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

IN RE: ADOPTION OF MICHAEL H., a Minor. JOHN S. et al., Plaintiffs and Respondents, v. MARK K., Defendant and Appellant.

No. D015795.*

Decided: August 25, 1992

Paula C. Mendell, Del Mar, under appointment by the Court of Appeal, for defendant and appellant. Janis K. Stocks, San Diego, and Douglas R. Donnelly, Santa Barbara, for plaintiffs and respondents. Steven A. Schutte, San Diego, under appointment by the Court of Appeal, for minor.

Appellant Mark K. (Mark), the biological father of baby Michael H.1 , appeals from a determination under Civil Code section 7004 that he was not the presumed father of Michael, and consequent orders (1) appointing John and Margaret S. (John and Margaret) Michael's temporary guardians, (2) terminating Mark's parental rights and (3) referring Michael for adoption.

As all parties recognize, our Supreme Court's recent decision in Adoption of Kelsey S. (1992) 1 Cal.4th 816, 4 Cal.Rptr.2d 615, 823 P.2d 1216 held Civil Code section 7004 unconstitutional as there applied.   This case is procedurally identical with Kelsey S., which would appear to require we reverse and remand this matter.   John and Margaret, joined by counsel for Michael, argue this case comes within an exception to the Kelsey S. rules, and also argue harmless error.   Mark argues the inapplicability of the exception or harmless error analysis.   We agree with Mark that Kelsey S. applies, and it would be inappropriate for us to make fact determinations necessary for harmless error resolution.   Because the trial court did not have the benefit of the Kelsey S. decision when it made its findings, we reverse and remand.


Michael was born February 27, 1991, in San Diego.   Mark, in Arizona, was notified by the Department of Social Services (DSS) in March of its intent to place Michael for adoption.   Mark's counsel requested the assistance of DSS in returning Michael to his father, noting John that same day told him he would rely “upon your Department for advice before agreeing to return Michael to his father.”   In another letter from Mark's counsel to John and Margaret dated April 11, counsel noted he received a call from DSS on April 10 “advising me that the Department was proceeding no further with regard to adoptive planning, as it was without jurisdiction, and that you have been so advised.”   The letter again requested Michael be returned to Mark.

On April 18, 1991, however, John and Margaret filed a petition for adoption (independent) of baby boy Michael, already residing with them.   According to the petition, Michael had no “presumed father” but an alleged father whose name was Mark K., a resident of Arizona.   The same day John and Margaret also filed a petition for appointment as Michael's temporary guardians, and a petition to terminate the rights of Michael's father.   There was no notice to Mark of the petition for guardianship nor any mention of Mark's efforts to obtain the return of his child.   The court granted the guardianship by order dated April 23, finding “Notice of time and place of hearing [April 22] has been dispensed with.”

In a letter dated May 2, Mark (served with the summons and petition to terminate his parental rights) responded to the petition, attaching a certified copy of his complaint in propria persona to establish paternity and for child custody filed on February 28, 1991, in Arizona.   In paragraph 4 of his complaint Mark alleged that Stephanie had “absconded” with the child “and now the whereabouts of the child are being concealed as well as the whereabouts of the natural mother.”

Mark had obtained appointed counsel to represent him in Arizona, and it is undisputed the complaint had been served on John and Margaret before this California action was filed and his fourth demand for the return of the child was refused by John and Margaret.   Mark's complaint was served on Stephanie's last known address, her grandparents' home in Mesa, Arizona, where she had been residing after she left Mark and her mother.   Stephanie did not want Mark to know she was in California because “[h]e's trying to prevent this adoption from going thru [sic].”

Following dismissal of Mark's action in Arizona based on a lack of jurisdiction, Mark obtained appointed counsel to represent him in this California action and was present during trial.   The testimony at trial by Mark and Stephanie is somewhat divergent.   The question addressed below, of course, was whether Mark was a “presumed father” under Civil Code section 7004, and in particular whether he was such by reason of a “constructive receipt” of Michael into his home.  (We assume much of the evidence received might also have been relevant to the proper legal issue, whether Mark “demonstrated a sufficient commitment to his parental responsibilities.”   (Adoption of Kelsey S., supra at p. 850, 4 Cal.Rptr.2d 615, 823 P.2d 1216.))

Mark initially agreed that Stephanie could choose whether she wanted an abortion or not.   He also said he would consider allowing the unborn child to be adopted, until Stephanie was three months pregnant.   He then asked Stephanie to move up the date of their planned wedding because he did not want the baby to be adopted by anyone.   He also took videos of the sonogram of the baby for himself and his family, and attended birthing classes, both with and without Stephanie.

When Stephanie was five months pregnant she and Mark engaged in an altercation in which she stated her intention to break off the relationship and prevent Mark from having contact with the baby.   Mark became very despondent over this, and attempted suicide.   Following this, Mark engaged in counseling to deal with his emotional problems.   While Mark had used drugs in the past, at trial he testified he had ceased using drugs on his own, a proposition also supported by expert testimony.2

During the trial Mark was granted and took advantage of his right to visit Michael, traveling from Arizona by bus to do so.   He took various pictures of Michael, holding him and feeding him while Michael smiled at him and followed him with his eyes.

