Appellants Brief — McNamara v. County of San Diego Department of Social Services

Supreme Court brief1988

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In The

Supreme Court of the United States

October Term, 1988

—e

EDWARD McNAMARA,

Appellant,

COUNTY OF SAN DIEGO

DEPARTMENT OF SOCIAL SERVICES,

oo Appellee.

ON APPEAL FROM THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT, DIVISION ONE

BRIEF FOR APPELLANT

James E. SUTHERLAND

3711 Long Beach Blvd., Suite 718

Long Beach, CA 90807

(213) 426-0425

Counsel for Appellant

OCRMOR CALL COURT i) a8

QUESTIONS PRESENTED

Is it a denial of equal protection to terminate the

parental rights of an unwed father who promptly mani-

fested a significant parental interest in his child and

would be a good parent solely because it is in the best

interests of the child?

Is it a denial of equal protection to terminate the

parental rights of an unwed father without a finding

adverse to his parenting ability when (A) other fathers

must be found to have no interest in or ability for parent-

ing before they lose their rights, and (B) unwed mothers

do not lose their rights under similar conditions?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........ 0.666 c eee eeee ees i

OPINIONS AND JUDGMENTS BELOW............ 1

JURISDICTION... ccccccsccccccccccecccvessesceess 2

The Judgment and Appeal...........6ceeeeeeeees 2

Jurisdictional Facts .........scsseeeeeeveeeeeeveee 2

Jurisdictional Agrument ......... 6666 e eee e eens 5

1. Appeal jurisdiction lies because the state

court passed upon the statute and found it

valid under the Fourteenth Amendment... 5

2. Certiorari jurisdiction lies because the

courts below decided appellant was not

denied equal protection........66..eceees 6

3. The Court may review the California

Supreme Court’s constitutional rulings as

well as the Court of Appeal’s because the

first appeal was not right for review..... 6

CONSTITUTIONAL AND STATUTORY PROVI-

SIONS INVOLVED..........000005) seocovesesess 8

STATEMENT OF THE CASE....... 6.60: ccceceeeees 8

SUMMARY OF ARGUMENT ......... 6.6560 e sees 17

ARGUMENT .....cccccscccccccccccccsccsscccsscese 20

I. EDWARD HAS A PROTECTED LIBERTY

INTEREST IN RAISING KATIE..........0005: 20

Il. EDWARD CROSSED THE THRESHOLD TO

FULL FATHERHOOD, ACHIEVING A PRO-

TECTED LIBERTY INTEREST BY COMING

FORWARD TO TAKE FULL PARENTAL

RESPONSIBILITY.........0ccseeeeeeeeeeeeeees 21

TABLE OF CONTENTS-Continued

Page

A. An unwed father gains a protected parental

interest by demonstrating a full commit-

ment to the responsibilities of parenthood. 21

B. Edward did all he could to establish a full

legal and personal relationship with Katie. 25

C. Acceptance of full parental duties carries

reciprocal parental rights................. 26

Ill. THE DISTINCTIONS MADE BETWEEN

UNWED FATHERS AND BOTH UNWED

MOTHERS AND PRESUMED FATHERS

SHOULD RECEIVE HEIGHTENED SCRUTINY

UNDER THE EQUAL PROTECTION CLAUSE 27

A. Gender-based distinctions are examined

with heightened scrutiny................ 27

B. The distinctions between fathers should be

tested with heightened scrutiny.......... 28

IV. THE STATE’S INTEREST IS SERVED BY FIND-

ING PERMANENT, LOVING HOMES FOR

CHILDREN, WHICH EDWARD OFFERED.... 29

V. THE DISCRIMINATION AGAINST NATURAL

FATHERS IS IRRATIONAL AND SERVES NO

Seer cesccecccesccccccccccs: 30

A. Giving complete control of the child to the

mother serves no State interest........... 30

B. There is no rational basis for discriminatin

between defined presumed fathers an

other unwed fathers who come forward to

assume parental duties................... 33

TABLE OF CONTENTS-—Continued

Page

C. Terminating parental rights because of cur-

rent circumstances regarding custody is

MUUMISIEE oc cccccccccccccccsceccccscoceces 35

Vl. HAVING CROSSED THE THRESHOLD TO

FATHERHOOD, EDWARD IS ENTITLED TO

THE SAME GROUNDS FOR TERMINATING

FEED GEE cocccccccccceccscecesoessocessce 37

A. A like finding of unfitness should be

required to terminate the rights of a pro-

tected paternal interest .................. 37

B. The best interests test is different, irrational

for these proceedings, and promotes no

GRIND GREENS ccc cccccccsececessenccescess 38

C. Adding a detriment finding does not make

the best interests test any clearer or make it

the same as a finding of unfitness....... 41

Vil. DECLARING THE USE OF THE BEST INTER-

EST/DETRIMENT TEST A DENIAL OF

EQUAL PROTECTION WOULD LEAVE THE

COURTS FREE TO DECIDE APPROPRIATE

CUSTODY AND VISITATION ARRANG-

BEUUS cc cccccccceccnceccecscecesenssoessece 43

A. Parental rights should be decided on the

threshold conduct of full parental commit-

ment with custody decided on present cir-

GCUMRSRRRGED oc cc cccccccccccccccccccccsees 43

B. Continuing contact with Katie will benefit

her and allow Edward to develop a rela-

GORI cc cccccccccccccccccccccccccccccce 45

CURES cc ccccccccccsccccccscossosccoseccess 47

STATUTORY APPENDIX ...........0ccccceceeeeees 1b

TABLE OF AUTHORITIES

Page

Cases:

Allenberg Cotton Co. v. Pittman, 419 U.S. 20 (1974) ..... 5

Bankers Life and Company v. Crenshaw, 486

U.S. __ (1988), 56 U.S.L.W. 4418 (May 17, 1988) ..... 6

Barclay v. Florida, 463 U.S. 939 (1983)................. 7

Bowen v. Gilliard, 107 S.Ct. 3008, 97 L.Ed.2d 485

Pe oncscncdndsndsoeccescconsectesesaceus 21, 26, 46

Caban v. Mohammed, 441 U.S. 380 (1979)......... passim

California v. Mitchell Bros’ Santa Ana Theater, 454

Se We CEE Sndadavecnecedcsucdecsendéséasbeceses 5

Charleston Fed. S. & L. Assn. v. Alderson, 324 US.

