IN RE: BABY GIRL M.

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Court of Appeal, Fourth District, Division 1, California.

IN RE: BABY GIRL M., a Minor. COUNTY OF SAN DIEGO, DEPARTMENT OF SOCIAL SERVICES, Petitioner and Respondent, v. EDWARD M., Respondent and Appellant.

Civ. 26793.

Decided: March 28, 1983

Joseph D'Addario, San Diego, for respondent and appellant. Donald L. Clark, County Counsel, Lloyd M. Harmon, Jr., Chief Deputy County Counsel, Arlene Prater and Janet B. Houts, Deputies County Counsel, San Diego, for petitioner and respondent.

The County of San Diego, Department of Social Services, filed a petition to terminate the rights of Edward M.1 under Civil Code 2 section 7017, subdivision (b).   After a full hearing, the superior court found Edward established he was the biological father of Baby Girl M., a matter not here in contest, but determined it was in the best interests of the child to remain with the adopting parents and he had not proved it was in the child's best interest that custody should be with him.   The court terminated Edward's rights to the child.   He appeals, contending in order for the court to award custody to one other than the parent, the court was compelled to find the award of custody to him would be detrimental to the child and the award to the nonparent is required to serve the best interests of the child.   He relies on section 4600.   Additionally, he argues public policy demands he have preferential rights to custody over a stranger.

Baby Girl M.'s mother and Edward had been seeing each other from time to time between September and November 1980.   After November, they did not see each other until August 1981.   The child was born July 18, 1981, and placed in the care of foster parents three days later.

The mother arranged a meeting to advise Edward of the child's birth.   He was first informed of the child when they met on the first of August.   He had not been aware of her pregnancy before that time.

The mother had announced the fact she wanted to place the child for adoption and on August 5 she signed a relinquishment of the child after a conference with Joan Gray of the County Department of Social Services.

When the County caseworker contacted Edward later that day to discuss his rights, he told the worker he did not want custody but would prefer to see the child placed with a family that had been his baby sitter.   At their second meeting on August 10, he told the caseworker he did not know what was best for the child and was still not saying whether he wanted the child.   The petition to terminate Edward's rights was filed on August 10, and it alleged Baby Girl M. was then in the custody of the agency by virtue of the mother's relinquishment.   Edward asked to see the child and a third meeting was arranged on August 17 at the adoption facility where he expressed an interest in keeping the child.   The child was placed in an adoptive placement home on August 24, 1981, with a couple selected by the mother from the agency file pursuant to an understanding between them reached at the time the mother signed the relinquishment.   Later, Edward again expressed an interest in seeing the child and a second visit with the child was arranged on November 3, at which time he announced he definitely wanted to keep the child and would fight the adoption.

Sherry Wenzel testified she knew Edward through their church and had agreed to care for the girl by day.   She testified she had seen Edward's care of his boys and described him as a loving, patient man.   During argument, the trial court said Edward is “a good parent and can provide a good, loving home for this child.”

California law provides two categories of fathers, “alleged natural father” and “presumed 3 natural father,” and provides different rights for each (Uniform Parentage Act, § 7000 et seq.).   There appears to be no dispute that he fathered the child and he is thus entitled to the rights allowed the natural father of the child.

 The separate category provided by law for a “presumed natural father” is defined by section 7004, subdivision (a).4  Generally he is one who was married to the mother at the time of the birth or conception, or attempted to get married at one of those times, or after the birth of the child married or attempted to marry and he was named father on the birth certificate or is legally obligated to support the child as a father, or has received the child into his home and openly holds the child out as his own natural child.   By the facts and express concessions of Edward, he fits none of these categories and is not a “presumed natural father.”

 While the presumed natural father has rights generally equal to the mother (§ 197, custody;  § 224, consent to adoption; 5  § 252, termination of parental rights), the biological natural father who does not qualify as a presumed natural father has much more limited rights and that distinction is founded on sound public policy (W.E.J. v. Superior Court, supra, 100 Cal.App.3d 303, 308–310, 160 Cal.Rptr. 862;  see also Bodenheimer, New Trends and Requirements in Adoption Laws (1975) 49 So.Cal.L.Rev. 10, 57–62).

