IN RE: ADOPTION OF KELSEY S.

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Court of Appeal, Sixth District, California.

IN RE: 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. H005150.

Decided: February 22, 1990

Alys Briggs, Oakland, under appointment by the Court of Appeal, for appellant. Christian R. Van Deusen, Van Deusen, Youmans & Walmsley, Santa Ana, for respondents.

Rickie Allen M. appeals an order terminating his parental rights to his son, Kelsey S., and permitting Kelsey to be adopted by Steven and Suzanne A. upon his mother, Kari Ann S.'s, consent alone.   Appellant argues on appeal that the trial court erred in concluding that he was not the child's presumed father, in not granting him a parental placement preference, and in applying the preponderance of the evidence standard of proof to the proceeding.   We disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Kelsey was born on May 18, 1988, to Kari Ann S.   Kari and appellant are unmarried.   On May 20, 1988, appellant commenced an action to establish a parental relationship with and for custody of Kelsey, under Civil Code section 7006.1

On May 24, 1988 respondents A.'s, Kelsey's prospective adoptive parents, filed an adoption petition, under section 226.   This petition alleged that appellant was not a presumed father and that only Kari Ann S.'s consent was necessary for Kelsey to be adopted.   Kari had apparently already consented to the proposed adoption.

On May 31, 1988, the A.'s filed a petition under section 7017, subdivision (d)(2) to terminate appellant's parental rights, alleging, as they had done in the adoption petition, that Kelsey had no presumed father.   The trial court then consolidated this action with appellant's section 7006 action, and granted visitation both to appellant and to the A.'s, while returning Kelsey to his mother's custody.

Hearings were held on August 3, 11, 23, 24 and 25 on the combined actions.   On August 15, the trial court ruled that appellant was not Kelsey's presumed father.   Following submission of the remaining matter, the trial court issued a statement of decision and order on August 26, 1988.   The court determined, by a “bare preponderance of the evidence,” that Kelsey's best interests required the termination of appellant's parental rights, and ordered that his consent was not required for the child's adoption.   This appeal ensued.

CONSTRUCTIVE RECEIPT

 Appellant contends that the trial court erred in determining that he was not a presumed father, under section 7004, subdivision (a).   He argues that, by taking steps to establish his paternity and custody of Kelsey, he “constructively received” the child into his home.   He also argues that his right to veto Kari's consent to Kelsey's adoption is compelled by the Constitution.   Further, he contends that the Constitution demands he be afforded a parental preference for custody, under section 4600.   Last, he argues that the burden of proof at a section 7017 proceeding should be clear and convincing evidence, rather than the preponderance standard used by the trial court.

In order to address these arguments, we will first review the statutory framework under which the trial court was asked to classify appellant's parentage in this case.

“In California unwed fathers are divided into two categories—‘natural’ fathers and ‘presumed’ fathers.   A father is a presumed father when he meets any of the requirements of section 7004.   In general that section reflects prior law under which a father could ‘legitimate’ a child born out of wedlock.   It applies to a father who has made efforts to establish some tie with the child in addition to the biological one:  for example, he has married the child's mother, or attempted to marry her, or has taken the child into his house as his own.  (§ 7004.)   A father who, like [appellant], does not qualify as a presumed father is a natural father.”  (Adoption of Michael D. (1989) 209 Cal.App.3d 122, 130, 256 Cal.Rptr. 884.)

As we noted in Michael D., significant consequences adhere upon the determination of whether a father is presumed or natural.   An adoption to which a child's mother has consented may proceed only if a presumed father has given his consent or his parental rights have been formally terminated under section 224.  (Adoption of Michael D., supra, 209 Cal.App.3d at p. 130, 256 Cal.Rptr. 884.)   A determination of the father's status, therefore, must precede and will determine whether his consent, as well as the mother's, will be required for an adoption.

Appellant asserts that since he took immediate steps to establish a parental relationship with Kelsey and to seek his custody, the trial court should have determined that he constructively received Kelsey into his home.   The result of such a determination, as we have seen, would have been to allow appellant, as a presumed father, to veto Kari S.'s decision to relinquish Kelsey for adoption.   We do not agree, however, that the trial court should have applied the doctrine of constructive receipt so as to make appellant Kelsey's presumed father under section 7004, subdivision (a)(4).