Bee GU 6a. n 00d cssbcdbbcdcdoccbeveseocecdedesekece 5

Clark v. Jeter, No. 87-5565 (June 6, 1988), 56

U.S.L.W. 4527 (June 7, 1988) ......... 5, 26, 27, 28, 29

Cleburne v. Cleburne Living Center, Inc., 473 U.S.

eee PU ecididdvineddandevacensdsedondsenscedéses 29

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) ..... 7

Cc v. Southern Pac. Co., 3 Cal.2d 427, 45 P.2d

Se Cec ntndccescsecdksveccoensscoasuseseosaeses 40

Department of Banking v. Pink, 317 U.S. 264 (1942) ..... 7

Eddings v. Oklahoma, 455 U.S. 104 (1982).............. 6

Edwards v. Elliott, 21 Wall. (88 U.S.) 532 (1874) ....... 5

Hathorn v. Lovorn, 457 U.S. 255 (1982)................ 7

Illinois v. Gates, 462 U.S. 213 (1983) .................. 6

In re ion of Baby Boy C., 312 Wn.App. 639, 644

2) | eee oe secoeeciocses 40

TABLE OF AUTHORITIES-Continued

Page

In re B.G., 11 Cal.3d 679, 114 Cal.Rptr. 444, 523

EN icicc ciccatesteccedacasans 35, 40, 41

In re B. J. B., 185 Cal.App.3d 1201, 230 Cal.Rptr.

Fe Gv dvecenccccecceccnsscncencevesecsesooces 43

In re Carmaleta B., 21 - wanbendantn 623,

SP I wccdscduccseuccacecessccnes 35, 37

In re Cheryl E.. 161 Cal.App.3d 587, 207 Cal.Rptr.

FED Ge cccccccescocccccectcesccvcoccevcsosesece 42

In re David C., 152 Cal. App.3d 1189, 200 Cal.Rptr.

GE GIP c occcccccescceseccocesnccececcnsccesecs 35

In re George G., 68 Cal.App.3d 146, 137 Cal.Rptr.

201 (1997) peeecrcoeecesececouseoococecocosesceeees 32

In re ].P., 648 P.2d 1364 (Utah 1982)................. 39

In re Jones, 34 Ill.App.3d 603, 340 N.E.2d 269

GPE bccccendeccesecceccessoceccscndccesccceccess 40

In re Marriage of Connolly, 23 Cal.3d 590, 153 Cal.

pts. 25, SP PAS Oi (IG7S)......cccccccccccccees 36

at omy - of Halpern, 133 Cal.App.3d 297, 184

Cal.Rptr. 740 (1982).............. . sSecSeenscscecce 42

In re je Ay L., 191 Cal.App.3d 1229, 236 Cal.Rptr.

Se GP esvedeseetecccdstdsecscccesecccceccecees 42

Kirkpatrick v. Christian Homes of Abilene, Inc., 460

Se BOP GD nccncccnescccdsccecccseccccccocces 7

Kulko v. Superior Court, 436 U.S. 84 (1978) ........... 6

Lehr v. Robertson, 463 U.S. 248 (1983)............ passim

vii

TABLE OF AUTHORITIES-—Continued

Page

Market Street R. Co. v. Railroad Enea, 324

ee Ce CEU ccvcseccccssecoscnccevsescovessesces 7

Marvin v. Marvin, 18 Cal.3d 660, 134 Cal.Rptr. 815,

Br Pe HE GP cecccenccccncenccccccecoccosces 24

Michael H. v. Gerald D., No. 87-746, appeal pending,

191 Cal.App.3d 995, 236 Cal.Rptr. 810 (1987)...... 46

Michael U. v. Jamie B., 39 Cal.3d 787, 218 Cal.Rptr.

SD, FED FAB SEB CIGGS) .. nn cccccccccccccccsess 42, 45

Mississippi University for Women v. Hogan, 458 U.S.

Pee PE eétedndesncudecuccécbocosccdccessceveces 28

New York ex rel. Bryant v. Zimmerman, 278 US. 63

SE Wha cedntncdecedcesceuséscssceceessescesesses 5

Oregon v. Kennedy, 456 U.S. 667 (1982)................ 5

GP GC Ge GED Te Be Gee occ cccccccccccccess 5, 31

Poulos v. New Hampshire, 345 U.S. 395 (1953) ......... 5

Quilloin v. Walcott, 434 U.S. 246 (1978)

puSwEsasdeceeseresoesoeceoses 17, 22, 23, 24, 26, 28, 37

Reece v. Georgia, 350 U.S. 85 (1955) ...... 6.0... cece eens 7

Rivera v. Minnich, 107 S.Ct. 3001, 97 L.Ed.2d 473

GEUED Se ceccnccedesccccceccssccccsscsencessnccescs 27

Roe v. Conn, 417 F.Supp. 769 (M.D. Ala. 1976)....... 40

Rothstein v. Lutheran Social Services of Wisconsin

and Upper Michigan, 405 U.S. 1051 (1972).......... 43

Royster Guano Co. v. Virginia, 253 U.S. 412 (1920) ....29

Santosky v. Kramer, 455 U.S. 745 (1982) ... 21, 28, 29, 37

viii

TABLE OF AUTHORITIES-Continued

Page

Smith v. Organization of Foster Families, 431 U.S.

