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, etc., Petitioner and Respondent, v. EDWARD M., Respondent and Appellant.

D003076.

Decided: April 30, 1987

Joseph D'Addario, San Diego, for respondent and appellant. Lloyd M. Harmon, Jr., County Counsel, Daniel J. Wallace and Arlene Prater, Deputy County Counsel, San Diego, for petitioner and respondent. Lee W. Selvig, San Diego, for amicus curiae.

Edward M. appeals from a judgment terminating his parental rights with respect to his five-year-old daughter, Katie.   This is our second view of the case.   Since our last exposure, it has been the subject of a divided decision by the state Supreme Court and reevaluated by the trial court under a new legal standard.   In addition, recent legislation has endeavored to overrule the effect of the Supreme Court decision.

The emotionally charged issue which lies at the heart of this case thus is not presented to us in a pristine fashion.   Katie, Edward and the prospective adoptive parents who have cared for Katie since she was five weeks old appear as pawns caught in a web of changing legal standards and an excruciatingly slow appellate process.   The question before us is whether Edward, concededly fit to care for Katie, can nonetheless be denied the opportunity to develop parental ties and obtain custody because of the detriment Katie would suffer if she were removed from the custody of the prospective adoptive parents.   Any resolution of this issue would in some sense be unfair.   It is only because the operative legal standards focus on the child's welfare that we can affirm the trial court judgment terminating Edward's parental rights.

FACTUAL AND PROCEDURAL BACKGROUND

Edward's relationship with Katie's mother ended in November 1980 when neither party knew of the pregnancy.   Soon after Katie's birth on July 18, 1981, the mother requested and received adoption assistance and placed Katie in a foster home.   The mother never told Edward she was pregnant, and he first learned of the birth on August 1, 1981.   He contacted the county Department of Social Services and met with a social worker on August 5.   Although he did not request custody, Edward asked that Katie be placed with the family then providing day care for his sons.   Later that day, the mother rejected Edward's placement request and formally relinquished Katie for adoption, explaining that she wished the child placed with a family unknown to either her or Edward.

The petition to terminate Edward's parental rights pursuant to Civil Code section 7017 1 was filed August 10, 1981.   On that date Edward again met with the social worker and discovered the mother had relinquished Katie for adoption.   He expressed fear he would be unable to see his child and arranged to visit her.   The visit took place August 17, and Edward then specifically requested custody.   Despite his wishes, Katie was placed in the “pre-adoptive” home of Pamela and Robert Moses on August 24, 1981, where she has remained to this date.

At the December 1981 hearing on the section 7017 petition, the trial court found that Edward was “a good parent [who] can provide a good, loving home for this child.”   Nonetheless, applying the “best interests of the child” test, the court concluded Edward's parental rights should be terminated so that Katie could remain with the prospective adoptive parents.   There was no finding by the court that it would be detrimental to Katie if custody were awarded to Edward.   The case was appealed, and on October 22, 1984, the California Supreme Court reversed and remanded, holding section 4600 applies to all termination of parentage proceedings under section 7017, subdivision (d).  (See In re Baby Girl M. (1984) 37 Cal.3d 65, 207 Cal.Rptr. 309, 688 P.2d 918.)   Consequently the trial court was required to find both “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.”  (§ 4600, subd. (c).)

In its opinion the Supreme Court concluded:

“We have held the trial court erred by applying the best-interests-of-the-child standard without first determining whether granting custody to the natural father would be detrimental.   A review of the evidence introduced at the hearing indicates a finding of detriment would have been unsupportable at that time.   However, concerned, as we must be, with the child's welfare and because of the passage of time, we recognize further evidence will be necessary.12”  (37 Cal.3d at pp. 75–76, 207 Cal.Rptr. 309, 688 P.2d 918.)

Footnote 12 then provides as follows:  “We recognize the dilemma arising under the present fact situation.   The state has placed the child with prospective adoptive parents pending resolution of Edward's claims;  strong relationships have developed, and breaking those bonds could be harmful to the child.”  (Ibid., emphasis added.)

The trial court defined its duty upon remand and ruled in relevant part:

“My job, as I understand it, is to determine whether an award of custody of this child to her parent, the father, [Edward M.], would be detrimental to her.

“And the evidence that I have before me consists of, first of all, the testimony and report of Dr. Nelson, who is an experienced, board-certified child psychiatrist, familiar with problems that children encounter when they suffer separation.

“And his opinion was that removal of Katie from the only home that she's ever known would cause extreme psychological and emotional harm to her.

“He found her to be a bright, happy, well-adjusted child, who would suffer profoundly if she were removed from the Moses home.

“Furthermore, it is likely, in his opinion, that she would become depressed and sensitized to future loss, and vulnerable to mental illness later in life.

“Dr. Nelson further stated that even with a slow removal from the Moses home, the child would suffer less harm ostensibly, but the trauma would still be great, and she would still suffer detriment as great as with a sudden removal.   It would just be prolonged over a longer period of time.

“The other evidence I have on the subject of detriment is the evidence of Dr. Lamson.   Frankly, her testimony carries less weight, both because of her lesser qualifications vis-a-vis Dr. Nelson, but also because of her lack of familiarity with the participants.

“But I would like to note a couple of things from her testimony.   She testified that there would certainly be trauma to Katie—and I think those are her exact words—to be removed from the Moses home;  and there could be permanent detriment.

“She also said the trauma would be great here because the child would lose the two parents that she has known virtually since birth, and they would be replaced by a man who is a stranger to her.

“In other words, she did not disagree with the testimony given by Dr. Nelson.

“I find the evidence is clear and convincing and, in fact, uncontradicted that Katie would suffer extreme emotional and psychological harm should she be removed from the Moses home, and this harm constitutes detriment within the meaning of Civil Code 4600.

“I find that it would be in the best interest of the child that custody be awarded to Mr. and Mrs. Moses, who are in almost every sense the true parents of this child.

“They've indicated that they will include [Edward M.] in Katie's extended family, and I encourage them to do so.

“The petition under 7017 is granted.”

