JOHN v. MARK

Reset A A Font size: Print

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

Adoption of MICHAEL H., a Minor. JOHN S. et al., Plaintiffs and Appellants, v. MARK K., Defendant and Respondent.

No. D019073.

Decided: April 08, 1994

Janis K. Stocks, San Diego, Douglas R. Donnelly, Santa Barbara, Orrick, Herrington & Sutcliffe, William F. Abrams and Carl W. Chamberlin, San Francisco, for plaintiffs and appellants. Paula C. Mendell, Del Mar, under appointment by the Court of Appeal, for defendant and respondent. Steven A. Schutte, San Diego, under appointment by the Court of Appeal, for the minor. Robert C. Fellmeth and Kathleen Murphy Mallinger, San Diego, as amici curiae on behalf of the minor.

John and Margaret S. (John and Margaret, or the S. family) have for three years sought to adopt Michael H. (Michael), with the consent of his natural mother, Stephanie H. (Stephanie).   The planned adoption has been opposed by Michael's natural father, Mark K. (Mark, or father).   John and Margaret appeal from an order of the juvenile court finding that Mark, in addition to being Michael's natural father, has sought to grasp his parental responsibilities sufficiently to be Michael's “presumed father,” who thus may withhold his consent from the proposed adoption of Michael.   Because the record supports the order below, we affirm.

FACTS AND PROCEDURE

This is the second appeal in this case, arising out of Stephanie's attempts to give up Michael to John and Margaret for adoption, efforts consistently resisted by Mark.

Michael was born in February 1991 in San Diego, after the pregnant Stephanie (an Arizona resident, as is Mark) had decided to give him up for adoption to John and Margaret, who were friends of Stephanie's aunt.   In March 1991, Mark had first learned of Michael's birth, and of his intended adoption, and had opposed the proceeding.

In a proceeding conducted when Michael was eight months old, Mark was found not to be a “presumed father” 1 under Civil Code section 7004, and thus he was not entitled to oppose the adoption of Michael by John and Margaret.2

On Mark's previous appeal (Adoption of Michael H. (Aug. 25, 1992) D015795 [nonpub. opn.] ), we held in that our Supreme Court's decision in Adoption of Kelsey S., supra, 1 Cal.4th 816, 4 Cal.Rptr.2d 615, 823 P.2d 1216, holding Civil Code section 7004 unconstitutional as applied, required that we reverse and remand for a new determination in the superior court of whether, under the law as set out in Kelsey S., Mark was a “presumed father.”

The remittitur in case No. D015795 issued in October 1992.   In February 1993, the question of whether Mark was a “presumed father” was tried anew.   We adopt the trial judge's cogent summary of the evidence received in that proceeding:

“Substantial evidence was produced in this case over almost two weeks of afternoon sessions.   While the father (Mark) and the mother (Stephanie) disagreed on several details of the events from conception forward, the bulk of the evidence is not in much conflict.   Furthermore, it cannot be said that either witness was clearly deceptive.   Rather, it appears that they weathered an emotionally difficult time when they were very young and relatively ill equipped.   They survived, but their relationship did not.   Not surprisingly, they saw, and still see, things very differently.

“Essentially, the evidence shows that in February 1990 they saw themselves as engaged, and by July 1990, Stephanie was pregnant.   Because Mark had a vasectomy, he was stunned and fearful, not an unusual reaction for a 20 year old with an unexpectedly pregnant girlfriend.   They began discussing their options;  abortion, adoption, or keeping the child.   The option of keeping the child did not survive much discussion, although Mark did suggest advancing the wedding date at one point.   Stephanie quickly rejected abortion.   Adoption was settled on as the most acceptable choice, and various ways to arrange it were pursued.   Stephanie travelled to San Diego where she was introduced to the [S. family] who ultimately became the prospective adoptive parents.

“Mark testified that about a month after learning of the pregnancy, he began to warm up to the idea of fatherhood.   Beginning in September 1990, Stephanie and Mark began going to birthing classes together.   Mark bought a trailer for them to live in, although they never did.   He also accompanied Stephanie to at least one yard sale to buy baby things.   In October, he arranged for a videotape of Stephanie's ultrasound showing the developing child.   But the stress of early parenthood took a toll on their relationship.   Stephanie began to feel smothered by Mark's increasing attention and Mark was hurt and angry at Stephanie's efforts to obtain breathing room.   By October, Mark had been excluded from the birthing classes by Stephanie.   There were two violent outbursts by Mark, who bruised Stephanie's arms in one and was arrested.   The relationship was pretty much over at that point.

