Later courts went against this
Superseded by statute, as recognized in In Re Zacharia D.
39 Cal.3d 787, 792 , superseded by statute on other grounds as stated in In re Zacharia D. (1993) 6 Cal.4th 435, 448
The opinion
MOSK, J.
I concur in the judgment, but do not agree with the majority’s implicit perpetuation of an erroneous standard by which to determine critical issues of custody and adoption.
In re Baby Girl M. (1984) 37 Cal.3d 65 [ 207 Cal.Rptr. 309 , 688 P.2d 918 ], established, by a divided decision of this court, that a casual inseminator could be declared a presumed father under the law and thus have the power to frustrate the unmarried mother’s consent to adoption of her child by a qualified family and prevent the child from being reared in an environment with loving adoptive parents.
This dramatically illustrates the fallacy of any test other than the best interest of the child. Baby Girl M. requires a finding that custody in the biological father would be detrimental to the child in order to deny him the same rights as a legally presumed father. Interpreting the Baby Girl M. test, the same Court of Appeal justice who authored that opinion for a majority of this court concluded, in the Court of Appeal in this case, that it would not be detrimental to give custody of the infant to a 16-year-old biological father who was legally a rapist: as a juvenile delinquent who admittedly had sexual relations with a 12-year-old girl, the father could have been criminally prosecuted. (Pen. Code, § 261.5.) Apparently it now takes something more in a biological father than his attributes as an irresponsible and immature juvenile, a delinquent with no visible means of support and frequent criminal activity, to constitute circumstances detrimental to the well-being of an infant.
While the majority manage to save this child by invoking a theory of abuse of trial court discretion, under these egregious circumstances that result is merely a palliative. We should reconsider the Baby Girl M. decision before it does any more potential damage to the welfare of children and to the previously accepted orderly process of adoption. We should return to the traditional rule: when there is an unmarried mother who proposes to place her child for adoption, and a biological but not presumed father, the trial court should consider only the best interest of the child.
Lucas, J., concurred.