Adoption of KELSEY S., a Minor. STEVEN A. et al., Plaintiffs and Respondents, v. RICKIE M., Defendant and Appellant. RICKIE M., Plaintiff and Appellant, v. KARI S., Defendant and Respondent.
No. S014775
Supreme Court of California
Feb. 20, 1992
816
Alys Briggs, under appointment by the Supreme Court, for Defendant and Appellant and for Plaintiff and Appellant.
Van Deusen, Youmans & Walmsley and Christian R. Van Deusen for Plaintiffs and Respondents and for Defendant and Respondent.
OPINION
BAXTER, J.—The primary question in this case is whether the father of a child born out of wedlock may properly be denied the right to withhold his consent to his child‘s adoption by third parties despite his diligent and legal attempts to obtain custody of his child and to rear it himself, and absent any showing of the father‘s unfitness as a parent. We conclude that, under these circumstances, the federal constitutional guarantees of equal protection and due process require that the father be allowed to withhold his consent to his child‘s adoption and therefore that his parental rights cannot be terminated absent a showing of his unfitness within the meaning of
FACTS
Kari S. gave birth to Kelsey, a boy, on May 18, 1988. The child‘s undisputed natural father is petitioner Rickie M.1 He and Kari S. were not married to one another. At that time, he was married to another woman but was separated from her and apparently was in divorce proceedings. He was aware that Kari planned to place their child for adoption, and he objected to her decision because he wanted to rear the child.
Later that day, petitioner filed a copy of the order with law enforcement officials. He also personally attempted to serve it on the prospective adoptive parents at their home. He was unsuccessful.
On May 24, 1988, Steven and Suzanne A., the prospective adoptive parents, filed an adoption petition under
On May 26, 1988, the superior court modified its May 20 order and awarded temporary custody of the child to its mother. The court ordered the mother to live with the child in a shelter for unwed mothers. The court also found that its May 20 temporary order had not been followed. The record before us is not entirely clear on this point. Petitioner alleges that the prospective adoptive parents attempted to evade service of the order and secretly removed the child from their home. In this court, the prospective adoptive parents do not directly dispute these allegations. At the May 26 hearing, however, the superior court declined to find a “knowing violation” of its prior order. In any event, the trial court prohibited visitation by either the prospective adoptive parents or petitioner.
On May 31, 1988, the prospective adoptive parents filed a petition under
The parties subsequently stipulated that petitioner was the child‘s natural father. The superior court, however, ruled that he was not a “presumed father” within the meaning of
Petitioner appealed. He contended the superior court erred by: (1) concluding that he was not the child‘s presumed father; (2) not granting him a parental placement preference; and (3) applying a preponderance-of-the-evidence standard of proof. The Court of Appeal rejected each of his contentions and affirmed the judgment.
DISCUSSION
1. The statutory framework
Mothers and presumed fathers have far greater rights. Under
This statutory scheme creates three classifications of parents: mothers, biological fathers who are presumed fathers, and biological fathers who are not presumed fathers (i.e., natural fathers). A natural father‘s consent to an adoption of his child by third parties is not required unless the father makes the required showing that retention of his parental rights is in the child‘s best interest. Consent, however, is required of a mother and a presumed father regardless of the child‘s best interest. The natural father is therefore treated differently from both mothers and presumed fathers. With this statutory framework in mind, we now examine petitioner‘s contentions.
2. Acquiring presumed father status by obtaining constructive receipt of the child
A man becomes a “presumed father” under
Respondents contend the statutory scheme allows a mother to preclude her child‘s father from acquiring presumed father status and thereby eliminate the need for his consent regardless of whether he is a demonstrably fit parent. Petitioner responds that such result is impermissible under the federal constitutional guarantees of equal protection and due process. He claims he should be deemed to be the presumed father under
Petitioner‘s argument in favor of constructive receipt is based largely on the federal Constitution rather than on
Petitioner is correct that when possible we should read a statute in a manner that avoids a potential for conflict with the federal Constitution. (California Housing Finance Agency v. Elliott (1976) 17 Cal.3d 575, 594 [131 Cal.Rptr. 361, 551 P.2d 1193].) As Justice Frankfurter observed, “Invalidating legislation is serious business. . . .” (Morey v. Doud (1957) 354 U.S. 457, 474 [1 LEd.2d 1485, 1497, 77 S.Ct. 1344] (dis. opn. of Frankfurter, J.).) We cannot, however, construe a statute contrary to legislative intent merely to eliminate a potential constitutional conflict. The threshold question therefore is whether the statutes support the notion of constructive receipt advocated by petitioner. We conclude the statutes provide no such support.
“We begin with the fundamental rule that our primary task in construing a statute is to determine the Legislature‘s intent.” (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 724 [257 Cal.Rptr. 708, 771 P.2d 406].) We must begin with the words of the statute. (Delaney v. Superior Court (1990) 50 Cal.3d 785, 798 [268 Cal.Rptr. 753, 789 P.2d 934].)