“Mark took these developments badly.   He attempted suicide in October, which was followed by hospitalization lasting into November.   According to Mark, while hospitalized he resolved to make substantial changes in his life.   This included ending his use of marijuana, seeking stable employment and residence and continuing counselling.   He also decided he did not want his child given up for adoption, and began searching for assistance in this regard.   From November 1991 through February 1992 he sought free legal advice from many sources.   He also sought help from local media and political figures.   In February, he filed a custody petition in an Arizona court which he had prepared himself after researching the law on his own.   In March 1992 he finally located an attorney in Arizona who agreed to represent him on a pro bono basis.

“However, during this period between Mark's hospitalization and the baby's birth, Mark continued to speak to Stephanie and even the [S. family] as though he still agreed with the adoption.   His words and conduct with them is inconsistent with the rest of his activities seeking legal and other relief.   He testified he did not want to risk the sort of polarization which might totally close the door to further communication.

“On March 7, 1992 he learned his son had been born.   Immediately, through counsel, he asked for custody of the baby.   He sent out some birth announcements, began buying baby things and continued his existing legal efforts to gain custody.

“In the two years since his son's birth, Mark has never wavered in expressing his desire to take on the full responsibility of fatherhood.   He defended against the action to terminate his parental rights, and pursued his own paternity action.   Testimony from three of his attorneys establishes that he incessantly, relentlessly urged them to seek visitation for him.   He was in regular contact with them asking about his case.   His efforts for custody or court ordered visits were consistently resisted by Stephanie and the [S. family].

“He has continued as a valued and steady employee, and has chosen jobs with an eye to the availability of insurance for his son.   He has also obtained and maintained a suitable residence and made arrangements for day care in the event he is successful in getting custody.

“During the last two years, the child has been cared for by the [S. family], who appear to have given him excellent, experienced and loving care.   On the basis of the evidence in this case, it is impossible to imagine that they do not experience him as ‘their’ baby.   It is also unavoidable that he experiences them as his parents.   Furthermore, although [John and Margaret] have fought to keep custody, they have had the considerable grace to be sensitive to Mark's need to know his child and the child's eventual need to know of his natural father.   Whatever one thinks of the merits of Kelsey S., to [John and Margaret] and to the child, it is a cruel twist of fate that we are now considering separating them.   It is easy to understand how the Superior Court previously held it to be in the child's best interest to be adopted by the [S. family].   They are mature, demonstrably appropriate, experienced parents who have the resources to provide the support and attention the child needs, without the stresses attendant on a single parent's life.

“However, at the very heart of Kelsey S. was the observation that:  [¶] ‘We simply do not in our society take children away from their mothers—married or otherwise—because a “better” adoptive parent can be found.   We see no valid reason why we should be less solicitous of a father's efforts to establish a parental relationship with his child.’  (Kelsey S. at 846, 4 Cal.Rptr.2d 615, 823 P.2d 1216.)

“Thus, the whole of the question here is whether, in the context of his circumstances, Mark promptly came forward and demonstrated a full commitment to his parental responsibilities.   If so he is entitled to the same rights as Stephanie to veto an adoption unless he can be shown to be unfit as a parent.

“Looking at the time period between conception and Mark's hospitalization, it cannot be said he was fully committed to his parental responsibilities.   While he always acknowledged his paternity, he clearly planned with Stephanie to give the child up.   Like many fathers (and mothers) he was initially frightened and eagerly looked for a way out of these responsibilities.   However it should be noted that the core of the holding in Kelsey S. is a rejection of the notion that unwed fathers should have fundamentally different rights than unwed mothers in deciding whether to give their child up for adoption.   In light of this, it would be difficult to say that Mark's initial agreement to allow adoption terminated his right to change his mind even though it would not terminate Stephanie's right to have done the same.   He was at least as willing to assume his parental responsibilities as she was.