Section 7017 provides for the procedure to be followed to obtain the consent of the natural parents.   In that connection, section 7017, subdivision (b), provides guidance.

“(b) If a mother relinquishes for, consents to, or proposes to relinquish for or consent to the adoption of a child who does not have (1) a presumed father under subdivision (a) of Section 7004 or (2) a father as to whom the child is a legitimate child under prior law of this state or under the law of another jurisdiction, or if a child otherwise becomes the subject of an adoption proceeding and the alleged father, if any, has not, in writing, denied paternity, waived his right to notice, voluntarily relinquished or consented to the adoption, the agency or person to whom the child has been or is to be relinquished, or the mother or the person having custody of the child, shall file a petition in the superior court to terminate the parental rights of the father, unless the father's relationship to the child has been previously terminated or determined not to exist by a court, or unless the father has been served as prescribed in subdivision (f) with a written notice alleging that he is or could be the natural father of the child to be adopted or placed for adoption and has failed to bring an action for the purpose of declaring the existence of the father and child relationship pursuant to subdivision (c) of Section 7006 within 30 days of services of such notice or the birth of the child, whichever is later.”

As the natural father, not the presumed natural father, Edward's rights are spelled out in section 7017, subdivision (d).

“(d) If, after the inquiry, the natural father is identified to the satisfaction of the court, or if more than one man is identified as a possible father, each shall be given notice of the proceeding in accordance with subdivision (f), unless he has been served with a written notice alleging that he is or could be the natural father of the child to be adopted, or placed or relinquished for adoption and has failed to bring an action pursuant to subdivision (c) of Section 7006 to declare the existence of the father and child relationship within 30 days of serving such notice or the birth of the child, whichever is later.   If any of them fails to appear or, if appearing, fails to claim custodial rights, his parental rights with reference to the child shall be terminated.   If the natural father or a man representing himself to be the natural father, claims custodial rights, the court shall proceed to determine percentage and custodial rights in whatever order the court deems proper.   If the court finds that the man representing himself to be the natural father is a presumed father under subdivision (a) of Section 7004, then the court shall issue an order providing that the father's consent shall be required for an adoption of the child.   In all other cases, the court shall issue an order providing that only the mother's consent shall be required for the adoption of the child.”  (Emphasis added.)

 The law thus requires the natural father be given notice consistent with due process requirements (see Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551;  In re Tricia M., 74 Cal.App.3d 125, 132–133, 141 Cal.Rptr. 554), and the court should then proceed to determine parentage and custodial rights.

In making these distinctive statutory classifications and setting apart the biological fathers who have neither gone through an apparently valid marriage ceremony with the mother nor lived with the child as a parent, the Legislature has purposefully limited the power of this type of father to veto an adoption.  (Accord:  W.E.J. v. Superior Court, supra, 100 Cal.App.3d 303, 314, 160 Cal.Rptr. 862;  In re Tricia M., supra, 74 Cal.App.3d 125, 134, 141 Cal.Rptr. 554.)

Edward contends, however, that before the court can make an order terminating his rights as a father and awarding the child to a nonparent, it is required to find not only that it be in the best interests of the child but also that it would be detrimental to the child to award the child to the parent.   He cites section 4600.6

 California follows the doctrine of parental preference which holds “a court must award physical custody of a minor to a parent, if fit to exercise custody, as against a stranger” (In re B.G., 11 Cal.3d 679, 693–694, 114 Cal.Rptr. 444, 523 P.2d 244;  emphasis added).   The United States Supreme Court describes it thus:  “The rights to conceive and to raise one's children have been deemed ‘essential’ [citation], ‘basic civil rights of man’ [citation], and ‘[r]ights far more precious than ․ property rights' [citation].   It is cardinal with us that the custody, care and nurture of the child reside first in the parents․”  (Stanley v. Illinois, supra, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551;  emphasis added).   The doctrine, of course, has constitutional import from the standpoints of due process and equal protection (Stanley v. Illinois, supra;  Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297).7