Even if the statute were ambiguous, petitioner does not point to any legislative history supporting a theory of constructive receipt. Nor are we aware of any extrinsic evidence that the Legislature did not mean what it said in
Prior judicial decisions also provide slender support for reading into
Our decisions provide little guidance on the issue. In In re Richard M. (1975) 14 Cal.3d 783 [122 Cal.Rptr. 531 [537 P.2d 363] (Richard M.), we decided under former section 230, the statutory predecessor to
First, the footnote in the quoted paragraph stated, “It is unnecessary for us here to consider the extent to which courts have expanded the concept of ‘receiving.’ Blythe v. Ayres [(1892)] 96 Cal. 532 [31 P. 915], probably goes the farthest in liberally construing this requirement, since the father was found to have satisfied the statutory mandate without ever actually seeing the child. It is noteworthy that this determination was subsequently criticized by this court in Estate of De Laveaga (1904) 142 Cal. 158, 169-170 [75 P. 790].” (Richard M., supra, 14 Cal.3d at p. 795, fn. 9.) Richard M. seems to suggest some physical contact with the child is required.
Second, the father in Richard M., supra, 14 Cal.3d 783, had in fact received the child into his home, albeit briefly. The court therefore was not faced with the question before us, i.e., whether constructive receipt is sufficient when the mother prevents actual receipt. “‘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., supra, 48 Cal.3d 711, 734-735, quoting River Farms Co. v. Superior Court (1933) 131 Cal.App. 365, 369 [21 P.2d 643].)
Third and most important, Richard M., supra, 14 Cal.3d 783, was decided in a statutory context much different from the one that now exists. At that time, the determination was whether the child had been legitimated by the father. The Richard M. court stressed this fact. “Because of the stigma and unfavorable legal treatment that attends classification of a child as illegitimate, California courts have almost consistently held that [former] section 230 must be liberally construed in favor of finding legitimation.” (Id., at p. 793.) If a child were not legitimated, it had no legal father. In 1975, however, the Legislature enacted California‘s Uniform Parentage Act, which abolished the concept of legitimacy (or illegitimacy) and replaced it with the concept of parentage. (
More recently, we referred to the notion of constructive receipt with apparent disfavor in Michael U. v. Jamie B., supra, 39 Cal.3d 787 (Michael U.). As in the present case, a biological father sought custody of his child despite the mother‘s objection and her desire to have it adopted by third parties. We reversed an order granting the father temporary custody. In explaining the statutory framework, the lead opinion stated, “Michael is a natural father, not a presumed father, because he has not yet received Eric [the child] into his home. [Citation.] If, however, he actually acquired physical custody, he could receive Eric into his home and thereby acquire the status of a presumed father. [Citations.] Thus the present controversy, although nominally about the temporary custody of Eric pending the adoption proceeding, will probably determine the fate of the proposed adoption.” (Id., at p. 791, fn. omitted.) The lead opinion also cited without criticism the statement in Adoption of Marie R., supra, 79 Cal.App.3d 624, 630, that constructive receipt is insufficient under
The observation in Michael U., supra, 39 Cal.3d 787, does not resolve the question before us because the issue of constructive receipt was not before the court, and the quoted statements were unnecessary to the decision. Michael U. therefore provides no authority for deciding whether the doctrine of constructive receipt is valid under
In summary, nothing in the language or legislative history of
There remains, however, the question of whether a natural father‘s federal constitutional rights are violated if his child‘s mother is allowed to unilaterally preclude him from obtaining the same legal right as a presumed father to withhold his consent to his child‘s adoption by third parties. We now turn to that difficult constitutional question.6
3. Relevant United States Supreme Court decisions
The precise question before us has not been addressed by the United States Supreme Court. We are guided, however, by a series of high court decisions dealing with the rights of unwed fathers. From those decisions, we must attempt to distill the guiding constitutional principles.
