W. E. J. et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; F. L., Real Party in Interest, 100 Cal. App. 3d 303

Opinion FILES, P. J. This original proceeding requires us to determine whether or not the biological father of a nonmarital child, who is not a “presumed father” as defined in Civil Code

section 7004, holds the power to veto a proposed adoption. Our conclusion is that, although the biological father is entitled to be heard in opposition to the adoption proceedings, and to present his own qualification for custody, the adoption may be ordered without his consent as is provided in

section 7017, subdivision (d), and

section 224. The underlying superior court proceeding commenced with a petition filed August 31, 1978, by Mr. and Mrs. J., husband and wife, for the adoption of Baby Boy G., born August 23, 1978. Although the entire file of the superior court has not been brought up, the papers here show that the order we review was based on these facts: The baby’s mother, Ms. G., released her child to Mr. and Mrs. J. the day after his birth, and the child has been with them ever since. The biological father, F.L., was, at the time of conception, and still is, married to a woman other than Ms. G.

F.L. appeared in the adoption proceeding, with counsel, and sought custody of the child. Following a hearing the trial court made an order on May 10, 1979, finding that F.L. was “entitled to the custody of minor” and directing the Js. to surrender custody of the minor on or before June 1, 1979. The Js. filed their petition here on May 23 seeking a prerogative writ to review the May 10 order, and this court stayed operation of the superior court’s order. The Js. have also appealed from the May 10 order, but we have elected to go forward with the writ proceeding to arrive at an earlier decision.

The precise issue is whether the trial court acted properly in awarding custody to F.L. The colloquy with counsel, and the trial court’s statement of its reasoning on May 10 reveal that the award of custody was based upon the trial court’s views of the law relating to the adoption. Counsel for F.L. urged that the biological father was entitled to custody both by reason of constitutional principles expressed in Caban v. Mohammed (1979) 441 U.S 380 [60 L.Ed.2d 297, 99 S.Ct. 1760] and in order to qualify F.L. as a “presumed father” who would thereby acquire a veto power under Civil Code

section 7017, subdivision (d), as interpreted in In re Trida M. (1977) 74 Cal.App.3d 125 [141 Cal.Rptr. 554], The May 10 order declares that the court “shall decide parentage and the applicability of ‘Caban’ on June 19, 1979.” We also note that although the order contains the finding “that it would not be harmful or detrimental to the minor to award custody to the natural father...” there is no finding that the change of custody was in the child’s best interest.

The transcript leaves no doubt that the decision was based upon the trial court’s conclusion that F.L. was “entitled to custody” under the law as the court then viewed it. We first undertake an analysis of the provisions of the “Uniform Parentage Act” as adopted in California effective January 1, 1976. That act (§§ 7000-7018), together with changes concurrently made elsewhere in the codes, eliminated the concept of illegitimacy (§ 7002) and established procedures for identifying parents and declaring the parent-child relationship.

For the male parent the act uses two distinct terms: “natural father” and “presumed father.” The definition of the latter term is in

section 7004. Upon the information which was before the court on May 10, 1979, F.L. was not within the statutory definition of “presumed father,” since he and the mother had never attempted to marry, and the child had never been in his home. The importance of this classification appears in

section 7017, which, after setting forth the procedure for identifying and notifying the natural father, provides in subdivision (d): “If the court finds that the man representing himself to be the natural father is a presumed father under subdivision (

a) of

Section 7004, then the court shall issue an order providing that the father’s consent shall be required for an adoption of the child. In all other cases, the court shall issue an order providing that only the mother’s consent shall be required for the adoption of the child.” This particular language does not appear in the Uniform Parentage Act as drafted by the National Conference of Commissioners on Uniform Laws. (See 9A U. Laws Ann. (Master ed. 1979) 587, 616.) It is apparent that the term “presumed father” as used in

section 7017 does not denote a presumption in the evidentiary sense at all. Rather it uses that term as a convenient means of identifying a class by reference to

section 7004. A corresponding amendment to

section 224 was made by the same act which created

section 7017. The amended

section 224 contains these words: “A child having a presumed father under subdivision (

a) of

Section 7004 cannot be adopted without the consent of its parents, if living;. . . nor a child with no presumed father under subdivision (

a) of

Section 7004 without the consent of its mother, if living;...” The effect of this classification is that a man may be able to show that he is indisputably the biological father of the child, but he may not hold a power to veto an adoption because he does not come within the class defined by reference to

section 7004. Loosely speaking, the classification distinguishes between the father who has established some kind of family tie with the child, and one whose relationship is purely biological. This classification reflects the Legislature’s resolution of a long-recognized tension between the best interests of the child and the personal desires of a male parent who has neither gone through a marriage ceremony with the mother nor shared a home with the child.

