Adoption

Paternity issue: The first issue to be resolved is whether or not this father is established as a legal father. Since the mother was unmarried, no paternity presumption applied. In California, he would have had to sign the declaration of voluntary paternity in order to be named on the birth certificate and be a legal father. If he did not sign these documents, there would have to be a judgment of his parental rights.

Standing: He would have to establish his paternity somehow in order to have the standing necessary to challenge the adoption. We can presume there is a paternity judgment in place because there was genetic testing and that found he was the biological father which would result in a judgment.

In order for this child to be adopted, the parental status of both parents would have to be terminated. His were not terminated, so it is questionable how this issue could proceed to an adoption judgment. The facts don’t say, but we assume that the adoption is not in place yet.

Adoption:

– Adoption procedure statutes:

• • Fam Code section 7666: notice of the proceeding shall be given to
    every person identified as the natural father or a possible natural father
    in accordance with the Code of Civil Procedure for the service of process
    in a civil action in this state at least 10 days before the date stated
    in the notice of the proceeding, except that publication or posting of the
    notice of the proceeding is not required. Proof of giving the notice shall
    be filed with the court before the petition is heard
  • Fam Code section 7664: (b) If the natural father or a man representing
    himself to be the natural father claims parental rights, the court shall
    determine if he is the father. The court shall then determine if it is in
    the best interest of the child that the father retain his parental rights,
    or that an adoption of the child be allowed to proceed. The court, in making
    that determination, may consider all relevant evidence, including the efforts
    made by the father to obtain custody, the age and prior placement of the
    child, and the effects of a change of placement on the child. If the court
    finds that it is in the best interest of the child that the father should
    be allowed to retain his parental rights, it shall order that his consent
    is necessary for an adoption. If the court finds that the man claiming parental
    rights is not the father, or that if he is the father it is in the child’s
    best interest that an adoption be allowed to proceed, it shall order that
    that person’s consent is not required for an adoption. This finding terminates
    all parental rights and responsibilities with respect to the child. Fam.
    Code section 3041 does not apply to a proceeding under this chapter.

– Adoption of Michael H. (1995) 10 Cal.4th
1043, 43 Cal.Rptr.2d 445, 898 P.2d 891: unwed father’s failure to commit
to fatherhood during pregnancy negates his right to veto third party adoption.
During pregnancy, parties agree to put child up for adoption, dad was an addict
who tried to kill himself and cleaned up right before birth. Two weeks after
birth he tried to stop the adoption.

• • FACTS: In 2/90, 20 yr old (F) and 15 yr old (mother) met and became
    “engaged”, although she would not marry until she graduated high
    school and F quit drinking and using drugs. In 7/90, mother found she was
    pregnant. F suggested abortion, mother would not consider it and they settled
    on adoption. Mother moved to Cal. with grandparents and was introduced to
    aunt�s friends, who wanted to adopt (APs). She and F were researching
    adoption agencies. In 9/90, they began birthing classes, F went with mother
    to buy a few baby things, bought trailer for them to live in. F arranged
    videotape of ultrasound. In 10/90, relationship deteriorated, F had 2 violent
    outbursts involving mother, lost job, and tried to kill himself. In rehab,
    F decided to stop drugs, seek stable life, continue counseling, and not
    give baby up for adoption. He started looking for attorney re custody.
  • “[A]n unwed father has no federal constitutional right to withhold
    consent to an at-birth, third party adoption under our decision in Kelsey
    S. … unless he shows that he promptly came forward and demonstrated as
    full a commitment to his parental responsibilities as the biological mother
    allowed and the circumstances permitted within a short time after he learned
    or reasonably should have learned that the biological mother was pregnant
    with his child. [“] Here the trial court found that [father] learned
    that [mother] was pregnant with his child in early July 1990, that between
    July 1990 and November 1990, “it cannot be said” that he was fully committed to his parental responsibilities . . . [and]
    he clearly planned with [mother] to give the child up.” ([Emphasis]
    added.) The court further found that although [father] decided in November
    1990 that “he did not want his child given up for adoption,”
    he “continued to speak to [mother] and even [the adoptive parents]
    as though he still agreed with the adoption” until March 7, 1991,
    some two weeks after Michael was born. In light of these findings, we conclude
    that under Kelsey S. [father] has no constitutional right to withhold his
    consent to Michael’s adoption….” (In re Michael H., supra,
    10 Cal.4th at p. 1060.)

– Adoption of Kelsey S. (1992) 1 Cal.4th 816,
4 Cal.Rptr.2d 615, 823 P.2d 1216: In order to deny a nonpresumed biological
father the opportunity to withhold consent to adoption, there must be clear
and convincing evidence showing his unfitness. This standard is necessary to
protect his equal protection and due process rights.