In Stanley v. Illinois (1972) 405 U.S. 645 [31 L.Ed.2d 551, 92 S.Ct. 1208] (Stanley), the court held that under the due process clause of the Fourteenth Amendment to the federal Constitution an unmarried father was entitled to a hearing on his fitness as a parent before his children were taken from him.7 Stanley is factually distinguishable because the father in that case had lived intermittently with his children and their mother for 18 years. As the court put it, he had “sired and raised” the children. (Id., at p. 651.) Unlike in the present case, the children were not infants, and the father had maintained a close relationship with them for many years. Despite these differences from our case, Stanley does illuminate our task. The court noted that it had “frequently emphasized the importance of the family. The rights to conceive and to raise one‘s children has been deemed ‘essential’ . . . [¶] Nor has the law refused to recognize those family relationships unlegitimized by a marriage ceremony.” (Ibid. [31 L.Ed.2d at pp. 658-659].) A father‘s “interest in retaining custody of his children is cognizable and substantial.” (Id., at p. 652 [31 L.Ed.2d at p. 659].) More important, the court seemed to indicate that a father‘s parental rights could not be terminated
If petitioner is not a presumed parent under
In its next case dealing with unwed fathers, Quilloin v. Walcott, supra, 434 U.S. 246 (Quilloin), the court was faced with a situation more similar to the present case. A child was born out of wedlock and was in the custody and control of his mother for his entire life. She and the natural father never married or established a home together. She married another man, and several years later he attempted to adopt the child with her consent. The child was then 11 years old. The natural father attempted to block the adoption and to secure visitation rights, but he did not seek custody or object to the child‘s continuing to live with the mother and her husband. Under the Illinois statutory scheme, the trial court denied the father‘s petition to legitimate the child and thereby precluded him from gaining veto power over the child‘s adoption, on the ground that legitimation was not in the child‘s best interests. The father claimed he was entitled to recognition and retention of his parental rights absent a showing of unfitness. The high court framed the issue as being whether the father‘s interests were adequately protected under the due process and equal protection clauses of the Fourteenth Amendment. (Id., at p. 254 [54 L.Ed.2d at p. 519].) In this key respect, Quilloin is like the present case. Under
A unanimous court in Quilloin, supra, 434 U.S. 246, reiterated that “[T]he relationship between parent and child is constitutionally protected.” (Id., at
The court also restricted its holding as to equal protection. The father contended he should have the benefit of the same standards applied to married fathers. In rejecting this claim, the court explained, “[H]e has never exercised actual or legal custody over his child, and thus has never shouldered any significant responsibility with respect to the daily supervision, education, protection, or care of the child. Appellant does not complain of his exemption from these responsibilities and, indeed, he does not even now seek custody of his child.” (Quilloin, supra, 434 U.S. at p. 256.)
The present case has several of the earmarks the court found lacking in Quilloin, supra, 434 U.S. 246, and which the court suggested might render invalid a termination of a father‘s rights based only on a showing of the child‘s best interest. Those factors are as follows:
(i) Unlike the father in Quilloin, supra, 434 U.S. 246, petitioner asked the mother for custody of their child and, when rebuffed, immediately (as soon as the child was born) went to court seeking legal custody. He continues to seek legal recognition of his parental rights.
(ii) The mother does not seek to retain the child and have it adopted by a husband. As put by the Quilloin court, “the proposed adoption would place the child with a new set of parents with whom the child had never before lived.” (434 U.S. at p. 255.) Of course, we recognize that as a result of the lower courts’ decisions the child has now been living with the prospective adoptive parents for more than three years. This fact,
(iii) The parties disagree as to the amount of care and support that petitioner provided to the child and its mother. The record is unclear as to whether and to what extent, if any, this dispute affected the trial court‘s decision that the adoption was barely in the child‘s best interest. The record is clear, however, that petitioner is not like the natural father in Quilloin, who avoided contact with his child until several years after its birth and came forward only when another man tried to adopt it. More important for this part of our analysis, petitioner, also unlike the father in Quilloin, did attempt through legal channels to shoulder full responsibility for his child.
In short, the present case is the type of case the high court emphasized it was not deciding in Quilloin, supra, 434 U.S. 246. By implication, however, the Quilloin decision strongly suggests that the parental rights of a father in petitioner‘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 would appear to be insufficient under Quilloin. This conclusion is reinforced by the high court‘s next decision on the subject.
In Caban v. Mohammed (1978) 441 U.S. 380 [60 L.Ed.2d 297, 99 S.Ct. 1760] (Caban), the natural father (Caban) and mother had lived together for several years in New York. They were never legally married but held themselves out as husband and wife. Two children were born during the relationship. Caban was listed on each child‘s birth certificate as the father, and he lived with them as their father until his relationship with the mother ended. He contributed to their support. (It seems clear he would have been deemed to be a “presumed father” under California law.)
The mother took the children, left Caban, and began living with another man (Mohammed), whom she married shortly thereafter. For the next nine months, she took the children each weekend to visit their grandmother, who lived near Caban. He was able to visit the children each weekend. The grandmother then moved to Puerto Rico, and at the mother‘s request took the children there also. Caban continued to communicate with them through his parents, who also resided in Puerto Rico. He then went to Puerto Rico and returned to New York with the children.
The mother and her husband obtained legal custody of the children, but Caban and his new wife were awarded visiting rights. The mother and her husband petitioned to adopt the children. (Under New York law, a mother could petition to adopt her own illegitimate child.) Caban and his wife
Caban argued to the high court: (1) that the distinction under New York law between the rights of unwed fathers and other parents violated the equal protection clause of the Fourteenth Amendment, and (2) that Quilloin, supra, 434 U.S. 246, recognized a substantive due process right of a natural father to maintain a parental relationship with his children absent a finding of his unfitness as a parent. (Caban, supra, 441 U.S. at p. 385 [60 L.Ed.2d at p. 303].)