When John and Margaret's expert testified at trial, he admitted that Michael, then eight months old, would not experience the type of separation anxiety following the breaking of bonds which occurs at a later age.   This expert also testified he had personally been involved in cases where it is possible for a single parent, although working at a low-paying job, to properly care for his or her child.

Mark had obtained full-time employment, had an appropriate apartment in which the baby could live, had arranged for child care while he was working, had completed high school with honors, and had letters of recommendation from his present employer as well as the president of the school he had attended.   These letters were not received in evidence, but Mark was permitted to testify concerning them.

Nevertheless, the trial court found “there has been no constructive receipt in this particular matter as indicated under [Civil Code section] 7704(a)(4).   Further, even if there were to be considered a presumed status by a reviewing court in this matter I believe that the best interest of the child in this particular case would be to terminate the parental rights of Mark [ ] and authorize ․ adoption․”   Finding Mark was not a presumed father, the court then terminated Mark's parental rights and referred Michael to John and Margaret for adoption on October 25, 1991.   Mark timely appealed.


On its face this case is procedurally identical to Kelsey S., which resulted in a remand for a new hearing under the new standards therein set forth.   Respondents here urge that this case is within an exception to Kelsey S., or in the alternative any error below was, on this record, harmless.   We disagree.


 In Kelsey S., the Supreme Court pointed out in a footnote that nothing therein was to be construed as providing parental rights to a rapist, that is, one whose impregnation of the female was accomplished “as a result of non-consensual sexual intercourse.”  (Adoption of Kelsey S., supra at p. 849, fn. 14, 4 Cal.Rptr.2d 615, 823 P.2d 1216.)   John and Margaret, joined by Michael's counsel, argue that because Mark could have been charged with statutory rape, Kelsey S. 's protection does not extend to him.   Their premise is that Stephanie was legally incapable of consenting, and the resulting relationship was, without regard to consent in fact, as a matter of law “non-consensual.”   We disagree.3

The relevant California statute is Penal Code section 261.5, which provides:  “Unlawful sexual intercourse is an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years.”   Consent is not mentioned in the statute.  “By its adoption of section 261.5 the Legislature necessarily acknowledged the obvious truism that minor females are fully capable of freely and voluntarily consenting to sexual relations.”  (Michael M. v. Superior Court (1979) 25 Cal.3d 608, 614, 159 Cal.Rptr. 340, 601 P.2d 572.)   The consent issue is thus one of fact, rather than of law.   On the evidence below, this is simply not a case involving, in any way, “non-consensual sexual intercourse.”


John and Margaret, joined by minor's counsel, also argue we should affirm because, under a “harmless error” analysis, we may imply from this record two matters supporting affirmance.   They argue first that the evidence which failed to establish “constructive receipt” would necessarily entail a finding that Mark did not “demonstrate the required 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.)   They also urge that even if Mark were to be accorded the status of a presumed father, the record shows with sufficient clarity that Mark is an unfit parent as a matter of law, and thus we should affirm.


 At the outset, we note the record does not make clear the basis of the trial court's ruling Mark had not constructively received Michael.   The finding of “no constructive receipt” may have been based only on evidence which would also be relevant to the “required commitment” test.   It also (as urged below by John and Margaret) may have been based on a determination that “constructive receipt” required actual contact that Stephanie did not permit.  (In other words, the ruling may have addressed Mark's deeds, rather than his efforts.)   We thus cannot assume that the only possible reason for the ruling was resolution of a factual issue rather than a legal question.   In either case, of course, “constructive receipt” is no longer a relevant concept.   (Adoption of Kelsey S., supra at p. 830, 4 Cal.Rptr.2d 615, 823 P.2d 1216.)

This case involves the “difficult constitutional question” of Mark's rights.   (Adoption of Kelsey S., supra at p. 830, 4 Cal.Rptr.2d 615, 823 P.2d 1216.)   It would be impossible for us to determine with any confidence that evidence received on an irrelevant issue (“constructive receipt”) would, beyond any reasonable doubt, necessarily have resulted in a determination adverse to Mark on a question (“required commitment”) which had not yet been formulated.   Here, as in Kelsey S., the trial court “did not decide the threshold constitutional question of whether [Mark] demonstrated a sufficient commitment to his parental responsibilities.”  (Id. at p. 850, 4 Cal.Rptr.2d 615, 823 P.2d 1216.)   The only manner in which this “threshold constitutional question” may properly be resolved is by hearing and determination thereof on remand.

