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:

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  • Fam Code section 7666: notice of the proceeding shall be given toevery person identified as the natural father or a possible natural fatherin accordance with the Code of Civil Procedure for the service of processin a civil action in this state at least 10 days before the date statedin the notice of the proceeding, except that publication or posting of thenotice of the proceeding is not required. Proof of giving the notice shallbe filed with the court before the petition is heard

  • Fam Code section 7664: (b) If the natural father or a man representinghimself to be the natural father claims parental rights, the court shalldetermine if he is the father. The court shall then determine if it is inthe 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 makingthat determination, may consider all relevant evidence, including the effortsmade by the father to obtain custody, the age and prior placement of thechild, and the effects of a change of placement on the child. If the courtfinds that it is in the best interest of the child that the father shouldbe allowed to retain his parental rights, it shall order that his consentis necessary for an adoption. If the court finds that the man claiming parentalrights is not the father, or that if he is the father it is in the child’sbest interest that an adoption be allowed to proceed, it shall order thatthat person’s consent is not required for an adoption. This finding terminatesall 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.4th1043, 43 Cal.Rptr.2d 445, 898 P.2d 891: unwed father’s failure to committo fatherhood during pregnancy negates his right to veto third party adoption.During pregnancy, parties agree to put child up for adoption, dad was an addictwho tried to kill himself and cleaned up right before birth. Two weeks afterbirth he tried to stop the adoption.

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  • 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 highschool and F quit drinking and using drugs. In 7/90, mother found she waspregnant. F suggested abortion, mother would not consider it and they settledon adoption. Mother moved to Cal. with grandparents and was introduced toaunt�s friends, who wanted to adopt (APs). She and F were researchingadoption agencies. In 9/90, they began birthing classes, F went with motherto buy a few baby things, bought trailer for them to live in. F arrangedvideotape of ultrasound. In 10/90, relationship deteriorated, F had 2 violentoutbursts involving mother, lost job, and tried to kill himself. In rehab,F decided to stop drugs, seek stable life, continue counseling, and notgive baby up for adoption. He started looking for attorney re custody.

  • “[A]n unwed father has no federal constitutional right to withholdconsent to an at-birth, third party adoption under our decision in KelseyS. … unless he shows that he promptly came forward and demonstrated asfull a commitment to his parental responsibilities as the biological motherallowed and the circumstances permitted within a short time after he learnedor reasonably should have learned that the biological mother was pregnantwith his child. [“] Here the trial court found that [father] learnedthat [mother] was pregnant with his child in early July 1990, that betweenJuly 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 November1990 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 concludethat under Kelsey S. [father] has no constitutional right to withhold hisconsent 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 biologicalfather the opportunity to withhold consent to adoption, there must be clearand convincing evidence showing his unfitness. This standard is necessary toprotect his equal protection and due process rights.

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  • FACTS: Mother became pregnant with child (C) by father (F). Motherand 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 relationshipwith C and to obtain custody of C. Trial ct. issued restraining order temporarilyawarding care, custody and control of C to F. Court also stayed adoptionproceedings 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. Trialct. modified order and awarded temporary custody of C to mother. PAP filedpetition to terminate F’s parental rights under former Civil Code section7017. Parties stipulated that F was natural father of C. Trial ct. ruledF not “presumed” father within meaning of former Civil Code section7004 (a)(4) and found “‘by a bare preponderance'” (Id. at p.823)that C’s best interests required termination of F’s parental rights. Courtof 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 givenotice of minor’s adoption to biological father who was not presumed fatherwas held constitutional. In Lehr, father could have enrolled in the state’s“putative father registry,” which “adequately protected [thefather’s] inchoate interest in establishing a relationship with … [thechild]….” (Id. at p. 265.)

– Adoption of Alexander M. (2001) 94 Cal.App.4th430, 114 Cal.Rptr.2d 218: Court must hold a hearing on an adoption petitionregarding termination of parental rights, first taking evidence on whether father�sconsent to adoption is required under Kelsey S. and Michael H.

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  • 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 servedF with notice of alleged paternity and adoption and filed petition for adoption.Two weeks later, they filed a petition to terminate F’s parental rightsand to determine necessity of his consent. F filed petition to establisha parental relationship, seeking blood test to determine paternity and,if her was father, to obtain custody or visitation. F declared he had agreedto 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. Fsaid he would not agree to anything until he had medical confirmation hewas the father.

  • Genetic testing established F was C’s biological father. Parties stipulatedto consolidate the Consent Petition and the Paternity Petition for hearing.F’s request for visitation denied, counsel appointed to represent C, andmatter set for trial.

– Adoption of Arthur M. (2007) 149 Cal.App.4th704, 57 Cal.Rptr.3d 259: Unwed teen dad had no protected right to stand in theway of the child’s adoption.

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  • Facts: High school students had sex once and child (C) conceived.According to mother, father (F) wanted her to have an abortion, while shewanted to have C and give it up for adoption. She had friends who also testifiedto F’s desire for abortion. F offered no support, financial or otherwiseand began college. They had no contact but one phone call until after Cborn.

  • Mother’s parents (GPs) wanted to adopt C. Their attorney (A1) sent letterasking 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 filedpetition seeking to establish his parental relationship with C and obtainlegal 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 whichprevented 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 biologicalfather. He offered financial assistance to mother, claiming was not notifiedof C’s 12/13 birth until the end of December and was thus unable to communicateoffer directly to mother.

  • Trial ct. denied F’s request for interim visitation and appointed counselfor C. In 6/06, in 1st amended petition to determine F’s parental rightsand consent to the adoption, GPs alleged he was C’s natural father and deletedreference to alleged rape.

  • F’s testimony contradicted that of mother’s and her witnesses “invirtually every aspect of any consequence.” Focal point of Fs argumentwas that he was excused from promptly stepping up to the parental plateby circumstances beyond his control. He argued that from late 7/05, fewdays after conversation with mother, and through rest of 2005, continuinginto 2006, he could not assume the supportive role defined under standardsof 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 toa reasonable inference that F knew about the rape charges at any time before1/06, “after” the baby’s birth.

  • Trial ct. found F had failed to come forward promptly and assume hisparental responsibilities. Finding he did not achieve the status of presumedfather 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 theadoption was not necessary, dismissed the paternity action, and allowedthe adoption proceeding to go forward. F appealed and Court of Appeal affirmed.