  (Maj. opn., ante, at p. 23.)  Accordingly, I would not
make such a claim.  The significance of the 1999 policy reversal, in my view, is
that we are no longer bound to defer to CDSS’s established and long-standing
policy of disapproving second parent adoptions.  (Yamaha Corp., supra, 19
Cal.4th at p. 13 [“ ‘[a] vacillating position . . . is entitled to no deference’
”].)  We need not (and ought not) torture settled administrative law to go
further than that.
II
As stated above, I conclude that in the limited circumstance of a second parent
adoption, the parties may waive section 8617’s requirement that the parental
rights of the birth parent be terminated.  Unlike the majority, however, I do
not rest my conclusion that section 8617 can be waived in this limited
circumstance on the theory that it is merely directory.
The designation of a statute as either mandatory or directory must be made with
reference to the statute’s purpose.  (People v. McGee (1977) 19 Cal.3d 948,
962.)  Designating section 8617 as nonmandatory or directory means that the
termination of parental rights at the time of adoption is “ ‘immaterial’ ” and
involves only a matter of “ ‘convenience.’ ”  (Francis v. Superior Court (1935)
3 Cal.2d 19, 28.)  Designating section 8617 as directory also means that it may
be waived at the will of the parties.  (In re Johnson (1893) 98 Cal. 531, 539.) 
This, of course, is the view advanced by the majority, which states that the
termination of parental rights in section 8617 is not “ ‘for a public purpose’ ”
but instead is “for the benefit of the parties to an adoption petition” and thus
is “waivable by the parties thereto.”  (Maj. opn., ante, at p. 9.)  This
analysis is contrary to our precedents, contrary to legislative policy, and has
predictably unfortunate consequences.
Now that section 8617 has been classified as directory, the parties to every
type of adoption are free to disclaim its effect whenever they choose.  Any
number of consenting adults may thus agree to adopt the same child, so long as a
single family court judge finds the adoption is in the child’s interest.  (See
maj. opn., ante, at p. 36.)  Nothing in the Family Code would be left to prevent
a child from having three or four or a village’s worth of legal parents, so long
as all the would-be parents agree to waive section 8617 and a sole family court
judge sometime, somewhere, finds the adoption to be in the child’s interest. 
(In re Johnson, supra, 98 Cal. at p. 539 [a directory provision “is to be
complied with or not in the discretion of the judge”].)  Inasmuch as there is
“[n]o higher discretion” than that vested in a trial court resolving a petition
of adoption (Matter of Bewley (1914) 167 Cal. 8, 10), the majority all but
guarantees new and even bizarre family structures.
The majority discounts this possibility as “[n]onsense,” claiming that “[w]hile
CDSS has for some time treated section 8617 as waivable, such scenarios have not
materialized.”  (Maj. opn., ante, at p. 28.)  I do not find this comforting. 
Nothing in CDSS policy states that section 8617 is nonmandatory.  Rather, the
new CDSS policy, like this separate opinion, permits section 8617 to be waived
only in the limited circumstance of a second parent adoption.  In any event, it
is far too soon to gauge the effect of the recent reversal in CDSS policy, which
(as Justice Brown points out) postdates the adoption agreement in this case. 
(Conc. and dis. opn. of Brown, J., post, at p. 4, fn. 2.)  The regime the
majority announces today has not yet been tested here.
However, it does not take much imagination to predict what that regime will look
like.  Commentators have recognized that a child may end up with any number of
parents when family structure becomes a matter of private ordering.  (King,
Solomon Revisited: Assigning Parenthood in the Context of Collaborative
Reproduction (1995) 5 UCLA Women’s L.J. 329, 388 (King) [“Unlike the nuclear
family model, families of consent can include one, two, or more parents”].)  The
available empirical evidence supports this prediction.  An Alaska superior
court’s finding that a similar termination-of-rights statute was directory was
followed quickly by an adoption in which neither natural parent severed ties
with the child.  “Accordingly, the child now has three legal parents.”  (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, 132, italics added (Patt).) 
Moreover, at oral argument, Annette’s counsel informed us that superior courts
in this state have already allowed a child to have more than two legal parents,
apparently based on counsel’s theory that section 8617 is merely directory.
Since I am not a legislator, my own views as to whether children should be
allowed to have three or more legal parents are not relevant here, although it
does appear that such arrangements are highly problematic.  (See Shapo, Matters
of Life and Death: Inheritance Consequences of Reproductive Technologies (1997)
25 Hofstra L.Rev. 1091, 1199 [“The facts of Michael H. [v. Gerald D. (1989) 491
U.S. 110] highlight the practical difficulties of a divided authority and a
disrupted family unit that may result from more than two legal parents”].)  The
existence of multiple parents would also make more difficult the resolution of
disputes that may arise over custody and visitation, as well as conflicts over
other parental rights and responsibilities.  (Cf. maj. opn., ante, at p. 24.) 
In any event, the important point—and the one the majority deliberately
ignores—is that “[e]xisting law recognizes a maximum of two parents per child.” 
(King, supra, 5 UCLA Women’s L.J. at p. 386.)  Indeed, no commentator of whom I
am aware shares the majority’s agnosticism as to “whether there exists an
overriding legislative policy limiting a child to two parents.”  (Maj. opn.,
ante, at p. 10, fn. 6; cf. Liebler, Are You My Parent? Are You My Child? The
Role of Genetics and Race in Defining Relationships After Reproductive
Technological Mistakes (2002) 5 DePaul J. Health Care L. 15, 53 [“I suggest that
the statutory requirements that children can have only two parents be changed”];
Sheldon, Surrogate Mothers, Gestational Carriers, and a Pragmatic Adaptation of
the Uniform Parentage Act of 2000 (2001) 53 Me. L.Rev. 523, 573, fn. 226
[“innumerable state and federal statutes . . . are premised on a maximum of two
parents”]; Katz, Ghost Mothers:  Human Egg Donation and the Legacy of the Past
(1994) 57 Albany L.Rev. 733, 755 [“The premises underlying the legal definitions
of parent and nonparent have been that a child should have no more than two
legal parents”]; see also Michael H. v. Gerald D., supra, 491 U.S. at p. 118
(plur. opn. of Scalia, J.) [“California law, like nature itself, makes no
provision for dual fatherhood”].)   Moreover, numerous provisions of the Family
Code—including the sections cited by the majority—demonstrate the Legislature
intended to limit a child to no more than two legal parents.  In fact, this
intent is made manifest in section 8617 itself, which terminates the birth
parents’ rights “from the time of the adoption.”  Since a child can have no more
than two birth parents (see Fam. Code, § 8512; id., § 7613, subd. (b); see also
Johnson v. Calvert (1993) 5 Cal.4th 84, 92, fn. 8), section 8617 ensures that
the child does not acquire more than two through the process of adoption.  The
majority’s unique unwillingness to acknowledge section 8617’s role in limiting a
child to no more than two parents defies common sense.
The majority’s contention that section 8617 “does not speak to parental
numerosity” (maj. opn., ante, at p. 10, fn. 6) is not only very hard to
understand, but is also flatly contrary to our precedents.  In Estate of Jobson
(1912) 164 Cal. 312, we construed the predecessor to section 8617 in a situation
where the biological father sought a partial distribution of his decedent son’s
estate.  The decedent, however, had been adopted by his maternal grandparents
years before.  In rejecting the biological father’s claim, we explained the
operation of the statute:  “These various rulings seem to establish the doctrine
that the effect of an adoption under our Civil Code is to establish the legal
relation of parent and child, with all the incidents and consequences of that
relation, between the adopting parent and the adopted child.  This necessarily
implies that the natural relationship between the child and its parents by blood
is superseded. . . .  Once we have reached the conclusion that the effect of an
adoption under the code is to substitute the adopting parent for the parent by
blood, we must give to that conclusion its logical results.  From the time of
the adoption, the adopting parent is, so far as concerns all legal rights and
duties flowing from the relation of parent and child, the parent of the adopted
child.  From the same moment, the parent by blood ceases to be, in a legal
sense, the parent.  His place has been taken by the adopting parent.”  (Estate
of Jobson, supra, 164 Cal. at pp. 316-317, italics added.)
I read Estate of Jobson as confirming the pivotal role of section 8617’s
predecessor in limiting the number of legal parents a child may acquire through
an adoption.  And I do not think mine is an idiosyncratic reading. 
Commentators—even those quoted by the majority itself—have recognized that
section 8617 “protects the child from the burden of owing duties and obligations
to two families.”  (Patt, supra, 3 Berkeley Women’s L.J. at p. 117.)  Thus, by
gratuitously holding that section 8617 is nonmandatory, the majority guts that
protection, to the detriment of children generally.
The majority claims to agree that courts should leave innovation in adoption
policy to the Legislature.  (Maj. opn., ante, at p. 33.)  But the claim rings
hollow here—since by classifying section 8617 as directory, this court has
usurped the Legislature’s power to limit a child to no more than two parents and
has bestowed it instead on an individual family court judge, who may assign a
child as many legal parents as the lone judge deems in the child’s best
interest.  In my view, that is a breathtaking innovation in adoption policy.  A
change of this scope should be decided only by the Legislature or the people by
initiative.  (Williams v. North Carolina (1942) 317 U.S. 287, 303.)
III
To the extent the majority believes itself compelled to classify section 8617 as
directory in order to authorize second parent adoptions in California, it is
mistaken.  Our case law—including the same case law the majority purports to
apply—would allow the parties to an adoption to waive the effect of section
8617, as long as the waiver did not seriously compromise the provision’s public
purpose.  Second parent adoptions, by definition, pose no threat to the
legislative policy limiting a child to no more than two legal parents.  Hence,
under our existing case law, it is enough to say that section 8617 does not bar
second parent adoptions generally or this proposed adoption in particular.
We begin with our rules for construing the Family Code.  Although the law of
adoption is “wholly statutory” (Estate of Sharon (1918) 179 Cal. 447, 454),
“[t]he 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.)  “ ‘The
main purpose of adoption statutes is the promotion of 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.’ ”  (Adoption
of Barnett (1960) 54 Cal.2d 370, 377.)
A second parent adoption promotes the welfare of children by formalizing in law
a relationship that already exists in fact between the child and the prospective
parent.  Moreover, it does so without compromising the public purpose, set forth
in section 8617, of limiting a child to no more than two parents.  Therefore, in
this limited circumstance, the parties should be permitted to waive the
requirements of section 8617 and avoid the termination of the birth parent’s
rights.
There is ample precedent for permitting a limited waiver of statutes that serve
important public purposes.  After all, this is the analytical model we employed
in Cowan v. Superior Court (1996) 14 Cal.4th 367 (Cowan).  This is also the
analysis we approved in Bickel v. City of Piedmont (1997) 16 Cal.4th 1040
(Bickel).  And, this is the analysis we invoked most recently County of
Riverside v. Superior Court (2002) 27 Cal.4th 793 (County of Riverside).  None
of these cases even uttered the words “mandatory” or “directory.”
In Cowan, we held that a criminal defendant under certain circumstances may
waive the benefit of a statute of limitations to a lesser offense than that
charged, even though the statute existed partly to achieve certain public
benefits.  (Cowan, 14 Cal.4th at pp. 374-375; Bickel, supra, 16 Cal.4th at p.
1050.)  We described the operative waiver as one that is knowing, intelligent,
and voluntary; is made for the defendant’s benefit after consultation with
counsel; and does not handicap the defense “ ‘ “or contravene any other public
policy reasons motivating the enactment of the statutes.” ’ ”  (Cowan, supra, 14
Cal.4th at p. 372.)
Similarly, in Bickel, we observed that developers could waive the benefits of
the Permit Streamlining Act “if the administrative record shows that the
applicant has made a knowing, intelligent, and voluntary waiver in circumstances
where the applicant might reasonably anticipate some benefit or advantage from
the waiver, and if the waiver does not seriously compromise any public purpose
that the Act’s time limits were intended to serve.”  (Bickel, supra, 16 Cal.4th
at p. 1050.)
Finally, in County of Riverside, we upheld a limited waiver by a probationary
deputy sheriff of the Public Safety Officers Procedural Bill of Rights Act—which
is yet another law “ ‘established for a public reason.’ ”  (County of Riverside,
supra, 27 Cal.4th at p. 804.)  This waiver, once again, was limited to the
circumstance where “enforcement of the waiver would not particularly undermine
the public purpose of the Act.”  (Id. at p. 806.)
Unlike the majority, I would find it sufficient to apply Cowan, Bickel, and
County of Riverside here and permit the parties to a second parent adoption to
knowingly, intelligently, and voluntarily waive the termination of parental
rights otherwise required by section 8617, inasmuch as the waiver would not
contravene, compromise, or undermine the statute’s public purpose.  (Cf. Cal-Air
Conditioning, Inc. v. Auburn Union School Dist. (1993) 21 Cal.App.4th 655,
668-671 [strict compliance with mandatory provision is unnecessary where every
reasonable objective of the statute has been satisfied].)
Construing section 8617 in this manner is not only consistent with our canons of
construction generally, it is also consistent with our precedents in the area of
adoption law.  In Marshall v. Marshall (1925) 196 Cal. 761, which nowhere
mentions the terms “directory” or “mandatory,” we permitted the parties to waive
the predecessor to Family Code section 8617 in an analogous circumstance.  We
held that a stepfather’s adoption of his wife’s children did not terminate her
parental relationship with the children, notwithstanding the provisions of Civil
Code former section 229, on the ground that the parties to that adoption “did
not intend thereby to sever the parental relationship between the mother and the
children.”  (Marshall, supra, at p. 766.)  But, rather than make the provision
waivable in all circumstances, we merely recognized a limited waiver to permit
“a husband and wife . . . [to] 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.”  (Id. at p. 767.)  Had Marshall intended to make the provision
directory, it would not have been necessary to limit our holding, as we did
repeatedly, to “the circumstances of this case” (id. at p. 766) and “a situation
such as this” (id. at p. 767).
In my view, Marshall’s construction of Civil Code former section 229 was
grounded on the circumstance that the stepparent adoption did not contravene,
compromise, or undermine that provision’s public purpose, which we had discussed
previously in Estate of Jobson, supra, 164 Cal. 312.  Marshall thus supports the
validity of second parent adoptions involving unmarried persons, which similarly
do not undermine section 8617’s public purpose.  A fair reading of Marshall
refutes the notion that we have ever deemed Civil Code former section 229–or its
successor–to be directory.
IV
The majority’s remaining justifications for classifying section 8617 as
directory are similarly without merit.
The majority appears to reason that because section 8617 is not jurisdictional,
it cannot be classified as mandatory.  (Maj. opn., ante, at pp. 11, 19.)  The
majority has made a common mistake.  “A typical misuse of the term
‘jurisdictional’ is to treat it as synonymous with ‘mandatory.’ ”  (2 Witkin,
Cal. Procedure (4th ed. 1996) Jurisdiction, § 4, pp. 548-549.)  “But for the
Legislature to declare that a section is mandatory does not necessarily mean
that a failure to comply with its provisions causes a loss of jurisdiction to
make any decision whatever.”  (Liberty Mut. Ins. Co. v. Ind. Acc. Com. (1964)
231 Cal.App.2d 501, 509.)  Hence, the fact that section 8617 is not
jurisdictional does not shed light on whether it is nonetheless mandatory. 
(County of Santa Clara v. Superior Court (1971) 4 Cal.3d 545, 551, fn. 2.)
Likewise, it is irrelevant that compliance with section 8617 is not an
“essential element[] of every valid adoption.”  (Maj. opn., ante, at p. 11.) 
Section 8617, of course, is not even intended to apply to every valid adoption. 
For example, section 8617 would not apply where the birth parents are deceased
or have otherwise had their rights terminated and does not apply at all in
agency adoptions.  (See Fam. Code, §§ 8700 et seq.)  That section 8617 does not
apply in some circumstances, though, has no bearing on whether it is mandatory
in the circumstances in which it does apply.  Not surprisingly, the majority
opinion offers no authority to the contrary.
The majority also lacks support for its artificial distinction between a
“mandatory prerequisite” to an adoption (maj. opn., ante, at p. 10) and a “legal
consequence.”  (Id. at p. 9.)  In particular, nothing in In re Johnson, which
addressed the validity of an adoption where the minor child was not examined by
the judge under Civil Code former section 227, supports the claim that the
adoption laws “always have made a fundamental distinction between the ordinary
legal consequences of an adoption and ‘what provisions of law are essential and
therefore mandatory.’ ” (Maj. opn., ante, at p. 10, quoting In re Johnson,
supra, 98 Cal. at p. 536.)  Consequences, like prerequisites, can be mandatory. 
(E.g., West Shield Investigations & Security Consultants v. Superior Court
(2000) 82 Cal.App.4th 935, 949 [mandatory consequences of court-ordered
emancipation].)  In fact, much of law involves attaching mandatory consequences
to a particular constellation of facts.  That section 8617 may describe a
consequence rather than an element of an adoption thus has no bearing on whether
it is mandatory.
In sum, nothing in law or policy justifies the majority’s evisceration of the
important public purpose underlying section 8617—namely, the legislative
declaration and case authority that a child needs no more than two legal
parents.
V
Second parent adoptions by unmarried persons are consistent with California law.
I would apply that settled law to decide this case.  It is disappointing that,
in reaching the same result, the majority has instead upset fundamental
legislative policy concerning family structure, substantially altered
administrative law concerning deference to executive agencies, and rendered
unrecognizable our own case law concerning the distinction between statutory
provisions that are mandatory and those that are directory.  I can therefore
join only in the judgment.
							 BAXTER, J.
I CONCUR:
CHIN, J.