As of the February 1985 hearing after remand from the Supreme Court, the Moseses were in a very good marital relationship between a competent, willing and intelligent woman and a successful, energetic man, both of whom demonstrated concern with caring for each other and their children, a six-year-old adopted son and three and one-half year old Katie.   No question is raised as to their suitability as parents.

No evidence presented at the February 1985 hearing detracts from the original finding that Edward is a good parent who can provide a good, loving home for Katie.   Edward's personal circumstances have changed in terms of his no longer having full-time custody of his two sons by a former marriage and his living arrangements.   The sons are in Northern California in the custody of their mother who has remarried.   He lives with his parents in a three-bedroom condominium and is a licensed contractor steadily employed as a cost estimator for a general contractor.

DISCUSSION

The issue presented to us is whether the trial court's finding of detriment can be sustained where there is no evidence of Edward's inability to care for Katie and the finding is based solely on the psychological harm to Katie which would result if she were removed from the Moses home.   Concededly, the record firmly supports the trial court's factual determination as to the existence of such harm,2 hardly surprising in view of the consistent conclusions reached by child development and psychology professionals regarding the extent of personality and value structure development achieved by children during the first six years of life.  (See generally, e.g., Developmental Psychology Today (1971) ch. 13, pp. 225, 236.)   The sole legal question for us to resolve is whether the court's finding of detriment can be sustained in the absence of some additional evidence of Edward's inability as a father.   Resolution of this question requires our examination of the Supreme Court's earlier opinion in this case as well as its later decision in Michael U. v. Jamie B., (1985) 39 Cal.3d 787, 218 Cal.Rptr. 39, 705 P.2d 362.

When it remanded this case to the trial court, the Supreme Court expressly contemplated that the trial judge would consider whether three and one-half year old Katie would suffer psychological harm as a result of being taken away from the only parents she has ever known.3  Footnote 12, (quoted ante, p. 662) indicates that additional evidence would be necessary on this issue.   Moreover, nothing in the Supreme Court's opinion suggests that the psychological harm identified in footnote 12 would be insufficient in itself to sustain a finding of detriment on remand.

Edward argues that “detriment” under section 4600 requires some negative evidence regarding the father, evidence which is admittedly lacking in this case.   He relies in part on Michael U. v. Jamie B., supra, 39 Cal.3d 787, 218 Cal.Rptr. 39, 705 P.2d 362, in which a splintered Supreme Court attempted to apply its Baby Girl M. decision.

Michael U. involved the parental rights of a 16–year–old father who had sought custody of his son, Eric, after the 12–year–old mother had placed Eric for adoption.   Of the five justices concurring in the judgment, Justices Mosk, Lucas and Kaus—two of whom were dissenters in Baby Girl M.—restate their opposition to the “detriment” standard and preference for the “best interests of the child” test, which was of course the test originally applied by the trial court in terminating Edward's parental rights in this case.   (39 Cal.3d at pp. 796–797, 218 Cal.Rptr. 39, 705 P.2d 362.)

Justice Broussard's lead opinion joined by Justice Grodin attempts to apply the Baby Girl M. “detriment” standard and concludes that the evidence before the trial court compelled a conclusion that placement with Michael would be detrimental to Eric.   In reaching this conclusion, the lead opinion describes Michael's lack of maturity and judgment but also relies on the psychological harm Eric would suffer if he were separated from his prospective adoptive parents.  (Id. at p. 795, 218 Cal.Rptr. 39, 705 P.2d 362.)   The opinion explains the basis for such reliance:

“Judicial decisions have recognized the harm to a child which results when he is removed from a stable home environment.  (See Marriage of Carney (1979) 24 Cal.3d 725, 730–731 [157 Cal.Rptr. 383, 598 P.2d 36, 3 A.L.R.4th 1028] and cases there cited.)   In Adoption of Michelle T. (1975) 44 Cal.App.3d 699 [117 Cal.Rptr. 856, 84 A.L.R.3d 654], the court took judicial notice of the book Beyond the Best Interests of the Child by Goldstein, Freud & Solnit (1973), which ‘emphasizes the importance to a child of continuity of parental relationships.   According to the authors, changes or interruptions in this relationship cause the child to regress “along the whole line of his affections, skills, achievements, and social adaption.”  (Id., at p. 18) “Physical, emotional, intellectual, social and moral growth does not happen without causing the child inevitable internal difficulties.   The stability of all mental processes during the period of development needs to be offset by stability and uninterrupted support from external sources.   Smooth growth is arrested or disrupted when upheavals and changes in the external world are added to the internal ones” (id., at p. 32).’  (P. 706 [117 Cal.Rptr. 856].)   The court concluded with a quotation from Williams v. Neumann (Ky.App. [Ky.] 1966) 405 S.W.2d 556, 557:  ‘ “[A child] cannot be suddenly transplanted like a dogwood tree without running serious and dangerous risk of frustration and bewilderment.” ’ ”  (Id. at p. 795, fn. 7, 218 Cal.Rptr. 39, 705 P.2d 362.)

It is true that under the facts of Michael U., there was evidence both of Michael's inability to accept the responsibilities of parenting and of the psychological harm Eric would suffer if he were separated from the prospective adoptive parents.   Given those facts, of course, there is every reason for the lead opinion to discuss both factors in resolving the case.   One searches in vain, however, for any indication that negative evidence regarding the father is a necessary predicate to a finding of detriment.4  In fact, just the opposite conclusion is manifest in footnote 8, in which the opinion distinguishes “detriment” from the concept of “unfitness,” a finding of which is necessary to remove a child from the custody of a parent.  “It is presumably detrimental to a child to award custody to a parent who is so unfit that the state might have to intervene to retrieve custody, but it might also be detrimental to place him with a parent who is not unfit, depending upon the child's current circumstances and the available placement alternatives.  (In re Reyna [ (1976) ] 55 Cal.App.3d [288,] 302–303 [126 Cal.Rptr. 138].)”  (39 Cal.3d at p. 796, fn. 8, 218 Cal.Rptr. 39, 705 P.2d 362.)   Significantly, “the child's current circumstances and available placement alternatives” are precisely the factors relied on by the trial court here in refusing to award custody of Katie to Edward.   In fact, those two factors could not conceivably include negative information about the father's parenting abilities.   Thus, all five of the concurring justices in Michael U. clearly expressed their view that harm resulting from the separation of the child and the prospective adoptive parents in and of itself can constitute “detriment” sufficient to support the termination of parental rights under section 7017.

