Family Law Keyed to Weisberg

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Topic /161
Adoption of Kelsey S

Citation. Adoption of Kelsey S., 1 Cal. 4th 816, 4 Cal. Rptr. 2d 615, 1992 Cal. LEXIS 530, 823 P.2d 1216, 92 Daily Journal DAR 2629, 92 Cal. Daily Op. Service 1403 (Cal. Feb. 20, 1992)

Brief Fact Summary. Petitioner, an unwed father, petitioned the court to prevent the adoption of his biological son. The child’s mother consented to the adoption.

Synopsis of Rule of Law. 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 unfitness as a parent.

Facts. Kari S. gave birth to Kelsey, with the child’s undisputed natural father being petitioner Rickie M. The couple was not married, and petitioner was aware that Kari planned to place their child for adoption. Two days after the birth, petitioner filed an action to establish his parental relationship and to obtain custody. The court awarded temporary custody to petitioner, and the prospective adoptive parents filed an adoption petition alleging that only the mother’s consent to the adoption was required because there was no statutorily presumed father. The court modified its order, awarding the birth mother temporary custody and ordering her to live with the child in a shelter for unwed mothers. The court prohibited visitation by either the prospective parents or petitioner. The prospective adopters petitioned to terminate petitioner’s parental rights. The court allowed petitioner to have supervised visitation and allowed the prospective adopters to have unsupervised visita
tion. The parties stipulated that petitioner was the child’s natural father, but the court ruled that he was not a presumed father within meaning of the statute. The court held hearings to determine if it was in the child’s best interest for petitioner to retain parental rights and if the adoption should be allowed to proceed. The attorney appointed to represent the child’s interests advocated that petitioner should be allowed to retain parental rights. The court found by a bare preponderance of the evidence that the child’s best interest required termination of petitioner’s parental rights. Petitioner appealed, contending that the court erred by: 1) concluding 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.

Issue. Is a natural father’s federal constitutional rights 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?

Held. The relevant statute is unconstitutional. 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 unfitness as a parent.
Under the California statute, if the mother of a child consents to the child’s adoption, the child’s best interest is the sole criterion where there is no presumed father. Mothers and presumed fathers must consent to an adoption absent a showing by clear and convincing evidence of that parent’s unfitness.

A man becomes the presumed father if he receives the child into his home and openly holds out the child as his natural child. Petitioner openly held out the child as being his own, but was prevented from physically receiving the child into his home.

The biological connection offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. He need only make a reasonable and meaningful attempt to establish a relationship, he need not be successful against all obstacles. The biological connection between father and child is unique and worthy of constitutional protection if the father grasps the opportunity to develop that connection into a full and enduring relationship.

Petitioner asserts a violation of equal protection and due process under the federal Constitution in that he should not be treated differently than his child’s mother. Respondent’s position is that this would make adoption more difficult because the consent of both parties would be more difficult to obtain. This reasoning is flawed for several reasons: 1) It assumes that the proper governmental objective is adoption, while it is actually the protection of the child’s well being; 2) there is no evidence that the statutory provisions allowing the mother to determine the father’s rights are substantially related to protecting the child’s best interests.

The lack of any substantial relationship between the stat’s interest in protecting the child and allowing the mother sole control over its destiny is best demonstrated by the results. Under the statute the father has only two ways to achieve the desired status: either marry the mother or receive the child into his house and hold it out as his natural child. The system leads to irrational distinctions between fathers.

The system also makes little sense from the child’s prospective. Even if the mother somehow has a greater connection to the child, the same result need not obtain when she seeks to sever her legal ties with the child and the father seeks to assume his legal burdens.

A child’s well being is presumptively best served by continuation of the father’s parental relationship, and his parental rights are entitled to equal protection as those of the mother. A court should consider all factors relevant, including the father’s conduct before and after the child’s birth, his attempt to assume his parental responsibilities, his public acknowledgment of paternity, his payment of pregnancy and birth expenses commensurate with his ability, and prompt legal action to seek custody of the child. Petitioner’s unfitness must be supported by clear and convincing evidence. Absent such evidence he shall be permitted to withhold his consent to the adoption.

Discussion. The Court found that the statute prohibiting an unwed father to prevent an adoption violated petitioner’s equal protection and due process rights, and was not substantially related to any legitimate state interest.