Of special significance to our case, the court first explained that under New York law a mother could block an adoption merely by withholding her consent, even if adoption were in the child‘s best interest. An unwed father, no matter how substantial his relationship with the child, could preserve his parental rights only by showing that adoption by the petitioning couple would not be in the child‘s best interest. (Caban, supra, 441 U.S. at pp. 386-387 [60 L.Ed.2d at pp. 303-304].) Put simply by the court, the New York law “treats unmarried parents differently according to their sex.” (Id., at p. 388 [60 L.Ed.2d at p. 304].) In this respect, California law is indistinguishable. As explained above (pp. 824-825, ante), a mother must consent to adoption except in extreme cases of maternal neglect, i.e., a showing of her unfitness. (
The court began its equal protection analysis with the rule that “Gender-based [i.e., sex-based] distinctions ‘must serve important governmental objectives and must be substantially related to achievement of those objectives’ in order to withstand judicial scrutiny under the Equal Protection Clause.” (Caban, supra, 441 U.S. at p. 388, quoting Craig v. Boren (1976) 429 U.S. 190, 197 [50 L.Ed.2d 397, 407, 97 S.Ct. 451].) The court quickly rejected the mother‘s argument that the distinction was justified by a “fundamental difference between maternal and paternal relations.” (Caban, supra, 441 U.S. at p. 388 [60 L.Ed.2d at p. 305].) “[M]aternal and paternal roles are not invariably different in importance.” (Id., at p. 389 [60 L.Ed.2d at p. 305].) The Caban court acknowledged that “[t]he State‘s interest in providing for the well-being of illegitimate children is an important one.” (Id., at p. 391 [60 L.Ed.2d at p. 306].) The court nevertheless concluded that the distinction between unmarried mothers and unmarried fathers violated the equal protection clause because the distinction “does not bear a substantial relation to the State‘s interest in providing adoptive homes for its illegitimate children.” (Ibid. [60 L.Ed.2d at pp.
306-307].) Of special significance for our case, the court explained that not all distinctions would be invalid. “In those cases where the father never has come forward to participate in the rearing of his child, nothing in the Equal Protection Clause precludes the State from withholding from him the privilege of vetoing the adoption of that child.” (Id., at p. 392 [60 L.Ed.2d at p. 307], italics added.) Petitioner has come forward and thus appears to be entitled to some protection under Caban.
The Caban court, supra, 441 U.S. 380, also rejected the state‘s policy argument “that the requiring of unmarried fathers’ consent for adoption would pose a strong impediment for adoption because often it is impossible to locate unwed fathers when adoption proceedings are brought, whereas mothers are more likely to remain with their children.” (Id., at p. 392 [60 L.Ed.2d at p. 307].) The court observed, “[I]n cases such as this, where the father has established a substantial relationship with the child and has admitted his paternity, a State should have no difficulty in identifying the father even of children born out of wedlock.” (Id., at p. 393 [60 L.Ed.2d at pp. 307-308], fn. omitted.) Likewise here, when a biological father promptly comes forward, acknowledges paternity (which is undisputed), and seeks legal custody, the problem of locating the father simply does not arise.
The high court again considered the rights of biological fathers only four years later in Lehr v. Robertson (1983) 463 U.S. 248 [77 L.Ed.2d 614, 103 S.Ct. 2985] (Lehr). The father and mother lived together before the child‘s birth, and he visited the child in the hospital when the child was born. He did not, however, live with either the mother or child after its birth, and he did not provide them with any financial support. Nor did he offer to marry the mother. Eight months after the child‘s birth, the mother married another man. When the child was two years old, the mother and her new husband began adoption proceedings. One month later, the biological father filed an action seeking a determination of his paternity, an order of support, and visitation with the child. Shortly thereafter, the biological father learned of the pending adoption proceeding, and almost immediately he sought to have it stayed pending the determination of his paternity petition. The state court informed him that it had already signed the adoption order earlier that day, and then dismissed his paternity action.
Relying on Stanley, supra, 405 U.S. 645, and Caban, supra, 441 U.S. 380, the biological father contended the New York statutory scheme was unconstitutional on due process and equal protection grounds. First, he argued that a putative father‘s actual or potential relationship with his child born out of wedlock is a liberty interest that could not be destroyed without due process of law. He therefore contended he had a right to prior notice and an
opportunity to be heard before he was deprived of that interest. Second, he contended the equal protection clause of the
The Lehr court, supra, 463 U.S. 248, rejected the biological father‘s due process challenge, on the ground that under New York law he could have enrolled in that state‘s “putative father registry.” (Id., at pp. 250-251 [77 L.Ed.2d at pp. 619-620].) If he had done so, he would have been statutorily entitled to receive notice of any proceeding to adopt his child. The high court held that the statutory scheme “adequately protected appellant‘s inchoate interest in establishing a relationship with Jessica [the child]. . . .” (Id., at p. 265 [77 L.Ed.2d at p. 629].) In the present case, petitioner claims no violation of procedural due process based on lack of notice. (He has participated fully in these proceedings since their inception.) Thus, the discussion in Lehr, supra, 463 U.S. 248, of procedural due process does not resolve the substantive question before us.