This conclusion is further supported by Justice Broussard's citation to In re Reyna (1976) 55 Cal.App.3d 288, 126 Cal.Rptr. 138 which, like the present case, involved a natural father attempting to obtain custody after the child had been placed with prospective adoptive parents.   The child was just over one year old at the time of the Court of Appeal decision.   Anticipating the Supreme Court's Baby Girl M. decision, the Reyna court held that section 4600 required the trial court to make a finding that placement of the child with the father “would be detrimental to the child ” (55 Cal.App.3d at p. 296, 126 Cal.Rptr. 138, emphasis in original).   It then commented on the proper application of this standard:

“[I]n furtherance of the legislative purpose of placing the best interests of the child ahead of a parent's rights, even though a father is found to be fit in the usual sense, he nonetheless will be denied custody if it is shown that it would be harmful to place the child with him.  [Citation.]  For example, if it is shown that it would be emotionally and psychologically harmful to uproot the child from the care and love of the nonparents with whom it has been living for a substantial period of time and place it with the father with whom it has never had contact, then custody must remain with the nonparents.”  (Id. at p. 302, 126 Cal.Rptr. 138.)

In sum, the rule to be distilled from Baby Girl M. as interpreted by Michael U. is that the “detriment” standard of section 4600 precludes the trial court from merely comparing the father with the prospective adoptive parents and choosing the placement which the court believes is best.   This standard has the salutary effect of avoiding placements perfunctorily based on “objective” criteria such as income or social status.   But where there is demonstrable harm to the child if he or she is placed with the parent—regardless of whether such harm is attributable to the parent's “fault”—that placement is “detrimental” within the meaning of section 4600 and an alternative placement with nonparents is appropriate.5

We have previously alluded to the difficulty of this case, due in large part to the fact that Edward appears to have done everything he reasonably could have to establish a parent-child relationship with Katie.   He was frustrated by the existence of legal standards in a state of flux and a not-sufficiently sensitive bureaucracy.   But while the rights of parents are important, our society is committed to the judgment that the interests of children predominate.   The function of the judicial system in these matters is not to punish insensitive bureaucracies but to assess the effect of placement alternatives on children.6

It is of some solace to us, although probably none to Edward, that this case is sui generis.   That it has taken over five years to resolve is due principally to the fact that it served as the vehicle to clarify the governing legal standard.   Moreover, the Legislature has responded to the Supreme Court's Baby Girl M. decision by amending section 7017.7  By specifying the “best interests” test as the only applicable standard, this amendment effectively overrules Baby Girl M.   The Legislature's specific direction for trial courts to consider “the age and prior placement of the child, and the effects of a change of placement ․” confirm that the result reached by the trial court in this case is consistent with legislative intent.   By adopting the interpretation of “detriment” as we do here, we minimize the disruption which can be occasioned by changing and uncertain legal standards.

DISPOSITION

Judgment affirmed.   The County shall bear the costs of this appeal.

Although I concur, I am disturbed by the extent of the governmental involvement in creating the unfortunate scenario which now directs this result.   As I perceive the law, had the juvenile court recognized the fundamental rights of biological parents and children summarized below, it would now be unnecessary to attempt to interpret the majority holding in In re Baby Girl M. (1984) 37 Cal.3d 65, 207 Cal.Rptr. 309, 688 P.2d 918, as to the meaning of “detriment”.1  However, the issue of state involvement was never raised by the parties and only recently addressed by way of supplemental briefing at our request.   The extent of state involvement is a pivotal concern in any contested parental rights termination case involving a fit, capable and willing parent, and, except for the certainty of permanent emotional harm should Baby Girl M. (Katie) now be removed from the family of which she has been a member for six years, would mandate a different result.2

Most reported cases reviewing Civil Code 3 section 7017 proceedings, in which a natural father contests severing of his parental ties, are private litigations pitting those wishing to adopt against the father.   Of significance, this was the case in Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 218 Cal.Rptr. 39, 705 P.2d 362.   Thus, in those cases, the state involvement was at most minimal and indirect.   In stark contrast here, it is San Diego County directly withholding custody from a capable biological father, while choreographing the tableaux to be viewed by the juvenile court in court proceedings in which it is the party opposing that father.   It is the County which removed Baby Girl M. from temporary placement after her father requested custody.   The County successfully relied on the bonding to the adoptive family, which it artificially created, to convince the juvenile court initially, and us now, that the emotional harm to Katie from being returned to her real father prevents us from doing so.4  However, the unsatisfactory result in this case should be prevented in the future by strict adherence to constitutional principles recognizing a biological father's right to develop his parenting interest is paramount to the interests of all except the child's mother.

As a general proposition, a parental rights termination proceeding interferes with a natural parent's fundamental liberty interest.  (Santosky v. Kramer (1982) 455 U.S. 745, 753–754, 102 S.Ct. 1388, 1394–1395, 71 L.Ed.2d 599;  Quilloin v. Walcott (1978) 434 U.S. 246, 255, 98 S.Ct. 549, 554, 54 L.Ed.2d 511.)   Further, an unwed father has a constitutionally-protected, special, opportunity interest to establish a familial relationship with his child.   (Lehr v. Robertson (1983) 463 U.S. 248, 262, 103 S.Ct. 2985, 2993, 77 L.Ed.2d 614.)