ee en kdGenssandsdcddecucasekansnssiesansedes 20

Stanley v. Illinois, 405 U.S. 645 (1972)............ passim

State ex rel. Lewis v. Lutheran Social Services, 47

Wis.2d 420, 178 N.W.2d 56 (1970).........65000 ee 44

State ex rel. Lewis wv. Lutheran Social Services, 59

Wis.2d 1, 207 N.W.2d 826 (1973) .........0cceceees 44

State ex rel. Lewis v. Lutheran Social Services, 68

Wis.2d 36, 227 N.W.2d 643 (1975).......6 0.0 ues 45

Taylor v. Kentucky, 436 U.S. 478 (1978)...........6065. 6

Time, Inc. v. Firestone, 424 U.S. 448 (1976) ............ 7

W.E.]. v. Superior Court, 100 Cal.App.3d 303, 160

COREE BEE GUI Re cc cccccccsccccecscccsccess 33, 35

Webb v. Webb, 451 U.S. 493 (1981)... 0.6... cece cee 6

Webb's Fabulous Pharmacies Inc. v. Beckwith, 449

Se Ge EE Ckncbasédccadcousdenecuncnnéescesens 5

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975)......... 32

STATUTES AND Copes:

I ee maaed 2

ih Mie cecbetcet vende asthsnknwerneseeste 2, 6

Sy Ge GP OP EDs cccceccncecceccessoncess 25

SD Ges GED OP GD ccccsccccdovedssoccese 8, 33

California Civil Code § 224............ 9, 18, 26, 33, 37

ey Ge ED OF BD cicncccccctecssvecoecens 36

California Civil Code § 232........ 9, 18, 26, 29, 33, 37

Se Gores Ge Oe BD bciccccccedccccccstdeces 29

TABLE OF AUTHORITIES-Continued

Page

California Civil Code § 4600............... 2, 8, 13, 36

California Civil Code § 4601................ 000 c ues 36

California Civil Code § 7004, subdivision (a)

PPR ee TT re te ETT TTT err Tree 8, 19, 25, 31

California Civil Code § 7006, subdivision (c)..... 8, 11

California Civil Code § 7017, subdivision (d)(2)

yes bieesédudesaneceeaeens 3, 5, 8, 11, 13, 18, 26, 31, 33

Cal. Welf. & Inst. Code, §§ 300, 360, 366.26 ...9, 33, 37

Orner AUTHORITIES:

rr ere 2

Due Process and Equal Protection Clauses of the

Fourteenth Amendment............ 3, 5, 8, 18, 24, 27

Buchanan, The Constitutional Rights of Unwed

Fathers Before and After Lehr v. Robertson, 45

Ohio State L. J. 313 (1984)......... 22, 30, 32, 38, 40

Garrison, Why terminate Parental Rights?, 35 Stan-

ford L. Rev. 423 (Feb. 1983)............00000es 39, 46

Hershkowitz, Due Process and the Termination of

Parental Rights, 19 Fam. L. Q. 245 (Fall 1985)...... 38

Herzog, Some Notes About Unmarried Fathers, 25

Child Welfare 194 (April 1966)..............00005. 32

Mnookin, Child-Custody Adjudication: Judicial

Functions in the Face of Indeterminacy, 39 Law

and Contemporary Problems 226 (Summer

PEP e Ssncencsndccenssescesccccerecésocceoccoenees 39

TABLE OF AUTHORITIES-—Continued

Wald, State Intervention on Behalf of “Neglected

Children: Standards for Removal of Children from

Their Homes, Monitoring the Status of Children in

Foster Care, and Termination of Parental Rights, 28

Stanford L. Rev. 623 (April 1976) .........055:

Wheeler, A Father’s Right to Know His Child: Can It

Be Denied Simply use the Mother Married

Another Man?, 20 Loyola L. A. L. Rev. 705 (April

BOGPD. ccccccccccscccccccscccsccccccscesccccess

6 Witkin, Sum. Cal. Law, Parent and Child, § 72

(Bt edd. 1974) 2... ccc cece cece ween ee weeneeenes

9 Witkin, Cal. Procedure, Appeal, § 275 (3d ed.

BOGE. nc ccccccccccccccccccccccescccccesesesecs

Page

OPINIONS AND JUDGMENTS BELOW

The Judgment and Order Terminating Rights of a

Father, filed February 26, 1982, J.S. 64a' was accompanied

by a Memorandum Decision, filed February 9, 1982 |.A.

7, and a Statement of Decision, filed April 29, 1982. 4.

10. The opinion of the Supreme Court of the State of

California, reversing and remanding for further proceed-

ings, with a dissent, was filed October 22, 1984. J.A. 12,

J.S. 36a. It is reported at 37 Cal.3d 65, 207 Cal.Rptr. 309,

688 P.2d 918.

After further hearings, the superior court's statement

of decision was stated on the record February 27, 1985,

J.A. 22, and the Judgment Terminating the Rights of an

Alleged Natural Father, Respondent Edward McNamara,

was filed March 7, 1985. J.A. 26. On appeal, three

opinions were filed April 30, 1987: The opinion of the

court affirming, J.S. 1a; an opinion concurring, J.S. 15a;

and a dissent, J.S. 24a. The opinions are reported in the

' Matters of Form.