The court‘s rejection in Lehr, supra, 463 U.S. 248, of the father‘s equal protection claim is more relevant to our decision. Under New York law, as in California, the mother of a child (born either in or out of wedlock) is guaranteed the right to veto an adoption of her child unless the mother is found to be unfit as set forth in the statutes. Only some fathers, however, are included within this favored class. In upholding this distinction, the court observed, “[T]he existence or nonexistence of a substantial relationship between parent and child is a relevant criterion in evaluating both the rights of the parent and the best interests of the child.” (Id., at pp. 266-267 [77 L.Ed.2d at p. 630].) The court noted the importance of this factor in its prior decisions. In Quilloin, supra, 434 U.S. 246, the father had never shouldered any significant responsibility for the child and thus was not denied equal protection. In Caban, supra, 441 U.S. 380, however, the father had fully participated in the rearing of his children and did have a right under the equal protection clause to withhold consent to their adoption. The Lehr court, supra, 463 U.S. 248, held that, “[b]ecause appellant, like the father in Quilloin, has never established a substantial relationship with his daughter . . . the New York statutes at issue in this case did not operate to deny appellant equal protection.” (Id., at p. 267 [77 L.Ed.2d at p. 630].)
On its face, Lehr, supra, 463 U.S. 248, does not resolve the dilemma before us. The stated premise of the court‘s holding was that the equal protection clause does not prevent a state from according a child‘s biological father fewer rights than the mother if he has “never established a relationship” with the child. (Id., at pp. 267-268 [77 L.Ed.2d at pp. 630-631].) The
The most recent relevant high court decision arose in California. (Michael H. v. Gerald D. (1989) 491 U.S. 110 [105 L.Ed.2d 91, 109 S.Ct. 2333], (Michael H.).) Michael H. claimed to be the father of a child and sought a declaration of paternity and visitation rights. (Id., at p. 118 [105 L.Ed.2d at p. 103].) Blood tests showed a 98.07 percent probability that Michael H. was the father. (Id., at p. 114 [105 L.Ed.2d at p. 100].) The mother, however, was married to and living with another man at the time of conception. On grounds not relevant to the present case, the high court upheld the denial of Michael H.‘s request for a declaration of paternity and visitation rights. (A plurality of the court found to be constitutional the conclusive presumption in
This principle was acknowledged in a recent decision by New York‘s high court, in which the court grappled with the question now before us. In Matter of Raquel Marie, supra, 76 N.Y.2d 387 [559 N.E.2d 418] (Raquel Marie), the court was faced with a New York statute similar to our
The Raquel Marie court, supra, 76 N.Y.2d 387 [559 N.E.2d 418], reviewed the relevant United States Supreme Court decisions and observed, correctly in our view, that “[t]he [father‘s] protected interest is not established simply by biology. The unwed father‘s protected interest requires both a biological connection and full parental responsibility; he must both be a father and behave like one.” (Id., at p. 401 [559 N.E.2d at p. 423-424], citation omitted.) The court explained the problem: “In the case of a child placed for adoption at birth, the father can have no more than a biological connection to the child, there having been no chance for a custodial relationship. Protection of his parental interest would depend, then, upon recognition of a constitutional right to the opportunity to develop a qualifying relationship with the infant. [¶] That open question is before us today: is the full measure of constitutional protection—the right to a continued parental relationship absent a finding of unfitness—ever required where a child is placed for adoption before any real relationship can exist, and if so, what actions on the unwed father‘s part would demonstrate his willingness to take parental responsibility sufficient to give rise to such rights?” (Id., at pp. 401-402 [559 N.E.2d at p. 424].)
The Raquel Marie court, supra, 76 N.Y.2d 387 [559 N.E.2d 418], unanimously answered the question in favor of the father. “[A] father who has promptly taken every available avenue to demonstrate that he is willing and able to enter into the fullest possible relationship with his under-six-month-old child should have an equally fully protected interest in preventing
Similar concerns arise under
4. California decisions
Because we are faced with a federal constitutional question, we must adhere, of course, to the decisions of the United States Supreme Court. It has provided a framework that strongly supports petitioner but has not squarely answered the exact question before us. We therefore have looked to relevant California decisions for additional guidance. They provide no clear answer, but our decisions in particular at least reflect an acknowledgement of some degree of federal constitutional protection for natural fathers.
We begin with In re Baby Girl M. (1984) 37 Cal.3d 65 [207 Cal.Rptr. 309, 688 P.2d 918] (Baby Girl M.), in which we held a trial court erred in terminating a natural father‘s parental rights based on a best-interest-of-the-child standard without first determining whether granting custody to the
The linchpin of our decision in Baby Girl M. was statutory rather than constitutional.
In dictum, the Baby Girl M. court, supra, 37 Cal.3d 65, briefly discussed the high court decisions dealing with unwed fathers. (Id., at pp. 73-75.) We did not expressly base our decision on constitutional grounds, but we suggested that a parental preference was required as a matter of federal constitutional law.9 The majority opinion quoted with approval the conclusion of a law review article that “‘... the state may not deny biological parents the opportunity to establish a protected custodial relationship.‘” (37 Cal.3d at p. 74 (italics added), quoting Buchanan, The Constitutional Rights of Unwed Fathers Before and After Lehr v. Robertson (1984) 45 Ohio St. L.J. 313, 351.) This observation, although perhaps unnecessary, tends to support petitioner‘s position.