While Santosky involved proceedings to sever ties of parents who had established a custodial family relationship, in Quilloin the unwed father had never been involved in the child's family life after birth.   In Lehr, where the biological father waited until the child was two-years old and after a stepparent adoption petition had been filed, the court's concern was to determine whether the State had adequately protected his opportunity to form such a relationship.   In upholding New York's notice requirements, the court stressed the father's inability to take the child into his own home was due solely to the custodial mother's activities with no interference by the State.  (Id. at pp. 262–263, 103 S.Ct. at pp. 2993–2994.)   Moreover, the stepparent adoption proceeding Lehr reviewed only maintained the custodial status quo in the mother and stepfather.   However, Lehr suggests a natural father may lose constitutional protection for his parenting rights if he fails to grasp the opportunity when presented.  (Id. at p. 262, 103 S.Ct. at p. 2993.)

In In re Baby Girl M., supra, 37 Cal.3d at pages 74–75, 207 Cal.Rptr. 309, 688 P.2d 918, the majority opinion refers to an analysis of federal decisional law which concludes “the state may not deny biological parents the opportunity to establish a protected custodial relationship”.  (Buchanan, The Constitutional Rights of Unwed Fathers Before and After, Lehr v. Robertson (1984) 45 Ohio State L.J. 313, 351.)   However, the court did not address this issue nor the significance of the fact that once her mother formally relinquished Katie to the County agency, it was solely the County's action and decisions which barred Edward from exercising parental control in the first instance and which permitted his child to become bonded to third parties so as to create the sole relevant factor we now use to justify terminating his parental rights.   It is this element alone which provides clear and convincing evidence that at this late date severing parental ties is in the child's best interest and satisfies the detriment finding.

Thus, Edward has been caught in the jaws of that trap recognized by the United States Supreme Court where the State has prevailed because of its “unusual ability to structure the evidence” and “power to shape the historical events that form the basis for termination.”  (Santosky v. Kramer, supra, 455 U.S. at p. 763, fn. 13, 102 S.Ct. at p. 1400, fn. 13.)   From this snare, Edward, a willing, capable and loving parent has been unable to extricate himself in spite of prompt and persistent application to the courts.

I am not so certain, as the author of the lead opinion, that Edward's dilemma is sui generis, although this appears to be the only reported California or federal case with these precise facts.   Four years before the section 7017 petition was filed in this case, we directed this same County agency to the following proposition:

“ ‘The importance of the adoption system in providing secure and loving home environments for children whose natural parents cannot or do not wish to raise them is obvious.   However, in our rush to ensure the stability and efficiency of the adoption process, it is apparent that the rights of the parties involved—particularly the unwed father—may well suffer.   It may be instructive in this regard to consider the growing awareness of adopted children who have undertaken to search for their “real” parents in an attempt to discover their familial roots.   Would it not be fairer to all of the parties in an adoption proceeding to ensure that the rights of the putative father who wants to assume custody of his child and is adjudged qualified to do so are protected?   After all, it makes no more sense to insist that all unwed fathers are disinterested and unfit parents than it does to continue in the belief that all mothers are by nature interested in raising children.

“It is to be hoped that courts will weigh these considerations in determining adoption issues!' ”  (In re Tricia M. (1977) 74 Cal.App.3d 125, 135 [141 Cal.Rptr. 554], quoting 28 Hastings L.J. 221–222.)

Further, although the County assures us its policies now would lead it to handle a similar situation in a different manner, it continues to argue it was justified in denying Katie her opportunity to be legitimated and reared by her natural father and extended biological family.

While now conceding Edward had a constitutional right to develop an opportunity interest, the County claims its actions in 1981 were appropriate for two reasons.   First, it argues its parens patriae role elevates its interest in determining suitable placement for a child over that of every natural father, even a capable, willing parent who has come forward before any meaningful third-party bonding is established and after the mother has legally abandoned her superior interest through relinquishment.  (See Adoption of Baby Boy D. (1984) 159 Cal.App.3d 8, 21, 205 Cal.Rptr. 361.)   The County cites no legal authority for this position and it defies reason and legal precedent that it can justify withholding custody from, let alone sever parental rights of, a natural parent of a month-old child who is in temporary placement merely because the other parent has relinquished the child to its control.   Indeed, if mere relinquishment gave the State a paramount interest to a fit and proper natural father who has not forfeited the constitutional protection for his opportunity interest, there would be no reason to require the State to prove by clear and convincing evidence that it is in the child's best interest not to be placed with a biological father.   The County's parens patriae goal is to provide the child with a suitable permanent home.  (Santosky v. Kramer, supra, 455 U.S. at p. 745, 102 S.Ct. at p. 1388.)   The State registers no gain toward its declared goals when it separates children from the custody of fit parents.  (Id. at p. 767, 102 S.Ct. at p. 1402, quoting Stanley v. Illinois (1972) 405 U.S. 645, 652, 92 S.Ct. 1208, 1213, 31 L.Ed.2d 551.)   Nor, I am certain, does it benefit society or the children the State is supposed to protect by denying a child the right to be legitimated by a loving, capable and willing biological father.   The State's goal is only realized when the natural parent cannot or will not provide a normal family home.

Although here the County has the power to sever Edward's parental ties under the provisions of section 7017, it certainly cannot justify doing so to provide Katie with a fit home she would not otherwise have.   While the County has a legitimate interest in severing parental ties when to do so is necessary to provide a child with family relationships not otherwise available, it has no legally recognizable interest in denying such a relationship to develop between the child and biological father under the facts of this case as they existed in 1981.

Certainly, section 7017 is a logical response to a very real problem in our society.   When children are relinquished for adoption or because of parental unfitness are deemed permanently unlikely to be suitably reunited with parents, their very helplessness requires the State to act in their best interest.   Obviously, in those situations, assimilating the children into stable family environments through the adoptive process is the most palatable solution.   However, adoption with all its benefits is, at best, a prosthesis which should be used only when the biological family cannot or should not be maintained.   The prosthetic benefits of replacing a diseased or defective hip socket with steel or plastic is undeniable.   To replace a perfectly healthy, well functioning socket with an equally useful prosthesis, however, is unjustified.   The State's surgically-equivalent intervention here cannot be condoned.

The second justification raised by the County is that Edward failed to grasp his opportunity interest quickly enough.   Yet the child was placed in its custody two weeks before Edward learned of her birth.   He expressed his interest in custody only 17 days later, and one week before the County placed the child for permanent adoption.

