Adoption of Kelsey S.

• Decision Date: 20 February 1992
• Docket Number: No. S014775,S014775
• Citation: 823 P.2d 1216,1 Cal.4th 816,4 Cal.Rptr.2d 615
• Court: California Supreme Court
• Parties: , 823 P.2d 1216, 60 USLW 2602 ADOPTION OF KELSEY S., a Minor. STEVEN A. et al., Plaintiffs and Respondents, v. RICKIE M., Defendant and Appellant. RICKIE M., Plaintiff and Appellant, v. KARI S., Defendant and Respondent.

Page 615

4 Cal.Rptr.2d 615

1 Cal.4th 816, 823 P.2d 1216, 60 USLW 2602

ADOPTION OF KELSEY S., a Minor.

STEVEN A. et al., Plaintiffs and Respondents, v. RICKIE M., Defendant and Appellant.

RICKIE M., Plaintiff and Appellant, v. KARI S., Defendant and Respondent.

No. S014775.

Supreme Court of California,

In Bank.

Feb. 20, 1992.

[1 Cal.4th 821] [823 P.2d 1217] Alys Briggs, Sacramento, for defendant and appellant.

Christian R. Van Deusen, Van Deusen Youmans & Walmsley, Santa Ana, for plaintiffs and respondents.

BAXTER, Justice.

The primary question in this case is whether the father of a child born out of wedlock may properly be denied the right to withhold his consent to his child's adoption by third parties despite his diligent and legal attempts to obtain custody of his child and to rear it himself, and absent any showing of the father's unfitness as a parent. We conclude that, under these circumstances, the federal constitutional guarantees of equal protection and due process require that the father be allowed to withhold his consent to his child's adoption and therefore that his parental rights cannot be terminated absent a showing of his unfitness within the meaning of Civil Code section 221.20.

FACTS

Kari S. gave birth to Kelsey, a boy, on May 18, 1988. The child's undisputed natural father is petitioner Rickie M. ¹ He and Kari S. were not married to one another. At that time, he was married to another woman but was separated from her and apparently was in divorce proceedings. He was aware that Kari planned to place their child for adoption, and he objected to her decision because he wanted to rear the child.

Two days after the child's birth, petitioner filed an action in superior court under Civil Code section 7006 to establish his Later that day, petitioner filed a copy of the order with law enforcement officials. He also personally attempted to serve it on the prospective adoptive parents at their home. He was unsuccessful.

                [823 P.2d 1218] parental relationship with the child and to obtain custody of the child.  (The petition erroneously stated that the child had not yet been born.  His birth was earlier than expected, and petitioner had not been informed of it when he filed his action.)   That same day, the court issued a restraining order that temporarily awarded care, custody, and control of the child to petitioner.  The order also stayed all adoption proceedings and prohibited any contact between the child and the prospective adoptive parents
                

On May 24, 1988, Steven and Suzanne A., the prospective adoptive parents, filed an adoption petition under Civil Code section 226. ² Their petition alleged that only the mother's consent to the adoption was required because there was no presumed father under section 7004, subdivision (a).

On May 26, 1988, the superior court modified its May 20 order and awarded temporary custody of the child to its mother. The court ordered the mother to live with the child in a shelter for unwed mothers. The court also found that its May 20 temporary order had not been followed. The record before us is not entirely clear on this point. Petitioner alleges that the prospective adoptive parents attempted to evade service of the order and secretly removed the child from their home. In this court, the prospective adoptive parents do not directly dispute these allegations. At the May 26 hearing, however, the superior court declined to find a "knowing violation" of its prior order. In any event, the trial court prohibited visitation by either the prospective adoptive parents or petitioner.

On May 31, 1988, the prospective adoptive parents filed a petition under section 7017 to terminate petitioner's parental rights. The superior court consolidated that proceeding with the adoption proceeding. The court allowed petitioner to have supervised visitation with the child at the women's shelter where the child was living with his mother. The court also allowed the prospective adoptive parents to have unsupervised visitation at the shelter.