Only one year later, we were again faced with an unwed father‘s attempt to rear his child in Michael U., supra, 39 Cal.3d 787. The father sought temporary custody of the child so that he could qualify as a “presumed
The question of unwed fathers’ rights has also been addressed by the Courts of Appeal. In Adoption of Marie R., supra, 79 Cal.App.3d 624 (Marie R.), a divided court held that, with respect to a nonmarital child, a mother may, by her conduct, prevent a natural father from acquiring the status of “presumed father.” (Id., at p. 630.) This conclusion seems to have been based on the premise that constructive receipt of the child was not sufficient to become a presumed father under
Similarly, in W. E. J. v. Superior Court (1979) 100 Cal.App.3d 303 [160 Cal.Rptr. 862] (W. E. J.), the same divided court held that a natural father was not entitled to his child‘s custody for the purpose of becoming a presumed father and thereby gaining a right to withhold consent to the child‘s adoption. In rejecting the father‘s claim to custody, the majority broadly stated that the statutory distinction between natural and presumed fathers is constitutionally valid. (Id., at pp. 313-315.) This holding was not restricted to those natural fathers who have failed to demonstrate a sufficient commitment to their responsibilities.
The Court of Appeal affirmed, rejecting the mother‘s argument that a mother has an absolute right to prevent her child‘s biological father from acquiring the status of a presumed father. The court explained that under
We agree that the courts have the authority under this state‘s Uniform Parentage Act to grant custody to the natural father despite the mother‘s objection. In the present case, the superior court had the authority to grant petitioner custody of his child so that he could qualify as a presumed father under
For the question now before us, the more significant portion of Jermstad, supra, 210 Cal.App.3d 528, is the court‘s analysis of the natural father‘s constitutional claim. The court rejected the mother‘s argument that the father was improperly given a parental preference over the couple who sought to adopt the child. The issue of parental preference also arises in this case. Petitioner contends that, if we find him not to be a presumed father under
Jermstad, supra, 210 Cal.App.3d 528, concluded, “[t]he natural father must be afforded a parental preference under the amended statute [
The court first explained that, to the extent the majority opinion in Baby Girl M., supra, 37 Cal.3d 65, rested on federal constitutional considerations, it was not subject to being overruled by legislative enactment. (Jermstad, supra, 210 Cal.App.3d at p. 549.) We agree.
Second and more important for our analysis, the Jermstad court, supra, 210 Cal.App.3d 528, stated that the correct reading of the decisions by the United States Supreme Court is that a state may not deny a biological parent the opportunity to establish a protected custodial relationship with his or her child. The Jermstad court concluded that in light of this constitutional protection the amendment to
5. The constitutionally protected interest of an unwed, natural father
Petitioner asserts a violation of equal protection and due process under the federal Constitution; more specifically, that he should not be treated differently from his child‘s mother. In constitutional terms, the question is whether California‘s sex-based statutory distinction between biological mothers and fathers serves “” . . . important governmental objectives and [is] substantially related to achievement of those objectives.” (Caban, supra, 441 U.S. 380, 388 [60 L.Ed.2d 297, 304-305], italics added.) Does the mother‘s ability to determine the father‘s rights substantially serve an important governmental interest? The question is the same “whether the analysis [is] undertaken as a matter of due process or equal protection.” (Raquel Marie, supra, 76 N.Y.2d at p. 403 [559 N.E.2d at p. 425].)
There is no dispute that “The State‘s interest in providing for the well-being of illegitimate children is an important one.” (Caban, supra, 441 U.S. at p. 391 [60 L.Ed.2d at p. 306]; Raquel Marie, supra, 76 N.Y.2d at p. 403 [559 N.E.2d at p. 425].) Although the legal concept of illegitimacy no longer exists in California, the problems and needs of children born out of wedlock are an undisputed reality. The state has an important and valid interest in their well-being.
The more difficult issue is whether the statutory treatment of natural fathers (i.e., biological fathers without presumed status under
Respondents do not adequately explain how an unwed mother‘s control over a biological father‘s rights furthers the state‘s interest in the well-being of the child. The linchpin of their position, however, is clear although largely implicit: Allowing the biological father to have the same rights as the mother would make adoptions more difficult because the consent of both parents is more difficult to obtain than the consent of the mother alone. This reasoning is flawed in several respects.
A. Respondents’ view too narrowly assumes that the proper governmental objective is adoption. As we have explained, the constitutionally valid objective is the protection of the child‘s well-being. We cannot conclude in the abstract that adoption is itself a sufficient objective to allow the state to take whatever measures it deems appropriate. Nor can we merely assume, either as a policy or factual matter, that adoption is necessarily in a child‘s best interest. This assumption is especially untenable in light of the rapidly changing concept of family. As recently as only a few years ago, it might have been reasonable to assume that an adopted child would be placed into a two-parent home and thereby have a more stable environment than a child raised by a single father. The validity of that assumption is now highly suspect in light of modern adoption practice. Recent statistics show that a significant percentage of children placed for independent adoption—7.7 percent—are adopted by a single parent. (Cal. Dept. of Social Services, Characteristics of Independent Adoptions in Cal., July 1989—June 1990, table 34.) The figure is even higher—21.9 percent—for children placed with agencies for adoption. (Cal. Dept. of Social Services, Characteristics of Relinquishment Adoptions in Cal., July 1989—June 1990, table 29.) We note that New York‘s high court also recently rejected the argument that the state has a sufficiently strong interest in providing two-parent families to discriminate against unwed fathers. (Raquel Marie, supra, 76 N.Y.2d at p. 406 [559 N.E.2d at p. 427].)