The County's timeliness argument is predicated on several factors.   First, that Edward forfeited his opportunity interest, because he did not maintain contact with the mother after their three-month relationship terminated to see if she might have been impregnated.   Although the evidence shows that neither parent anticipated this result of their liaison, it is significant the mother desired to keep Edward unaware of her pregnancy and managed to do so, only alerting him more than a week after she had placed Katie with the County.   In any event, Edward's knowledge of the pregnancy, even coupled with his possibly reestablishing a relationship with the mother before the birth, would not place him in a less vulnerable position here.   One cannot become a “presumed” father short of marriage, a status the mother eschewed, or by the father taking the child into his family home after birth, an eventuality the mother forestalled for three weeks and the County has made impossible for six years.  (§ 7004.)   Because a natural father's opportunity interest is to allow him the chance to establish a family relationship equivalent to that of a presumed father, short of marriage that can only be accomplished after the birth of a child.

A second justification put forward by the County is Edward's initial reluctance to ask for custody, suggesting instead the child be adopted or placed in a foster home with persons of his choice.   Whatever his initial disposition, Edward's commitment to rearing his daughter was stated and has been firmly held from the time she was one-month old, before the child was removed from the County's adoptive pool and placed in a permanent setting and before bonding.   Not only does the County fail to suggest any practical significance of the two-week delay in Edward's final decision, it does not even hint that an immediate request for custody would have altered its course.   In light of the County's position in 1981, and now, contending its rights are paramount to those of any natural father, Edward's two-week delay cannot justify the County's position.

Discussing a fact situation similar to ours, Buchanan states:

“Thus, the constitutional conclusion that a fit biological father ․ has a right to take on responsibility for his child itself prevents a state determination that children like [his] child are to be given into the care of those people whom the state considers best qualified.”  (Buchanan, supra, 45 Ohio State L.J. at p. 381.)

To the extent the State may have unconstitutionally deprived Edward of his opportunity to take responsibility for his child, he may have other remedies.   (See id. at pp. 377–378, fn. 486.)   However, the substantial degree of permanent emotional harm in removing Katie from her family of six years and preventing her legal legitimation within it is compelling on this record.   Although I find the County's actions in barring Edward and his child from developing a normal biological family relationship legally unjustified, I reluctantly conclude time and circumstances require affirming the judgment dispensing with his consent for adoption.

I respectfully dissent.

In my view, under the facts, the law of the case (In re Baby Girl M. (1984) 37 Cal.3d 65, 207 Cal.Rptr. 309, 688 P.2d 918), precedent and applicable constitutional principles forming the basis of the parental preference doctrine, a finding that an award of custody to the natural father would be detrimental to the child cannot properly be upheld where the father is found to be “ ‘a good parent [who] can provide a good, loving home for this child’ ” (id. at p. 68, 207 Cal.Rptr. 309, 688 P.2d 918) and the detriment is based solely on evidence of harm to the child that would be caused by her removal from the only home she has ever known, the home of the prospective adoptive parents with whom the child was placed approximately five weeks after her birth.   I would reverse with directions to the trial court to consider any evidence of additional circumstances bearing on the best interests of Katie and detriment in placing her with Edward that may have developed during the pendency of this appeal since February 1985 (see In re Baby Girl M., supra, 37 Cal.3d at pp. 75–76, 207 Cal.Rptr. 309, 688 P.2d 918), and in the absence of substantial evidence of traits or circumstances personal to Edward that would support a conclusion of detriment, I would order the petition dismissed and custody awarded to Edward.

In re Baby Girl M. states in part:

“The actions of both [italics in orig.] parents after the birth of their child determine their ability to accept parental responsibility.   An unwed mother may have had no more desire to conceive or knowledge of the conception than the unwed father.   Nevertheless she is given a choice to keep or relinquish the child because she gave birth.   Her decision to release the child for adoption should not deprive the father of a meaningful opportunity to retain and develop his relationship [italics added].

“A natural father may not have initial custodial or veto rights equal to those of a presumed father.   However, both classes of fathers share the same burdens of support for the child and liability for the reasonable expenses of the mother's pregnancy and confinement.  (§§ 7010 and 7012.)   Thus when the natural father's rights do arise, upon relinquishment by the mother, and he claims custody at a section 7017 hearing, an additional finding of detriment is necessary to terminate his parental rights.

 “V

“We have held the trial court erred by applying the best-interests-of-the-child standard without first determining whether granting custody to the natural father would be detrimental.   A review of the evidence introduced at the hearing indicates a finding of detriment would have been unsupportable [italics added] at that time [italics in orig.].   However, concerned, as we must be, with the child's welfare and because of the passage of time, we recognize further evidence will be necessary.12”  (37 Cal.3d at pp. 75–76, 207 Cal.Rptr. 309, 688 P.2d 918.)

Footnote 12 of the quoted passage provides:  “We recognize the dilemma arising under the present fact situation.   The state has placed the child with prospective adoptive parents pending resolution of Edward's claims;  strong relationships have developed, and breaking those bonds could be harmful to the child.”  (Ibid., italics added.)

On this record there are no “actions” of Edward after the birth of Katie that are adversely determinative of his “ability to accept parental responsibility.”  (37 Cal.3d at p. 75, 207 Cal.Rptr. 309, 688 P.2d 918.)   The effect of an affirmance of the trial court's judgment based on no acts of Edward himself is to allow the mother's decision releasing Katie for adoption to deprive Edward of a “meaningful opportunity to retain and develop his relationship.”  (Ibid.)  This effect is contrary to the express language of In re Baby Girl M.

The parental preference doctrine is set forth by the United States Supreme Court and the California Supreme Court, respectively, as follows:

“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 (1972) 405 U.S. 645, 651 [92 S.Ct. 1208, 1212, 31 L.Ed.2d 551], italics added.)