CONCURRING AND DISSENTING OPINION BY BROWN, J.

This case raises questions concerning the past, present and future of California
adoption law.  Regarding the past, I agree that we should not disturb settled
familial relationships.  Regarding the present, Annette may deserve partial
custody based on estoppel.  The most important question, however, is whether the
California Department of Social Services ought to continue authorizing these
second parent adoptions in the thousands of cases that will arise in the future.
The Legislature has heretofore required a legal relationship between the birth
and second parent, and I would defer to this rule and bar second parent
adoptions that violate the statutory scheme.

I.  THE LEGISLATURE HAS PRECLUDED SECOND PARENT ADOPTIONS
EXCEPT IN LIMITED CIRCUMSTANCES
This case turns on whether we deem Family Code section 8617  directory or
mandatory.  The statute provides “[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.” 
(Ibid.)  As a general rule, adoption extinguishes the rights of the natural
parents forever, although stepparenthood provides a “narrow exception[]” to this
rule.  (Estate of Cleveland (1993) 17 Cal.App.4th 1700, 1707, fn. 8.)  This norm
reflects the imperative that there should not be any ambiguity about who is a
child’s “real” parent.  “[T]he effect of an adoption . . . is to establish the
legal relation of parent and child, with all the incidents and consequences of
that relation, between the adopting parent and the adopted child.  This
necessarily implies that the natural relationship between the child and its
parents by blood is superseded.  The duties of a child cannot be owed to two
fathers at the same time.”  (Estate of Jobson (1912) 164 Cal. 312, 316-317,
italics added (Jobson).)  The majority asserts the Legislature has merely
described, rather than prescribed, this transfer of parental authority and
responsibility, which is thus merely one option for the birth and adopting
parents involved.  Twice in the past decade, however, the Legislature has
indicated otherwise.
The logical starting point for construing section 8617 is section 9306, which
concerns the adoption of an adult (“person”) rather than a child.  The text is
nearly identical:  “[T]he birth parents of a person adopted . . . are, from the
time of the adoption, relieved of all parental duties towards, and all
responsibility for, the adopted person, and have no right over the adopted
person.”  (§ 9306, subd. (a).)  In 1993, the Legislature added subdivision (b)
to section 9306, which provides, “Where an adult is adopted by the spouse of a
birth parent, the parental rights and responsibilities of that birth parent are
not affected by the adoption.”  (Stats. 1993, ch. 266, § 2.)  If, as the
majority claims, there is no statutory restriction on second parent adoptions,
subdivision (b) is superfluous.
But the Legislature perceived no superfluity.  On the contrary, “[t]he purpose
of this bill is [to] create an exception to the automatic severance of
parent-child relationships.”  (Sen. Com. on Judiciary, Analysis of Sen. Bill No.
970 (1993-1994 Reg. Sess.) May 18, 1993, p. 2.)  The Senate Judiciary
Committee’s analysis quoted section 8548 in observing “existing law” provided
that a birth parent retains custody and control when a stepparent adopts a
child.  (See § 8548 [“ ‘Stepparent adoption’ means the adoption of a child by a
stepparent where one birth parent retains custody and control of the child”].) 
Thus, no special subdivision (b) was needed for section 8617 because section
8548 served that purpose.  There was no counterpart to section 8548 to provide
for second parent adoptions of adults; section 9306, subdivision (b), therefore
conformed the law for these circumstances.  “It is unclear why such distinctions
were drawn between a stepparent adoption of minors and a stepparent adoption of
adult children of spouses but the distinctions seem unnecessary and outmoded.” 
(Sen. Com. on Judiciary, Analysis of Sen. Bill No. 970 (1993-1994 Reg. Sess.)
May 18, 1993,
p. 3.)  The amendment to section 9306 indicates stepparenthood was the only
context in which the ordinary transfer of duties and rights from birth parent(s)
to adoptive parent(s) did not occur.
The Legislature confirmed its understanding that second parent adoptions were
not a universal option when it allowed registered domestic partners to
participate in this procedure.  As the Senate Rules Committee’s Analysis
explained, “This bill expands California law on domestic partnerships by . . .
conferring on domestic partners various rights, privileges and standing
conferred by the State on married couples . . . .  []  . . .  []  [including]
[t]he right of a domestic partner 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.)
Section 9000, subdivision (f), now provides that “[f]or the purposes of this
chapter, stepparent adoption includes adoption by a domestic partner.”
Against these two expressions of legislative limits on second parent adoption,
the majority offers a six-sentence “letter” issued by the California Department
of Social Services on November 15, 1999 (the Letter), abolishing any marital
requirements for second parent adoption.  (See maj. opn., ante, at p. 3,
fn. 3.)  The letter purports to invalidate prior letters expressing a different
policy,  which it characterized as “an underground regulation inconsistent with
the Administrative Procedure Act”—an apt description for the Letter itself.  The
Administrative Procedure Act (hereafter APA; Gov. Code, § 11346 et. seq.)
“establish[es] basic minimum procedural requirements for the adoption,
amendment, or repeal of administrative regulations.”  (Ibid.)  The APA requires
the government agency offering the regulation to provide, inter alia, a copy of
the proposed regulation; a statement of reasons for the adoption, amendment, or
repeal of a regulation; identification of every study justifying the change; a
description of alternatives to the proposal; and the agency’s reasons for
rejecting those alternatives.  (Gov. Code, § 11346.2.)  The APA also provides
for public input through either a public hearing or written comments.  (Gov.
Code, § 11346.8.)  Because the California Department of Social Services failed
to observe these procedures, the Letter did not comply with the statutory
requirements, and is thus as much an underground regulation as any former rule.
The Letter fails in substance as well as procedure.  Government Code section
11349, subdivision (a), requires a “ ‘[n]ecessity’ ” for the rule, “to
effectuate the purpose of [a] statute, court decision, or other provision of law
that the regulation implements, interprets, or makes specific . . . .” 
Subdivision (e) requires “ ‘[r]eference’ ” to the statute, court decision, or
other legal provision.  The Letter provides neither of these.  Furthermore, the
regulation must “be[] in harmony with, and not in conflict with” existing law. 
(Id., § 11349, subd. (d).)  Since, as noted, the Legislature has provided only
narrow exceptions to Family Code section 8617, the Letter arguably conflicts
with the law as it then existed.  Nevertheless, the lesson of the majority
opinion is that administrative agencies need not follow the dictates of the
Legislature or this court, we will follow them.  The California Department of
Social Services’ violation of the statutory law thus serves as its retroactive
justification.