B. Nor is there evidence before us that the statutory provisions allowing the mother to determine the father‘s rights are, in general, substantially related to protecting the child‘s best interest. As a matter of cold efficiency, we cannot disagree that eliminating a natural father‘s rights would make adoption easier in some cases. (Raquel Marie, supra, 76 N.Y.2d at p. 401 [559 N.E.2d at p. 425].) That, however, begs the question because it assumes an unwed mother‘s decision to permit an immediate adoption of her newborn is always preferable to custody by the natural father, even when he is a demonstrably fit parent. We have no evidence to support that assumption. Moreover, the assumption has already been rejected by the United States Supreme Court: “It may be that, given the opportunity, some unwed fathers would prevent the adoption of their illegitimate children. This impediment to adoption usually is the result of a natural parental interest shared by both genders [sexes] alike; it is not a manifestation of any profound difference between the affection and concern of mothers and fathers for their children. Neither the State nor the appellees have argued that unwed fathers are more likely to object to the adoption of their children than are unwed mothers; nor is there any self-evident reason why as a class they would be.” (Caban, supra, 441 U.S. 380, 391-392 [60 L.Ed.2d 297, 306-307].) New York‘s high court has also rejected the contention that a father‘s rights can be trampled in the name of efficiency. (Raquel Marie, supra, 76 N.Y.2d at p. 401 [559 N.E.2d at p. 426].)12
C. The lack of any substantial relationship between the state‘s interest in protecting a child and allowing the mother sole control over its destiny is
The anomalies under this statutory scheme become readily apparent. A father who is indisputably ready, willing, and able to exercise the full measure of his parental responsibilities can have his rights terminated merely on a showing that his child‘s best interest would be served by adoption. If the child‘s mother, however, were equally of the opposite character—unready, unwilling, and unable—her rights in the child could nevertheless be terminated only under the much more protective standards of
The system also leads to irrational distinctions between fathers. Based solely on the mother‘s wishes, a model father can be denied presumed father status, whereas a father of dubious ability and intent can achieve such status by the fortuitous circumstance of the mother allowing him to come into her
The system also makes little sense from a child‘s perspective. A child may have a wholly acceptable father who wants to nurture it, but whose parental rights can be terminated under the best-interest standard because the mother has precluded the father from attaining presumed father status. Conversely, if a presumed father is highly questionable in every respect, he is nevertheless allowed to withhold consent absent proof by clear and convincing evidence that he is unfit. (
D. We 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. 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, either in general or in a particular case, 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.
Clearly, the father is treated unfairly under
A court should consider all factors relevant to that determination. The father‘s conduct both before and after the child‘s birth must be considered. 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.” (Raquel Marie, supra, 76 N.Y.2d at p. 408 [559 N.E.2d at p. 428].) A court should also consider the father‘s public acknowledgement 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.14
We reiterate and emphasize the narrowness of our decision. The statutory distinction between natural fathers and presumed fathers is constitutionally invalid only to the extent it is applied to an unwed father who has sufficiently and timely demonstrated a full commitment to his parental responsibilities. Our statutes (
6. Application of the correct standard to this case
The trial court found that adoption was in the child‘s best interest. The court, however, did not have the benefit of our decision in this case and thus did not decide the threshold constitutional question of whether petitioner demonstrated a sufficient commitment to his parental responsibilities. Petitioner and the prospective adoptive parents sharply disagree on that question, and the evidence is conflicting in several respects as to petitioner‘s attempts to fulfill his responsibilities, especially during the period before the child‘s birth. We therefore conclude the more prudent approach is to remand to the trial court to make the determination in the first instance. In doing so, the trial court must take into account petitioner‘s conduct throughout the period since he learned he was the biological father, including his conduct during the pendency of this legal proceeding, both in the trial and appellate courts, up to the determination in the trial court on remand by this court. We recognize that during these proceedings petitioner 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 petitioner has done all that he could reasonably do under the circumstances.
If the trial court finds on remand that petitioner failed to demonstrate the required commitment to his parental responsibilities, that will be the end of the matter. He will not have suffered any deprivation of a constitutional right. If, however, the required commitment is found, the result under our constitutional analysis will necessarily be a decision that petitioner‘s rights to equal protection and due process under the federal Constitution were violated to the extent that he was deprived of the same statutory protections granted the mother. Therefore, if (but only if) the trial court finds petitioner demonstrated the necessary commitment to his parental responsibilities, there will arise the further question of whether he can be deprived of the right to withhold his consent to the adoption.