Appellant relies for his argument on In re Richard M. (1975) 14 Cal.3d 783, 122 Cal.Rptr. 531, 537 P.2d 363.   As had cases before it, Richard M. liberally interpreted former section 230, the legitimation statute, which allowed a child to be legitimated and adopted by the father if that child was received into the father's family.   Courts did not insist, however, on the child's actual physical presence in the home;  constructive reception was adequate.  (Id. at p. 783, 122 Cal.Rptr. 531, 537 P.2d 363.)   Section 230 was superceded by the enactment of the Uniform Parentage Act (§§ 7000–7021, enacted by Stats.1975, ch. 1244, p. 3196, § 11).

The appellate court in Adoption of Marie R. (1978) 79 Cal.App.3d 624, 145 Cal.Rptr. 122, a case decided after the effective date of this act, squarely rejected the argument that constructive receipt was sufficient to elevate a natural father to presumed father status.   In that case the child's mother, by placing the child for adoption, had foiled the father's attempts to receive the child into his home.   The trial court held the father had constructively received the child into his home by virtue of his attempts to gain custody, however, and concluded he was a presumed father with veto power over the child's adoption.   The appellate court reversed, citing evidence that the mother's efforts had prevented even minimal contact between the child and the putative father.  (Id. at p. 630, 145 Cal.Rptr. 122.)

As the Marie R. court said in rejecting cases decided under section 230 for authority in appellant's constructive receipt argument, courts interpreting that statute had strained to find legitimacy because of its importance at that time.   This underlying concern no longer exists under the Uniform Parentage Act, which rejects the distinction between legitimate and illegitimate children.  (Id. at p. 629, 145 Cal.Rptr. 122.)  Marie R.'s rejection of the constructive receipt argument was cited with approval in W.E.J. v. Superior Court (1979) 100 Cal.App.3d 303, 310, 160 Cal.Rptr. 862.

Since then, in Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 791, 218 Cal.Rptr. 39, 705 P.2d 362, our Supreme Court has strictly construed section 7004(a)(4)'s receipt requirement where the natural father had not received the child into his home.   And most recently, in In re Sabrina H. (1990) 217 Cal.App.3d 702, 266 Cal.Rptr. 274 Division One of the Fourth Appellate District has also rejected the application of the constructive receipt doctrine where the natural father made attempts to see his daughter which were thwarted by the child's mother.   The father's “sporadic contacts,” said the Court, “fall far short of evidencing any meaningful father-daughter relationship justifying the use of [the] ‘constructive receipt’ doctrine.”  (Id. at p. ––––, 266 Cal.Rptr. 274.)   In this case, despite his efforts, appellant never received Kelsey into his home or had any relationship with his son.   Under these circumstances, we conclude the trial court properly rejected appellant's constructive receipt argument.

 Appellant goes on to suggest, however, that a contrary conclusion is compelled by constitutional considerations, citing decisions of the United States Supreme Court on the rights of unwed fathers.   Where a fatherattempts to take responsibility for a child, he argues, he is “entitled to constitutional protection equal to the mother's.”   We disagree.

We will not review all the pertinent cases, about which much has already been written, but will only look at Lehr v. Robertson (1983) 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614, the Supreme Court's latest pronouncement in this area.   Lehr, an unwed father, was denied notice and the opportunity to participate in proceedings leading to his two-year-old daughter's adoption by her stepfather.   Despite Lehr's best attempts, and as a result of the mother's successful efforts to conceal herself and the child's whereabouts from Lehr, he had only seen the child a few times, had never had custody of her, and had not supported her financially.   Neither had he registered, under New York laws, as a putative father claiming paternity.   The Supreme Court, characterizing Lehr's relationship with his daughter as “potential,” found no constitutional error in New York's failure to afford Lehr procedural due process.

Lehr does not stand, as appellant suggests, for the proposition that an unwed father who makes affirmative efforts to establish a relationship with his child must be afforded an opportunity to veto an adoption.  Lehr mandates that some unwed fathers be afforded the opportunity to receive notice and to participate in adoption proceedings concerning their children;  appellant had that opportunity in this case.   Nothing in Lehr mandates that the rights of fathers, like appellant, with “potential” rather than “substantial” relationships with their children be equal to those of the child's mother.

PARENTAL PREFERENCE

 Failing this argument, appellant contends that the Constitution demands a natural father be afforded a parental placement preference in determining Kelsey's custody.   In effect, he asks this court to hold that the trial court should have applied section 4600, which grants a parent custody absent a showing of detriment to the child, rather than the best interests standard mandated by section 7017, subdivision (d)(2).