II.  NEITHER MARSHALL NOR WAIVER PRINCIPLES SUPPORT
PROSPECTIVE VALIDATION OF SECOND PARENT ADOPTIONS
OUTSIDE THE STATUTORY SCHEME
Against the expressed intent of the Legislature, the majority abrogates any
status-based requirements for second parent adoptions, relying on our decision
in Marshall v. Marshall (1925) 196 Cal. 761 (Marshall) and the principle that
parties may waive rules imposed primarily for their benefit.  Neither
justification supports the majority’s conclusion.
A. Marshall
The court in Marshall retroactively authorized a second parent adoption by the
new husband of a widow and held that “a husband and wife may jointly adopt a
child . . . the result of which is to make the child, in law, the child of both
spouses.”  (Marshall, supra, 196 Cal. at p. 767, italics added.)  The majority
both disregards the context and finds the italicized language immaterial,
concluding instead that the opinion authorizes adoption by any couple wishing to
adopt, regardless of marital status.  This reads contemporary norms into a 1925
decision, when the prevailing precedents deemed marriage “the most important
relation in life, and one in which the state is vitally interested. . . . The
well-recognized public policy relating to marriage is to foster and protect it,
to make it a permanent and public institution, to encourage the parties to live
together, and to prevent separation and illicit unions.”  (Deyoe v. Superior
Court (1903) 140 Cal. 476, 482.)
Moreover, the Legislature subsequently enacted former section 226 of the Civil
Code, which contained four separate references to “an adoption by a step-parent
where one natural parent retains his or her custody and control of the child.” 
(Italics added.)  Had the Legislature deemed stepparenthood immaterial, it would
not have specifically included the italicized language.  Accordingly, even if
the Marshall court had been indifferent to the existence of a marital
commitment, the Legislature was not.  The Legislature has since added an entire
chapter of statutes expressly regulating stepparent adoptions.  (Fam. Code, §
9000 et seq.)  These provisions reflect the Legislature’s understanding that it
was creating a special procedure for adoption and an exception to the general
rule set forth in Family Code section 8617.  Section 9000, subdivision (f),
confirms this understanding.
The Legislature also recently extended to registered domestic partners the
opportunity to follow the stepparent adoption procedure.  Unlike the
pre-Marshall legal landscape, where there was no statutory authorization for a
child to live with a birth parent and a second parent, the law currently
provides that opportunity to all couples who comply with the statutory
prerequisites by formalizing their relationship.
Thus, even if the Marshall court lacked any legislative guidance, we do not. 
The Legislature has twice prescribed the terms by which a child may gain a
second parent without losing the first:  only where the two parents are related
by marriage or domestic partnership.  This court has no authority to reject the
legislative rule for one it deems preferable.
At most, Marshall supports Annette’s claim; as we vindicated the intent and
expectations of the Marshalls, perhaps so too should we vindicate the (original)
intent and expectations of Sharon and Annette.  But retroactive authorization of
the adoption in Marshall did not create a prospective rule that any second
parent adoption would be valid.  Even if it had, subsequent legislation
established that this option is available only to those couples who marry or
form a domestic partnership, nullifying any contrary expectation or assumption. 
The majority may have justification for applying equitable principles to
preserve a family attachment already created, but it has no basis for
prospectively abrogating a legislative scheme that has stood for more than 70
years.
B. Waiver
The majority also asserts that the section 8617 transfer of authority from birth
parent to adoptive parents is optional, because it amounts to a benefit for the
parents themselves.  But section 8617 is but one of many rules governing
adoption that exist to effect not the preferences of the adults but the welfare
of the child, and thus society itself.  The majority’s reconstruction of section
8617 ignores this imperative.
In addressing the questions of whether the statute is designed to benefit the
parties or the public, the majority construes the provision as a primarily
private benefit to the parents only through a selective citation of the text. 
Perhaps birth parents often wish to be “ ‘relieved of all . . . duties towards,
and all responsibility for, the adopted child.’ ”  (Maj. opn., ante, at p. 13,
quoting § 8617.)  After all, many people may wish to limit their duties and
responsibilities.  But this disregards the second part of the statute, which
deprives the birth parent of any “right over the child.”  (§ 8617.)  A rule that
strips both duties and rights from one party is not primarily intended to
benefit that party.
Nor is the argument that the law is primarily designed for the benefit of the
birth and adoptive parents any stronger, for it suffers from the same defect. 
The law both deprives the birth parents of their rights and imposes duties and
responsibilities on the adoptive parents.  In terms of the legal position of the
parties, therefore, they swap places in a zero-sum game.  There would be no
point for the Legislature to specify terms if the adoption were nothing more
than a mutually self-interested contract between two adults or couples.
But it is not.  “The agreement is for the benefit of the child, not of the
parents or persons making it.”  (Estate of Grace (1948) 88 Cal.App.2d 956, 966;
see also Adoption of Barnett (1960) 54 Cal.2d 370, 377 [“ ‘The main purpose of
adoption statutes is the promotion of the welfare of children’ ”].)  We have
explained how a complete transfer of duties and rights is necessary to prevent
the confusing position of multiple lines of parental authority.  We thus
announced the general imperative (from which the Marshall court and then the
Legislature carved exceptions) that “[f]rom the time of adoption, the adopting
parent is, so far as concerns all legal rights and duties flowing from the
relation of parent and child, the parent of the adopted child.  From the same
moment, the parent by blood ceases to be, in a legal sense, the parent.” 
(Jobson, supra, 164 Cal. at p. 317.)
This rule prevents the child from being burdened with a conflict between the
birth parent(s) and adoptive parents(s).  If the agreement were simply a means
for the birth and adopting parents to effect their private preferences, the law
could authorize all permutations of divided rights and duties.  The Legislature
has concluded otherwise, insisting on an unambiguous transfer of authority
unless the birth parent and adopting parent have formally joined together to
forge a common future.
III.  THE MAJORITY TRIVIALIZES FAMILY BONDS
The majority’s reliance on a mutual waiver imports the principles of the
marketplace into the realm of home and family, which was once thought to
represent a “haven in a heartless world” of self-interested interactions. 
(Lasch, Haven in a Heartless World (1977).)  The family is the area where people
act not in accordance with specifically contracted agreements but the duties of
the heart.  Parents are not simply self-interested utility maximizers.  Raising
a child is, like hope, a task of the spirit.  It is so much more than an
aggregation of services.
Parenthood instead is the opportunity and responsibility to join the web of
human connectedness through which we touch the past, the present, and the
future.  The relationship of parent and child is the most fundamental bond
humans share and the influence of family in determining what kind of people we
become is profound.  Society has a considerable stake in the health and
stability of families, because it is upon the families—what Burke calls “the
little platoon—that we rely [on] not only to nurture the young but to provide
the seed beds of civic virtue required for citizenship in a self-governing
community.  [The family teaches us to] care for others, [and] to moderate . . .
self-interest . . . .”  (Berns, The First Amendment and the Future of American
Democracy (1976) p. 222.)  All tasks which will be hampered if the family is
simply “a collection of individuals united temporarily for their mutual
convenience and armed with rights against each other.”  (Schneider, Moral
Discourse and the Transformation of American Family Law (1985) 83 Mich. L.R.
1803, 1859.)  The “arduous, long-term educational process [of raising a child]
requires not a spirit of contractualist autonomy, but a spirit of adult
commitment and . . . sacrifice.”  (Hafen, Individualism and Autonomy in Family
Law:  The Waning of Belonging (1991) 1991 BYU L.Rev. 1, 30.)
The majority, irretrievably committed to its the-more-parents-the-merrier view
of parenthood, declines to interpret section 8617 to effectively preclude a
child from having more than two parents; and at oral argument Annette’s counsel
asserted no such limit should exist.  Such a position is consistent with the
stunted view of parenthood as purely ministerial and economic—signing consent
slips and providing health insurance.  But this is the least part of being a
parent, as anyone who has ever seen a newborn resting securely in her father’s
hand can understand; and anyone who has sat up late at night awaiting the safe
return of a newly minted teenage driver knows.  The all-encompassing nature of
parenthood renders eminently reasonable any legislative provision requiring that
adopting parents share a common residence with each other and the adopted child.
(See Fam. Code, § 297, subd. (b)(1).)  Parenthood requires more than a telephone
and a checkbook.
The United States Supreme Court has found parental authority constitutes a
zero-sum game.  (Michael H. v. Gerald D. (1989) 491 U.S. 110, 118.)  Parental
authority cannot not be divided because it goes beyond ministerial functions;
the parent “ ‘direct[s] the child’s activities; . . . make[s] decisions
regarding the control, education, and health of the child; . . . [and exercises]
the duty, to prepare the child for additional obligations, which includes the
teaching of moral standards, religious beliefs, and elements of good
citizenship.’ ”  (Id. at p. 119, quoting 4 Cal. Fam. Law (1987) § 60.-02[1][b],
fns omitted.)  Devolving these responsibilities on a multitude of parties would
lead to a variety of conflicts and inconsistencies, as Justice Baxter correctly
notes.  (See conc. & dis. opn. of Baxter, J., ante, at p. 8.)
The two-person limit is one point on which proponents of Proposition 22 and
Assembly Bill No. 25 agree.  The Legislature’s insistence that the adopting
parent have a legal relationship with the birth parent reflects the fact that
the adoptive parent’s relationship with the child does not exist in a vacuum but
is related to the parents’ relationship with each other.  Justice Thurgood
Marshall wrote for a unanimous Supreme Court in holding it was proper to
distinguish between formerly married and never-married fathers in granting only
the former the right to veto an adoption by the mother’s new husband.  (Quilloin
v. Walcott (1978) 434 U.S. 246, 256.)  “[T]he State was not foreclosed from
recognizing this difference in the extent of [the] commitment to the welfare of
the child.”  (Ibid.)  This “commitment enables the courts, as well as those most
personally involved, to make certain assumptions—even knowing they will at times
be disappointed—about what to expect.”  (Hafen, The Constitutional Status of
Marriage, Kinship, and Sexual Privacy: Balancing the Individual and Social
Interests (1983) 81 Mich. L.Rev. 463, 499.)
The law permits single individuals to adopt a child on their own because one
parent is better than none.  It does not follow, however, that two unrelated
parents are better than one.  The majority cites the legislative policy that
“ ‘adoption or guardianship is more suitable to a child’s well-being than is
foster care’ ” (maj. opn., ante, at p. 26, fn. 16, quoting Welf. & Inst. Code, §
396), as adoption is a more permanent relationship than foster care.  However,
if the birth parent has a relationship with a second parent, and then a third,
and then a fourth, the child may be worse off than if the birth parent had
simply raised the child alone.  The choice in second parent adoption cases is
not between adoption and foster care.  The birth parent in such circumstances is
willing and able to continue expressing parental responsibility.  If the two
adults are uncertain whether the second parent will be a permanent resident of
the household, the adoption ought to wait until they are ready for that
commitment.
There is a long-standing tension within the law as to whether legal standards
should reflect ideal behavior or simply the mean.   The majority, however,
refuse to impose even a standard of the mean.  Couples who raise children
together do predominantly have a formal legal relationship with each other.  It
is not a standard that individuals cannot reach absent heroism, and every
Californian adult has access to such a relationship.  Today’s decision maximizes
the self-interest and personal convenience of parents, but poorly serves the
state’s children who deserve as much stability and security as legal process can
provide.
							 BROWN, J.

See last page for addresses and telephone numbers for counsel who argued in
Supreme Court.

Name of Opinion Sharon S. v. Superior Court
________________________________________________________________________________\
__

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 93 Cal.App.4th 218
Rehearing Granted

________________________________________________________________________________\
__

Opinion No. S102671
Date Filed: August 4, 2003

________________________________________________________________________________\
__

Court: Superior
County: San Diego
Judge: Susan D. Huguenor

________________________________________________________________________________\
__

Attorneys for Appellant:

Douglas Shepersky, William Blatchley; John L. Dodd & Associates, John L. Dodd
and Lisa A. DiGrazia for Petitioner.

Kronick, Moskovitz, Tiedemann & Girard and Andrew P. Pugno for Proposition 22
Legal Defense and Education Fund as Amicus Curiae on behalf of Petitioner.

________________________________________________________________________________\
__

Attorneys for Respondent:

No appearance for Respondent.

Terence Chucas and Judith E. Klein for Minor.

Leigh A. Kretzschmar, Kathleen Murphy Mallinger; Luce Forward, Hamilton &
Scripps and Charles A. Bird for Real Party in Interest.

Robert H. Lynn; Jason A. Barsi; Maxie Rheinheimer Stephens & Vrevich and Darin
L. Wessel for Tom Homann Law Association as Amicus Curiae on behalf of Real
Party in Interest.

Martha Matthews and Katina Ancar for National Center for Youth Law as Amicus
Curiae.

Alice Bussiere for Youth Law Center as Amicus Curiae.

Shannan Wilber for Legal Services for Children as Amicus Curiae.

Farella Braun & Martel, Norman Formanek and Julie Salamon for Child Advocacy
Program, University of California at Berkeley as Amicus Curiae.





Page 2 - counsel continued - S102671


Attorneys for Respondent:

Donna Furth for Northern California Association of Counsel for Children as
Amicus Curiae.

Marvin Ventrell for National Association of Counsel for Children as Amicus
Curiae.

Jordan C. Budd for American Civil Liberties Union Foundation of San Diego &
Imperial Counties; Mark Rosenbaum for American Civil Liberties Union Foundation
of Southern California; Jennifer C. Pizer for Lambda Legal Defense and Education
Fund; Shannon Minter and Courtney Joslin for The National Center for Lesbian
Rights as Amici Curiae on behalf of Children of Lesbians and Gays Everywhere,
American Civil Liberties Union Foundation of San Diego & Imperial Counties,
American Civil Liberties Union Foundation of Southern California, Bay Area
Lawyers for Individual Freedom, Family Matters, Family Pride Coalition, Lambda
Legal Defense and Education Fund, LHR: The Lesbian and Gay Bar Association, The
Los Angeles Gay and Lesbian Center, The National Center for Lesbian Rights, Our
Family Coalition and The Pop Luck Club.

Diane Goodman for Academy of California Adoption Lawyers as Amicus Curiae.

Nancy E. Lofdahl for California Association of Adoption Agencies and the
California Alliance of Child and Family Services as Amici Curiae.

Morrison & Foerster, Michael N. Feuer and Elizabeth A. Thornton for the Los
Angeles County Bar Association, Bar Association of San Francisco, Santa Clara
County Bar Association, The Bar Association of Silicon Valley, Beverly Hills Bar
Association, San Fernando Valley Bar Association, Women Lawyers’ Association of
Los Angeles, Bet Tzedek Legal Services, Public Counsel and Northern California
Chapter of the American Academy of Matrimonial Lawyers as Amici Curiae.

Dennis J. Herrera, City Attorney (San Francisco), Therese M. Stewart, Chief
Deputy City Attorney, Kamala Harris, Julia M. C. Friedlander, Ellen Forman and
Sherri Sokeland Kaiser, Deputy City Attorneys, for City and County of San
Francisco and California State Association of Counties as Amici Curiae.

Bill Lockyer, Attorney General, James M. Humes, Assistant Attorney General, John
H. Sanders and Susan A. Nelson, Deputy Attorneys General, for California
Department of Social Services as Amicus Curiae.

Latham & Watkins, Richard S. Zbur, Robert J. Schulze and James R. Repking for
National Association of Social Workers and California Chapter, National
Association of Social Workers as Amici Curiae.