“C.T.” refers to the Clerk's Transcript on appeal below.

“).A.” refers to the Joint Appendix.

“).S.” refers to the Jurisdictional Statement.

“R.” refers to the certified record with references to the case

number in the Court of Appeal. The first one was 26793,

heard in the California Supreme Court as No. L.A. 31786,

and the second was D003076.

“R.T.” refers to the reporters’ transcripts in the appeals, with

reference to the case number.

“S.A.” refers to the Statutory Appendix following the Brief for

Appellant, starting at page 1b.

California Official Advance Sheets at 191 Cal.App.3d 786,

and 236 Cal.Rptr. 660, but were ordered not to be pub-

lished in the Official Reports, Cal. Rules of Court, rule

976. J.S. 69a.

JURISDICTION

The Judgment and Appeal

The judgment of the Supreme Court of the State of

California, denying Appellant’s timely petition for

review, was filed July 30, 1987. J.S. 69a. A notice of

appeal was filed October 22, 1987 in the Court of Appeal

of the State of California, Fourth Appellate District, Divi-

sion One. This appeal was docketed October 28, 1987,

within 90 days of the judgment below. Jurisdiction was

postponed April 18, 1988.

This Court has jurisdiction pursuant to 28 U.S.C.

§ 1257(2), or may apply 28 U.S.C. § 2103.

Jurisdictional Facts

At the first trial, the California trial court placed the

burden of proof on appellant to prove that giving custody

to him would be in the best interests of the child. J.A.

7-8. Appellant contended that he was entitled to the

parental preference given to other parents, § 4600,? J.S.

2 Section citations. All citations are to the California Civil

Code unless otherwise noted.

70a: that he should get custody (thus becoming a pre-

sumed parent whose consent would be needed to adopt,

§ 7017(d)(2), J.S. 72a) unless it would be in the best

interest of the child to give custody to 2 nonparent and

detrimental to the child to give custody to him. R.26793,

C.T. 18-20; 4th Civil No. 26793, Aplt. Open. Brf. 12-16.

He argued that he was entitled to that treatment

under opinions of this Court construing and applying the

Due Process and Equal Protection Clauses of the Four-

teenth Amendment. 4th Civil No. 26793, Aplt. Open. Brf.

12-14. Appellant did not specifically cite the provisions

of that Amendment.

The California Supreme Court agreed. Construing

the statute to include the parental preference, the court

considered the relevant opinions of this Court and found

the statute valid. J.S. 45a-48a.

The court specifically found that due process had

been afforded. J.S. 47a. Going beyond, the court noted

that this Court had not considered a similar factual situa-

tion involving a newborn surrendered for adoption, J.S.

45a, n. 8, nor the application of a best interest test requir-

ing a finding of detriment from parental custody as a

basis for terminating parental rights. J.S. 45a, n. 8, 47a.

Further, the statute was found to protect adequately the

opportunity of a father to develop a relationship with his

child. J.S. 47a-48a. Consequently, there were no federal

grounds to invalidate the statute as construed, nor to find

a denial of equal protection.

Finding, however, that the record at trial did not

support a finding of detriment at that time, J.S. 49a,

emphasis original, the case was remanded for further

hearing as to subsequent events. J.S. 49a-50a. On

remand, the trial court found that the child had been in

the prospective adoptive parents’ home so long that it

would be detrimental to remove her and give custody to

appellant. J.A. 23-24.

On appeal, appellant again urged the application of

this Court’s cases to his basic civil rights. 4th Civil No.

D003076, Aplt. Open. Brf. 6. By letter to counsel, the

Court of Appeal invited supplemental briefing by the

parties on whether, under this Court's applications of the

Fourteenth Amendment, J.A. 28-29, the County’s “action

may have unconstitutionally prevented Edward from

developing his protected opportunity interest to establish

a parenting relationship which would allow him to with-

hold consent to adoption.” J.A. 28.

The County responded that the California Supreme

Court had been “squarely presented” with the constitu-

tional need for a finding of unfitness, 4th Civil No.

1003076, Letter from County Counsel dated April 13,

1987, pp. 3-4, and “did not find a violation of appellant's

constitutional rights.” Id., at p. 2, emphasis original. The

Court of Appeal agreed and refused to reconsider the

constitutional issues:

“(E)xtensive citation to the Buchanan article. . .and

federal precedent makes clear [the California

Su Court] was aware of and considered the

f 1 constitutional issues***preclud[ing] consid-

eration of Edward's constitutional argument.” J.S. 7a,

n. 2.

Jurisdictional Argument

1. Appeal jurisdiction lies because the state court

passed upon the statute and found it valid under

the Fourteenth Amendment

The statute was found valid under the due process

and equal protection standards established by this Court.

J.S. 45a-48a. That invokes the Court's jurisdiction. Clark

v. Jeter, No. 87-5565 (June 6, 1988), 56 U.S.L.W. 4527, 4528

(June 7, 1988).

Appeal jurisdiction lies where the state court has

actually decided that a state statute as applied is not

repugnant to the United States Constitution. Charleston

Fed. S. & L. Assn. v. Alderson, 324 U.S. 182, 185-186 (1945);

Edwards v. Elliott, 21 Wall. (88 U.S.) 532, 550-551 (1874);

accord, Allenberg Cotton Co. v. Pittman, 419 U.S. 20, 23

(1974); Poulos v. New Hampshire, 345 U.S. 395, 403 (1953).

Where the lower courts actually decide a federal

question, it is irrelevant how or when it was raised. Orr

v. Orr, 440 U.S. 268, 274-275 (1979); cf., Webb's Fabulous

Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 159, n. 5 (1980).