“It is argued that Mark's suicide attempt was a dramatic rejection of the responsibilities of life in general and fatherhood in specific.   But the evidence suggests this attempt was a response to the tremendous stress occasioned by the conflicts between himself and Stephanie.   Further, the fact that in the aftermath of the attempt he began to take more mature command of his life speaks well of him.   As the Court of Appeal noted in this very case, rising above his past problems, ‘might support, rather than derogate from, a finding of Mark's commitment to Michael.’  (Slip op. fn. 2 pp. 5–6.)

“After his release from the hospital, and particularly after the birth of his son, Mark's efforts were nothing short of impressive.   Beginning with relatively little knowledge or experience, he acted with a tenacity that demonstrates undeniable commitment and speaks well of his ability to weather the frustrating demands of parenthood.

“It is true that he did not offer to provide money for the support of his son during the last two years.   However, under the circumstances, it is hard to say this suggests a lack of commitment.   He had every reason to believe that the child was being well cared for by [John and Margaret] who had sufficient resources to support the legal battle to terminate Mark's parental rights.   Mark's income was modest.   Much of it was further diminished by his repeatedly taking time off work to travel from Arizona to San Diego to fight for custody or visitation.   Furthermore, under this county's procedures, to the extent he has available money, he will be expected to pay for the legal services provided by his appointed counsel.   There is some merit to his attorney's argument that it would have been foolish for him to take money from his relatively meager war chest and send it to the people who were bankrolling the custody battle against him.

“The Court of Appeal in this case observed that Kelsey S. ‘did not intend the standard for determination of a biological father's rights to be rigid.   In the holding, the test is phrased thus:  “If an unwed father promptly comes forward and demonstrates a full commitment to his parental responsibilities ․ his federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent.” ’   Noting that the test in most jurisdictions is ‘whether a biological father has attempted to establish a relationship with his child’ the Court of Appeal emphasized that ‘The point is that it is effort more than result which is at issue․’  (Slip Op. at 12.)

“In this case, Mark's struggle before his hospitalization and the subsequent birth of his son does not counterbalance his truly extraordinary efforts and commitment afterward.   Mark conceived this child in love (however ill-fated) attempted to maintain partnership with the mother through the pregnancy (however unwanted that partnership became to her) and has fought unyieldingly for custody since birth.   In the context of all the facts of this case, his efforts sufficiently demonstrate his full commitment to his parental responsibilities that, under Kelsey S. he is entitled to be treated as though he were a ‘presumed father’ for the purposes of this adoption.”

DISCUSSION

A. Introduction

John and Margaret argue four issues on appeal, which in our view resolve themselves into one.   Their first argument is (1) that the trial court misapplied the law set out in the Kelsey S. decision.   John and Margaret also argue (2) Mark should have been estopped from asserting that he is a presumed father, (3) depriving Michael of his ties to them without considering his best interests is a violation of Michael's due process rights, and (4) the only issue before us is the status of Mark, rather than that of Michael.

 Addressing these four arguments in inverse order from their presentation, John and Margaret's last stated point cannot be disputed.   The present appeal is from the order determining Mark's status, and no other issues are now before us.   Accepting the point urged by John and Margaret, however, compels us to decline to consider the point about Michael's due process right to continuity in his family life, as this question is not before us in this case, and was (quite properly) not resolved in the proceedings below.

 The estoppel point is based on the claim that because, in his December 1990 telephone conversation with Margaret, Mark concealed his then-formed opposition to the adoption of his then-unborn child, he may not ever thereafter be heard to assert an interest in Michael.   The trial judge was unpersuaded by this argument, and so are we.

As John and Margaret admit, the use of estoppel in this fashion derives from the concurring and dissenting opinion of Justice Mosk in Adoption of Kelsey S., supra, 1 Cal.4th at pages 852–853, 4 Cal.Rptr.2d 615, 823 P.2d 1216, where Justice Mosk states his view that that matter should have been decided on the basis of estoppel rather than on constitutional grounds.   Six members of the Supreme Court, however, were of a contrary view, which we must follow.

In these circumstances we reject the suggestion Mark is estopped from asserting he is a presumed father in these proceedings.   In any event, as the argument is factually unsupported and is (understandably) also wholly bereft of any citation to appropriate legal authority, we decline to further discuss the point.   Instead we, as did the trial judge, must focus only upon the single question before us:  does the record support the determination that Mark is in this case to be accorded “presumed father” status?