The dramatic difference in the application of these standards is best illustrated by looking at the cases applying them.   In W.E.J. v. Superior Court, supra, 100 Cal.App.3d 303, 160 Cal.Rptr. 862, the child's unwed mother placed the child for adoption the day after his birth.   The unwed father successfully argued that the trial court should apply the detriment test, since the mother's actions in giving custody to the potential adoptive parents effectively prevented him from becoming a presumed father.   The appellate court reversed, and the case was remanded for a determination of the child's best interests.   In Adoption of Baby Boy D. (1984) 159 Cal.App.3d 8, 205Cal.Rptr. 361, in contrast, the appellate court agreed that the detriment test should have been applied to a natural father's claim for custody.

Two months after the Second Appellate District affirmed Baby Boy D., our Supreme Court decided In re Baby Girl M. (1984) 37 Cal.3d 65, 207 Cal.Rptr. 309, 688 P.2d 918, a case factually similar to W.E.J.   Four days after the unwed father in that case learned of the child's birth, he requested the child be placed with the family caring for his two sons.  (Id. at p. 68, 207 Cal.Rptr. 309, 688 P.2d 918.)   The mother refused, and consented to the child's placement for adoption.   The father then requested custody, and the trial court rejected this request using a best interests standard.   The appellate court, in a decision affirmed by the Supreme Court, rejected this test in favor of the detriment standard because it represented the non-presumed father's sole practical opportunity to establish himself as a parent.  (Id. at p. 74, 207 Cal.Rptr. 309, 688 P.2d 918.)

The Supreme Court's mandate in Baby Girl M. remains equivocal, however.   In Michael U. v. Jamie B., supra, 39 Cal.3d 787, 218 Cal.Rptr. 39, 705 P.2d 362, while reiterating the necessity of using the detriment test in determining an unwed father's claim to the custody of his child, the Court reversed an order awarding temporary custody to an unwed father and remanded for a new custody hearing.   Applying the detriment standard, it concluded that the grant of custody to an “unemployed high school student,” could not be upheld, citing evidence, inter alia, of the serious harm which would be inflicted on the child should he be removed from the custody of his prospective adoptive parents.   (Id. at p. 796, 218 Cal.Rptr. 39, 705 P.2d 362.)   This, as Justice Reynoso pointed out in his dissent, is a part of the best interests test.  (Id. at p. 800, 218 Cal.Rptr. 39, 705 P.2d 362.)   Since two other justices, while concurring in the result, expressed their opinion that the holding of Baby Girl M. should be overruled, the fate of the detriment test after Michael U. remains unclear, since the best interests test now appears, in practice, to be a significant part of the detriment analysis.  (See also Note (1986) 20 U.S.F.L. Rev. 701.)

Two years after Baby Girl M. was decided, the legislature amended section 7017, subdivision (d)(2) (Stats.1986, ch. 1370, § 2) to add language which states unequivocally:  “Section 4600 does not apply to this proceeding.”   We are persuaded that this amendment was intended to free trial courts from the Supreme Court's mandate that the detriment standard should be applied to the claims of unwed fathers seeking custody of their children.  (See also Adoption of Christopher S. (1987) 197 Cal.App.3d 433, 443–444, 242 Cal.Rptr. 866 [dissent of Poche, J.].)

Citing Jermstad v. McNelis (1989) 210 Cal.App.3d 528, 258 Cal.Rptr. 519, however, appellant argues that this amendment, read in light of federal due process considerations, mandates a parental preference in a contestbetween an unwed father and prospective adoptive parents.   We do not read Jermstad as providing unequivocal support for appellant's claim.

In Jermstad, decided after the effective date of the amendment, the trial court awarded custody of the child to his natural (not presumed) father and the mother, who had consented to the child's adoption, appealed.   The appellate court, addressing appellant's argument that the trial court had erred in according the father a parental preference, stated:  “The natural father must be afforded a parental preference under the amended statute where he promptly acknowledges paternity and seeks custody of the child.”  (Jermstad v. McNelis, supra, 210 Cal.App.3d at p. 545, 258 Cal.Rptr. 519.)   The court based this conclusion on its analysis of the holdings in Stanley v. Illinois (1972) 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551;  Quilloin v. Walcott (1978) 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511;  Caban v. Mohammed (1979) 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297, and Lehr v. Robertson, supra, 463 U.S. 248, 103 S.Ct. 2985, and their application in In re Baby Girl M., supra, 37 Cal.3d 65, 207 Cal.Rptr. 309, 688 P.2d 918.   The court reasoned that to the extent to which the Supreme Court rested its decision in In re Baby Girl M.—that the section 4600 detriment standard applied to section 7017 proceedings—on federal constitutional grounds, the 1986 amendment could not overturn that decision.   It went on to reason, in addition, that the amendment “does not prohibit a parental preference, but rather frees the trial court from the constraints of section 4600 in circumstances in which a parental preference is not supported by constitutional considerations.”  (Jermstad v. McNelis, supra, 210 Cal.App.3d at p. 549, 258 Cal.Rptr. 519.)