A fair reading of the opinions shows that the state

courts relied on decisions of this Court under Fourteenth

Amendment tests to uphold the validity of section

7017(d)(2). That allows this Court to reach the merits.

Cf., Oregon v. Kennedy, 456 U.S. 667, 671 (1982); California

v. Mitchell Bros’ Santa Ana Theater, 454 U.S. 90, 92 (1981).

It is enough that the necessary effect of the judgment is to

uphold the statute or to deny a constitutional claim, even

if validity is not declared in direct terms. New York ex rel.

Bryant v. Zimmerman, 278 U.S. 63, 67 (1928).

2. Certiorari jurisdiction lies because the courts below

decided appellant was not denied equal protection

Alternatively, the Court has certiorari jurisdiction, 28

U.S.C. § 2103, because it was held that appellant had not

been denied any constitutional rights. J.S. 45a-48a, 6a-7a,

n. 2. Therefore, the appeal may be treated as a petition

for a writ of certiorari and the merits decided. Bankers

Life and Casualty Company v. Crenshaw, 486 U.S. _. __,

(1988), 56 U.S.L.W. 4418, 4420 (May 17, 1988) (probable

jurisdiction noted); Kulko v. Superior Court, 436 U.S. 84,

90, n. 4 (1978) (jurisdiction postponed).

The California courts, on both appeals, realized fed-

eral constitutional issues were involved. Chapter and

verse need not be cited. Eddings v. Oklahoma, 455 U.S.

104, 113-114, n. 9 (1982). Here there is no doubt. Webb v.

Webb, 451 U.S. 493, 501 (1981); cf., Bankers Life and Casu-

alty Company v. Crenshaw, supra, 56 U.S.L.W. at 4420;

Taylor v. Kentucky, 436 U.S. 478, 482, n. 10 (1978).

The facts necessary to address the issues also are

fully developed in the record. Therefore, no policy mili-

tates against considering the issues. Bankers Life and

Casualty Company v. Crenshaw, supra, 56 U.S.L.W. at

4420-4421; Illinois v. Gates, 462 U.S. 213, 217-222 (1983).

3. The Court may review the California Supreme

Court's constitutional rulings as well as the Court of

Appeal’s because the first appeal was not ripe for

review

The California Supreme Court decision was not final

and ripe for review here. The case was remanded for

further proceeding on state law. The application of the

best interest/detriment test could have given rise to fur-

ther federal issues.

The test of finality is whether the judgment is subject

to further review; whether it is a final judgment of a final

court. Market Street R. Co. v. Railroad Commission, 324 US.

548, 551 (1945); Department of Banking v. Pink, 317 U.S.

264, 268 (1942).

Where the state court has passed on constitutional!

issues on a first appeal, remanded for further proceed-

ings, and then refused to reconsider the previous decision

on the second appeal, this Court may consider the issues

on review of the second appeal. That is true even if the

claim was not renewed. The fact that the first decision

became law of the case in state court does not limit the

ability to review now the substantial federal questions

raised or passed on in earlier stages of the litigation.

Barclay v. Florida, 463 U.S. 939, 946 (1983); Hathorn v.

Lovorn, 457 U.S. 255, 261-262 (1982); Reece v. Georgia, 350

U.S. 85, 86-87 (1955). That is the precise situation at bar.

JS. 6a-7a, n. 2.

The procedural! situation at bar is virtually identical

to Time, Inc. v. Firestone, No. 74-944, discussed by Mr.

Chief Justice Rehnquist, dissenting, in Cox Broadcasting

Corp. v. Cohn, 420 U.S. 469, 501, 511-512 (1975). The

Florida Supreme Court had rejected a first amendment

defense to a libel action and remanded for further pro-

ceedings on state law issues. After the second state court

appeal, this Court granted certiorari and decided the first

amendment issue. Time, Inc. v. Firestone, 424 US. 448

(1976). See also, Kirkpatrick v. Christian Homes of Abilene,

Inc., 460 U.S. 1074 (1983) where further proceedings

might moot the issue.

Appellant submits that jurisdiction lies to consider

the equal protection issues on either appeal or writ of

certiorari.

——@—

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the Equal Protection Clause of § 1

of the Fourteenth Amendment to the United States Con-

stitution. J.S. 3. The proceedings in California applied

California Civil Code sections 7004, subdivision (a), J.S.

70a; section 7006, subdivision (c), ].S. 71a; and section

7017, subdivision (d)(2), J.S. 70a, the primary statute

involved, as construed to include section 4600, subdivi-

sion (c). J.S. 70a.

—

STATEMENT OF THE CASE?

The Statutory Scheme

Edward had no right to initiate a proceeding to estab-

lish his paternity and get custody or visitation. Only

when the mother decided to relinquish Katie for adoption

did any rights for him commence. JS. 43a, 44a, 49a;

§ 197, SA 1b; § 7006, J.S. 71a.

3 The facts essentially are undisputed. Summaries by the

courts below are at: ].S. 2a-6a, 36a-37a, and 5la.

If identified to the satisfaction of the court, a father

must be given notice and a hearing. J.A. 39a, 43a. Only

then does he have the right to assert paternity and seek

custody, assuming full parental responsibility.

To terminate his parental rights by permitting adop-

tion without his consent, it must be shown by clear and

convincing evidence that custody with a third party is

required to serve the best interests of the child and that

custody with the father will be detrimental to the child.

JS. 48a, 70a.

A mother’s consent is always required. A presumed

father’s consent is always required, too. J.S. 72a; § 224,

SA 2b; § 232, SA 3b. Edward could become a presumed

father only if he got custody.