Counsel who argued in Supreme Court (not intended for publication with opinion):

John L. Dodd
John L. Dodd & Associates
17621 Irvine Boulevard, Suite 200
Tustin, CA  92780
(714) 731-5572

Judith E. Klein
5638 Lake Murray Boulevard, #208
La Mesa, CA  91942
(619) 698-1882

Charles A. Bird
Luce Forward, Hamilton & Scripps
600 West Broadway, Suite 2600
San Diego, CA  92101-3391
(619) 236-1414

An article by a columnist in Monday's Detroit Free Press reports hat,
"To the minority of voters who pay any attention at all to the
state's highest court, the highlight of the Michigan Supreme Court
term that concludedlast Thursday was probably the 11th-hour ruling
that struck down the state's grandparent visitation law." According
to the article, "But a series of procedural changes adopted by the
court a day earlier -- and with none of the fanfare accorded the
grandparent visitation ruling -- may turn out to have a far greater
impact."
(Detroit Free Press)
http://www.freep.com/news/metro/dicker4_20030804.htm

------------
complete article follows-[trb 8/4/03]
--------------
BRIAN DICKERSON: Four GOP justices grab power of five

August 4, 2003





BY BRIAN DICKERSON
FREE PRESS COLUMNIST




To the minority of voters who pay any attention at all to
the state's highest court, the highlight of the Michigan
Supreme Court term that concluded last Thursday was probably
the 11th-hour ruling that struck down the state's grandparent
visitation law.

But a series of procedural changes adopted by the court a
day earlier -- and with none of the fanfare accorded the
grandparent visitation ruling -- may turn out to have a
far greater impact.

Revealed in an unheralded order issued the day before the
court began its summer recess, the new court rules are the
latest power grab by the Republican high court majority
installed by former Gov. John Engler.

Effective Aug. 1, the new rules give a simple majority of four
justices the authority to publish unsigned opinions on behalf
of the entire court, and to vacate jury verdicts or overturn
civil damage awards without having to hear oral arguments --
extraordinary powers that until now could be invoked only by a super-majority of
five.

Bypassing procedure
Rulings like the one in the grandparent visitation case, in
which justices issue one or more signed opinions after hearing
oral arguments by lawyers for both sides, are the most visible
product of the state's highest court, but they represent only a
small percentage of the court's work.

Over the last decade, less than 3 percent of the roughly 2,200
appeals filed in the state Supreme Court each year have ended
in such signed opinions. Justices decline to hear most of the
others, but most years they resolve a few dozen cases in unsigned
"per curiam" opinions or peremptory orders issued without the
benefit of oral argument.

Historically, unsigned opinions and peremptory orders have been
issued only in circumstances where the legal issues are clear-cut
and the court's druthers are unanimous, or nearly so.

The Michigan Court of Appeals -- the state's second-highest --
authorizes these short-circuit procedures only when all three
judges assigned to hear a case are in agreement. For the last two
decades, the state Supreme Court has used them only when at least
five of the seven justices consented.

But under new rules adopted last week over the vigorous
objections of three justices, just four justices' votes will
be required to sidestep the ordinary procedure of hearing oral
arguments, considering amicus briefs by interested parties and
drafting signed opinions.

Efficient or careless?
In part, the rule changes are the GOP majority's response to
the increasing independence of Justice Elizabeth Weaver, the
only Republican justice to reach the appellate bench without
Engler's appointment.

Weaver, who won re-election to a second term last year with
only tepid support from the Engler-dominated state GOP, has
disagreed with the other Republican justices in a number of
high profile cases in recent years, including the decision to
bar a referendum on the state's concealed weapons law.

Practically speaking, the new rules allow the state Supreme Court
to opine anonymously or resolve cases without oral argument
whenever a simple majority of four justices perceives an
"emergency."

"In effect," Weaver wrote in a dissent joined by justices
Michael Cavanagh and Marilyn Kelly, the new procedure
"allow four votes of the court to create an emergency.
There should be some means to ensure that a designated
'emergency' is not merely an opportune rush to judgment."

Besides freeing the four Engler justices to act with or
without Weaver's collaboration, the new rules potentially
allow the state's highest court to intervene in many more
cases than it would be able to reach via the traditional
procedure of granting leave to appeal and scheduling oral
arguments.

"Taken together," the dissenters wrote, "these administrative
decisions . . . elevate efficiency over fair and sufficient
process; they facilitate judicial activism rather than judicial
restraint."

It will be interesting to see how the State Bar of Michigan --
which was either complicit in the Republican justices' coup or
asleep at the switch when the rule changes were being drafted --
responds now that they are a fait accompli.




Contact BRIAN DICKERSON at 248-586-2607 or
dicker@....

An editorial in Monday's Lansing State Journal is entitled, "On
grandparents: State court right to follow federal lead on visitation
law."
(Lansing State Journal)
http://www.lsj.com/opinions/editorials/030804_ed2_(grandparents).html

------------
complete article follows [trb 8-4-03]
------------
Published 8/4/2003
On grandparents: State court right to follow federal lead on
visitation law






Most Michigan residents probably would say grandparents should be
able to see their grandchildren. In most cases, the value of such
family ties is obvious.

But that was not the issue before the Michigan Supreme Court. Its
job - which it completed last week - was to determine if a Michigan
law allowing for grandparent visitations was constitutional.

The court said it wasn't. Citizens and legislators who might be
tempted to try to pass another law on this topic are wise to not try.

Yes, every child should enjoy the love, experience and skills of its
grandparents. But many do not, for a variety of reasons - death,
distance, infirmity, family divisions.

The question for government and our courts is, should the state have
the power to impose such links, regardless of the wishes of a parent?

Three years ago, the U.S. Supreme Court declared a Washington
visitation law unconstitutional. Michigan's measure was much narrower
than the Washington one. Nevertheless, it still injected the state
into a family relationship without compelling reason.

For example, if a grandparent thought a parent was abusing a child,
he could seek help from the state. But just because a grandparent
wants to see the child, against the parent's wishes, is not a matter
for politicians and courts. The U.S. Constitution simply does not
grant grandparents such rights.

The Michigan Supreme Court rightly noted that gap in striking down
our state law. It's a decision lawmakers should not try to
circumvent.

North Dakota Supreme Court Opinion May 2003
Interest of B.N. & K.K.

Nos. 20020256 & 20020281
Maring, Justice.

[¶1] S.N. ("Sarah," a pseudonym) appeals from the August 28, 2002,
Memorandum Opinion and the September 13, 2002, Findings of Fact and
Order terminating her parental rights to her daughters, B.N.
("Becky," a pseudonym) and K.K. ("Kelly," a pseudonym). In a
consolidated appeal, K.K. ("Kevin," a pseudonym) appeals from the
same Memorandum Opinion and Findings of Fact and Order which also
terminated his parental rights to his daughter, Kelly. We hold there
is clear and convincing evidence the children are deprived, the
causes and conditions of the deprivation are likely to continue, and
as a result of the continued deprivation, the children will probably
suffer serious physical, mental, or emotional harm if Sarah's and
Kevin's parental rights are not terminated. We affirm.

[¶2] Sarah is the mother of Becky, age 9, and Kelly, age 4. The
father of Becky is not a party to this appeal. He was found to be in
default when he did not appear at the hearing to terminate his
parental rights. Kevin is the father of Kelly.

[¶3] Sarah has been the subject of seven investigations conducted by
Burleigh County Social Services ("Social Services"). Six of these
investigations were conducted before Kelly's birth and only dealt
with Sarah's care of Becky. Kevin was not the subject of those six
investigations. There was one investigation that occurred after
Kelly's birth. It dealt with the care of both Becky and Kelly.

[¶4] The first investigation began on March 11, 1994, after Social
Services received a report that Sarah was neglecting Becky's needs
and that there was yelling and drinking going on in the home. After
investigating, the Child Protection Team found indications of
physical neglect and emotional abuse. It was recommended Sarah have
drug and alcohol evaluations and that she complete domestic violence
treatment. Sarah did not follow through on those recommendations.

[¶5] The second investigation began on November 22, 1994, after
Social Services received a report that Becky was not regularly bathed
or fed and that Sarah would leave Becky at the babysitter's for
extended periods of time without telling anyone where she could be
contacted. After the Child Protection Team investigated, it
recommended Sarah complete domestic violence treatment and
counseling. Sarah was also referred by Social Services to the Self-
Reliance Program due to her financial problems. Sarah did not follow
through on those recommendations.

[¶6] The third investigation began on September 9, 1996, after Social
Services received a report that Sarah was leaving Becky unattended
and inadequately supervised. After the investigation, the Child
Protection Team expressed concerns about Sarah's emotional and
medical needs and recommended counseling and domestic violence
treatment. Sarah did not follow those recommendations.

[¶7] After a fourth investigation on February 25, 1997, the Child
Protection Team did not recommend any services.

[¶8] The fifth investigation began on July 11, 1997, after Social
Services received a report that Becky possibly was being sexually
abused. After the investigation, the Child Protection Team found
services were required for Sarah to have a psychological evaluation
and to take Becky for a sexual abuse examination. When Sarah failed
to follow the recommendation, Social Services petitioned for custody
of Becky in January of 1998. After the petition was filed, Sarah
submitted to a psychological evaluation and took Becky for a sexual
abuse examination. As a result of Sarah's compliance with the
recommendations, the petition for custody was dropped. The sexual
abuse examination of Becky confirmed the suspicions Becky had been
sexually abused. However, the identity of the abuser was never
determined.

[¶9] A sixth investigation began on April 16, 1998. It was also on
this date Sarah took Becky to live with Sarah's father and step-
mother, C.W. ("Carl," a pseudonym) and L.W. ("Laura," a pseudonym).
Sarah took Becky to her maternal grandparents after she was a
bystander victim in a domestic assault which occurred at the
babysitter's. Soon after Sarah brought Becky to live with Carl and
Laura, she wrote a note indicating the arrangement would continue
only until the end of the summer. However, Sarah never returned for
Becky. Becky has lived with her grandparents continuously for almost
five years.

[¶10] Kelly was born on September 19, 1998. At that time, Sarah and
Kevin were living together. Subsequently, however, Kevin was
incarcerated from February 9, 1999, until March 17, 1999, on two
counts of non-sufficient funds and from November 15, 1999, until
December 3, 1999, for probation revocation and non-sufficient funds.

[¶11] The seventh investigation began on December 3, 1999, after
Social Services received a report that Kelly was being neglected.
Specifically, the reporter had concerns that there was no food in the
home and that the home was unsanitary. It was recommended Sarah and
Kevin have psychological examinations. Both Sarah and Kevin did
follow through with this recommendation.

[¶12] About December 9, 1999, Kevin was arrested at the family home
on drug-related charges while Kelly was present. Kevin was
subsequently incarcerated for Possession of Methamphetamine,
Possession of Drug Paraphernalia, and Theft of Property until January
of 2001.

[¶13] On February 7, 2000, after a physical altercation between Sarah
and a neighbor, Sarah signed a 30-day parental affidavit, allowing
placement of Kelly with Carl and Laura. Kelly has lived with her
grandparents continuously since that time.

[¶14] In July of 2001, Social Services filed a petition for custody
of Becky and Kelly. A hearing was held on August 28, 2001. The
judicial referee entered his findings and order on September 24,
2001. Sarah and Kevin stipulated to the details of the custody order
which found the two children deprived and placed them in the custody
of Social Services for nine months. Becky and Kelly were placed with
their grandparents, Carl and Laura, who had become licensed foster
parents.

[¶15] In December of 2001, Kevin was incarcerated for Possession of
Cocaine and Possession of Drug Paraphernalia. He was due to be
released in February or March of 2003.

[¶16] On April 26, 2002, Social Services filed a petition to
terminate all parental rights to Becky and Kelly. The hearing was
held on July 19, 2002. The juvenile court filed its Memorandum
Opinion on August 28, 2002, which found Becky and Kelly were
deprived, the deprivation was likely to continue, and that they will
probably suffer serious harm as a result. The juvenile court ordered
the termination of Sarah's and Kevin's parental rights. The Findings
of Fact and Order was filed on September 16, 2002. Kevin filed his
Notice of Appeal on September 19, 2002, and Sarah filed her Notice of
Appeal on October 9, 2002.

[¶17] On appeal, Kevin argues Social Services has not proven by clear
and convincing evidence that Kelly is deprived, that the deprivation
is likely to continue, or that Kelly will suffer harm as a result.
Sarah concedes Becky and Kelly are deprived, but joins Kevin in the
other two arguments as to both children. We disagree with both
Appellants' arguments.

[¶18] We review a juvenile court's decision to terminate parental
rights in a manner similar to a trial de novo, giving appreciable
weight to the juvenile court's findings because that court had the
opportunity to observe the candor and demeanor of the witnesses. See
In re D.N., 2001 ND 71, ¶ 2, 624 N.W.2d 686. But see In re D.Q., 2002
ND 188, ¶¶ 26-28, 653 N.W.2d 713 (Neumann, J., concurring specially);
In re C.R.C., 2001 ND 83, ¶¶ 25-40, 625 N.W.2d 533 (Neumann, J.,
concurring) (suggesting the clearly erroneous standard of review,
rather than the de novo standard, should be applied in juvenile
cases). Under N.D.C.C. § 27-20-44(1)(b)(1) (2002), termination of
parental rights requires satisfaction of a three-pronged test in
which the party petitioning for termination must prove by clear and
convincing evidence: (1) the child is a deprived child; (2) the
conditions and causes of the deprivation are likely to continue; and
(3) by reason thereof, the child is suffering, or will probably
suffer, serious physical, mental, moral, or emotional harm. See D.N.,
at ¶ 2.

