In re Shereece B.
- Reporters:
- ,
- Before:
- Capaccioli
CAPACCIOLI, J. —
Statement of the Case
Donald W., the alleged natural father of Shereece B., a minor, appeals from an order terminating his parental rights. (
Facts
On October 10, 1988, Sherry Sims abandoned Shereece and her two step-siblings at a day care home. On October 25, 1988, all three children were declared dependents of the court and placed in foster care.
In October 1989, a permanency planning hearing was held. Thereafter, the Department of Social Services for Monterey County (the County) initiated proceedings to terminate Sims‘s rights under
On January 19, 1990, the County filed a petition under
At Donald W.‘s
Thereafter, Donald W. wrote Lerable opposing the termination of his parental rights and requesting appointment of counsel. In December 1989, he called Lerable to verify her receipt of his letter. He said he wanted to keep Shereece within his family and wanted to talk to his parents about her. However, he did not give Lerable their names or address.
Lerable also testified that to her knowledge, Donald W. has never married or attempted to marry Shereece‘s mother and has never had contact with, attempted to write or send gifts to, attempted to provide support for, or even seen Shereece.
Finally, Lerable testified that it would not be in Shereece‘s best interests to be placed with Donald W. or his parents because (1) she has a significant relationship with her stepbrother, with whom she lives; (2) she has “a lot of issues about trusting adults and abandonment” and even though she is only four, “she‘s been in counseling for a year to deal with some of these issues“; (3) she has a trusting relationship with her new family; and (4) it would be detrimental to disrupt her developmental progress.
The court found by clear and convincing evidence that Donald W. had no contact or relationship with Shereece, that he made no efforts to maintain a relationship, and that he was presently and for the forseeable future unable to provide any type of care or emotional support for her. The court further found that Shereece was four years old, had emotional problems that needed immediate attention, and that Donald W.‘s parents had no relationship with
DISCUSSION
I. Jurisdiction to Terminate Parental Rights
(1a) Donald W. contends that the trial court lacked jurisdiction to terminate his parental rights. (2)(See fn. 4.) He claims to terminate his parental rights as a nonpresumed, i.e., natural4, father under
(1b) According to Donald W., the sole purpose of
The language of subdivision (b) of
The above emphasized language, which Donald W. omits from his brief, refutes his view that termination of rights under
Donald W.‘s reliance on In re Baby Girl M., supra, 37 Cal.3d 65, Adoption of Barnett (1960) 54 Cal.2d 370 [6 Cal. Rptr. 562, 354 P.2d 18], Adoption of Driscoll (1969) 269 Cal. App.2d 735 [75 Cal. Rptr. 382], and Arnold v. Howell (1950) 98 Cal. App.2d 202 [219 P.2d 854] is also misplaced. He concedes none of these cases addressed the specific issue raised here. And we find in them no support whatsoever for his position.
We note the phrase “otherwise becomes the subject of an adoption proceeding” suggests that termination may not proceed unless and until a formal adoption proceeding has actually commenced. However, the purpose of severing parental rights is to pave the way for permanent adoption. (See In re Laura F. (1983) 33 Cal.3d 826, 837 [191 Cal. Rptr. 464, 662 P.2d 922]; 10 Witkin, Summary of Cal. Law (9th ed. 1989) Parent and Child, § 182, p. 231.) Moreover, the legal relationship between parents and their child must be severed one way or another before the placement of a child for adoption. (
In any event, we agree with the County, that under
Subdivision (c) of
Here, the County alleged and sought a determination that Donald W. was Shereece‘s natural (but not presumed) father, that is, to establish the existence of a parent and child relationship between them. It further sought an order terminating his parental rights. Donald W. opposed the petition, implicitly claiming parental rights of some sort. Under the circumstances,
Donald W. claims that since the County‘s petition was filed under
Although the County denominated its pleading, “PETITION TO TERMINATE PARENTAL RIGHTS OF ALLEGED NATURAL FATHER [Civ. Code, § 7017],” it sought a formal determination of the existence of the relationship of natural father and daughter between Donald W. and Shereece. Thus, the pleading in substance triggered the provisions of
The last sentence of
This conclusion finds support in
We further observe that subdivision (a)(1)(C) of
II. Denial of Equal Protection
Presumed vs. Natural Fathers
(4) Donald W. contends that the court‘s order terminating his rights deprived him of equal protection under the law. He asserts that
The Legislature has distinguished between presumed and natural fathers, according presumed fathers greater rights than natural fathers. (
The Legislature‘s distinction is based on the difference between a presumed and natural father‘s parent-child relationship and as such does not violate principles of due process and equal protection. (W.E.J. v. Superior Court (1979) 100 Cal. App.3d 303, 314-315 [160 Cal. Rptr. 862], disapproved on other grounds in In re Baby Girl M., supra, 37 Cal.3d 65, 72; Adoption of Marie R. (1978) 79 Cal. App.3d 624, 629 [145 Cal. Rptr. 122]; In re Tricia M. (1977) 74 Cal. App.3d 125, 130-136 [141 Cal. Rptr. 554].)