“[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. (1974) 11 Cal.3d 679, 693–694, 114 Cal.Rptr. 444, 523 P.2d 244, fn. omitted, italics added.)   This statement of the parental preference rule was modified by the enactment of Civil Code 1 section 4600, part of the Family Law Act.   The parental preference doctrine, In re B.G. points out:

“embodied both a requirement that a custody order in favor of a nonparent rest upon a finding of parental unfitness, and the limitation that such an order would be made only in extreme cases.   The enactment of section 4600 changes the former principle, and focuses attention not on the unfitness of the parent but the detriment to the child.  [Citation.]  The Legislature did not, however, intend to disturb the judicial practice of awarding custody to nonparents in preference to parents only in unusual and extreme cases.   [Citation.]

“As enacted, section 4600 expressly recognizes that custody should be awarded to parents in preference to nonparents․  [I]n a dispute between a parent and a nonparent, the section imposes the additional stipulation that an award to the nonparent requires a finding that ‘an award of custody to a parent would be detrimental to the child.’ ”  (In re B.G., supra, 11 Cal.3d 679, 698, 114 Cal.Rptr. 444, 523 P.2d 244.2)

Since In re B.G., supra, 11 Cal.3d 679, 114 Cal.Rptr. 444, 523 P.2d 244, it has been said:

“The doctrine of parental preference in custody matters is an established right of constitutional magnitude․

“․

“[A natural father's] rights to due process of law, as guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution, mandate the application of the parental preference doctrine to the instant [§ 7017] proceeding.  [Citations.]”  (Adoption of Baby Boy D. (1984) 159 Cal.App.3d 8, 21–22, 205 Cal.Rptr. 361.)

It was in furtherance of this parental preference doctrine that the California Supreme Court decided the law of this case, holding that in section 7017 termination of parentage proceedings it is error if the trial court finds it is in the best interests of the child to remain with the prospective adoptive parents without first finding that an award of custody to the natural parent would be detrimental to the child.3  The California Supreme Court also pointed out that on the basis of the record before it, a finding of detriment would have been unsupportable at the time of the original hearing in December 1981.  (In re Baby Girl M., supra, 37 Cal.3d at p. 75, 207 Cal.Rptr. 309, 688 P.2d 918.)

In the context of the parental preference doctrine, I believe there still is not substantial evidence supporting a finding of detriment.   There must be evidence of something wrong with the natural parent personally or with his or her circumstances that would detrimentally impact on the child before a finding of detriment can be supported.   Here, of course, there is nothing wrong with Edward.   The evidence is to the contrary and an affirmative finding of his good capability as a parent has been made.   Thus, I believe the finding of detriment cannot be sustained.

Support for this conclusion is found in my analyses of the justices' opinions in the case Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 218 Cal.Rptr. 39, 705 P.2d 362, decided after the trial court ruled in the present case.   Michael U. involved a section 7017 proceeding in which Michael, the father claiming custody, was 16 years old when the child, Eric, was conceived by Jamie, a 12–year-old who relinquished Eric for adoption.   Eric was placed with prospective adoptive parents, the Whites.   The essential finding of the trial court was that an award of custody to Michael would not be detrimental to Eric.   Examining characteristics personal to the father that showed placing custody in him would be detrimental, a majority of the Supreme Court reversed for lack of substantial evidence to support the trial court's determination to the contrary.

There is no majority opinion in Michael U., but four of the five justices concurring in the judgment as well as the two dissenting justices reveal in their opinions that an examination of the traits and circumstances of the natural father is called for in order to have substantial evidence of the detriment element.   The lead opinion, concurred in by one justice, focuses on facts showing the father's poor judgment and lack of maturity, including acts of juvenile delinquency, serious academic difficulties, disciplinary problems, youth, unemployed status, inexperience at “fathering” and plan to have the child cared for by the father's mother, a plan which might make necessary another change of custody.   In its analysis of the evidence of detriment, the lead opinion briefly noted the suitability as parents of the prospective adoptive parents (39 Cal.3d at pp. 794–795, 218 Cal.Rptr. 39, 705 P.2d 362) and it described the testimony of a child psychiatrist that removal from the home of the prospective adoptive parents would be detrimental, listing certain symptomology.

The lead opinion concludes its analysis:

“If this case could be decided solely on the basis of the best interest of Eric, it would not be a close case.   On this record we could not possibly justify taking Eric from the stable and loving home where he now lives.   Michael, however, is entitled to the parental preference established by Civil Code section 4600, and to custody unless such an award would be detrimental to the child.

“Even under this higher standard, however, we conclude that under the undisputed evidence we should reject the trial court's award of custody to Michael.   Michael was an unemployed high school student whose social and sexual relationships and academic record demonstrate his lack of maturity and judgment.   His ability to care for the child himself was open to question.   We recognize that at the time of trial Michael was living with his family in an established and loving family relationship, but the award of custody is to Michael himself, and upon reaching majority he would be entitled to leave and take the child with him.   Yet the act of changing custody would itself inflict serious harm on Eric, and if, as seems quite possible, Michael proves unable to care for Eric properly and further changes are required, that initial custody change would still have conferred on Michael a permanent right to veto any proposed adoption.   We conclude that the implied finding that an award of custody to Michael would not be detrimental to Eric is not supported by substantial evidence, and that the court's order awarding Michael temporary custody of Eric was an abuse of discretion.8”  (39 Cal.3d at pp. 795–796, 218 Cal.Rptr. 39, 705 P.2d 362.)

In footnote 8, the lead opinion states:

“We do not imply that Michel is ‘unfit’ in the sense that, if he received custody of Eric, the state would have grounds to intervene and remove the child.   As the court explained in In re Reyna, supra, 55 Cal.App.3d 288, 302 [126 Cal.Rptr. 138], the concept of unfitness under Civil Code section 232 or Welfare and Institutions Code section 300 is distinct from the test of detriment under Civil Code section 4600.   It is presumably detrimental to a child to award custody to a parent who is so unfit that the state might have to intervene to retrieve custody, but it might also be detrimental to place him with a parent who is not unfit, depending upon the child's current circumstances and the available placement alternatives.  (In re Reyna, supra, 55 Cal.App.3d at pp. 302–303 [126 Cal.Rptr. 138].)”  (39 Cal.3d 796, fn. 8, 218 Cal.Rptr. 39, 705 P.2d 362.)