In support of this conclusion, the opinion cited language in amended section 7017, subdivision (d)(2) that “efforts made by the father to obtain custody” may be considered in determining the child's best interests.   It then concluded that the statute could be read in a manner consistent with constitutional constraints, (id. at p. 551, 258 Cal.Rptr. 519) and upheld the trial court's decision to award custody to Jermstad, the father, who had promptly come forward to request he be made custodian of his child.

We do not read the constitutional restraints imposed by the Supreme Court as broadly as does the Third Appellate District.   No Supreme Court case has mandated that a father, like appellant, who moves promptly to grasp full custodial responsibility for his child, must be awarded custody.  Stanley requires only that fathers who wish to be their children's custodians must be given “hearings on [their] fitness” to do so.  (Stanley v. Illinois, supra, 405 U.S. at p. 657, fn. 9, 92 S.Ct. at p. 1215, fn. 9.)

And no Supreme Court case has held the substantive rights of unwed fathers with only “potential” relationships to their children equal to those of the children's mothers.  (See Buchanan, The Constitutional Rights of Unwed Fathers Before and After Lehr v. Robertson (1984) 45 Ohio St.L.J. 313, 372.)   As Buchanan points out, in Lehr the Court summarily dismissed such a claim by pointing out the differences between the child's relationship with her mother and with her father (Lehr v. Robertson, supra, 463 U.S. at p. 248, 103 S.Ct. at p. 2986), and the Caban majority was careful to distinguish the rights of the father in that case, who had lived with the mother and children for some period, from those of the father of a newborn child.  (Caban v. Mohammed, supra, 441 U.S. at p. 392, 99 S.Ct. at p. 1768.)

In sum, we conclude that a natural father's biological relationship to his child, standing alone, does not entitle him to an absolute right to that child's custody absent a showing of detriment.   Appellant has failed to convince us that either the holdings of the Supreme Court, or this state's interpretation of those holdings, compels the rejection of a best interests determination as a constitutionally appropriate substantive standard in a section 7017, subdivision (d)(2) custody dispute between a natural father and a child's prospective adoptive parents.

STANDARD OF PROOF

 The trial court's statement of decision in this case states:  “Following a careful and painful weighing of all the evidence, with the petitioners having the burden of proof by a preponderance of the evidence, the court is satisfied that by a bare preponderance the petitioners have shown that the best interest of the minor requires termination of the father's parental rights and that the proposed adoption be allowed to proceed.   Accordingly, the court finds that the father's consent is not required for this adoption and that all his parental rights and responsibilities with respect to his child be terminated.”

Appellant objects to the trial court's use of the preponderance of the evidence standard and urges this court to conclude that the burden of proof in a section 7017, subdivision (d)(2) hearing should be clear and convincing evidence.   We decline this invitation.

Evidence Code section 115 states:  “Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence.”   Appellants have not cited, nor have we found, any statute, or any appellate cases which have held the clear and convincing standard applicable to a section 7017 determination.   Appellant relies on Santosky v. Kramer (1982) 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599, in which the Supreme Court held that clear and convincing evidence must support a termination of parental rights to a child who is “permanently neglected” as defined by New York laws.  (Id. at p. 748, 102 S.Ct. at p. 1392.)

We are not persuaded that either Santosky, or California cases decided under section 232, which allows the termination of the parental rights of those parents who have abused or neglected their children, are applicable to a section 7017 proceeding.

Section 7017, subdivision (d)(2) asks a court to determine whether terminating the parental rights of a natural father who has not had a custodial relationship to his child is in the best interests of that child.   A natural father, as we have already discussed, is one who has failed to achieve the status of a presumed father by virtue of having had a “substantial” rather than “potential” relationship with his child.   Section 232 and parallel statutes in other jurisdictions, in contrast, are concerned with whether a parent's rights should be terminated because of abuse or neglect.   These statutes focus primarily on a parent's conduct towards a child, and not on the parameters of the parent-child relationship.   Consequently, they make no distinction between fathers who have had custodial or other substantial relationships with their children, and those who have not.

We therefore hold it proper, and consistent with constitutional dictates, that section 7017, subdivision (d)(2) proceedings operate with a preponderance of the evidence standard of proof, while section 232 proceedings operate with the higher clear and convincing standard.

The trial court's order is affirmed.

FOOTNOTES

1.   All further references are to the Civil Code unless otherwise noted.

ELIA, Associate Justice.

AGLIANO, P.J., and PREMO, J., concur.