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Court of Appeal, Fourth District, Division 3, California.

MICHAEL U., a Minor, By and Through his Guardian Ad Litem, LINDA U., Plaintiff and Respondent, v. JAMIE B., a Minor, Glenn W. and Gayle W., Defendants and Appellants.

JAMIE B., Petitioner, v. SUPERIOR COURT OF the COUNTY OF ORANGE, Respondent; MICHAEL U., Real Party in Interest.

G 000941.

Decided: September 20, 1984

Christian R. Van Deusen, Santa Ana, for defendants and appellants, petitioners. Winfield Payne & Associates, Winfield S. Payne, III, Santa Ana, and Michel D. Maddy, Orange, for plaintiff and respondent, real party in interest. No appearance for respondent Superior Court.


In this petition for writ of supersedeas or mandate and consolidated appeal we are asked to decide whether the trial court abused its discretion in awarding custody of a newborn baby to the natural father rather than to the prospective adoptive parents.   We conclude there was no abuse of discretion.

The natural parents are minors.   The mother was 12 years old and the father 16 when the child was conceived.   After discovering the pregnancy, they sought counseling to determine their options, but did not disclose the situation to their parents until the girl was three months pregnant.   The father and his parents suggested they raise the child but the girl's mother was adamant the child be relinquished for adoption.

The child was born in Fontana on April 27, 1983.   That day the mother relinquished the child for adoption and he was taken to the LDS Social Services Agency in Burbank.   The father and his mother were not notified until two days later.   After being told the baby's whereabouts were unknown, they began a quest to see the baby and to acquire custody.

In late May the father was allowed to see his son for the first time but only because the social services agency believed he was going to consent to the child's adoption.   When he refused he was denied further contact and on June 13 the San Bernardino Superior Court appointed the paternal grandmother the child's temporary guardian.   However, the LDS agency refused to release the child when served with the guardianship order on June 15.

The child was removed from the agency and placed in a foster home awaiting placement.   On June 29 the mother agreed to place the child with appellants W. for private adoption.   The father and his family were denied contact with and information about the baby.   On July 1 the San Bernardino Superior Court ordered LDS or anyone acting on their behalf to release the child to the paternal grandmother.   Again LDS refused saying the child was not in their possession.

On July 4 the child was taken from the foster home to the mother's attorney's office and from there to the home of the appellants.   On July 8 the appellants filed for adoption alleging the natural parents had placed the child for adoption and were prepared to give their consent.   However, the father was unwilling to consent to the child's adoption and on July 20 the appellants filed a Civil Code section 7017, subd. (d) petition to terminate his parental rights.1

The father was served on September 28 and he filed a complaint to declare the existence of the father-child relationship on October 24.  (§ 7004, subd. (a) and § 7006, subds. (a), (b) and (c).)   The section 7017 hearing was taken off calendar and on October 25 the father filed the petition upon which this appeal is based:  an order to show cause for custody and visitation.   The appellants were added as parties on December 6 and finally on December 12, the hearing took place.   On December 13 the court granted the father's petition and awarded him custody with reasonable rights of visitation to the mother pending trial or further order of the court.

On December 19 we issued a stay until the appellants' petition could be heard on the merits.


Civil Code section 7017, subd. (d) requires a natural father, after “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, ․ 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.”

 Appellants argue the father's action should have been dismissed because it was filed six months after the birth of the baby and 34 days after the section 7017, subdivision (d) petition was filed.   However, this argument ignores both the facts and the clear language of the statute.   Time begins to run upon service of the notice, not upon filing.   Respondent has 30 days from birth of his child or service of notice, whichever is later, within which to file his pleadings.

Respondent's pleadings were timely filed.


 Appellants next allege the court's decision is “deficient” because the court did not state the basis for the ruling.   Appellants argue an award of custody must be predicated upon a finding it would be in the child's best interest.   They conclude the judgment must be reversed since the judge did not, after taking the matter under submission, expressly state the granting of the father's petition would be in the child's best interest.   But appellants overstate their case.   They did not ask for a statement of decision, and findings of fact are not required.  (Code Civ.Proc., § 632.)