I

[¶19] A deprived child is one who "[i]s without proper parental care
or control, subsistence, education as required by law, or other care
or control necessary for the child's physical, mental, or emotional
health, or morals, and the deprivation is not due primarily to the
lack of financial means of the child's parents, guardian, or other
custodian." N.D.C.C. § 27-20-02(8)(a) (2002). Parents' fundamental
and natural rights to their children are of constitutional dimension,
but are not absolute, and parents are required to provide care to
their children that at least satisfies the minimum community
standards. See In re T.K., 2001 ND 127, ¶ 12, 630 N.W.2d 38.

[¶20] The record supports, with clear and convincing evidence, Becky
and Kelly are deprived children. In the record of the hearing, there
is evidence of physical neglect, inadequate supervision, neglect of
medical needs, emotional abuse, and sexual abuse over the course of
the seven investigations done by Social Services. Also at the
hearing, there was evidence of domestic violence between Sarah and
Kevin and a history of drug and alcohol abuse. Laura, the children's
step-grandmother, testified that before the children came to live
with them, Becky was not getting to school regularly and was not
being properly supervised. She also testified that when Becky and
Kelly were living with Sarah, the children were not being properly
fed and were not being taken for their scheduled doctor appointments.
Dr. Paul Jondahl, the children's primary physician, testified that
after Kelly was born, she was not brought in for her scheduled
immunizations. He testified that although Kelly was now up-to-date
with her shots, oftentimes, it was Laura who made sure she was
brought in for the appointments.

[¶21] When her children were living with her, Sarah did not provide a
safe, healthy, loving environment for the children. Kevin has
provided little care or support for his child, Kelly, mostly as a
result of his past and present incarcerations. See In re C.R., 1999
ND 221, ¶ 6, 602 N.W.2d 520 (concluding the child was deprived of
parental care and support because of her father's voluntary criminal
activity which put him in prison). We conclude Becky and Kelly are
deprived children.

II

[¶22] Although evidence of previous deprivation can be considered in
determining whether deprivation is likely to continue, it cannot
alone be enough to terminate parental rights. See In re D.R., 2001 ND
183, ¶ 11, 636 N.W.2d 412. There must be additional prognostic
evidence to reasonably predict the deprivation will continue or be
unremedied. See id. Our Court has defined prognostic evidence
as "evidence that forms the basis for a reasonable prediction as to
future behavior." In re A.S., 1998 ND 181, ¶ 19, 584 N.W.2d 853
(quoting McBeth v. M.D.K., 447 N.W.2d 318, 321 (N.D. 1989)).

[¶23] There is clear and convincing evidence that Becky and Kelly's
deprivation would likely continue if Sarah resumed parenting
responsibilities. We have stated: "In determining the likelihood of
continuing deprivation, a court may consider parental cooperation
with social-service agencies." In re S.F., 2000 ND 161, ¶ 10, 615
N.W.2d 511. Although lack of parental cooperation is insufficient by
itself to prove deprivation, it is relevant to the issue of whether
deprivation will continue. See id.

[¶24] The record in this case is replete with recommendations by
Social Services to Sarah to participate in services in order to help
improve her parenting ability. The list includes: drug and alcohol
evaluations, psychological evaluations, domestic violence treatment,
parenting classes, nurturing classes, vocational rehabilitation,
Parent Aide services, and relationship counseling. The only one of
these recommendations Sarah followed through with was the
psychological evaluations. Dr. Lisa Hay conducted the psychological
evaluations and recommended Sarah take nurturing classes, obtain
domestic violence treatment, and obtain anger management treatment.
Sarah did not follow up on Dr. Hay's recommendations. Social Services
also referred Sarah to programs like the Self-Reliance Program and
the Adult Learning Center. Likewise, Sarah did not follow through
with these recommendations. Sarah's failure to take any steps toward
becoming a better parent or toward providing a healthy, secure
environment for her children "demonstrates a serious indifference
toward [her] responsibilities and obligations as a parent." S.F.,
2000 ND 161, ¶ 11, 615 N.W.2d 511 (quoting C.R., 1999 ND 221, ¶ 10,
602 N.W.2d 520).

[¶25] There is nothing in the record to suggest Sarah now has the
willingness or ability to improve her parenting abilities. Without
Sarah acquiring the proper parenting skills, Becky and Kelly will
continue to be deprived. "When there has been an extensive period in
which efforts have been made to overcome a parent's inabilities to
effectively parent, the courts cannot allow the children 'to remain
in this indeterminate status midway between foster care and the
obvious need for permanent placement.'" D.N., 2001 ND 71, ¶ 14, 624
N.W.2d 686 (quoting In re A.M., 1999 ND 195, ¶ 9, 601 N.W.2d 253).

[¶26] Likewise, there is clear and convincing evidence Kelly will
continue to be deprived if Kevin's parental rights are not
terminated. Kevin has a lengthy criminal history that has led him to
be incarcerated for seven out of the last ten years. Kevin has been
incarcerated for more than one-half of Kelly's life. He also
admittedly struggles with a methamphetamine and cocaine addiction
which is often the cause of his criminal activity.

[¶27] Imprisonment alone does not justify parental termination. See
In re J.L.D., 539 N.W.2d 73, 79 (N.D. 1995). In addition to Kevin's
recent imprisonment, however, his criminal history and his drug and
alcohol addiction make it likely he will be incarcerated again in the
future. See id. We have recognized: "[A] juvenile court need not
operate in a vacuum in termination proceedings. It can give
substantial credence to evidence indicating a pattern of conduct by a
parent that forms a basis for reasonable prediction of the parent's
future behavior." D.R., 2001 ND 183, ¶ 15, 636 N.W.2d 412 (citations
omitted).

[¶28] After Kevin became aware that Social Services might pursue
termination of his parental rights, he made a voluntary choice to re-
offend. This demonstrates "a serious indifference toward his
responsibilities and obligations as a parent." C.R., 1999 ND 221, ¶
10, 602 N.W.2d 520. "A casual display of interest by a parent does
not overcome the significant effect of negligently failing to perform
parental duties." Id.

[¶29] Kevin testified that since being incarcerated this last time,
he has had drug and alcohol evaluations and has attended narcotics
anonymous, a self-help group, sweat lodge, and prayer circle. He
testified that after he is released, he plans to continue with an
aftercare program or some kind of 12-step program with narcotics
anonymous. While it is encouraging Kevin has been making strides to
overcome his drug and alcohol dependency, he has had unsuccessful
treatment attempts in the past. We have observed:


However commendable it may be that a parent desires to change [his]
lifestyle and to learn how to become a fit parent, the courts cannot
allow the children to suffer the predictable consequences when it
turns out the parent is unable to sufficiently turn around a
dysfunctional lifestyle to become an effective parent.
D.R., 2001 ND 183, ¶ 16, 636 N.W.2d 412. We conclude there is clear
and convincing evidence Becky and Kelly will continue to be deprived.
III

[¶30] When predicting future harm, "the probability of serious mental
and emotional harm to a child may be established by prognostic
evidence a parent's current inability to properly care for the child
will continue long enough to render improbable the successful
assimilation of the child into a family if the parent's rights are
not terminated." C.R., 1999 ND 221, ¶ 10, 602 N.W.2d 520.

[¶31] In this case, neither Sarah nor Kevin are currently able to
properly care for Becky and Kelly. In addition, the prognostic
evidence suggests it will take a long period of time, if ever, before
either parent would be able to properly care for the children. Dr.
Lisa Hay testified Sarah has "borderline intellectual functioning,"
difficulty with verbal skills, and a deficit in her immediate
auditory memory, all of which make it harder for her to learn. Dr.
Hay stated in order for Sarah to better her parenting skills, she
would need a lot of individualized, long-term care. Kevin admits that
after his release, he will not immediately be able to take custody of
his daughter. He will need to get his life in order and his drug
addiction under control before he will be able to focus on Kelly's
needs.

[¶32] Becky has been living with her grandparents for more than five
years, which is over one-half of her life. Kelly has been living with
her grandparents for more than two years, which is also over one-half
of her life. Since Becky and Kelly have been living with Carl and
Laura, Sarah has had only limited and sporadic contacts with her
daughters and has provided them little care or support. Kevin, having
been in prison for over one-half of Kelly's life, has also been
unable to provide the necessary care or support for his
daughter. "Long-term and intensive treatment for a parent is not
mandated if it cannot be successfully undertaken soon enough to
enable the children to be returned to the parental home without
causing severe dislocation from emotional attachments formed during
long-term foster care." D.N., 2001 ND 71, ¶ 12, 624 N.W.2d 686. Becky
and Kelly need a secure and permanent home with parents who can
provide them with loving parental care. See In re T.J.O., 462 N.W.2d
631, 635 (N.D. 1990).

[¶33] Because Sarah's and Kevin's inability to properly care for the
children will likely continue long enough to render improbable the
successful assimilation of Becky and Kelly into a family, we conclude
the evidence clearly and convincingly establishes Becky and Kelly
will probably suffer serious mental or emotional harm if Sarah's and
Kevin's parental rights are not terminated. See T.J.O., 462 N.W.2d at
634-35; In the Matter of P.R.D., 495 N.W.2d 299, 303 (N.D. 1993).

[¶34] Therefore, we affirm the juvenile court's Memorandum Opinion
and Findings of Fact and Order terminating Sarah's and Kevin's
parental rights.

[¶35] Mary Muehlen Maring
William A. Neumann
Dale V. Sandstrom
Carol Ronning Kapsner
Gerald W. VandeWalle, C.J.

Children First
http://www.freep.com/news/childrenfirst/nabuse30_20030730.htm



County agency will teach responsibilities

July 30, 2003

# An article in Wednesday's Oakland section about a new Web site to
help with the reporting of child abuse should have said that no
complaints are thrown out by Oakland County Child Protective
Services. In some cases, reports are not accepted for investigation
and are referred to other services when the allegations do not meet
the legal definition of child abuse and neglect. All reports of
suspected child abuse should be referred to the Family Independence
Agency.

BY LAURA POTTS
FREE PRESS STAFF WRITER

Signs of child abuse and neglect can be hard to notice -- and even
harder to report.

But a new program launched by an Oakland County agency aims to teach
those who are on the front lines what to look for and how to properly
report suspected abuse or neglect.

Countless police officers, health- and child-care workers, educators,
clergy and others who work with children will get training through an
online program -- www.carehouse.org -- created by the Child Abuse and
Neglect Council of Oakland County and expected to be up and running
by the end of the year.

Built with the aid of a $15,000 grantfrom Microsoft, the program will
help educate those who work with children about a 1975 Michigan
mandated-reporter law, requiring them to report suspected abuse or
neglect.

"This grant will really allow us to reach a lot more of the mandated
reporters across the state that we haven't been able to," said Diane
Bedenbaugh, the council's director of development.

In Oakland County, up to 10,000 reports of suspected abuse are filed
each year, Bedenbaugh said. In some cases, reports are thrown out
without investigations because the paperwork was incorrectly filled
out, she said.

The council already trains about 1,000 people a year. But Bedenbaugh
hopes the online training will help more professionals learn the
physical and emotional signs to look for and how to properly fill out
reports.

The additional training opportunities are welcomed by the Oakland
County Prosecutor's Office, which gets "a huge number of cases" from
mandated reporters, said Oakland County Assistant Prosecutor Cynthia
Pike of the physical child abuse unit.

Earlier this month, two Oakland County foster care workers were
charged with misdemeanor failure to report child abuse after a 4-year-
old boy under their supervision was beaten to death in his Detroit
foster home.

St. Vincent Sarah Fisher Center caseworker Beth Kaplansky-Omtvedt and
foster care supervisor Lori Ann Wright face a pre-trial hearing on
the misdemeanor charges next month.

The Child Abuse and Neglect Council hopes its training will prevent
similar situations from happening.

Microsoft's Great Lakes district office, which awarded the grant,
liked the idea because it was different from the usual grant
proposals, said Liz Siver, manager of business and marketing
operations.

"It was a great use of technology for a very serious situation that
plagues all of our communities," Siver said.

Contact LAURA POTTS at 248-586-2621 or potts@.... Staff
writer Jack Kresnak contributed to this repor

IN THE COURT OF APPEALS OF IOWA
No. 3-321 / 02-1085
Filed July 23, 2003

IN THE INTEREST OF A.M., M.M. and C.M., Minor Children,
D.M.,   Mother,
             Petitioner-Appellee,
M.M., Father,
             Respondent-Appellant.

             Appeal from the Iowa District Court for Webster County,
James A. McGlynn, Associate Juvenile Judge.
             The mother of three children seeks to terminate the
father's parental rights to those children.  AFFIRMED.



Jeffrey Lipman of Lipman Law Firm, P.C., Des Moines, for appellant-
father.
             James McCarthy, Fort Dodge, for appellee.
             Rebecca Hanson, Fort Dodge, for minor child.
             Considered by Harris, Snell, and Brown, Senior Judges.*

*Senior Judges assigned by order pursuant to Iowa Code section
602.9206 (2003).