The core of that long-standing problem has been described thus: “The state exercises its authority in situations involving dependent and neglected children, in divorce proceedings involving custody disputes, in appointment of guardians for children and in adoptions. Only in adoption proceedings, however, are the rights and obligations of the child’s biological parents absolutely severed. In dependency, neglect, custody and guardianship proceedings, the child’s best interest is always the paramount consideration.

In adoption, however, the child’s best interest may be the paramount consideration only if the presumption in favor of the biological parent is overcome. [Fns. omitted.]” [Italics in original.] (Egginton & Hibbs, Termination of Parental Rights in Adoption Cases: Focusing on the Child (1975) 14 J. Fam. L., 547, 549-550.) An

article written for the California Law Revision Commission after the enactment but prior to the effective date of the Parentage Act reviews the developments of the law which have enlarged the discretion of the court to act in the child’s best interest in limited kinds of situations. (Bodenheimer, New Trends and Requirements in Adoption Law and Proposals for Legislative Change (1975) 49 So.Cal.L.Rev. 10.) The

article (at pp. 52-53) states the case for the limiting provisions which the 1975 enactment placed in sections 224 and 7017: “Present adoption laws distinguish between marital and nonmarital children primarily in one respect: the adoption of marital children requires the consent of both parents, whereas a nonmarital child may be adopted without the consent of the father. “There is no question that the present law adversely affects the unwed father’s interest by ignoring his very existence in the adoption process. From the point of view of the child’s interest, the picture looks entirely different.

If the child has lived with the unwed father at any time, the father’s participation in the adoption is assumed, at least under California law, which legitimizes the child under such circumstances and consequently requires the father’s consent. If the father is unknown or hardly known to the child, any move to achieve absolute equality between married and unmarried fathers by extending the consent requirement to unwed fathers is of dubious benefit to the child, and may in fact be in direct conflict with the child’s interest.

Giving the father who is a stranger the right to veto an adoption may be a decided detriment to a child who is settled in an adoptive home. In such a case and in many other situations it will be in the child’s interest to have the adoption go forward without delay and without the obstacle of a father’s refusal or withholding of consent. While there may be a latent or actual interest in knowing one’s biological father and perhaps also in living with him, this interest may be protected in other ways than a grant of a veto power over an adoption.

The father will be given an opportunity to be heard in the adoption proceeding to assert his interest. Certainly the nonmarital child’s rights recognized by the Supreme Court are not violated by distinguishing between married and putative fathers for purposes of consent to adoption. [Fns. omitted.]” [Italics in original.] With respect to the biological father’s demand for equality, the writer states: “The extreme view that all unmarried fathers are to be accorded equal custody rights with the mother (and on a par with married fathers) would have disastrous consequences for the child.

Every unmarried father would then have the power to block an adoption by withholding consent, and would be in a position to remove the child from the mother. It is one thing to recognize the father’s custodial rights when father and mother are living together as a de facto family, or when the children live with the father. California law accords the father custody rights under such circumstances.

It is quite another matter to extend equality of custody to the father who is a stranger to the child. [Fn. omitted.]” (Id. at pp. 57-58.) The application of the new Parentage Act classification was before this court in Adoption of Marie R. (1978) 79 Cal.App.3d 624 [145 Cal.Rptr. 122]. In that case, as here, the mother had turned over her nonmarital infant to a couple who desired to adopt. A man claiming to be the biological father offered to receive the infant into his home and to provide support, but the mother refused the offer.

The father objected to the adoption and contended that, since he had done everything he could do to provide a home for the child, his tender was enough to give him the status of “presumed father,” and to exercise the veto which the code gives to a male who is so classified. The trial court accepted that theory and made an order that the adoption not proceed because of the objection of the father. That order was reversed because the father had no veto power. We also considered and upheld the constitutionality of the classification, citing Quilloin v. Walcott (1978) 434 U.S. 246 [54 L.Ed.2d 511, 98 S.Ct. 549].

In so deciding we recognized that, with respect to a nonmarital child, the mother may, by her conduct, prevent the male from acquiring the status of “presumed father” which would have given him a veto over adoption. (27 Cal.App.3d at p. 630.) In re Trida M., supra, 74 Cal.App.3d 125 was an appeal by a biological father from an order denying him the custody of the child and determining that the child might be released to the county for adoption on the mother’s consent alone. The trial record showed that the trial court had believed that appellant, not being a presumed father, had no right to custody.

The trial court had stated “I don’t think the matter of the best interests of the child is before me.” (74 Cal.App.3d at p. 137, fn. 7.) The Court of Appeal reversed and remanded so that the trial court might consider the child’s best interest. The appellate court pointed out that, although the father was not a presumed father, and as such had no statutory veto power, nevertheless he was entitled to a decision as to whether giving him custody would be in the child’s best interest.