B. Governing Cases

In resolving the question of the proper interpretation of Kelsey S., John and Margaret have directed our attention to the recent Supreme Court decision of In re Zacharia D. (1993) 6 Cal.4th 435, 24 Cal.Rptr.2d 751, 862 P.2d 751.   According to John and Margaret, we must, reading Kelsey S. in light of Zacharia D., find Mark not a presumed father because (1) Mark was not “thwarted” in his quest for custody by Stephanie, and such behavior by a mother is a predicate for presumed father status, and (2) in any event, Zacharia D. demonstrates that a presumed father must, after learning of his prospective paternity, “promptly” (that is, “immediately”) fully assert his paternal interests.   We cannot agree with these arguments.

The central issue in In re Zacharia D. was “whether one who is a biological but not a presumed father is entitled to reunification services” in a dependency, not an adoption, proceeding.  (In re Zacharia D., supra, 6 Cal.4th at p. 439, 24 Cal.Rptr.2d 751, 862 P.2d 751.)   In that case the biological father (see fn. 1, supra ) waited until the statutory 18–month review hearing in a dependency case before asserting his interest.   (Id. at pp. 443–444, 24 Cal.Rptr.2d 751, 862 P.2d 751.)   On the facts before them, the court did not determine whether constitutional issues were raised by “the statutory distinctions between biological and presumed fathers.”  (Id. at p. 451, 24 Cal.Rptr.2d 751, 862 P.2d 751.)

As the question here was not analyzed by the Zacharia D. court, that decision is not authority for the points now urged by John and Margaret.   “ ‘ “It is the general rule that the language of an opinion must be construed with reference to the facts presented by the case, and the positive authority of a decision is coextensive only with such facts.” ’  (Brown v. Kelly Broadcasting Co. [1989] 48 Cal.3d 711, 734–735, 257 Cal.Rptr. 708, 771 P.2d 406, quoting River Farms Co. v. Superior Court (1933) 131 Cal.App. 365, 369, 21 P.2d 643.)”  (Adoption of Kelsey S., supra, 1 Cal.4th at p. 828, 4 Cal.Rptr.2d 615, 823 P.2d 1216.) 3

Neither Zacharia D. nor any of the other cases cited by John and Margaret may properly be read to have modified in any way the holding of Kelsey S.  We thus remain, as we were on the prior appeal in this case, bound by the holding of that opinion, and must proceed to determine whether it was properly applied to the facts of this case.

C. Analysis

We previously remanded this matter for determination of the Kelsey S. question, that is, whether Mark was “an unwed father who has sufficiently and timely demonstrated a full commitment to his parental responsibilities.”   (Adoption of Kelsey S., supra, 1 Cal.4th at p. 849, 4 Cal.Rptr.2d 615, 823 P.2d 1216.)   Factors relevant to that determination are these:  “Once the father knows or reasonably should know of the pregnancy, he must promptly attempt to assume his parental responsibilities as fully as the mother will allow and his circumstances permit.   In particular, the father must demonstrate ‘a willingness himself to assume full custody of the child—not merely to block adoption by others.’  [Citation.]   A court should also consider the father's public acknowledgment of paternity, payment of pregnancy and birth expenses commensurate with his ability to do so, and prompt legal action to seek custody of the child.”  (Ibid., fns. omitted.)

As observed by the trial judge, there are no seriously contested issues of material fact in this case.   Instead, the question presented is whether those facts concerning Mark's conduct that were determined below to exist do, or do not, support the court's finding Mark to be a “presumed father” under the test described in Kelsey S.

Here, the trial judge found that Mark had, after an initial period of uncertainty and conflict, attempted to assume his parental responsibilities as fully as his circumstances permitted.   Most importantly, Mark has for some years now “never wavered in expressing his desire to take on the full responsibility of fatherhood.”

As the trial judge further found, Mark has also shown his commitment in other ways, and the fact he has not sent money for Michael's care to John and Margaret, who seek to take Michael from him, should not weigh against him as Mark has expended his funds in other ways on Michael's behalf.

Considering all of these matters together, the trial judge concluded that Mark's initial difficulties had been more than counterbalanced by “his truly extraordinary efforts and commitment afterward.”   For these reasons, Mark “is entitled to be treated as though he were a ‘presumed father’ for the purposes of this adoption.”