• • FACTS: Mother became pregnant with child (C) by father (F). Mother
    and F not married. F objected to mother’s decision to place C for adoption.
    2 days after birth of C, F filed action to establish parental relationship
    with C and to obtain custody of C. Trial ct. issued restraining order temporarily
    awarding care, custody and control of C to F. Court also stayed adoption
    proceedings and prohibited contact between C and prospective adoptive parents
    (PAP). PAP filed adoption petition under former Civil Code section 226,
    alleging only mother’s consent required because F not presumed father. Trial
    ct. modified order and awarded temporary custody of C to mother. PAP filed
    petition to terminate F’s parental rights under former Civil Code section
    7017. Parties stipulated that F was natural father of C. Trial ct. ruled
    F not “presumed” father within meaning of former Civil Code section
    7004 (a)(4) and found “‘by a bare preponderance'” (Id. at p.823)
    that C’s best interests required termination of F’s parental rights. Court
    of Appeal affirmed. Supreme Ct. reversed
  • Note: This case can be reconciled with Lehr v. Robertson (1983) 463 U.S.
    248, 77 L.Ed.2d 614, 103 S.Ct. 2985 in which statute that failed to give
    notice of minor’s adoption to biological father who was not presumed father
    was held constitutional. In Lehr, father could have enrolled in the state’s
    “putative father registry,” which “adequately protected [the
    father’s] inchoate interest in establishing a relationship with … [the
    child]….” (Id. at p. 265.)

– Adoption of Alexander M. (2001) 94 Cal.App.4th
430, 114 Cal.Rptr.2d 218: Court must hold a hearing on an adoption petition
regarding termination of parental rights, first taking evidence on whether father�s
consent to adoption is required under Kelsey S. and Michael H.

• • FACTS: Child (C) born to married woman following short affair.
    Divorce petition filed in mother’s marriage in 1/97, but no final judgment.
    Mother immediately gave C up for adoption to APs. Few days later, C’s father
    (F) visited mother and she told him about the impending adoption. APs served
    F with notice of alleged paternity and adoption and filed petition for adoption.
    Two weeks later, they filed a petition to terminate F’s parental rights
    and to determine necessity of his consent. F filed petition to establish
    a parental relationship, seeking blood test to determine paternity and,
    if her was father, to obtain custody or visitation. F declared he had agreed
    to pay for mother to have an abortion if she confirmed the child was his,
    but she changed her mind and asked him if he would agree to adoption. F
    said he would not agree to anything until he had medical confirmation he
    was the father.
  • Genetic testing established F was C’s biological father. Parties stipulated
    to consolidate the Consent Petition and the Paternity Petition for hearing.
    F’s request for visitation denied, counsel appointed to represent C, and
    matter set for trial.

– Adoption of Arthur M. (2007) 149 Cal.App.4th
704, 57 Cal.Rptr.3d 259: Unwed teen dad had no protected right to stand in the
way of the child’s adoption.

• • Facts: High school students had sex once and child (C) conceived.
    According to mother, father (F) wanted her to have an abortion, while she
    wanted to have C and give it up for adoption. She had friends who also testified
    to F’s desire for abortion. F offered no support, financial or otherwise
    and began college. They had no contact but one phone call until after C
    born.
  • Mother’s parents (GPs) wanted to adopt C. Their attorney (A1) sent letter
    asking for F’s waiver, as alleged or presumed father. F’s attorney (A2)
    advised A1 that F would not sign waiver. When mother 8 mos pregnant, F filed
    petition seeking to establish his parental relationship with C and obtain
    legal and physical custody. He attested mother had “recently”
    told him of her pregnancy and of her belief he was the father.
  • F informed of C’s birth and sought OSC re: child custody, visitation,
    and paternity testing. He attested he had been denied access to C which
    prevented him from establishing a parental relationship.
  • GPs filed adoption petition, alleging pregnancy the result of unconsensual
    & forced intercourse and F failed to assume any parental responsibilities.
  • Matters consolidated and paternity testing established F was C’s biological
    father. He offered financial assistance to mother, claiming was not notified
    of C’s 12/13 birth until the end of December and was thus unable to communicate
    offer directly to mother.
  • Trial ct. denied F’s request for interim visitation and appointed counsel
    for C. In 6/06, in 1st amended petition to determine F’s parental rights
    and consent to the adoption, GPs alleged he was C’s natural father and deleted
    reference to alleged rape.
  • F’s testimony contradicted that of mother’s and her witnesses “in
    virtually every aspect of any consequence.” Focal point of Fs argument
    was that he was excused from promptly stepping up to the parental plate
    by circumstances beyond his control. He argued that from late 7/05, few
    days after conversation with mother, and through rest of 2005, continuing
    into 2006, he could not assume the supportive role defined under standards
    of Adoption of Kelsey S. (1992) 1 Cal.4th 816, and Adoption of Michael H. (1995) 10 Cal.4th 1043, because he feared criminal prosecution arising from mother’s rape charges.
    Court of Appeal carefully checked record and “have come up empty-handed,”
    finding “nothing” in the record giving rise to
    a reasonable inference that F knew about the rape charges at any time before
    1/06, “after” the baby’s birth.
  • Trial ct. found F had failed to come forward promptly and assume his
    parental responsibilities. Finding he did not achieve the status of presumed
    father able to veto the adoption under either statutory (Fam. Code section 7611)
    or case law (Kelsey S., and Michael H.), court ordered F’s consent to the
    adoption was not necessary, dismissed the paternity action, and allowed
    the adoption proceeding to go forward. F appealed and Court of Appeal affirmed.