Although this decision and the grounds upon which it rests are unquestionably correct, the opinion went further and offered some advice to the trial court which was unwarranted by the Parentage Act. The appellate court suggested that if the trial court were to award custody to the biological father, he would thereby become a “presumed father” under sections 7004 and 7017 as one who “receives the child into his home.” Such an

interpretation ignores the function of the classification which

section 7017, subdivision (d), provides. The statutory purpose is to distinguish between those fathers who have entered into some family relationship with the mother and child and those who have not. That purpose is not served by making the child a talisman which the court may hand to a biological father pendente lite for the purpose of changing his classification. Furthermore, there is no need for this talismanic ritual. If the court finds that in fact the best interests of the child require that custody go to the biological father the court may so order, thereby forestalling the need for an adoption.

This result may be accomplished without giving the father a veto power. Both in Trida M. and in the present case the trial court erred in assuming that the statutory classification deprived the court of discretion to consider the child’s best interests, as between the biological father’s demand for custody and the mother’s wish to place the child for adoption. In re B. G. (1974) 11 Cal.3d 679 [114 Cal.Rptr. 444, 523 P.2d 244], also requires consideration. The children involved there, born in 1963 and 1964, respectively, had been brought to California in 1969 by the father, a political refugee from Czechoslovakia.

The mother had remained behind. The father died four months after his arrival and the children became dependents of the juvenile court, which placed them in a foster home. Sometime later the mother learned of the juvenile court proceeding and engaged an attorney to seek a return of her children. At a hearing in 1972 the juvenile court made a finding that the best interests of the children required that they be continued as dependent children of the court and ordered that they be so maintained in a foster home. The Supreme Court reversed. The opinion determined first that Civil Code

section 4600 governed the award of custody even though the order was made in the juvenile court. The basis of the Supreme Court’s reversal was its conclusion “that

section 4600 permits the juvenile court to award custody to a non-parent against the claim of a parent only upon a clear showing that such award is essential to avert harm to the child. A finding that such an award will promote the ‘best interests’ or the ‘welfare’ of the child will not suffice. [Fn. omitted.]” (11 Cal.3d at pp. 698-699.) We must consider whether that standard is applicable to the present case. In re B. G. may not be distinguished as purely juvenile court law, because the B. G. court held that the substantive standard for custody decisions should not depend upon the procedural setting.

The differences here are in the relationships between the child and the respective claimants. In re B. G. was a contest for the custody of marital children, whom the mother had never abandoned, as between the mother and a court-selected foster home. In our case the choice is between a proposed adoption into a family selected by the mother and a father who has established neither a marital or family relationship with the mother and child. Our case is governed by a statute which provides that such a father may be heard with respect to the proposed adoption but may not control it. The new provision of

section 7017, subdivision (d), reflects the Legislature’s intent to give greater protection to the child’s interests as opposed to the preferences of a purely biological father. In the context of this case the court is not compelled to deliver custody to a biological father who is otherwise a total stranger, solely upon the judicial prediction that the new custody will not be harmful. If the court proceeds with the adoption, the question of custody becomes moot. The purpose and effect of

section 7017 is to allow the court to act for the best interests of the child in this kind of contest. We turn next to the constitutional issue which has been raised. A recent series of decisions by the United States Supreme Court has established some guide posts. In Stanley v. Illinois (1972) 405 U.S. 645 [31 L.Ed.2d 551, 92 S.Ct. 1208], the father and mother had never married, but had lived together intermittently, and he had held out their children as his own. When the mother died, the state took the children.

The high court held that, under due process and equal protection principles, the state was not entitled to take the children without notice to the natural father and a hearing on his fitness. The California law meets this standard. In a proceeding to terminate parental control a citation must be served on the parents and they are entitled to appear with counsel, which will be provided at state expense if a parent is not able to afford counsel. (§§ 235, 237.5.) In Quilloin v. Walcott, supra, 434 U.S. 246, the child was born to a couple who had never married or established a home together.

The mother married Walcott who petitioned to adopt the child, age 12, with the* mother’s consent. The biological father’s objection was overruled because of a Georgia statute which denied the unwed father any power to prevent the adoption of his child. The high court held that this statute was constitutional as applied to those facts. Quilloin, which arose out of facts quite different from the case here, illustrates the principle that a father whose relationship to the child is only biological may be treated differently from a father who has established a family relationship with the child and mother.

A further illustration appears in Parham v. Hughes (1979) 441 U.S. 347 [60 L.Ed.2d 269, 99 S.Ct. 1742], upholding a statute which denied to fathers of illegitimate children the right to recover damages for the wrongful death of the child, although such recovery was allowed to all fathers who had legitimated their children and all mothers. In Caban v. Mohammed, supra, 441 U.S. 380, the unmarried parents had lived together for five years as husband and wife, during which period two children were born to them. They then separated and the mother married Mohammed.