In re B.G., supra, 11 Cal.3d 679, 114 Cal.Rptr. 444, 523 P.2d 244, noted in 1974 California had “at least eight separate proceedings in which custody questions can be litigated” (11 Cal.3d at p. 696, 114 Cal.Rptr. 444, 523 P.2d 244), observed a uniform rule is desirable and concluded section 4600, which applies to “ ‘any proceeding where there is at issue the custody of a minor child’ [§ 4600, subd. (a) ] was enacted to fulfill that objective” (ibid.).   B.G. went on to hold section 4600 applies to juvenile court custody questions as between a parent and nonparent, and the court is permitted to award custody to a nonparent against the claim of a parent “only upon a clear showing that such award is essential to avert harm to the child.   A finding that such an award will promote the ‘best interests' or the ‘welfare’ of the child will not suffice” (id. at pp. 698–699, 114 Cal.Rptr. 444, 523 P.2d 244).   Thus, it is essential the court make the dual finding an award of custody to the parent would be detrimental to the child and an award of custody to a nonparent is required to serve the best interest of the child.

A section 7017 proceeding where the natural father “claims custodial rights” (§ 7017, subd. (d)) obviously is a “proceeding where there is at issue the custody of a minor child” (§ 4600, subd. (a);  see In re Tricia M., supra, 74 Cal.App.3d 125, 137, 141 Cal.Rptr. 554).   We have here a custody question between a parent and a nonparent, the agency which, due to the mother's relinquishment, has exclusive custody and control until either an interlocutory or final decree of adoption is granted (§ 224n).8

 We do not consider interposition of the dual standard of section 4600 upon an alleged natural father's claim of custodial rights under section 7017, subdivision (b), to have the effect of giving a “power to veto an adoption which the mother and court might find to be in the best interest of the child” (W.E.J. v. Superior Court, supra, 100 Cal.App.3d 303, 314, 160 Cal.Rptr. 862).   Rather, it merely interjects the necessary uniform standard into the section 7017, subdivision (d), custody proceeding which, at least in this case, is the nonpresumed natural father's sole practical opportunity to establish himself as parent.9  The doctrine of parental preference in custody matters is not mere ideology, but rather, is a recognized right.   There must be a reasonable opportunity to assert and effectuate this right.   Application of the section 4600 dual standard in section 7017 proceedings where custodial rights are claimed facilitates the assertion of that doctrine but does not necessitate it be carried out in every case.   That will depend on the evidence, particularly with respect to detriment to the child if the natural father is awarded custody.

 In addition, the due process and equal protection principles enunciated by the United States Supreme Court encourage application of the dual standard of section 4600 when one considers the nature and degree of control of the situation in the hands of the various participants.   The mother and the agency have set in motion the adoption process with its vital incident of preadoption placement.   The father legally has no custodial or consensual say in the matter unless and until he establishes himself as a presumed father.   Marriage or attempted marriage where the soon to be unwed mother remains incommunicado during the pregnancy cannot be considered a reasonably possible alternative means to achieving status as a presumed father.   The only reasonable possibility for the father is to seek to receive the child into his home and openly hold out the child as his natural child (§ 7004, subd. (a), par. (4)).  This he may do in the termination proceeding under section 7017 which has been brought at the instance of the mother and the agency.   In this proceeding, the unwed father's constitutional rights must be protected, and application of the section 4600 standard accommodates those rights (see In re Reyna, 55 Cal.App.3d 288, 297, 126 Cal.Rptr. 138).10

Reyna is similar to the case before us.   There, the child was relinquished to the agency for adoption four days after birth, put in a foster home for two weeks, then placed in the preadoptive home of the prospective adopting parents where the child remained through the decision on appeal.   David, the unwed father to be, knew of the mother's pregnancy and tried to marry her but was refused, and the two moved about with David's whereabouts becoming unknown.   David did not learn of the child's birth until five weeks after it occurred.   Six weeks after he learned of the birth and placement for adoption, David filed a petition for writ of habeas corpus seeking to obtain custody of the child from the agency.   After the superior court denied the writ, David filed for habeas corpus in the Court of Appeal which ordered a referee to be appointed to take evidence pertaining to the welfare of the child, including evidence relevant to possible harm—either physical, emotional, or psychological—that would occur if the custody is awarded to the father.   The referee was further ordered to file a report and recommendation as to custody “under the standards specified in Civil Code section 4600” (55 Cal.App.3d at p. 305, 126 Cal.Rptr. 138).  Reyna squarely holds the section 4600 standard applies.