BROWN, S.J.

             The mother of three children seeks to terminate the
father's parental rights to those children.  She alleges the father
has abandoned the children and inexcusably failed to support them.
We find both grounds are supported by the evidence and therefore
affirm the juvenile court's order terminating the father's parental
rights.

I.  Background and proceedings.

             The petitioner, Dawn, is the biological mother of the
three children:  A.M.M., age ten; M.M.M., age seven, and C.B.M., age
four.  The respondent, Michael, is the biological father of M.M.M.
and C.B.M. and the adoptive father of A.M.M.  They lived together as
a family until July 1999.  Dawn discovered Michael masturbating in
the presence of A.M.M. and took the children from the home to her
parents.  She reported the incident to the Iowa Department of Human
Services (DHS).  A child abuse investigation resulted in a founded
report of sexual abuse by Michael with A.M.M. as the victim.  In
November 1999, following further investigation by law enforcement,
Michael was charged with several sex offenses.  He ultimately pleaded
guilty to one count of sexual abuse in the third degree, in which
A.M.M. was the victim, and was sentenced to an indeterminate ten
years in prison.  He is presently incarcerated at the Mt. Pleasant
Correctional Facility.

             Dawn and Michael are now divorced.  She has sole custody
of the three children.  She has been living with Richard R..  They
have discussed marriage, but Dawn is hesitant.  Richard has a good
relationship with the children and would like to adopt them should he
and Dawn eventually marry.

             Michael has been ordered to pay child support, but has
paid none.  He has been in jail or prison since charges were filed,
and consequently lost his job.

             Since his incarceration, Michael has sent birthday cards
to the children and has tried to contact them by phone.  Dawn has not
allowed the children to have the cards and does not accept the
telephone calls.  Michael sent Christmas gifts through a church
group, which the children received.

             Michael testified his estimated release date is July 2004
and that he will not be eligible for parole earlier than that.  He
has neither requested nor received any sexual abuse offender
counseling or treatment. Michael now claims he will undertake sexual
offender treatment at some time during his present prison term. He
will not be eligible for parole until he participates in a sex
offender program.  Further, he pleaded guilty to a sexual abuse
criminal offense about ten years ago involving a child of about the
same age as A.M.M. and served some three years in prison.  He refused
to participate in sex offender treatment at that time.

             Dawn commenced this action under Iowa Code chapter 600A
(2001), alleging abandonment and lack of support as bases for
termination.  A guardian ad litem was appointed for the children.
Her recommendation to the court was that Michael's parental rights be
terminated.  Michael has resisted the termination, claiming Dawn has
failed to establish either that he has abandoned the children, in
view of his continuing, mostly frustrated efforts to have contact
with them, or that he has the ability to pay support due to his
incarceration.  The trial court, however, found both grounds had been
established and this appeal by Michael followed.

II. Standard of review.

             We review termination of parental rights cases de novo.
In re S.J., 620 N.W.2d 522, 524 (Iowa Ct. App. 2000).  Although not
bound by the trial court's fact findings, we give them considerable
weight in determining issues of credibility.  In re Estate of Rutter,
633 N.W.2d 740,746 (Iowa 2001).

III. Discussion.

             Iowa Code section 600A.8 provides:

The juvenile court shall base its findings and order under section
600A.9 on clear and convincing proof.  The following shall be, either
separately or jointly, grounds for ordering termination of parental
rights:

. . . .



                         3.  A parent has abandoned the child.

                         . . . .



5.  A parent has been ordered to contribute to the support of the
child . . . and has failed to do so without good cause.



             Although the parent-child relationship is of
constitutional dimension and strongly protected, In re R.K., 649
N.W.2d 18, 20 (Iowa Ct. App. 2002), it may be forfeited when the best
interests of the child require it.  In re Dameron, 306 N.W.2d 743,
745 (Iowa 1981).  Parental termination procedures are designed to be
preventative as well as remedial so that precluding future harm is a
legitimate goal, id., and a parent's past performance may provide
valuable insight into what is likely to occur in the future.  Id.

             A.  Abandonment.  Iowa Code section 600A.2(18) defines
abandonment to mean

that a parent, . . . rejects the duties imposed by the parent-child
relationship, . . . which may be evinced by the person, while being
able to do so, making no provision or making only a marginal effort
to provide for the support of the child or to communicate with the
child.



Abandonment is "characterized as a giving up of parental rights and
responsibilities accompanied by an intent to forego them."  In re of
A.B., 554 N.W.2d 291, 293 (Iowa Ct. App. 1996).  Giving up parental
rights is evidenced by conduct of the parent, while the intent refers
to the parent's state of mind.  Id.  The exercise of parental rights
requires more than a subjective interest in the child.  The parent
must actively demonstrate his involvement to the extent it is
feasible.  Id.  Total desertion is not required to show abandonment.
In re Goettsche, 311 N.W.2d 104, 106 (Iowa 1981).  Michael claims his
efforts to maintain contact with the children while in prison show
his continued interest.  He insists that, but for Dawn's
interference, he would have had contact with the children throughout
his incarceration.  This, he urges, demonstrates both objectively and
subjectively he has not abandoned the children.

The general rule is that incarceration provides no excuse for an
absent parent's failure to provide the comfort, guidance, and support
owed by a parent to his children.  See In re J.L.W., 523 N.W.2d 622,
625 (Iowa Ct. App. 1994).  That parent "must take full responsibility
for the conduct which has resulted in his confinement."  Id.
However, that proposition is not without limits.  In In re A.E., No.
01-1099 (Iowa Ct. App., April 24, 2002), cited by Michael, our court
declined to find abandonment where the continued efforts at contact
with the children by an incarcerated father were largely frustrated
by the mother.  But that case did not involve a parent whose
incarceration resulted from sexually abusing one of the children
involved in the termination case.

The juvenile court found Michael's efforts at continued contact were
minimal.  We agree, and further conclude they were largely a
pretext.  We also conclude, as did the juvenile court, Michael has no
intention of seeking sexual abuse treatment while in prison, but
would serve out his term, just as he had in his previous period of
incarceration.  We believe this demonstrates with a great deal more
certainty than his statements to the contrary that Michael is not
sincerely seeking reunification with his children.  He is unwilling
now, as he was before, to make any effort at rehabilitation or to
shorten the time he is in prison and therefore without contact with
the children.  This failure effectively demonstrates he has
surrendered and rejected any realistic chance of reunification with
the children, a dereliction tantamount to abandonment.

             B.  Support.   Michael concedes he has not provided any
support for the children, although ordered to do so.  The reason he
gives is simply that he has been incarcerated all of the time since
ordered to pay support.[1] The statute, Iowa Code section 600A.8(5),
makes non-support a separate ground for terminating parental rights
unless there is good cause for not paying. In establishing non-
support, we recognize that ordinarily "[t]he burden is on the
petitioner to show the parent had the ability to pay child support."
In re R.K.B., 572 N.W.2d 600, 601-02 (Iowa 1998).  On the other hand,
courts are notably unsympathetic toward self-created obstacles to
supporting one's children.  See In re M.M.S., 502 N.W.2d 4, 8 (Iowa
1993) (holding a parent cannot use incarceration as justification for
lack of relationship with child); J.L.W., 523 N.W.2d at 625 (stating
a parent "must take full responsibility for the conduct which has
resulted in his confinement."); In re J.S., 470 N.W.2d 48, 51 (Iowa
Ct. App. 1991) (noting incarceration was no justification for
father's failed responsibility).  We believe, as did the trial court,
that Michael cannot ironically use his incarceration for sexually
abusing one of his children as "good cause" for not being able to pay
court-ordered child support.

C.  Best interests of the children. During the termination trial
Michael admitted sexual contact with A.M.M., but he denied he was
guilty of the sex offense which resulted in his earlier
imprisonment.  However, it remains he pleaded guilty to that offense,
which speaks with more volume than his present denial.  This repeated
conduct clearly shows the court should not allow the children to be
exposed to Michael on a daily basis. We believe it is decidedly in
the children's best interests that the parent-child relationship
between Michael and the three children be terminated.

             AFFIRMED.





----------------------------------------------------------------------

[1] Michael was first ordered to pay $540.00 per month by
administrative order entered in March 2000.  Subsequently, in June
2000 the marriage dissolution decree ordered him to pay $50.00 per
month.

Date: Sat, 9 Aug 2003 11:04:26 +1000 (E. Australia Standard Time)
From:  "shadymystic" <shadymystic@...>To: child_neglect_abuse-
owner@yahoogroups.com
Subject: Re: Welcome to child_neglect_abuse




Hi
I have just joined this group.  I live in Australia, but it seems as
though the problems with family services is more of  international,
do they make these people out of the same molds?  I can fully relate
to the article.  When I think of child abuse, yes, I think of a
child, unwashed, dirty clothes, bruised, hungry, you know the picture.
I went through a bad stage in my life and now it seems I am going to
have the rest of my life to regret it.
Can't wait to meet you all
Take care.  And never stop believing....

Laura-Lea xx

-------Original Message-------

From: child_neglect_abuse Moderator
Date: Saturday, August 09, 2003 07:36:54
To: shadymystic@...
Subject: Welcome to child_neglect_abuse

       We will discuss in this group the special problems that parents
have when they are accused of parental neglect or abuse. The innocent
are accused! The not-so innocent may not deserve to have their
children taken. The children often are being protected from parents
that would not harm them again. Their lives are made horribly painful
by seperation from siblings and parents. Other times the social
workers have saved a childs life by removal from a parents home.
       The agencies, Deparment of Social Services, Family Inpepence
Agency or Protective Services are on occassion unchecked and capable
of inflicting great constitutional harm and real pain to parents and
children.
       To some the child welfare industry is the worst public
institution in America. To others is is a child saver.
       Some argue that the social workers are undertrained,
negligently supervised, and overworked. Others argue that they are
the real experts on the best interests of your familes children. Many
children are being caused real harm , even death, by their parents.
Do we practice legal triage allowing undeserving families to be
broken up to save the child who may be severly physically harmed? Are
the social workers doing their job? Are the attorney's doing their
job?
       What do you think? What resources are available for parents,
children, social workers and attorney's struggling to help children?
What questions do you have?
       Tell parents, social workers, attorneys and judges about our
efforts in this egroup! Join in.
The moderator will not allow inflamatory language. Nor will any
personal attacks on parents, children, social workers, attorney's and
judges be allowed.
------------------------------------------------
To Begin Discussion in our egroup, child_neglect_abuse@egroups.com
Please respond to the following article

INTRODUCTION: HOW THE WAR AGAINST CHILD ABUSE BECAME A WAR AGAINST
CHILDREN BY National Coalition for Child Protection Reform, 325
Broadway Suite 201, New York New York NY 10007, 212-587-5798

------------------------------------------------------- Think
of "child abuse" and what comes to mind? Probably a child brutally
beaten, raped or tortured by a parent.Think of "foster care" and what
comes to mind? Probably a safe haven for a "crack baby" whose mother
just tried to sell him on the street for her next fix.
     Think of your local agency responsible for dealing with child
abuse, Child Protective Services, and what comes to mind? An agency
that intervenes in only the most serious cases, removes children from
their homes only as a last resort, and makes one big mistake:
Returning children to dangerous homes because some fuzzy-minded law
requires it.
     That is the image of child abuse in America painted by much of
the nation's child welfare establishment.
     That image is false.
     By portraying horror stories of brutally abused children as the
norm, America's "child savers" (a term they gave themselves in the
19th Century) have persuaded us to cede to them unprecedented power
over the lives of children. We have given untrained, inexperienced,
sometimes incompetent workers the power to enter our homes,
interrogate and strip-search our children and even remove them to
foster care entirely on their own authority.
     The child savers say they need this near-absolute power in order
to protect children. They portray any challenge to their authority as
a clash between the rights of children and the rights of parents. But
the trouble with the child protective system in America is not that
it hurts
parents, though of course it does. The trouble with the system is
that it hurts children.
     It hurts children who have never been maltreated by disrupting
their families, invading their privacy, and jeopardizing the bond of
trust that is essential for healthy parent-child relationships.
Children are victimized by false allegations of child abuse more than
1.5 million times every year.[1] It hurts children by making it too
easy to pull them from their homes and place them in the nation's
chaotic system of foster care. "Foster care is the garbage dump,"
says a woman who survived it. "That's what they do with kids when
they don't know what else to do with them --
throw 'em in foster care."[2] The typical foster child is not a crack
baby. Far more common are children taken from their parents because
the family's poverty has been confused with neglect. Often, these
children bounce from home to home, emerging years later unable to
love or trust
anyone. Far from a last resort, foster care often is the first and
only answer offered for every family problem.
     And foster care is no guarantee of safety. Some children wind up
sleeping in child welfare offices, others end up in institutions that
would make Dickens cringe. And the rate of abuse in foster care is
higher than the rate of abuse in the general population.
     We believe that 50 to 70 percent of the children now in foster
care don't have to be there. They could live safely in their own
homes if proper services were available. (See Issue Paper 9).
     Perhaps worst of all, the system does terrible harm to the
children who need help the most, those who have been severely abused.
False and trivial reports flood the system, cascading down upon
untrained, inexperienced workers who already have far more than they
can handle,
stealing their time and attention from children who really do need
their ntervention. And that is the real reason children "known to the
system" sometimes die of abuse. Contrary to the claims of the child
savers, there is no law requiring the return of a child to an unsafe
home. (See
Issue Paper 10).
     This is a system that destroys children in order to save them.
But it doesn't have to be this way. The National Coalition for Child
Protection Reform supports a series of measures to reform the child
protective system from top to bottom. (See Issue Papers 10 and 11).
These measures
would reduce intrusion into innocent families, curb the needless
placement of children in foster care, and free up workers to help
children who really have been abused and neglected. Contrary to the
claims of the child savers, these goals are not contradictory, they
are complimentary.
     In the pages that follow, we will document each of these
assertions. We will explain how the child protective system has gone
so wrong and suggest ways to set it right. We hope that this effort
will help turn the current monologue about child abuse into a
dialogue.
----------------------------------------------------------------------
--
1. There were 2.7 million reports alleging child abuse in 1991 of
which
61 percent were false. See Issue Papers 3 and 4. Back to text.