 Appellants suggest the court, without explicitly stating the standard it used, applied the detriment standard applicable to section 4600 proceedings.2  They argue this requires reversal.   They are wrong for two reasons.   First, without a statement of decision we do not have the benefit of the judge's reasoning but cannot assume it was in error.  “[O]n appeal, all intendments weigh in favor of the regularity of the trial court proceedings and the correctness of the judgment.  (Walling v. Kimball (1941) 17 Cal.2d 364, 373 [110 P.2d 58].)”  (Banerian v. O'Malley (1974) 42 Cal.App.3d 604, 610, 116 Cal.Rptr. 919.)

 Second, they cannot complain if a higher standard than necessary was employed to determine whether the father should be granted custody of the child.   Moreover, their argument is irrelevant to these proceedings.   The detriment standard is required for an award of custody to non-parents.   Thus if the court had awarded the child to appellants, and if section 4600 is applicable, then the court would have been required to find an award to the father would be detrimental to the child and it was in the child's best interests to award custody to a nonparent.   However, in the instant case the father was awarded custody and whether the section 4600 standard applies is academic.

Undaunted, the appellants come to the illogical conclusion of their argument:  Even if the trial court did not enunciate the applicable standard and even if the standard were not necessarily incorrect, the court erred in awarding custody to the father.   The appellants urge we find the evidence does not support the judgment and, if necessary, reweigh the evidence.   We decline both invitations.

 The trial court has broad discretion to determine a child's custody.   If substantial evidence exists to support the judgment, it will be affirmed.   This does not mean we need reach the same conclusion as the trier of fact, but it does mean “[i]n assessing the sufficiency of evidence on appeal, we must view the evidence in the light most favorable to the trial court's determination, drawing all reasonable inferences and disregarding all contradictory evidence.  [Citation.]  Moreover, the testimony of one witness, even a party to the proceeding, may be sufficient.”  (In re Marriage of Adkins (1982) 137 Cal.App.3d 68, 75, 186 Cal.Rptr. 818.)

 Here the evidence was more than ample to support the court's finding.   And this is true whether the court determined it was in the child's best interests for his father to have custody or additionally found it was not detrimental to the child to be placed in the father's custody.

Certainly there was unfavorable evidence:  (1) The father was 16 and the mother, 12;  (2) the father had used marijuana and on occasion (once or twice) given some to the mother;  (3) he was a freshman in an alternative high school rather than with his former class where he had been unresponsive to his education and a troublemaker;  and (4) the appellants' expert testified the child had developed strong bonding with the adoptive family and would suffer from separation anxiety if removed from them.

However, substantial evidence exists to support the judgment.   The parents' age cannot control.   No court has made a per se finding that age determines the right to be a parent.   Under our present law, unwed mothers, despite minority and their inability to contract,3 are entitled to sole custody of their children (unless the father is a presumed father pursuant to section 7004).   We cannot assume unwed minor fathers, because they do not physically give birth, are not legally capable of parenting.

And while the father's attributes and qualifications are not exemplary, he “is not unfit because he has faults or would be found lacking as an ideal parent.   Nor does a less-than-perfect home environment suggest incompetency as a parent.  [Citation.]”  (In re Reyna (1976) 55 Cal.App.3d 288, 302, 126 Cal.Rptr. 138.)   The unwed father in Reyna was “often unemployed ․ [had] some sort of drinking problem ․ [and] a minor arrest record [and] ․ did not complete his education because of truancy, and ․ live[d] with an older woman with plans to marry her.”   Yet “[t]his [did] not establish [the father's] unfitness as a parent.”  (Ibid.)  Moreover, the father in the instant case is currently doing well in high school, additionally taking junior college courses and is enrolled in a child development class.   He, with his mother's supervision and support, can adequately raise the child.   Moreover, the court had the benefit of observing the witnesses and determining their credibility.

The expert spent only a short time with the adoptive family and never interviewed the father or his family.   He testified the repercussions from the separation anxiety could be short lived and would not necessarily have long ranging effects.   He further testified rearing by natural parents is generally preferred.

 Appellant asks us to exercise an independent review of the record and reweigh the evidence under Code of Civil Procedure section 909.   The dissent finds this appropriate.   However, as we held in In re Marriage of Davis (1983) 141 Cal.App.3d 71, 190 Cal.Rptr. 104, we will not do so where, as here, the trial court has made no findings and the evidence is in conflict.   The trial court committed no legal error and the judgment is therefore subject to the substantial evidence rule.   The court did not propose to remove the child from an environment in which he was doing well, but rather from one in which he did not belong.   The adoption cannot, and the pre-adoption placement should not, take place until the father's parental rights are terminated.