John and Margaret premise their entire argument for reversal herein on the proposition that the trial judge erroneously read Kelsey S.   According to John and Margaret, a proper reading of Kelsey S. is that, in order to qualify as a “presumed father,” a father must, at all times after he first becomes aware of the existence of his child, have attempted immediately, consistently, and without fail to gain the custody of his child.

 That is, under John and Margaret's view of Kelsey S., Mark may not be found to be a “presumed father” because at the time he first learned of Stephanie's pregnancy, and continuing for some weeks of discord with Stephanie until after his hospitalization, Mark was (at best) ambivalent about the prospect of rearing Michael.   Mark counters that this interpretation represents an excessively narrow and crabbed view of that case.   We agree with Mark.

The essence of appellants' position is that unless Mark had, from the first moment he was aware Stephanie was in fact pregnant, continually expressed the single desire to raise his child, he should not have been found by the trial court to have “sufficiently and timely demonstrated a full commitment to his parental responsibilities.”  (Adoption of Kelsey S., supra, 1 Cal.4th at p. 849, 4 Cal.Rptr.2d 615, 823 P.2d 1216.)

The test proposed by John and Margaret is too rigid.   As we noted in our prior opinion, the standard set forth in Kelsey S. was not so intended.   The precise language on this question is this:  “A court should consider all factors relevant to th[e presumed father] determination.   The father's conduct both before and after the child's birth must be considered.”  (Adoption of Kelsey S., supra, 1 Cal.4th at p. 849, 4 Cal.Rptr.2d 615, 823 P.2d 1216, emphasis in original.)   Also, “the trial court must take into account [father]' s conduct throughout the period since he learned he was the biological father, including his conduct during the pendency of this legal proceeding ․ up to the determination in the trial court on remand․   We recognize that during these proceedings [father] may have been restricted, both legally and as a practical matter, in his ability to act fully as a father.   Nevertheless, the trial court must consider whether [father] has done all that he could reasonably do under the circumstances.”  (Id. at p. 850, 4 Cal.Rptr.2d 615, 823 P.2d 1216, emphasis in original.)

No fair reading of a direction to consider all factors relevant, and over all the time from the beginning of the matter to the present, can be reconciled with a requirement that, unless each and every factor is and has been positive at all times, a father's constitutional interest in rearing his own child may be fully extinguished.

Further, our Supreme Court's emphasized direction that the “necessary commitment” determination must be made with due regard to what was reasonable for Mark to have done “under the circumstances” does not comport with the rigid, full-diligence-at-all-times rule suggested as the standard by the analysis of John and Margaret.

 Instead, we adhere to the view that the intended test was (precisely as Kelsey S. stated) to be a balancing of all factors against each other, and over the whole course of the proceedings, weighing positives against negatives to arrive at a determination whether a father “demonstrated the necessary commitment to his parental responsibilities.”  (Adoption of Kelsey S., supra, 1 Cal.4th at p. 850, 4 Cal.Rptr.2d 615, 823 P.2d 1216.)   That is precisely what the trial judge did in this case.

We thus conclude the trial judge applied a correct view of the controlling law to the facts he determined to exist, and on those facts found that Mark was in addition to being Michael's father also his “presumed father,” entitled to contest the proposed adoption by John and Margaret.   As the record more than substantially supports the trial judge's determination of this issue, we may not now set it aside.  (In re Sarah C., supra, 8 Cal.App.4th at p. 973, 11 Cal.Rptr.2d 414.)

This holding in no way disparages the interests of Michael or John and Margaret.   But “[w]e must not lose sight of the way in which the present case and others like it come before the courts.   A mother's decision to place her newborn child for adoption may be excruciating and altogether altruistic.   Doing so may reflect the extreme of selflessness and maternal love.   As a legal matter, however, the mother seeks to sever all ties with her child.   The natural father, by contrast, has come forward to assume the legal and practical burdens of being a parent.”  (Adoption of Kelsey S., supra, 1 Cal.4th at p. 848, 4 Cal.Rptr.2d 615, 823 P.2d 1216, emphasis in original.)