There is no sound reason for distinguishing Reyna due to the fact it was decided in the context of the law in effect before the enactment of the Parentage Act.   David had asserted he had legitimated the child “by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child ․” (former § 230).   The court noted “if David has not legitimated the child, and if he is not entitled to custody under the section 4600 standard, the mother's relinquishment enables the agency to place the child for adoption without David's consent” (55 Cal.App.3d at p. 297, 126 Cal.Rptr. 138).  Reyna went on to observe the question “of legitimation was irrelevant to whether David is entitled to custody of his child.   However, as legitimation will determine whether the child can be adopted without David's consent or without a section 232 order freeing the child from his control,” it was beneficial to decide the issue (55 Cal.App.3d at p. 297, 126 Cal.Rptr. 138).   Applying the former section 230 standard which is very much like the present section 7004, subdivision (a)(4) standard for a presumed father, the Reyna court went on to hold:

“[B]ecause David never has had physical contact with his child, and because he never has had a personal relationship with the child's mother since the child was conceived, he cannot be said to have received the child into his family;  thus, the evidence supports the trial court's finding that the child has not been legitimated.   We emphasize, however, that legitimation will become effected immediately if David is awarded custody and physically receives the child into his family.”  (55 Cal.App.3d at p. 301, 126 Cal.Rptr. 138;  emphasis added.)

Similarly, here, presumed fatherhood will become effected immediately if Edward is awarded custody and physically receives the child into his family (§ 7004, subd. (a)(4);  In re Tricia M., supra, 74 Cal.App.3d 125, 134, 141 Cal.Rptr. 554;  Adoption of Rebecca B., 68 Cal.App.3d 193, 198, fn. 4, 137 Cal.Rptr. 100;  cf. W.E.J. v. Superior Court, supra, 100 Cal.App.3d 303, 311, 160 Cal.Rptr. 862 11 ).

We hold the section 4600 standard applies to section 7017 proceedings in which the father claims custody rights.

Judgment reversed for further proceedings consistent with this opinion.

FOOTNOTES

1.   The statement of decision refers to Edward M. as “Robert” but we observe this to be only a clerical error.

FN2. All statutory references are to the Civil Code unless otherwise specified..  FN2. All statutory references are to the Civil Code unless otherwise specified.

3.   The term presumed father does not denote an evidentiary presumption but identifies a special class (W.E.J. v. Superior Court, 100 Cal.App.3d 303, 308, 160 Cal.Rptr. 862).

4.   “§ 7004. (a) A man is presumed to be the natural father of a child if he meets the conditions as set forth in Section 621 of the Evidence Code or in any of the following subdivisions:“(1) He and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a decree of separation is entered by a court.“(2) Before the child's birth, he and the child's natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and, [¶] “(i) If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce;  or [¶] (ii) If the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation.“(3) After the child's birth, he and the child's natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and [¶] (i) With his consent, he is named as the child's father on the child's birth certificate, or [¶] (ii) He is obligated to support the child under a written voluntary promise or by court order.“(4) He receives the child into his home and openly holds out the child as his natural child.”