Eventually Mohammed sought to adopt the children with the mother’s consent. The father, Caban, and his wife also sought adoption. Under New York law an unwed mother could veto an adoption, but an unwed father could not. The New York decision granting the Mohammeds’ petition for adoption was reversed upon the ground that the gender-based distinction in the state law was unconstitutional. The Caban opinion must be read in the light of its factual situation.

Under California law, Caban would have been classified as a presumed father, entitled to veto any proposed adoption under sections 224 and 7017, subdivision (d). The Caban opinion struck down a New York statute (referred to in the opinion as § 111) upon the ground that it created an overbroad gender-based discrimination between all unmarried fathers and all unmarried mothers. The facts of the Caban case illustrated the injustice of that discrimination as applied to parents who had lived as a family for years.

The opinion carefully pointed out that appropriately limited distinctions between the rights of the mother and the rights of the father are not necessarily improper.

In footnote 13 on page 392 [60 L.Ed.2d, p. 307] the Caban opinion added this qualification: “We note some alternatives to the gender-based distinction of § 111 only to emphasize that the state interests asserted in support of the statutory classification could be protected through numerous other mechanisms more closely attuned to those interests.” The California statute which took effect in 1976 avoids the fault of discriminating between all unwed mothers and all unwed fathers.

The statutory classification sets apart those biological fathers who have neither gone through an apparently valid marriage ceremony with the mother nor lived with the child as a parent. The interest at stake is the power to veto an adoption which the mother and court might find to be in the best interest of the child. Those biological fathers who are denied the veto power are easily distinguished from those who hold that power. Members of this class have neither expressed the interest which is implied in the marriage ceremony nor undertaken the care of the child in a common home.

The Legislature was not unreasonable in concluding that that class will contain a substantial proportion of fathers who are strangers to the child and whose objection to adoption will be based upon something other than a mature consideration of the child’s best interest. The protection of the child is well recognized as an important state interest. To the extent that this classification is based upon gender, it is based upon an actual difference in situation. Whatever else may be said of an unwed mother, she is not a stranger to her child.

A gender-based classification is not improper where men and women are not similarly situated. (See Schlesinger v. Ballard, 419 U.S. 498 [42 L.Ed.2d 610, 95 S.Ct. 572].) In Caban the court rejected the argument that unwed mothers as a class were closer to their children than unwed fathers, because, as the child develops, it may have a relationship with the father comparable to that of the mother. But the classification made by the California statute is limited to those fathers who have not formed the psychological relationship which develops between the child and the adult who provides for its needs.

The limited classification provided in

section 1707, subdivision (d), does meet constitutional standards in that it relates to an important state interest and does not go substantially beyond the protection of that interest. It follows that if the biological relationship claimed by F.L. remains unchallenged, he may pursue his request for custody based upon his parenthood and may oppose the petition of Mr. and Mrs. J. for adoption on any legal ground. But he has no personal veto power. Nor will an award of temporary custody, pendente lite, confer upon him a power to veto the adoption.

On remand it will be the duty of the trial court to exercise its legal discretion with respect to the issues raised by the conflicting applications of the parties. A new hearing is required because the order appealed from was influenced by an erroneous view of the scope of the court’s discretion. Let a writ of mandate issue requiring the respondent court to vacate its order of May 10, 1979, and conduct a new hearing. The stay order heretofore issued by this court shall remain in effect until respondent complies with this judgment. All

section numbers hereinafter refer to the Civil Code. A memorandum of law submitted on behalf of F.L. asserts that he testified in the trial court that at the time the child was conceived Ms. G. agreed that F.L. and his wife would raise the child. We regard the assertion as immaterial to our decision for the reason that an agreement between parents with respect to child custody does not limit the power of the court. (See Puckett v. Puckett (1943) 21 Cal.2d 833, 839 [136 P.2d 1].) Scction 7004: “(

a) A man is presumed to be the natural father of a child if he meets the conditions as set forth in

Section 621 of the Evidence Code or in any of the following subdivisions: “

(1) He and the child's natural mother are or have been married to each other and the "child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a decree of separation is entered by a court. “

(2) Before the child’s birth, he and the child’s natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and, “(

i) If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce; or “(ii) If the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation. “

(3) After the child’s birth, he and the child’s natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and “(

i) With his consent, he is named as the child’s father on the child’s birth certificate, or “(ii) He is obligated to support the child under a written voluntary promise or by court order. “4) He receives the child into his home and openly holds out the child as his natural child. “(

b) Except as provided in

Section 621 of the Evidence Code, a presumption under-this

section is a rebuttable presumption affecting the burden of proof and may be rebutted in an appropriate action only by clear and convincing evidence. If two or more presumptions arise under this

section which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls. The presumption is rebutted by a court decree establishing paternity of the child by another man.”