Though believing that only a finding of best interests, not detriment, is necessary in section 7017 proceedings, one of the opinions concurring in the judgment, joined in by a second justice, states:

“Interpreting the Baby Girl M. test, the same Court of Appeal justice who authored that opinion for a majority of this court concluded, in the Court of Appeal in this case, that it would not be detrimental to give custody of the infant to a 16–year-old biological father who was legally a rapist:  as a juvenile delinquent who admittedly had sexual relations with a 12–year-old girl, the father could have been criminally prosecuted.  (Pen.Code, § 261.5.)   Apparently it now takes something more in a biological father than his attributes as an irresponsible and immature juvenile, a delinquent with no visible means of support and frequent criminal activity, to constitute circumstances detrimental to the well-being of an infant.”  (39 Cal.3d at p. 797, 218 Cal.Rptr. 39, 705 P.2d 362.)

Likewise, the two dissenting justices, viewing the record as containing substantial evidence supporting the implied finding an award of custody to Michael would not be detrimental to Eric, examine personal and circumstantial characteristics of Michael himself in reaching their conclusion.  (39 Cal.3d at pp. 799–800, 218 Cal.Rptr. 39, 705 P.2d 362.)

Inasmuch as six of the seven justices in Michael U. looked to features personal to the father in considering whether there is substantial evidence of detriment in the context of the parental preference doctrine, I believe evidence of that nature bearing on the issue is required before a finding of detriment can be sustained.   No such evidence is present in this case.   To the contrary, the father has been found to be a good parent who can provide a good, loving home for his child, and there is no evidence in the record of the 1985 hearing that would detract from or change this assessment of Edward's parenting ability.   In these circumstances a finding of detriment cannot be sustained.4

The question of the appropriate disposition of this case must be considered in the context of the parental preference doctrine.   By August 10, 1987, the section 7017 proceeding will have been pending six years.   Two evidentiary hearings and two appeals will have occurred in that time.   The important human attachments and lack of attachments present in this case are inevitable incidents of this passage of time.   During this time there has been no evidence of Edward's traits or circumstances that could be viewed as substantial evidence of any detriment to Katie in an award of her custody to him.   The Department of Social Services has had ample opportunity to present any such evidence.   Continued legal custody in the Department of Social Services (§ 224n, subd. (a)) no longer serves any constructive purpose.   In my opinion, subject to a hearing limited to a consideration of evidence occurring after the February 1985 hearing that bears on the best interest and detriment issues, this is an exceptional case where there is no reason to prolong the proceeding by way of further hearings on the issues.  (See In re B.G., supra, 11 Cal.3d 679, 699, 114 Cal.Rptr. 444, 523 P.2d 244, “Only in an exceptional case, in which the record so strongly supported a party's claim to custody that a denial of that claim by the trial court would constitute an abuse of discretion may an appellate court itself decide who should be granted custody.”)

In my view, subject to the limited hearing after remittitur, it is now time to award custody to Edward who is affirmatively shown by the evidence to be a capable parent, i.e., fit to exercise custody as against the prospective adoptive parents (In re B.G., supra, 11 Cal.3d 679, 693–694, 114 Cal.Rptr. 444, 523 P.2d 244) and with respect to whom as a matter of constitutional law the custody, care and nurture of Katie first resides.  (Stanley v. Illinois, supra, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212.)   In this connection it is important to point out that at the February 1985 hearing, Edward recognized there would be some type of trauma to Katie in his taking custody but believed it could be minimized and made temporary.   He proposed a gradual plan of reunification with involvement by the court, the prospective adoptive parents, the psychiatrist Dr. Nelson and the other children and adults in his life and the life of Katie.   At oral argument on April 14, 1987, Edward reiterated his desire to engage in a gradual reunification plan.   It is also worth noting that Katie is a normal, healthy, well-adjusted child.   I would expect Edward to carry out a plan of gradual reunification along the lines outlined in the hearing so as to minimize the harshness on Katie as well as those around her from the award of custody to Edward.

FOOTNOTES

1.   All statutory references are to the Civil Code unless otherwise specified.   When referring to statutory subparts, we omit repetition of the word “subdivision.”

2.   Although I agree with many of the concerns expressed in Justice Work's thoughtful concurring opinion, it appears to me that consideration of the constitutional issue is necessarily foreclosed by the Supreme Court's Baby Girl M. opinion.   That court's extensive citation to the Buchanan article (see Buchanan, The Constitutional Rights of Unwed Fathers After Lehr v. Robertson (1984) 45 Ohio St.L.J. 313) and federal precedent makes clear that it was aware of and considered the federal constitutional issue.   The Supreme Court would not have remanded the case to the trial court for application of the detriment standard based on later-developing facts (see 37 Cal.3d at pp. 75–76, 207 Cal.Rptr. 309, 688 P.2d 918) if consideration of those facts was constitutionally inappropriate because they were the product of state action in violation of Edward's fundamental parental rights.   In my view, our position in the judicial hierarchy (see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937) precludes consideration of Edward's constitutional argument.

3.   Now, more than two years later, the harm to Katie would if anything be greater were she to be separated from the Moseses.

4.   Moreover, the time period involved in this case makes the issue not merely different in degree but also different in kind.   Eric was seven months old at the time of the initial hearing in Michael U. and had lived with his prospective adoptive parents since the age of two months.   He was two and one-half years old when the Supreme Court filed its opinion.   In contrast, Katie was three and one-half years old at the time of the trial court hearing under review here and has now passed her fifth birthday.   To suggest it would not be “detrimental” to uproot a five-year-old from the only home she has ever known eviscerates the common meaning of the word.