The judgment of the trial court is affirmed and the writ is denied.   The stay order issued by this court on December 19, 1983, prohibiting enforcement of the trial court's order granting custody to the father pending resolution of this matter on its merits is dissolved forthwith.   Respondent to receive costs.

I respectfully dissent.   This infant is the issue of two children, ages twelve and sixteen at the time of conception.   The superior court awarded custody to the father, then seventeen, who was still a child in the eyes of the law.   For reasons which follow, I believe the order, which we stayed, would have poorly served both the baby and his father and also violated the clear public policy of this state.

When awarded custody of his son, Michael U. was an unemancipated minor living at home.   He was disabled, for example, from “establishing his ․ own residence” (Civ.Code, §§ 63, subd. (e), 33), “[e]nter[ing] into a binding contract” (Civ.Code, §§ 63, subd. (b)(1), 35), or compromising any legal claim or action (Civ.Code, § 63, subd. (b)(4)).   He was also unable to give lawful consent to his own “medical, dental, or psychiatric care” without parental approval (Civ.Code, § 63, subd. (a), with certain narrow exceptions (Civ.Code, §§ 25.9, 34.5 et seq.)).   Michael U. apparently could have lawfully consented to medical care on behalf of the infant (Civ.Code, § 25.8), but this is a rather limited power without the ability to contract for that care.

Apart from his legal disabilities, Michael U. had no present means to support the child.   He was unemployed and had no income.   Moreover, his parents were not legally responsible for the baby's support under the law (Civ.Code, § 208.5) or by reason of the order, since it did not place custody with them.

Theoretically, the court's ruling made the infant potentially subject to immediate proceedings to declare him a dependent child of the juvenile court as one “[w]ho is in need of proper and effective parental care or control ․ [who] has no parent or guardian ․ capable of exercising such care or control.”  (Welf. & Inst.Code, § 300, subd. (a).)  Ideally, an adult guardian should be appointed in every case in which a baby is born to unemancipated minor parents;  otherwise there is literally no one legally responsible for the child and able to contract for pediatric care.   But this is not the only basis upon which I would hold the order to have been an abuse of discretion—if not a legal impossibility.

First, placement of an infant with an unemancipated minor child ignores the protections afforded minors by California's statutory emancipation scheme.   The policy underlying the legal disabilities placed upon unemancipated children is well expressed in Niemann v. Deverich (1950) 98 Cal.App.2d 787, 221 P.2d 178:  “The law shields minors from their lack of judgment and experience and under certain conditions vests in them the right to disaffirm their contracts.   Although in many instances such disaffirmance may be a hardship upon those who deal with an infant, the right to avoid his contracts is conferred by law upon a minor ‘for his protection against his own improvidence and the designs of others.’   It is the policy of the law to protect a minor against himself and his indiscretions and immaturity as well as against the machinations of other people and to discourage adults from contracting with an infant.   Any loss occasioned by the disaffirmance of a minor's contract might have been avoided by declining to enter into the contract.”  (Id., at p. 793, 221 P.2d 178.)

On the other hand, “[t]he purpose of emancipation is to provide a means for mature minors to remove legal obstacles to realizing their potentials as independent, responsible human beings.   It enables minors to assume adult rights and responsibilities if they are capable of handling them.”  (The Emancipation of Minors Act:  A California Solution for the Mature Minor (1979) 12 U.C. Davis L.Rev. 283, 300.)

Emancipation may be obtained by the filing of a verified petition by a child of 14 or older, if the child is willingly living apart from his or her parents with their consent, and is self-supporting without resort to crime (Civ.Code, § 64)—or by marrying or joining the military (Civ.Code, § 62).   Michael U. met none of these statutory criteria:  He was an unmarried civilian living with his parents with no job or independent income.   A part-time continuation high school and junior college student, his only work experience was as a busboy-waiter at two different restaurants approximately a year before the hearing.