2. Richard Wexler, Wounded Innocents: The Real Victims of the War
Against Child Abuse (Prometheus Books: 1990), p.22. Back to text.
----------------------------------------------------------------------
--

Report: DCF Too Slow On Adoptions
ADVERTISERS





By COLIN POITRAS
Courant Staff Writer

August 8 2003

Hundreds of abused and neglected children are suffering in foster
care because the state isn't moving fast enough to find them adoptive
homes, according to a report released Thursday.

The report by a federal court monitor is more bad news for the state
Department of Children and Families, which last week was chastised
for failing to complete its child-abuse investigations quickly and
thoroughly.

The report found that it takes an average of four years to finalize
an adoption for foster children; that it takes an average of 20
months to begin the adoption process; and that the number of children
without any prospect for placement continues to be too high.

"These are really damning findings," said Ira Lustbader, associate
director of Children's Rights Inc. of New York. The nonprofit
advocacy group has spent more than a decade fighting to improve the
care and treatment of thousands of abused and neglected children in
Connecticut.

The report is part of a federal court-ordered monitoring of DCF
stemming from a 1989 consent decree. The agreement settled a class
action that alleged the state had violated federal laws by not
adequately protecting children in its care.

The report focused on children who had been so severely abused and
neglected that they had been removed from their homes and the state
had taken over as their custodial parents. Child advocates around the
state said they were dismayed by the state's failure to live up to
that responsibility.

"Children are deteriorating while their statutory parent is supposed
to be taking care of them and finding them a home," said Martha
Stone, executive director of the Center for Children's Advocacy at
the University of Connecticut School of Law. "Where is the sense of
urgency for all of these children? The courts have already said these
children cannot go home."

Once a child is removed from his home in Connecticut, the report
found, it takes an average of four years for the state to finalize an
adoption or transfer guardianship. That is twice the national goal of
two years set by the federal Adoption and Safe Families Act. One
child's adoption took more than nine years, the report states.

The report also found that it takes state social workers an average
of 20 months just to begin the adoption process by filing papers to
terminate parents' rights even when the chances of keeping families
together is slim.

Such delays are causing children already suffering from abuse and
neglect to be further traumatized, the report said.

"The multiple traumas associated with long lengths of stay in DCF
custody, such as multiple placements, separations from siblings,
abuse in custody and multiple social workers, worsened their
emotional and mental health," the report said.

The report's findings were based on a review of 155 children's cases
between March 31, 2002, and July 1, 2003. Sadly, advocates say, the
numbers don't seem to be getting any better.

As of June 30, there were 496 children waiting for adoption under the
state's care, according to the report. Yet 232, or nearly half of
them, still had no prospective adoptive parents.

"The court monitor is telling us that we have children in Connecticut
who are waiting, on average, four years for a permanent home," said
Jeanne Milstein, the state's child advocate. "I'm not talking about
children who have committed crimes or done anything wrong. I'm
talking about children who were abused and neglected so badly ... the
state had to take over as their parents."

"That agency costs the state of Connecticut $700 million a year,"
Milstein said. "When are we going to get our money's worth? When are
they going to meet their standards? ... DCF needs to start parenting
as responsibly as they expect all parents to do. These children
cannot wait any longer."

DCF officials pointed out that 57 percent of the children awaiting
adoption over the 15-month study found permanent homes. They also
noted that the total number of children awaiting adoption dropped 28
percent, from 625 at the start of the study to 496 at the end.

DCF Commissioner Darlene Dunbar, however, said that more must be done.

"We know how important it is for children to have a permanent home,"
Dunbar said in a prepared statement Thursday afternoon. "And we know
that we have made improvements in terms of moving children to an
adoptive or guardianship home. Now we have to do so with less delay."

Although the agency is working to speed up the process, recruiting
more foster and adoptive families will be a key to its success,
advocates say.

Dunbar said the agency had a particular need to find families for
African American boys ages 6 to 11.

In Hartford, DCF is working with the Phillips Metropolitan CME Zion
Church to promote foster parenting and adoption through a unique
program called the Esther Project.

"The goal of that project is to really find a way to utilize the
congregation to recruit, support and educate people about foster and
adoptive families," said the Rev. James B. Walker, the church's
pastor. "We feel we do make a difference, but it's not enough. It's
going to have to be a whole village effort."

An Associated Press report is included. A discussion of this story
with Courant Staff Writer Colin Poitras is scheduled to be shown on
New England Cable News each half-hour today between 9 a.m. and noon.

Brief Review of " Keeping Judges Accountable". Orthodox and
Unorthodox Approaches in Texas. By Wolfgang Hirczy 1996 Oklahoma
State University. By Terry Bankert atorneybankert@...

This article can be found at
http://www.tcnj.edu/~psm/lcs/judacc.pdf

This article  is worth reading in full if you are concerned about
judicial accountability in child protective systems.

In this article Hirczy examine societal responses to judicial
misconduct. Our formal means of judicial accountability are:
1. Appellate review
2. Grievance systems
3. Judicial elections
Our informal means are
1. Protest
2. Publicity
3. Grass roots activism

Hirczy wrote, " In a political system based upon the principal of
law, not men, all those entrusted with governmental authority must be
held accountable for the exercise thereof. The basic principal of
constitutional government does not stop at the door of the
courthouse. Upon closer examination however judicial accountability
is a concept that defies easy conceptualization."

I am left with a recommitment that grass activism and protest about
the terror caused by the court upon some families in child protective
proceedings is an exercise in good citizenship and an essential
component to cause judicial accountability in child protective
proceedings.

I recommend  you too read this article and consider posting your
thoughts.

Terry Bankert
8/9/2003
attorneybankert@...

Learn how to fight in the legal system without a lawyer:

Video #1 Introduction to Courts and Civil Procedure  $23.80 postpaid
Video #2 The Appeal Process - Representing Yourself  $23.80 postpaid
Video #3 Power and Pitfalls of Federal Court         $23.80 postpaid
Video #4 Preparing for Trial                         $23.80 postpaid
Video #5 The Buck Stops Here - U.S. Supreme Court    $23.80 postpaid

All Five Videos, including Priority Mail Postage     $99.00 postpaid

To purchase, go to http://www.nolawyer.com/ntsecure/securecc.html

Lecturer on the Tapes: Bob Hirschfeld, JD
A well-known Arizona opponent of Child Protective Services

My AZ landmark Juvenile cases include:

Maria Child v. Lowenburg: Abolished racial discrimination in adoption
                           USDC AZ, CIV 92-403 PHX EHC (Federal, 1992)

Montoya v. Superior Ct.:  Psychologist questions cannot be used to
                           defeat Fifth Amendment Privilege of father
                           173 AZ 129;  840 P.2d 305 (AZ App. 1992)

Nat.Mother v. Superior Court: Prohibited Penile Plethysmograph
                           on juvenile boys in AZ
                           AZ Ct of App. #1-SA-92-155

Matter of Anonymous Child "KDL": Unwed father has first right to
                           child when mother kills herself, shoots
                           the child non-fatally. Maricopa AZ
                           Juvenile Court #JD 006791

My helpful web site: http://www.nolawyer.com
nolawyer @ globalcrossing.net    (close up spaces)
Bob Hirschfeld, JD, PO Box 696, Lukeville AZ 85341

On October 8th 11:00AM to 6:00PM you will have the opportunity to
speak to your State Rep and the entire House of Representatives with
your concerns about Child Protective Services in this state and the
gross mistreatment of families in this state.

There will be a meeting in Lansing MI at the state capital.  NAPF and
Children's Voice, the Dave Nyhoff group from the western side of the
state have joined forces with MI Representative Fulton Sheen and have
put together this meeting.  We will be working on getting legislation
passed that is going to put a serious crimp in the style CPS does
business but you are going to have to speak up if this is going to
happen.  Find a way to be there even if you have to take off work.
This is soo important.  We have complained and they are listening.

IF YOU WANT TO BE HEARD ON THAT DAY CONTACT ME AT:
wolflady22743@h...  with this information and a confirmation
you will be there on that date you will need to do this to be heard.


Nanc

Sat Aug 9, 4:22 PM ET  Add U.S. National - AP to My Yahoo!
  Colorado Mother Sentenced for Child Abuse



COLORADO SPRINGS, Colo. - A woman was sentenced to 64 years in prison
for inflicting months of torture on her 6-year-old son that included
burns, whippings and starvation.



Judge Thomas Kennedy listened to details of the abuse Friday and
looked at pictures of the boy, then, blinking back tears, told the
woman: "I have no clue what demons possessed you to do this to a
child that you bore."


"That a child survived it is simply a miracle. A miracle of the human
spirit," he said.


The 30-year-old woman, who pleaded guilty to child abuse, faced 10 to
224 years. Her mother was sentenced to 10 years last July for her
role. Their names were not published to protect the child.


Authorities said the abuse lasted from Dec. 20, 2001, to Feb. 20,
2002. Burns, whip marks and open sores covered the boy's malnourished
body. A patch of hair was missing because his entire head was duct-
taped, except for an opening for his mouth. His neck was bruised from
a dog collar he was forced to wear.


"I am apologizing to my kids," the woman said. "I need them to know I
love them."


http://story.news.yahoo.com/news?
tmpl=story&u=/ap/20030809/ap_on_re_us/brf_child_abuse_colorado_1

To all and anyone who will listen:

I have often been frustrated while trying to convince fellow advocates
of the very important need to include county commission meetings in
their agenda and to learn as much about this "government function and
process" as possible.

The best reason I can give for this serious issue is that the county
commission oversees many governmental processes that affect you
locally and many county commissioners "move up the ladder" to become
senators and congressional representatives.

The county commission could also be described as a "social circle" of
influential people and many people who know influential people.

Each county also has other county level boards and commissions such as
an FIA County Board, County Health Department, etc., and these report
directly to the county commissioners.

The county commission oversees and administers the federal and state
grants that come to the county as these funds are included in the
budget reports the county is required to maintain. So if you are
looking for misuse of these federal and state grants funds the best
place to start looking is the county budget reports.

Advocates can also take the county commissioners to court on limited
issues which I am researching as thoroughly as I can.

County Commissioners approve the budgets and salaries of many county
agencies including courts, prosecutors, and county FIA offices and
also the sheriff's office.

What I find most amazing is that many advocates seem to feel that
including the county commission in their agenda may needlessly
increase their workload and time commitments. What is amazing about
this is that I am quite certain the county commissioners very much
appreciate my fellow advocates not bothering the county commission
with legitimate concerns and issues which does not increase the
workload of the county commission.

While I am still doing research on this issue I have found a Michigan
Court of Appeals "UNPUBLISHED" decision that quite well explains and
supports my argument that my fellow advocates need to start including
the county commission in their welfare/court reform agenda. Changes
can be made at the county level and advocates need to be aware of this
and make good use of all opportunities available to them.

This case can be downloaded at the Michigan Court of Appeals web site:
  http://courtofappeals.mijud.net/resources/ds.htm

All you have to do is enter the docket number 225515 in the
appropriate box. Make sure the court of appeals is checked and not the
supreme court. Please note that there are two separate decisions
because the "dissenting opinion" is a separate file.

There is a lot of controlling law specifically addressing county
administration of the law:

COUNTY JUVENILE AGENCY ACT 518 of 1998 MCL 45.621
CHILD GUIDANCE CLINICS; COMMUNITY MENTAL HEALTH CLINICS
MCL 722.481 Child guidance and community mental health clinic,
financing.
Act 13 of 1944 (1st Ex. Sess.) AN ACT to authorize county boards of
supervisors and local governing bodies to appropriate moneys to child
guidance clinics and community mental health clinics providing service
for children and/or adults.

There is also provisions in the Judicial Jurisdiction laws, Mental
Health laws, Child Protection Laws, and many other laws that
specifically address county level administration of these laws.

There is a lot of "very effective pressure" that can be applied at the
county level which will be heard in Lansing and beyond. It is most
important to start attending county commission meetings and learn the
policies and procedures so as to not be disruptive and take up any
more of these people's time than you should reasonably be permitted.

I have always offered an open invitation for anyone to accompany me
when I attend these meetings just to get started and see for
themselves what can be done, how it can be done, and accomplished this
way.