A father may become a presumed father only with

the consent of the mother. It requires marriage,

attempted marriage, or taking the child into his home

and openly holding it out as his own, i.e., having custody

which he can get only with the mother’s consent. J.S.

70a-7 1a.

Without custody, Edward loses his parental rights.

Mothers and presumed fathers may lose their parental

rights only after proof by clear and convincing evidence,

§ 232, SA 9b, of some incapacity, neglect, or abandon-

ment. § 224, SA 2b; § 232, SA 3b; Cal. Welf. & Inst. Code,

§§ 300, SA 10b, 360, 366.26.

The Thwarted Relationship

Edward and Katie’s mother dated for a few months

in the Fall of 1980, ending the relationship in November.

].S. 36a. Neither knew then of the pregnancy. The

mother never told Edward she was pregnant. J.S. 36a.

Katie was born July 18, 1981. Edward was named as

the father on the birth certificate. R.26793, C.T. 4. The

mother talked to the County adoption worker on July

20th, R.26793, R.T. 8, and decided to relinquish Katie for

adoption. She was placed in foster care July 21st, not yet

with the prospective adoptive parents. On August Ist,

the mother told Edward of the birth and asked that he

relinquish his rights to permit adoption. She wanted the

child adopted by someone neither of them knew.

R.26793, R.T. 10.

Edward called the adoption worker on August 3rd,

R.26793, R.T. 9, 30, and met with her August 5th. At firs:

he did not want to take physical custody because he had

actual custody, though not legal custody, of two young

sons by his former marriage. R.26793, R.T. 27-28.

Instead, he asked that his daughter be placed with his

friends who did babysitting for his sons. He submitted a

profile of them to be considered as adoptive parents.

R.26793, R.T. 9-10.

He would not, however, relinquish Katie for adop-

tion or waive any legal rights. R.26793, R.T. 31; C.T. 5.

He was told to either relinquish his rights or wait for the

County to bring legal action. R.26793, R.T. 31. He had no

money to hire a lawyer to advise him. R.26793, R.T. 31.

The mother relinquished her daughter on August 5,

1981. R.26793, R.T. 10.

Edward met again with the adoption worker August

10th. He had learned that the mother had relinquished

Katie so he might never see her. He was seeking counsel

from the adoption worker and various other people “tc

get my feelings together since | had only learned about

the pregnancy so quickly.” R.26793, R.T. 32. He also

wanted to know his legal rights, including the right to

counsel. R. 26793, R.T. 14.

On August 17th, Edward was allowed a supervised

visit with his daughter for 30-45 minutes. He met again

with the adoption worker and told her he definitely

wanted custody. R.26793, R.T. 32. On August 24th, Katie

was placed with prospective adoptive parents. R.26793,

R.T. 22. No investigation was ever made of Edward's

suitability as a custodial parent. R.26793, R.T. 16, 24. He

saw Katie for the next and last time on November 3, 1981.

R.26793, R.T. 15.

The First Trial

A petition to terminate Edward's parental rights was

filed by the County August 10, 1981, alleging he was the

father. J.A. 3. The court-ordered investigation, J.A. 4,

established that he had been named on the birth certifi-

cate, R.26793, C.T. 4-5; he alleged his paternity in his

answer, J.A. 5; and paternity was stipulated at trial.

R.26793, R.T. 3. He proved his paternity. J.A. 7.

Edward's answer also sought legal and physical cus-

tody. He wanted his parental rights preserved. J.A. 5.4

* No objection was ever made to the timeliness of the

pleading nor to its adequacy to seek a determination of pater-

nity or award of custody to Edward, with preservation of his

parental rights. § 7006(c), J.S. 71a; § 7017(d)(2), J.S. 72a.

Edward continued to seek full custody and parental

rights at the trial, when Katie was still only 5 months old.

R.26793, R.T. 31-32, 35, 37, 42, 43. (His sons were return-

ing to live with their mother that day. R.26793, R.T. 28.)

He had received support from his pastor, relatives and

friends. R.26793, R.T. 42-45.

Edward felt that a natural parent should care for his

children, and did not want to be cut off forever. R.26793,

R.T. 42. Edward had expressed that fear when telling the

adoption worker on August 17th that he wanted custody.

R.26793, R.T. 32. “I feel that it is very important for a

natural father to have that input into a child’s life.”

R.26793, R.T. 37.

The trial court found that Edward had shown himself

to be “a good and loving parent (who) can provide a

good, loving home for” Katie. R.26793, R.T. 65; J.A. 7, 11.

Further, the homes presented, Edward’s and the prospec-

tive adoptive parents’ (who did not testify but were

described by the adoption workers. R.26793, R.T. 12, 22),

were “more or less equally balanced as far as their (sic)

quality of life that they can afford this child.” R.26793,

R.T. 65.

But Edward had failed to carry his burden of proof of

showing by a preponderance of the evidence that it

would be in the best interests of the child for him to have

custody. J.A. 7-8. The court found it would be best to

leave Katie with her prospective adoptive parents. The

adoption workers had testified it was best not to move

her. R.26793, R.T. 12, 22. So Edward’s parental rights

were terminated: her adoption could proceed without his

consent. J.A. 7, 10; J.S. 64a.

The First Appeal

On appeal, the California Supreme Court reversed.

Section 7017(d)(2) was read to be a statute for determin-

ing custody rights. Edward had to win custody which

would make him a presumed father, requiring his consent

to adopt. Therefore, as in all California custody proceed-

ings, the parental preference rule applied. § 4600(c), J.S.