Mere attainment of the state of biological parenthood is not a statutory basis to declare the emancipation of a minor—and with good reason.   Many of those who become parents while still children themselves, like the parents of this infant, confirm their lack of maturity and responsibility by that very event.   Both child-parents, particularly Michael U., have displayed a gross inability to manage their own lives even under parental supervision, much less to assume an independent role as parents themselves.   Although the mother is afforded a statutory option to retain the child, whether she is an adult or a minor (Civ.Code, § 7017), a natural father does not enjoy the same privilege.

Since Michael U. could not have qualified for emancipation under the statutory scheme, I would hold his legal inability to direct his own affairs must surely bar him from receiving direct control over the life of another.   On these particular facts, I also believe the trial court abused its discretion even if the order is viewed as a de facto placement with the paternal grandmother, designed to ripen into actual custody in the father at age eighteen.   The superior court and the majority here simply refused to recognize the state's strong interest in protecting Michael U. from decisions beyond his years and level of maturity.   Michael U. was obviously not ready for parenthood or even to make the decision to be a parent, legally or factually, at the time of the hearing;  but the court's ruling proposed to allow him to assume that responsibility in the face of a clear legislative determination to disable unemancipated minors from undertaking routine contractual and financial obligations, much less embracing such momentous life-altering choices.

This court deflects the emancipation issue with the disengenuous statement that Michael U. is now an adult.  (Maj. opn., p. 327, fn. 3.)   Our review is of past, not present, facts, however.   As I will conclude, a new hearing to examine the present is appropriate.   The majority approach is but another application of the cliche, “heads I win, tails you lose.”

This baby was fathered by a sixteen year old with the inordinately poor judgment to engage in intercourse with a twelve-year-old girl.   While I am aware another court has held the “unclean hands” doctrine does not necessarily apply to bar the custody petition of an adult father who was potentially subject to prosecution for statutory rape of the minor mother (Pen.Code, § 261.5;  In re Brandie W. (1984) 157 Cal.App.3d 110, 203 Cal.Rptr. 537), it does not follow the same solicitude for paternal prerogatives should necessarily pertain where the father is also a minor.

The high school counselor assigned to Michael U. before his transfer to continuation school testified he had a history of academic and disciplinary problems and had not accumulated enough credits to graduate with his class.   A dean at the same school recalled disciplining Michael U. numerous times.   He described the boy as, “defiant.   I would say very immature, disruptive, lack of—respect for authority.”   The witness added, he was discharged from the football team for fighting, twice changed schools in the eighth and ninth grades, and although receiving a “social promotion,” had to repeat the eighth grade.   There was also undisputed evidence offered at the hearing that Michael U. had bragged of a new sexual relationship with two sisters, ages fourteen and sixteen, to whom he provided marijuana in order to induce their cooperation.

Consequently, I would hold the order to have been detrimental to the infant, as well as the child-father.   This case is not even close on the “best interests of the child” test.   And contrary to the majority's view, the “detriment” test is not a higher standard, it is a lower one.   Although the trial court purported to place the infant with Michael U., his own attorney did not even seriously suggest that result.   Rather, it seems counsel viewed the proposed placement in the home of the paternal grandparents as a placement with them, not Michael U.   In a rather revealing closing argument, Michael U.'s lawyer as much as conceded the boy's present and probable future inability to care for the child:  “I suggest to the court that if the paternal father [sic ] ceases to live with his mother, ceases to live in the family residence, perhaps at some point in time a motion to change custody may be made, but at this point in time I certainly think that he's entitled to develop a relationship with his son.   I'll submit it.”

Logically and legally, if custody was not to be awarded to the adoptive parents, it should have been awarded to the guardian ad litem, not Michael U.   In the case of a child-father, the court should weigh the placement in terms of the best interests of the child as between the actual custodian, the guardian ad litem, and the prospective adoptive parents—without regard for the parental preference of Civil Code section 4600, subdivision (c) which would pertain in the case of an adult father.  (Adoption of Baby D. (1984) 159 Cal.App.3d 8, 205 Cal.Rptr. 361.)   The adoptive parents here would have the clear statutory edge in that contest.  Civil Code section 4600, subdivision (b)(2) provides, where a child is not placed with a parent, custody should be awarded “to the person or persons in whose home the child has been living in a wholesome and stable environment.”