Moreover, the distinction exists regardless of whether a mother consents to adoption or has her parental rights involuntarily terminated. Consequently, if, as Donald W. concedes, the distinction is proper where a custodial mother voluntarily consents to adoption, then we can find no reason the Legislature may not also make this distinction where a custodial mother‘s parental rights have been involuntarily terminated so as to free her child for adoption. In short, the issue of maternal consent is irrelevant to the otherwise proper legislative distinction between presumed and natural fathers.
Natural Fathers vs. Natural Fathers
(5) Donald W. also claims the trial court created an unreasonable distinction between natural fathers whose rights are vulnerable to termination under
Natural Mothers vs. Natural Fathers
(6) Donald W. contends that in terminating his parental rights without first finding that the failure to do so would be detrimental to Shereece, the trial court wrongfully discriminated against him because such a finding was required before the court terminated Sims‘s parental rights under
Statutes which distinguish between mothers and fathers who are similarly situated violate principles of equal protection. (See Lehr v. Robertson (1983) 463 U.S. 248, 267 [77 L.Ed.2d 614, 630, 103 S.Ct. 2985].)
In Caban v. Mohammed (1979) 441 U.S. 380 [60 L.Ed.2d 297, 99 S.Ct. 1760], the court held that a law granting the right to veto an adoption to an unwed mother but not an unwed father who had lived with the mother and their two children for several years violated his right to equal protection. The two unwed parents were similarly situated, and the gender-based distinction between them was not substantially related to the state‘s interest in providing adoptive homes for illegitimate children. (Id. at p. 391 [60 L.Ed.2d at pp. 306-307].) The court carefully distinguished the rights of the unwed father who had lived with the mother and his children from those of the father of a newborn child. (Id. at p. 392 [60 L.Ed.2d at p. 307].)
However, where unwed parents are not similarly situated, the state properly may distinguish between them. For example, in Lehr v. Robertson, supra, 463 U.S. 248, 267 [77 L.Ed.2d at p. 630], an unwed father had not lived with the mother or their daughter after her birth, never provided financial support, and never sought to marry the mother. (Id. at p. 252 [77 L.Ed.2d at pp. 620-621].) The mother commenced an adoption action, and he filed a petition to establish his paternity, support obligation, and visitation rights. The adoption was completed without notice to him. The court rejected his due process claim based on lack of notice because a putative father registry would have provided notice if he had availed himself of it. (Id. at pp. 256-265 [77 L.Ed.2d at pp. 623-629].)
The court further held that his due process interest based on the biological link to his child did not merit heightened constitutional protection where he
Finally, the court rejected the father‘s equal protection claim because he and the mother were not similarly situated. Unlike the parents in Caban, who were similarly situated in that they both lived together with their children for several years, the mother in Lehr had a “continuous custodial responsibility for [the child]” but the father “never established any custodial, personal, or financial relationship with her.” (Lehr, supra, 463 U.S. at p. 267 [77 L.Ed.2d at p. 630].) “If one parent has an established custodial relationship with the child and the other parent has either abandoned[] or never established a relationship, the Equal Protection Clause does not prevent a State from according the two parents different legal rights.[]” (Id. at pp. 267-268 [77 L.Ed.2d at pp. 630-631].)
In this case, Donald W. and Sims are also not similarly situated. Sims had a custodial relationship with Shereece until it was involuntarily severed. Donald W. apparently learned Sims was pregnant with Shereece while he was in prison. The record does not disclose whether he made any attempt to communicate with Sims before or after Shereece was born. However, it is undisputed that he has never had or sought to have a relationship of any kind or even contact with Shereece prior to the commencement of the action to terminate his rights, at which time Shereece was four years old.
In light of Caban and the circumstances of this case, we conclude that although Donald W. was treated differently than Sims, he was not deprived of equal protection under the law.
The fact that he was incarcerated prior to and after Shereece‘s birth does not convince us otherwise. He had reason to know that he might be a father and apparently made no attempt to determine whether Sims had given birth. Moreover, he had the opportunity to explain his situation and convince the court not to terminate his parental rights.
Agliano, P.J., and Bamattre-Manoukian, J., concurred.