5.   The book Beyond the Best Interests of the Child has become a standard reference in this intractable area of the law.  (See e.g., Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 795, fn. 7, 218 Cal.Rptr. 39, 705 P.2d 362;  In re Angelia P. (1981) 28 Cal.3d 908, 917, 171 Cal.Rptr. 637, 623 P.2d 198;  Adoption of Michelle T. (1975) 44 Cal.App.3d 699, 706, 117 Cal.Rptr. 856.)   The authors distinguish between biological parents and “psychological parents” in the following terms:“[F]or the child, the physical realities of his conception and birth are not the direct cause of his emotional attachment.   This attachment results from day-to-day attention to his needs for physical care, nourishment, comfort, affection, and stimulation.   Only a parent who provides for these needs will build a psychological relationship to the child on the basis of the biological one and will become his ‘psychological parent’ in whose care the child can feel valued and ‘wanted.’   An absent biological parent will remain, or tend to become, a stranger.”  (Goldstein, Freud & Solnit, Beyond the Best Interests of the Child (1973) p. 17.)

6.   As the court stated in In re Reyna, supra, 55 Cal.App.3d at p. 304, 126 Cal.Rptr. 138:“[David] argues that constitutionally he must be accorded the same rights as a married father and that, if he had been afforded a hearing promptly after the child's birth, he would have received custody because detriment to the child could not have been shown that early in the child's life.  [¶] While it is most unfortunate for David that the agency acted in a precipitous manner without careful investigation as to his whereabouts, we cannot unwind the clock and simply award custody to David because of the agency's misjudgment 11 months ago.   To do so would be to disregard the best interests of the child as mandated by section 4600.”

7.   Subdivision (d)(2) of section 7017 now reads in relevant part:“If the natural father or a man representing himself to be the natural father claims parental rights, the court shall determine if he is the father.   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.   The court, in making that determination, may consider all relevant evidence, including the efforts made by the father to obtain custody, the age and prior placement of the child, and the effects of a change of placement on the child.   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.   If the court finds that the man claiming parental rights is not the father, or that if he is the father it is in the child's best interest that an adoption be allowed to proceed, it shall order that that person's consent is not required for an adoption;  such a finding terminates all parental rights and responsibilities with respect to the child.  Section 4600 does not apply to this proceeding․”

1.   It is especially ironic that Edward's position was worsened by the California Supreme Court's taking the case and resolving an issue favorably to him.   In effect, the majority holding in Baby Girl M. on the question of Civil Code section 4600 standards tracks the result we originally reached two and one-half years ago.   Had this court's prior opinion remained undisturbed, Edward would have had a presumed father status long ago and the child undoubtedly would have adjusted satisfactorily.

2.   I do not agree with the conclusion in the lead opinion suggesting the remand from the Supreme Court should be interpreted as a holding on this constitutional issue.   A plain reading of the Supreme Court's decision shows this issue was neither actually presented nor determined by the court.  (See People v. Shuey (1975) 13 Cal.3d 835, 842, 120 Cal.Rptr. 83, 533 P.2d 211.)

FN3. All statutory references are to the Civil Code..  FN3. All statutory references are to the Civil Code.

4.   I do not mean to suggest the County's continued litigation is legally improper.   It is expressly permitted to be a party to these proceedings by section 7017.

FN1. All statutory references are to the Civil Code unless otherwise specified..  FN1. All statutory references are to the Civil Code unless otherwise specified.

2.   Before reaching this conclusion, In re B.G. noted the detriment standard reflects a concern the Legislature shared that without the standard a change in custody would be permitted “ ‘merely because a subjective conclusion is reached that the child's interests will be better served somewhere else than with his parents and without any decision that the home of the parent would not be good for him.’ ”  (11 Cal.3d at p. 697, 114 Cal.Rptr. 444, 523 P.2d 244.)In re B.G. also quoted at length from a report of the Assembly Judiciary Committee, stating reasons for the detriment standard as follows:  “ ‘Limitation of the power of the court to award custody of children to persons other than a parent is the primary intent of the provisions in the new act relating to child custody.   Effort was made to avoid a Painter v. Bannister [258 Iowa 1390, 140 N.W.2d 152, cert. denied, 385 U.S. 949, 87 S.Ct. 317, 17 L.Ed.2d 227 (1966) ] situation in California.   In that case, an Iowa court awarded custody to Iowa grandparents of a young boy who had been temporarily living with them with the permission of his father after the accidental death of his mother.   The court disapproved of the ‘Bohemian’ mode of living and intellectuality of the photographer father, a California resident, despite evidence that the father cared greatly for the child, was regularly employed and relatively successful, had remarried and would provide a stable environment.   The court reasoned that Iowa farm life would be better for the interests of the child․“ ‘[B]efore custody can be awarded to one other than a parent, the court must specifically find that an award of custody to a parent would be detrimental to the child, and that the award to a nonparent is required to serve the best interests of the child.   What is “detrimental” had not been set forth with particularity.   It is a nearly impossible task to devise detailed standards which will leave the courts sufficient flexibility to make the proper judgment in all circumstances ․ The important point is that the intent of the Legislature is that the court consider parental custody to be highly preferable.   Parental custody must be clearly detrimental to the child before custody can be awarded to a nonparent.’  (4 Assem.J. (1969 Reg.Sess.) pp. 8060–8061.)  (Italics added.)”  (11 Cal.3d at pp. 697–698, 114 Cal.Rptr. 444, 523 P.2d 244.)

3.   Section 4600, including its requirement of a finding of detriment, no longer applies to section 7017 proceedings.

4.   This conclusion should not be understood as expressing the view that the trial court was precluded from basing its decision in part upon evidence of detriment resulting from the breaking of bonds between the prospective adoptive parents and Katie.   The Supreme Court, in the law of this case, invited the trial court to consider that sort of evidence of detriment.  (In re Baby Girl M., supra, 37 Cal.3d 65, 76, & fn. 12, 207 Cal.Rptr. 309, 688 P.2d 918—the court recognized “further evidence will be necessary” and in the footnote to this passage stated, in part, “breaking those bonds could be harmful to the child.”)   The evidence of detriment due to the separation of Katie from the prospective adoptive parents was properly considered by the trial court in this case.

WIENER, Acting Presiding Justice.