The parties subsequently stipulated that petitioner was the child's natural father. The superior court, however, ruled that he was not a "presumed father" within the meaning of section 7004, subdivision (a)(4). The court held four days of hearings under section 7017, subdivision (d)(2) to determine whether it was in the child's best interest for petitioner to retain his parental rights and whether the adoption should be allowed to proceed. (The attorney appointed by the trial court to represent the child's interests advocated that petitioner should retain his parental rights.) On August 26, 1988, the court found "by a bare preponderance" of the evidence that the child's best interest required termination of petitioner's parental rights. (Italics added.)

Petitioner appealed. He contended the superior court erred by: (1) concluding that he was not the child's presumed father; (2) not granting him a parental placement preference; and (3) applying a preponderance-of-the-evidence standard of proof. The Court of Appeal rejected each of his contentions and affirmed the judgment.

DISCUSSION

1. The statutory framework

Section 7004 states, "A man is presumed to be the natural father of a child ..." if the man meets any of several conditions set forth in the statute. ³ Whether a biological Mothers and presumed fathers have far greater rights. Under section 221.20, either a mother or presumed father can withhold consent to the adoption except in certain specified and narrow circumstances: (1) if a noncustodial parent willfully fails for a year or more to communicate with and support the child; (2) a court has declared the child to be free of the parent's custody and control pursuant to chapter 4 of title 2 of part 3 of division 1 of the Civil Code, or the parent has voluntarily relinquished his or her rights in a judicial proceeding; (3) the parent has deserted the child without provision for its identification; or (4) the parent has relinquished the child for adoption. ⁵ Moreover, section 7017, subdivision (d)(2) states that its provision for allowing termination of a natural father's parental rights based on the child's best interest does not apply to presumed fathers. In short, a mother or a presumed father must consent to an adoption absent a showing by clear and convincing evidence of that parent's unfitness.

                [823 P.2d 1219] father is a "presumed father" under section 7004 is critical to his parental rights.  If the mother of a child who does not have a presumed father consents to the child's adoption, a petition must, [1 Cal.4th 824] except in certain narrow circumstances, be filed in the superior court to terminate the natural father's parental rights.  (§ 7017, subd.  (b).)  If the natural father or a man representing himself to be the natural father claims parental rights, the court first must determine whether he is the natural father.  (§ 7017, subd.  (d)(2).)   If so, "The court shall then determine if it is in the best interest of the child that the father retain his parental rights, or that an adoption of the child be allowed to proceed....  If the court finds that it is in the best interest of the child that the father should be allowed to retain his parental rights, it shall order that his consent is necessary for an adoption."  (Ibid.)  The child's best interest is the sole criterion where there is no presumed father.  As in the present case, the trial court's determination is frequently that the child's interests are better served by a third party adoption than by granting custody to the unwed natural father. 4
                

This statutory scheme creates three classifications of parents: mothers, biological fathers who are presumed fathers, and biological fathers who are not presumed fathers (i.e., natural fathers). A natural father's consent to an adoption of his child by third parties is not required unless the father makes the required showing that retention of his parental rights is in the child's best interest. Consent, however, is required of a mother and a presumed father regardless of the child's best interest. The natural father is therefore treated differently from both mothers and presumed fathers. With this statutory framework in mind, we now examine petitioner's contentions.

2. Acquiring presumed father status by obtaining constructive receipt of the child

A man becomes a "presumed father" under section 7004, subdivision (a)(4) (hereafter section 7004(a)(4)) if "[h]e receives the child into his home and openly holds out the child as his natural child." (Italics added.) It is undisputed in this case that petitioner openly held out the child as being his own. Petitioner, however, did not physically receive the child into his home. He was prevented from doing so by the mother, by court order, and allegedly also by the prospective adoptive parents.

Respondents contend the statutory scheme allows a mother to preclude her child's father from acquiring presumed father status and thereby eliminate the need for his consent regardless of whether he is a demonstrably fit parent. Petitioner responds that such result is impermissible under the federal constitutional guarantees of equal protection and due process. He claims he should be deemed to be the presumed father under section 7004(a)(4) because he did all that he could do under the circumstances to receive the child into his home. He contends we should not construe the statute in such a way that the mother can unilaterally bar the father from receiving their child into his home and thereby deprive him of presumed father status and the concomitant right under section 221.20 to withhold consent to the child's adoption by third parties. Petitioner asserts that constructive receipt is sufficient under section 7004(a)(4) to provide him with presumed father status and the right to withhold consent.

Petitioner's argument in favor of constructive receipt is based largely on the ...