Instead, placement with Michael U. will virtually foreclose the rights of the prospective adoptive parents;  for once he obtains custody, Michael U. becomes a presumed father and shares the mother's right to defeat an adoption by simply withholding his consent.  (In re Richard M. (1975) 14 Cal.3d 783, 798, 122 Cal.Rptr. 531, 537 P.2d 363.)   Who then is to raise this infant if, as his counsel hypothesized, a grown Michael U. turns out to be unable to care for him outside his parents' home?   The mother of the baby supports adoption and will be a minor herself for a significant portion of her offspring's childhood.   She is an unlikely choice.   Consequently, if the adoption is frustrated, the child will almost surely end up with the paternal grandparents for all or most of his childhood.   This is not necessarily an evil, but it is a reality the trial court did not perhaps fully consider in entering its order.

Finally, I believe this is one of those rare instances where we should reweigh the evidence on appeal, as expressly permitted under section 909 of the Code of Civil Procedure.   If there is ever to be an appropriate case to substitute our judgment on the facts for that of the trial court, this is the one.   Michael U.'s paternal prospects at the time of the hearing, at least as I view them, are sufficiently revealed in the evidence rehearsed above.   As to him, enough said.

On the other pan of the scale, the evidence presented concerning the prospective adoptive parents selected by the baby's mother, the Whites, revealed the following:  They have one previously adopted daughter, age two.   Mr. White is a fireman, and Mrs. White is a full-time mother and housewife.   By contrast, Michael U.'s mother is employed, and his father, although retired, works part time.   Michael U.'s mother testified she had made arrangements for an older lady, also a grandmother, whom she met through little league baseball, to babysit during the day.

Viewed from the temporal vantage point of the superior court proceedings, the infant was either to be raised by babysitters, a more or less delinquent teenager still growing up, and grandparents—or by an established family, consisting of a mother, father, and sibling of reasonably comparable age “in whose home the child ha[d] been living in a wholesome and stable environment” (Civ.Code, § 4600, subd. (b)(2)).   Despite the apparent sincerity of Michael U. and his mother in desiring to make a home for the baby, the correct placement in terms of the baby's best interests was clear on this record.

There have been at least two significant changes in the facts since the previous hearing, however:  Michael U. has now turned eighteen, and our stay has added more time to the adoptive parents' bond with the child.   Other significant developments may also have occurred, although none has been brought to our attention.

Rather than simply reverse the trial court, I believe the wisest course is to rehear the matter in light of current circumstances.   I would reverse and remand for that purpose.


1.   All references are to the Civil Code unless otherwise indicated.Section 7017 provides in part:“If a mother relinquishes for or consents to or proposes to relinquish for or consent to the adoption of a child who has (1) a presumed father under subdivision (a) of Section 7004 ․ the father shall be given notice of the adoption proceeding and have the rights provided under Chapter 2 (commencing with Section 221), Title 2, Part 3, Division 1 of the Civil Code, ․”  (Subd. (a)(1).)  “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 ․ 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 service of such notice or the birth of the child, whichever is later.”  (Subd. (b).)  “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), ․  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 parentage 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.”  (Subd. (d).)

2.   Civil Code section 4600, subdivisions (a) and (c) provide in pertinent part “In any proceeding where there is at issue the custody of a minor child, the court may ․ make such order for the custody of the child during minority as may seem necessary or proper․”  (Subd. (a).)  “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 ․”  (Subd. (c), emphasis added.)We note the recent decision, In re Adoption of Baby Boy D. (1984) 159 Cal.App.3d 8, 205 Cal.Rptr. 361, applying that standard at a hearing to terminate a natural father's rights.   The court concluded when the mother does not assert her right to custody the father may not have his rights terminated or be denied custody absent a finding of detriment.

3.   The dissent is concerned with the father's lack of income and inability to contract for pediatric care, speculating the child will become a ward of the court.   However, the father has now reached majority.  (§ 25.1)  In any event, as a parent he could authorize any adult to consent to the child's medical treatment.  (§ 25.8.)   If as a minor he were living away from home, he could consent to his own medical treatment and “[s]uch consent shall not be subject to disaffirmance because of minority.”  (§ 34.6.)

SONENSHINE, Associate Justice.

WALLIN, Acting P.J., concurs.

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