Ultimately, the goal is to be able to take the county commission to
court over misuse of state and federal funds provided for child
welfare issues as administered at the county level. One particular
area where the county commissioner's are vulnerable are the
contractors [therapists, counselors, and court ordered evaluators] to
FIA CPS and Family Court. There are so many more "open holes" to start
attacking and addressing at the county level and these changes will be
excellent achievements and important gains in the child welfare court
reform agenda.

To end this presentation I have included a portion of a letter I sent
to a close friend and fellow advocate. Please forgive me for the use
of phrases and words I use when I am addressing someone who I am not
concerned about carefully choosing the words I use.

My Best Regards,

Terry L. Fesler
http://www.angelfire.com/mi/oaxamaxao/index.html

County Commissioner Meetings

I have taken another approach and that is to still attend meetings but
rather than disrupt these meetings by open public discussion I will
submit written comments and place copies of them on the press table.
THEN DO A HELL OF A LOT OF FOLLOW UP AND PHONE CALLS AND MORE LETTERS!

All the while, in theory and hopes, more people will start attending
these monthly county commission meetings. It is the attendance of more
and more people that will get attention, especially intended notice.

Hell, I thought about starting a monthly news paper and covering the
surrounding county commission meetings and give a "more detailed
report" since only about 30% of what is discussed at these public
meetings ever makes the press. And if I may further add, much less is
covered by the press than what should be made available to the public
that cannot attend these meetings. I am willing to bet that this issue
right here alone would be more than enough "give cause for
frustration" to many a county commissioner and would also make the
local press look bad. Attending these public meetings regularly will
reveal one thing for sure ........ the county commissioners, you can
bet, very much appreciate what the press does not print and all one
has to do is start attending these and see what I mean.

I am certain that the county commissioners would much rather prefer
that the public get this information individually by asking for the
free copies of the "meeting minutes" made available.

A lot of issues decided upon should have much more public input than
it currently gets. But then again if the public was more informed I
bet there would be a lot more public input.

Besides attending these public county meetings is good for many
reasons.

1) You can watch who sucks up to who!

2) You can wonder why they do!

3) You meet other people just like yourself from time to time! And you
know what? You do meet some nice folks here.

4) There is free coffee and cookies!

5) The press gets to see you as often as you see them.

6) You get to meet many local officials, judges, prosecutors, sheriff,
and aides of elected senators and congressional district
representatives who often are also present, and you can see who sucks
up to them.

7) See #2 above.

8) It's only once a month and lasts about an hour and rarely less than
two hours.

9) You get to hear about the many subcommittee meetings and other
related meetings outside that are often mentioned]

10) It's just common sense to be aware and participate in your local
government and

11) It's the patriotic thing to do.

12) Why believe me when you can see for yourself and not have to rely
upon my word.

I need to convince my fellow advocates why the county commissioners
need so much more attention. I know it is a "must do" if you want to
advocate child welfare and court reform.

Books by Warren Farrell, PhD, California Gubernatorial Candidate:

For reviews of Warren Farrell's most recent book, "Father and Child Reunion",
which you may purchase from Barnes and Noble, Amazon and other booksellers,
see below:

Author, Fathers' Rights and Men's Issues advocate, Warren Farrell, PhD has
filed for the wide-open California Recall Governor's race. Warren is a
long-term member of the Board of Directors of the National Congress for Fathers
and Children (NCFC). See:

http://www.ncfc.net/farrell.html  and
http://www.warrenfarrell.com

----------------------------------------------------------------------------
--------
FATHER AND CHILD REUNION by Warren Farrell, PhD
ISBN: 1585420751
Format: Hardcover, 272pp
Pub. Date: December 2000  Publisher: Putnam Publishing Group, The

Browser Address to access Father and Child Reunion at Barnes and Noble (cut
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BARNES AND NOBLE READER REVIEWS:

Bob Hirschfeld, JD (nolawyer@...), a father, lawyer and sole
custodian, September 10, 2002,
Farrell tells it like it is
Warren Farrell's book, "Father and Child Reunion" is the truth. His former
publisher was afraid to tell that truth, so Warren was obliged to seek the
present publisher. Fathers deserve not just equal rights, in many
situations, Fathers are the better parent. Buy the book!

A reviewer, I am a social worker and a feminist, May 24, 2002,
Warren Farrell tells it like it is!
This book is OUTSTANDING! When I first read this book I could not put it
down! This book speaks to my experience as a worker/ wage earner, a father,
a non-custodial father, a payer of mother-support (and that IS the correct
term guys),a husband and ex-husband. Men BUY THIS BOOK! Buy several. Give
them to your sons, your father, your uncles, your brother(s), your
grandfather your nephews. Women, if you love a man, especially if you have
children with a man BUY THIS BOOK! Have the same courage to read with an
open mind that has been demanded of men over the last 20 years!

Misha Mani Makarakan, A reviewer, January 22, 2002,
A very thoughtful book. Written by a great thinker and a visionary.
Warren Farrell has done a brilliant job again. I wish our senators would
read this book before they pass new bills in congress.

Also recommended: Why Men are the way they are.

Ron Henry, from Vienna, Virginia, November 9, 2001,
Bring Back The Fathers: Kids Need Dads
I had the privelege of reading a pre-publication copy of this book and I
can't wait until January to talk about it. Warren Farrell has written many
books about how to bring men and women together by ending gender warfare but
this time he shows how children are damaged by the warfare and demonstrates
the need for all of us to work together to bring fathers back into the lives
of children. Whether it is the runaway Dad who needs to be coaxed back into
fatherhood or the disconnected Dad who is too busy for the kids or the
pushed-away Dad who has been victimized by an unfairly restrictive custody
order, Farrell marshalls the proof that Dads are needed for the well-being
of their children and for the future of our society. Based on thirteen years
of intensive research, Farrell presents mountains of information on the
importance of Dads, all of it cross-referenced to the original sources and
scientific studies. As a true gender equality advocate (three time member of
the N.Y. National Organization for Women Board of Directors and the leader
of gender equality training workshops for thousands of men and women),
Farrell demonstrates the benefits of increased father involvement for women,
for children and for the men themselves. Everybody gains from helping men to
be good Dads and from giving them the opportunity to do so. Sure, there are
pathological extremes among Dads as in any large group but Farrell shows
that most Dads are just ordinary guys who love their kids and who want to be
an active part of their lives. Anyone who cares about family health and
well-being needs to read this book to better understand the children's need
for a father-friendly social environment. Most importantly, this book needs
to be read by every father to better understand the potential for his
contribution to his children and by every mother who wants the best for her
children. Mothers and fathers working together for the benefit of their
children is best for all of us. It's as simple as recognizing that two is
more than one with Farrell showing us just how much more and how to overcome
the difficulties of bringing one and one together to make two for the
benefit of the children. Buy this book. Read this book. Give copies to
everybody you know. It's that important.

Loving Father, A reviewer, July 23, 2001,
Farrell for Supreme Court Judge!
If family court judges had half of Farrell's knowledge and insight, and
acted accordingly, we wouldn't be seeing the selfish feminists succeeding at
destroying the family. This book will help any truly concerned parent
recognize the forces working against his or her children.

A reviewer (randorrt@...), A reviewer, February 2, 2001,
Unbelievably Remarkable!
This book is completely 'Unbelievably remarkable.' He talks about how the
book is not mother and child reunion and it is not father and son reunion.
It should have been called 'Parents come together over Me(the child).' This
is a must have and must read for ALL parents or people getting involved with
another that has children from a previous realtionship. Sincerely, Randy L.
Steffen randorrt@...

Paul M. Clements (PCLEM@...), a member of NH-NCFC, CPF, CRC, January
19, 2001,
Unquestionably the best book on the subject in thirty years.
Farrell has shown diligence in his preparation and writing of this book. It
is filled, page after page, with razor sharp insights. Farrell puts into
words what many fathers only feel. He makes clear the bias fathers must
contend with, the illogic of feminist logic, the harmful effects of well
meaning judges, and clarifies the REAL meaning of the catch phrase, 'BEST
INTERESTS OF THE CHILD'. This is a book that all publishers and editors
should read, all lawmakers should read, and all family court judges should
memorize. If you have any interest in gender issues, or parenting issues, or
issues of children's or father's rights, this book should not be missed.
Read it, then share it with others.

Also recommended:  'WOMEN CAN'T HEAR WHAT MEN DON'T SAY'.

Larry Hellmann (ncfc@...), President of NCFC, January 19, 2001,
The book for everyone who is or has a father!
Some of the greatest novels - War and Peace, Crime and Punishment, The Red
and the Black, Bread and Wine - exist around the essential struggle of the
Grand Dichotomy. Warren Farrell latest book, Father and Child Reunion, due
out January 8, 2001, is not a novel; it is fact that lives that great
struggle between the two opposites of Fatherhood - its absence and its
presence. Over nine years ago, when I had not been able to see my daughter
for over two years, I was in the depths of despair, torn between the pain I
knew my little girl would suffer through an intense and continuing custody
battle and the pain of her growing up fatherless. Right about this same
time, her mother called me up to talk to our daughter. She had not eaten in
four days 'because her friends were making fun of her because she did not
have a daddy.' I was staring the devils of the day and the devils of the
night in the face. I was ready to give up completely. Warren Farrell gave me
a set of statistics from a proposed chapter in his book 'The Myth of Male
Power' (which chapter was refused publication) - straight information, cold
and undeniable facts about the effects on children from growing up
fatherless. He told me simply: 'know this and if you still want to give up,
you can.' No one had ever given me permission to give up before, no one had
told me that I had a choice. And once I knew the hard reality of
Fatherlessness, I could not give up. The choice was easy. I have custody of
my daughter today. Father and Child Reunion is the culmination of thirteen
years of research and at least nine years search for a publisher. Applaud
the courage of Torcher-Putnam. This book is the most important compilation
of the effects of fatherhood on children that anyone interested in Family,
Fathers or Children will ever find. It has a most generous set of footnotes
citing authority, sources, and studies that allow the reader to think with
essential truth. There are many arguments about Why there is so much
Fatherlessness in America, in the World today. We need to get beyond the
why. This book goes right to What happens because there is so much
fatherlessness. The problem demands a solution. What is that solution?
Understand the cost of fatherlessness and make it as profitable for children
to have that essential relationship with its father as it has been for the
child not to have a father. The costs are horrendous - drugs, alcohol,
suicide, crime, prisons, prostitution, divorce, more Father absence.
Vicious, that circle. There have now been a few generations to verify the
extent of the problem. Warren Farrell has taken a few bold steps beyond the
identification of the problem. He has come up with some thought provoking
and challenging solutions. Real life solutions. Things we can all do
starting today, every day in our own homes with our very own families.
Before further problems surface. While the problem still has a solution.
Anyone who has a father or a child should read this book. Anyone who has a
father or a child needs to five copies of this book to anyone who is a
father or a mother. Anyone who has a father or a child must give copies of
this book to their priest or minister, to their teachers and
congresspersons, to every judge and attorney in town, to their doctors.
Organize a book-fest for the sake of every child who has drawn a breath or
will draw a breath in the future. It is that important. My child has a
father. Make sure every child you know has one too.

Also recommended: Why Men Are the Way Theyt Are. Myth of male Power. Women
Can't Hear What Men Don't Say.

Jed Diamond (jed@...), an author and Men's Health Advocate, January
19, 2001,
If you love children, please, please, read this book
What's so great about this book is that it tells the truth about the reality
that children need to be raised by both a mother and a father. Farrell
speaks with passion as well as with facts and figures to show what happens
when we exclude men from their role as fathers. More importantly it shows us
what we can do to insure that fathers are brought back home. The book will
shake you up and then bring you back down with new insights, new
understanding, and a new perspective on the future. Unlike many recent
books, it does not paint one gender as bad and the other as good, but
respects both women and men and calls on us all to end the battle of the
sexes for the sake of men, women, and most importantly for the sake of the
children.

Also recommended: All books by Warren Farrell

Serge Prengel, the editor of divorcedfather.com, January 11, 2001,
A Must-Read!
I just finished reading the 'Father and Child Reunion', and it's just great.
The book gathers a great collection of facts that speak for themselves...
theories that give these facts firm grounding... a strong connection to
men's emotions... and a respectful and empathetic attitude toward women that
is geared to promoting better understanding between the genders... At the
end, the part on 'Playing the Abuse Card' felt to me like a harrowing
crescendo on the theme of the book. The abuse issue is clearly positioned as
the extreme part of a continuum in the way society views men and treats us.
Warren Farrell describe several solutions - some individual, some societal -
that form a very exciting program. I believe the book itself is one of the
solutions - more men need to be exposed to these ideas to break through the
shame that prevents us from being ourselves.

Also recommended: All other Warren Farrell books

Bob McGuire (winforum@...), a director of a family center, January 8,
2001,
Startling New Discoveries About Parenting
Warren Farrell does an outstanding job of pulling together research from
around the world with some suprising discoveries. His 'when either sex wins,
they both lose' belief about the genders brings a non biased approach to
presenting some alarming facts, many of which we have suspected for some
time, and some which are absolutely shocking. This work brings a whole new
awareness to the unique significance and importance of each parent in a
child's life, and the huge personal and societal cost of many of the single
parent models we use today. Read it!

Also recommended: The Myth of Male Power and Women Can't hear What Men Don't
Say are two of Farrell's books I have enjoyed.