70a, 39a-40a, 48a-49a.

Thus, to give custody to a nonparent, the court must

find it is in the best interests of the child and that custody

to a parent would be detrimental to the child.

The California Supreme Court went on to review the

decisions of this Court concerning the rights of unwed

fathers under the United States Constitution. J.S. 45a-48a.

No due progress violation was found. J.S. 47a. As

construed, to require a finding of detriment and best

interest, the statute was found to meet all other constitu-

tional requirements, this Court never having ruled on a

similar factual situation nor on the best interests/detri-

ment to the child test as sufficient without the need for a

finding of parental unfitness. J.S. 47a.

The best interest/detriment standard was found ade-

quate to protect the father’s right to the opportunity to

care for his child and to develop a relationship, which

arises once he manifests a significant parental interest.

JS. 48a-49a.

The judgment was reversed, however, because there

was not sufficient evidence to justify depriving Edward

of custody, and hence his parental! rights, as of the time of

trial. J.S. 49a. The case was remanded for further pro-

ceedings to take evidence on subsequent circumstances,

particularly the relationship of the child to the prospec-

tive adoptive parents. J.S. 49a, n. 12.

The Second Trial

As of the further hearing in February of 1985, J.A. 12,

Katie had been with the prospective adoptive parents

continuously since placed there by the adoption workers

August 24, 1981. R.D003076, R.T. 23. All of Edward’s

visitation requests and requests for pictures and informa-

tion had been refused. R.D003076, R.T. 45, 46-48, 62,

165-167.

Because of the long time Katie had been in the pre-

adoptive home, she had formed strong ties: bonded. The

court found it would be detrimental to remove her and

give custody to Edward. J.A. 23-24.

The court relied on the County’s expert witness, giv-

ing his testimony more weight than Edward’s experts’.

J.A. 23. Nevertheless, the court encouraged the prospec-

tive adoptive parents to make Edward part of Katie's

extended family which they said they would do. J.A. 24.5

The County’s psychiatrist, a regular consultant for

them, R.D003076, R.T. 71-72, opined that Katie would be

seriously psychologically harmed if custody were given

to Edward, immediately or after a slow transition period.

° No visitation has been permitted since the second trial,

despite requests and a motion for visitation pending appeal

which was denied. San Diego Superior Court file no. A24905.

R.D003076, R.T. 104. His opinion was based largely on

studies of 15-30-month-old children who had been

removed from their parents, J.A. 14, although Katie was

then 43 months old.

The County’s expert felt that visitation by Edward

would be beneficial to Katie, R.D003076, R.T. 97, 105-106,

108, but it should be, he felt, at the discretion of the

adoptive parents. Court-ordered visitation might occa-

sionally inconvenience the adoptive parents or Katie.

The adoptive parents would not have complete control, if

the court ordered visitation, and Katie might be planning

to have friends sleep over. R.D003076, R.T. 107. Still,

both prospective adoptive parents thought Katie would

benefit from knowing her father. R.D003076, R.T. 47-48,

63-65. They said a visitation plan could be worked out.

R.D003076, R.T. 97.

Edward’s expert witnesses, a clinical psychologist,

R.D003076, R.T. 113-114, and an experienced social

worker, R.D003076, R.T. 154-156, believed any psycho-

logical effects on Katie would not be that serious. The

effects could be ameliorated, especially by a transitional

program, and Katie would do well with Edward. The fact

that he was a good father would help a lot. R.D003076,

R.T. 121-122, 123-126, 156-159. Nothing in the record

showed Edward to be other than the same good, loving

father he was at the first trial. J.S. 6a.

The trial court again found bonding and concluded

there would be extreme psychological harm to Katie from

any change of custody, with or without a gradual transi-

tion program. The prospective adoptive parents were

encouraged to include Edward in Katie’s extended fam-

ily. J.A. 24.

The Second Appeal

A divided Court of Appeal affirmed. Although

Edward had “done everything he reasonably could have

to establish a parent-child relationship with Katie,” J.S.

12a, the court was bound by the law of the case. All

constitutional issues were resolved against him by the

California Supreme Court and the Court of Appeal could

not reconsider them. J.S. 6a-7a, n. 2.

The court could consider only whether the record

contained substantial evidence to support the finding of

detriment to the child. J.S. 7a. The definition of detri-

ment did not require a finding of “negative evidence

regarding the father, evidence which is admittedly lack-

ing in this case.” J.S. 8a.

The dissent believed the constitutional issues form-

ing the basis for the parental preference rule required

reversal. J.S. 24a. Because Edward had done nothing

adverse to his parental rights, the mother was given

complete control to deny his rights. J.S. 25a-26a. Further,

there was not substantial evidence to support a finding of

detriment sufficient to terminate parental rights. J.S. 29a.

A transitional change of custody would be appropriate

and sufficient to protect Katie. J.S. 34a.

SUMMARY OF ARGUMENT

Edward McNamara wants his parental righis

restored so he can be part of Katie’s life and she can be

part of his life. He probably would not get custody, at

least for now, because Katie has been with her present

custodians for 7 years. But he could still contact her and

visit her, lending financial support and making a father’s

unique contribution of moral, emotional, and psychologi-

cal support. All children can use all of the love they can

get. Perhaps she would want to live with him in the

future. In any event, they could develop a life-long

father-daughter relationship.

Edward wants to be a fully responsible participant in

Katie’s life. He came forward promptly to assume full

parental duties. He asked the County for custody. He

responded to the proceeding to terminate his parental

rights by claiming paternity (he was adjudicated the

father, legitimizing her in the usual sense), and asking for

custody. That made him fully liable for support if his

rights were not terminated.