Not only was the evidence received below addressed to an irrelevant issue, the trial court was necessarily forced to weigh that evidence without benefit of the guidelines set forth in Kelsey S.   As one example only, when determining the rights of a biological father the court should consider factors such as whether (as here) the natural “mother does not seek to retain the child and have it adopted by a husband.”  (Adoption of Kelsey S., supra at p. 832, 4 Cal.Rptr.2d 615, 823 P.2d 1216.)  “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.   This is not a case where the mother and father are pitted against one another for the child's custody.   Even if it could be said ․ that the mother somehow has a greater connection than the father with their child and thus should have greater rights in the child, the same result need not obtain when she seeks to relinquish custody and to sever her legal ties with the child and the father seeks to assume his legal burdens.”  (Id. at p. 848, 4 Cal.Rptr.2d 615, 823 P.2d 1216, italics in original.)

This case, like Kelsey S., involves a mother seeking to sever ties with the child, while the father not only seeks custody of the child but has, at all relevant times, made an “attempt through legal channels to shoulder full responsibility for his child.”  (Adoption of Kelsey S., supra at p. 833, 4 Cal.Rptr.2d 615, 823 P.2d 1216.)   These factors are crucial.

Because this case cannot be distinguished from Kelsey S., we must also be bound by the statement therein that the applicable United States Supreme Court authority “suggests that the parental rights of a father in [Mark]'s position may not properly be terminated absent a showing of his unfitness as a father.   On the present facts, a showing of the child's best interest [the alternative test set forth by the court below] would appear to be insufficient.”  (Adoption of Kelsey S., supra at p. 833, 4 Cal.Rptr.2d 615, 823 P.2d 1216.)

Finally, we must observe that Kelsey S., in addition to requiring consideration of matters which were never explored at the hearing in this case, clearly 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.”  (Adoption of Kelsey S., supra at p. 849, 4 Cal.Rptr.2d 615, 823 P.2d 1216.)   Earlier, however, the court noted out that the test apparently employed by a majority of the United States Supreme Court was “whether a biological father has attempted to establish a relationship with his child.”  (Id. at p. 837, 4 Cal.Rptr.2d 615, 823 P.2d 1216.)   The point is that it is effort more than result which is at issue, because “a father need only make a reasonable and meaningful attempt to establish a relationship, not ․ be successful against all obstacles.”  (Ibid.)  This determination, not before at issue, can only be made on remand.


 Even apart from the difficulties presented by this initial question, we could not assume on the record in this case that Mark would in any event have been found to be an unfit parent.   Because the issue is one of fact, not law, the Supreme Court's language in Kelsey S. requires us to reject this argument.  “As with the threshold question of whether [Mark] did all he could reasonably do to act like a father, we cannot fairly decide in the first instance whether he was unfit and thus could be deprived of his right to withhold consent.   We leave it to the trial court to decide this question, if necessary.”  (Adoption of Kelsey S., supra at p. 851, 4 Cal.Rptr.2d 615, 823 P.2d 1216.) 4

The Supreme Court also required that following a hearing on whether the natural father “demonstrated sufficient commitment to parental responsibilities,” any finding of unfitness must be supported by clear and convincing evidence.   The decision was made retroactive to all cases not yet final as of the date of the decision, which includes this case.  (Adoption of Kelsey S., supra at p. 850, 4 Cal.Rptr.2d 615, 823 P.2d 1216.)   In the limited circumstances before us we must, consistent with the holding in Kelsey S., “remand to the trial court to make the[se] determination[s] in the first instance.”  (Ibid.)


The judgment terminating Mark's parental rights is reversed.   The case is remanded to the superior court for further proceedings in compliance with this decision and Adoption of Kelsey S., supra, 1 Cal.4th 816, 4 Cal.Rptr.2d 615, 823 P.2d 1216.


1.   All briefs, except that of the minor, inaccurately state the baby's name as Michael A., instead of Michael H.

2.   The ruling in this case was that (1) Mark was not a presumed father as there had been no “constructive receipt,” and (2) even if Mark were a presumed father, the best interests of Michael supported termination of Mark's rights.   It seems likely that the evidence of Mark's past drug use and suicide attempt, matters concerning his conduct towards himself rather than his son, thus was considered with reference to the latter holding rather than the former.   That is, the evidence of Mark's past problems would be relevant to a “best interests” determination, but would have little to do with “receipt,” constructive or otherwise.   Under a proper test, however, which focused on efforts rather than accomplishments alone, both of these otherwise-adverse matters might support, rather than derogate from, a finding of Mark's commitment to Michael.

3.   The factual predicate for this argument was in any event rejected by the trial court.   Although Mark was 20 years old at the time, testimony regarding Mark's knowledge of Stephanie's age and the inference therefrom of statutory rape was objected to by Mark's counsel, and the trial court sustained the objection.

4.   We note also that, as a policy matter, the question now before us will in the future be determined under the standards set forth in Kelsey S.   The necessity for a remand in these matters will thus not arise once “all cases not yet final as of [February 20, 1992]” have been resolved.  (Adoption of Kelsey S., supra, 1 Cal.4th at p. 851, 4 Cal.Rptr.2d 615, 823 P.2d 1216.)

NARES, Associate Justice.

KREMER, P.J., and WIENER, J., concur.

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Docket No: No. D015795.*

Decided: August 25, 1992

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

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