In deciding this question, the trial court shall take into account (as it must also do on the threshold question of whether petitioner assumed his parental responsibilities) petitioner‘s conduct and circumstances up to and including the time of the decision on remand. The proper standard is whether he is now fit or unfit. For purposes of remand, we also note
We emphasize that the sole question before us is whether petitioner has a right to withhold his consent to the adoption of his biological child. We decide no issue as to the custody of the child. If petitioner fails to establish on remand that he has a right to withhold his consent, there will be no question as to whether he should have custody of the child. If, however, the trial court concludes that petitioner has a right to withhold consent, that decision will bear only on the question of whether the adoption will proceed. Even if petitioner has a right to withhold his consent (and chooses to prevent the adoption), there will remain the question of the child‘s custody. That question is not before us, and we express no view on it.
7. Application of our decision to other cases
In recognition of the importance of prompt resolution of adoption proceedings, we find it necessary to explain the applicability of our decision in this action to other cases. “The general rule that judicial decisions are given retroactive effect is basic in our legal tradition.” (Newman v. Emerson Radio Corp. (1989) 48 Cal.3d 973, 978 [258 Cal.Rptr. 592, 772 P.2d 1059].) We have also recognized, however, that narrow exceptions to the general rule of retroactivity may sometimes be justified for compelling reasons of fairness and public policy. (Id., at p. 983.) No such reasons warrant any exception to a retroactive effect of our present decision. Our decision shall be given retroactive effect as to all cases not yet final as of the date this decision is filed.
Of course, even retroactive decisions generally do not extend to cases in which final judgments have already been entered. (Newman v. Emerson
DISPOSITION
We reverse the judgment of the Court of Appeal with directions to remand to the superior court for further proceedings consistent with our decision.
Lucas, C. J., Panelli, J., Kennard, J., Arabian, J., and George, J., concurred.
MOSK, J., Concurring and Dissenting.—I concur in the result only. My concern for the welfare of the child in cases of this sort prevents me from joining the majority‘s reasoning.
The majority declare that
The majority yield to the lamentable temptation to invoke the Constitution when there is a perfectly simple legal solution to the factual problem of this case. It is settled law that we should not reach constitutional questions unless absolutely required. (People v. Williams (1976) 16 Cal.3d 663, 667 [128 Cal.Rptr. 888, 547 P.2d 1000].) The majority invoke the equal protection clause as a first resort rather than a last, without considering how trifling with a statute that has been used without challenge for nearly two decades may affect countless parents and children.
Though the facts are disputed, assume, arguendo, that in this case they can be established at trial. The biological father engaged in an adulterous relationship with the mother. A child was born. Though he had rejected the mother and returned to his wife, the biological father conceded paternity, made reasonable efforts to ascertain the whereabouts of the child and indicated a willingness to take the child into his home and to support it. In short, the biological father allegedly sought to become a presumed father within the statutory requirements of
Under those circumstances, if established by a preponderance of evidence in court, I would estop the mother and the proposed adoptive parents from denying that the biological father had assumed the status of a presumed father. These are paradigm circumstances for the imposition of an estoppel. As Witkin observes, an estoppel deprives a defendant of her defense because of her own objectionable conduct. (3 Witkin, Cal. Procedure (3d ed. 1985) Actions, § 523, p. 550.)
Generally speaking, equitable estoppel is a rule of fundamental fairness by which a party is precluded from benefiting from conduct designed to prevent determination of the truth and a resolution based thereon. While often applied in commercial transactions, equitable estoppel has also been invoked in domestic relations cases. (See, e.g., Clevenger v. Clevenger (1961) 189 Cal.App.2d 658, 662 [11 Cal.Rptr. 707, 90 A.L.R.2d 569] [declaring that “under some circumstances the husband would be estopped to assert the illegitimacy of the child and thereby avoid liability for its support“] (per Tobriner, J.); In re Marriage of Valle (1975) 53 Cal.App.3d 837, 842 [126 Cal.Rptr. 38] [to similar effect]; In re Marriage of Johnson (1979) 88 Cal.App.3d 848, 852 [152 Cal.Rptr. 121] [same]; Guardianship of Szwed (1990) 221 Cal.App.3d 1403, 1415 [271 Cal.Rptr. 121] [mother‘s husband estopped from relying on statutory presumption of paternity when he had previously admitted he was not the biological father].)
To my mind, the choice between a declaration of unconstitutionality and a use of the doctrine of equitable estoppel is clear. The latter will yield justice for the party if he deserves justice in this individual action without providing
The leading United States Supreme Court case of Lehr v. Robertson (1983) 463 U.S. 248 [77 L.Ed.2d 614, 103 S.Ct. 2985], makes it abundantly clear that the issue is purely and simply factual. Said the court, at page 262 [77 L.Ed.2d at page 627]: “The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for his child‘s future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child‘s development. If he fails to do so, the Federal Constitution will not automatically compel a State to listen to his opinion of where the child‘s best interests lie.”
Accordingly, I would remand the cause to the trial court for factual proceedings consistent with this opinion.