Essentially, apart from asserting an incorrect standard was applied below, John and Margaret also urge the evidence received was not properly weighed, and what they ask us to do in fact is to reweigh that evidence.   This we may not do.  (In re Stephanie M. (1994) 7 Cal.4th 295, 319, 27 Cal.Rptr.2d 595, 867 P.2d 706.)   On the facts of this case, the trial court's conclusion after weighing the evidence that Mark had by his actions sufficiently demonstrated his parental commitment cannot now be set aside by us.

 The result simply recognizes, as we must, that the rights of a father are necessarily involved in a proposed adoption, as well as the rights of a child's birth mother.   The rule is clear:  “We simply do not in our society take children away from their mothers—married or otherwise—because a ‘better’ adoptive parent can be found.   We see no valid reason why we should be less solicitous of a father's efforts to establish a parental relationship with his child.”  (Adoption of Kelsey S., supra, 1 Cal.4th at p. 846, 4 Cal.Rptr.2d 615, 823 P.2d 1216.)

We conclude by turning once again to the trial judge's statement of decision:

“It is particularly troubling that a truly ‘fair’ decision is impossible in this case.   It is hard to argue with the underlying human reasoning of Kelsey S.   On the facts of this case it would be clearly wrong to cavalierly reject Mark's interest in his son.   However, because of the timing of this case, a good and loving couple have unavoidably bonded with this child over the last two years.   This decision threatens undeserved and painful disruption for both them and the child.   It also opens the door (as suggested by Kelsey S.) to an acrimonious legal battle over whether Mark is fit to be a parent.   The facts and results of this case are a painful reminder of the inherent limits of our legal system.   While rights usually can be identified, wrongs cannot always be redressed.”

This is such a case.

DISPOSITION

The order granting Mark presumed father status in the adoption proceedings is affirmed.

FOOTNOTES

1.   “As [our Supreme Court has] previously noted, the statutory term ‘presumed father’ is somewhat ‘cumbersome.’  (Michael U. v. Jaime B. (1985) 39 Cal.3d 787, 790, fn. 1, 218 Cal.Rptr. 39, 705 P.2d 362.)   A man's parentage of a child may be undisputed and legally proven, but he may nevertheless fail to be a ‘presumed father’ under [Civil Code] section 7004.   Conversely, even if paternity is denied and legally disproved, a man may be deemed, under some circumstances, to be a ‘presumed father.’   We must, however, take the statutory nomenclature as we find it.   We therefore shall use the term ‘presumed father’ to mean a man who qualifies under section 7004 and ‘natural father’ to mean a biological father who does not so qualify.  (39 Cal.3d at p. 790, fn. 1, 218 Cal.Rptr. 39, 705 P.2d 362.) ”  (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 823, fn. 3, 4 Cal.Rptr.2d 615, 823 P.2d 1216.)

2.   As was explained in Kelsey S., in an adoption proceeding, “[t]he child's best interest is the sole criterion where there is no presumed father.”  (Adoption of Kelsey S., supra, 1 Cal.4th at p. 824, 4 Cal.Rptr.2d 615, 823 P.2d 1216.)   However, the statutory “provision for allowing termination of a natural father's parental rights based on the child's best interest does not apply to presumed fathers.   In short, a mother or a presumed father must consent to an adoption absent a showing by clear and convincing evidence of that parent's unfitness.”  (Id. at pp. 824–825, 4 Cal.Rptr.2d 615, 823 P.2d 1216, emphasis in original.)

3.   Kelsey S. is often cited for its observations on statutory construction.  (See, e.g., Williams v. Superior Court (1993) 5 Cal.4th 337, 350, 19 Cal.Rptr.2d 882, 852 P.2d 377.)   The only published appellate decision addressing the substantive Kelsey S. question is another opinion of this court, In re Sarah C. (1992) 8 Cal.App.4th 964, 11 Cal.Rptr.2d 414.   That decision concerned a biological father who “did not openly acknowledge Sarah as his daughter or receive her into his home;  he only incidentally provided care for Sarah during a brief period while he was living with [the mother] and her friends.”  (Id. at p. 973, 11 Cal.Rptr.2d 414.)   On those facts, the holding was that “[w]e conclude substantial evidence supports the [trial] court's determination [the biological father] was not a presumed father within the meaning of Civil Code section 7004․”  (Ibid.)   Other than the recitation that our standard of review here is, as usual, the “substantial evidence” test, that holding has no application to the matter before us.

NARES, Associate Justice.

KREMER, P.J., and TODD, J., concur.