5.   Section 224 reads, in part:  “A child having a presumed father under subdivision (a) of Section 7004 cannot be adopted without the consent of its parents if living;  however, if one parent has been awarded custody by judicial decree, or has custody by agreement of the parents, and the other parent for a period of one year willfully fails to communicate with and to pay for the care, support, and education of the child when able to do so, then the parent having custody alone may consent to the adoption, but only after the parent not having custody has been served with a copy of a citation in the manner provided by law for the service of a summons in a civil action that requires him or her to appear at the time and place set for the appearance in court under Section 227;  failure of a parent to pay for the care, support and education of the child for the period of one year or failure of a parent to communicate with the child for the period of one year is prima facie evidence that the failure was willful and without lawful excuse;  nor a child with no presumed father under subdivision (a) of Section 7004 without the consent of its mother if living ․”

6.   Section 4600, subdivision (c), provides in part:  “Before the court makes any order awarding custody to a person or persons other than a parent, without the consent of the parents, it shall make a finding that an award of custody to a parent would be detrimental to the child and the award to a nonparent is required to serve the best interests of the child.”

7.   Caban held unconstitutional a statute, different from any we consider here, which it viewed as representing “ ‘overbroad generalizations' in gender-based classifications” (441 U.S. at p. 394, 99 S.Ct. at p. 1769), having the effect of discriminating “against unwed fathers even when their identity is known and they have manifested a significant paternal interest in the child.   The facts of this case illustrate the harshness of classifying unwed fathers as being invariably less qualified and entitled than mothers to exercise a concerned judgment as to the fate of their children.   Section 111 both excludes some loving fathers from full participation in the decision whether their children will be adopted and, at the same time, enables some alienated mothers arbitrarily to cut off the parental rights of fathers.   We conclude that this undifferentiated distinction between unwed mothers and unwed fathers, applicable in all circumstances where adoption of a child of theirs is at issue, does not bear a substantial relationship to the State's asserted interests.”  (Ibid.)Generally, the statute involved in Caban permitted an unwed mother, but not an unwed father, to block an adoption merely by withholding her consent.   The father could prevent an adoption only by showing it would not be in the child's best interests.

8.   Section 224n, subdivision (a), provides in part:  “The department or licensed adoption agency to which a child has been freed for adoption by either relinquishment or termination of parental rights shall be responsible for the care of the child, and shall be entitled to the exclusive custody and control of the child until either an interlocutory decree of adoption or a final decree of adoption has been granted.   Any placement for temporary care, or for adoption made by the department or a licensed adoption agency, may be terminated at its discretion at any time prior to the granting of an interlocutory decree of adoption or final decree of adoption.   In the event of termination of any placement for temporary care or for adoption, the child shall be returned promptly to the physical custody of the agency.”

9.   Edward, it must be remembered, knew nothing of the pregnancy or birth until almost two weeks after the birth.   Initial adoption decisions had already been made, as the child was placed in foster care three days after birth, and on the date of Edward's first conversation in person with the agency about the matter, August 5, the agency took exclusive custody and control of the child by virtue of the relinquishment.   By the time Edward knew of the situation, there was no reasonable opportunity to establish himself as a presumed natural father.   Seeking custody under section 7017, subdivision (d), was his only chance.

10.   Reyna said, in part:  “Because recent cases define the parental preference rule as arising from the natural relationship between a parent and child rather than the legal relationship [citations], we construe the word ‘parent’ as used in section 4600 to include the father of an illegitimate child.  (We decline to follow any suggestion to the contrary in Cheryl H. v. Superior Court, supra, 41 Cal.App.3d [273] at p. 278 [115 Cal.Rptr. 849].)   To restrict the parental preference rule of section 4600 to fathers of legitimate children, in our opinion, would be to deny [the unwed father] the equal protection of the laws.  (Stanley v. Illinois, supra;  In re Lisa R., supra [13 Cal.3d 636, 119 Cal.Rptr. 475, 532 P.2d 123].)”  (55 Cal.App.3d at p. 297, 126 Cal.Rptr. 138.)

11.   With respect to the criticism of Tricia M. on this point set forth in W.E.J., supra, it is to be observed the end result of both decisions is the same when custody is awarded to the father, whether the father is then deemed to be a presumed father giving rise to the need for his consent to the adoption (Tricia M. view) or whether the custody order merely has the effect of “forestalling the need for an adoption” (W.E.J. view, 100 Cal.App.3d at p. 311, 160 Cal.Rptr. 862).

COLOGNE, Associate Justice.

BROWN, P.J., and WORK, J., concur.