He definitely is not a disinterested or casual father

simply trying to veto an adoption, which has failed

before. Lehr v. Robertson, 463 U.S. 248 (1983); Quilloin v.

Walcott, 434 U.S. 246 (1978).

Edward crossed the threshold to full fatherhood by

accepting full parental responsibilities promptly. He did

all he could, all the law and circumstances required and

allowed. J.S. 12a. That gave him a constitutionally pro-

tected liberty interest in his parental rights and relation-

ship with Katie and the opportunity to develop a

personal relationship. Lehr, 463 U.S. at 261-262. Indeed,

the California statute gave him standing to seek parental

rights — recognized him as a father - only if he accepted

full responsibility, by admitting paternity and seeking

custody, which he did eagerly.

The issues presented are equal protection claims

because Edward got a hearing. He got an excess of pro-

cess, 7 years in the courts, and eventually lost Katie only

because of the mistakes and delays of the courts, J.S. 6a,

13a, 15a, n. 1, 49a-50a: a classic case of justice delayed is

justice denied.

Once Edward got his hearing, the question became:

what is the hearing about? What rights does he have?

What standards, tests, or criteria are to be used to decide

if his parental rights are to be terminated? Edward con-

tends that the Equal Protection Clause of the Fourteenth

Amendment entitles him, as a father who has achieved a

protected interest and right to develop a personal rela-

tionship, to the same right to withhold his consent to

adopt as the mother and presumed fathers, Caban v.

Mohammed, 441 U.S. 380, 394 (1979), and to have his

parental rights terminated only on the same grounds as

the mother and presumed fathers. § 224, SA 2b; § 232, SA

3b. Stanley v. Illinois, 405 U.S. 645, 649, 658 (1972).

But California gave the mother complete control. She

may always veto an adoption. § 7017, J.S. 72a. The unwed

father may seek parental rights only if she relinquishes

for adoption. J.S. 43a. She kept Edward from getting Katie

after she released her for adoption, merely because she

wanted the child to go to someone who knew neither her

nor Edward. J.S. 36a.

Presumed fathers, who marry or try to marry the

mother or are allowed to take the child into their home,

§ 7004, J.S. 70a, have the same rights as mothers. All must

consent to adoption and may lose their parental rights

only on proof of specific conduct affecting the child; some

inability or unwillingness to parent usually described as

parental unfitness, or abandonment.

But Edward lost all parental rights because it was,

according to the trial judge, in the best interests of the

child and custody at that time with Edward would be

detrimental to her; the latter because she was emotionally

attached to her custodians: bonded. That is California’s

best interests of the child test applied in custody proceed-

ings. J.S. 39a, 48a. But there is no loss of parental rights in

a custody proceeding. The rights are retained, custody

may be modified on a change of circumstances, and visi-

tation is permitted.

A permanent loss of rights should not be based on

current, changeable circumstances; there is no justifica-

tion for using the standard. Moreover, the standard is

vague, ill-defined, disputed and subject to arbitrary

application. The best interests test, even with a finding of

detriment, gives significantly less protection to parents

than the unfitness test described with particularity and

applied to others.

The State’s legitimate interests are served when the

child is found a good, loving home, which Edward

offered. There is no legitimate interest in terminating the

rights of a capable father willing and able to make a full

commitment to the responsibilities of fatherhood just to

promote adoptions.

Edward is entitled to equal protection. He should be

allowed to establish that precious, life-long father-daugh-

ter relationship.

—@——

ARGUMENT

I. EDWARD HAS A PROTECTED LIBERTY INTER-

EST IN RAISING KATIE.

The constitutional view of family relationships was

reviewed in Stanley v. Illinois, 405 U.S. 645 (1972):

“The Court has frequently emphasized the

importance of the family. The rights to conceive and

raise one’s own children have been deemed ‘essen-

tial,’ Meyer v. Nebraska, 262 U.S. 390, 399 (1923), ‘basic

civil rights of man,’ Skinner v. Oklahoma, 316 U.S. 535,

541 (1942), and ‘[r]ights far more precious . . . than

property rights.’ May v. Anderson, 345 U.S. 528, 533

(1953). ‘It is cardinal with us that the custody, care

and nurture of the child reside first in the parents,

whose primary function and freedom include prepa-

ration for obligations the state can neither supply nor

hinder.’ Prince v. Massachusetts, 321 U.S. 158, 166

(1944). The integrity of the family unit has found

protection in the Due Process Clause of the Four-

teenth Amendment, Meyer v. Nebraska, supra, 262 U.S.

at 399, the Equal Protection Clause of the Fourteenth

Amendment, Skinner v. Oklahoma, supra, 316 U.S. at

541, and the Ninth Amendment, Griswold v. Connecti-

cut, 381 U.S. 479, 496 (1965) (Goldberg, J.,

concurring).

“Nor has the law refused to recognize those fam-

ily relationships unlegitimized by a marriage cere-

mony.” Id., at 651. See also, Smith v. Organization of

Foster Families, 431 U.S. 816, 846-847 (1977).

Children have a fundamental interest in a relation-

ship with their father, too. Bowen v. Gilliard, 107 S.Ct.

3008, 3021, 3024, 97 L.Ed.2d 485, 506, 509 (1987) (Brennan,

J., dissenting). Termination of parental rights interferes

with a “fundamental liberty interest.” Santosky v. Kramer,

455 U.S. 745, 754, n. 7 (1982). “(T)he private interest

affected is commanding... ” Id., at 758.

II. EDWARD CROSSED THE THRESHOLD TO FULL

FATHERHOOD, ACHIEVING A PROTECTED LIB-

ERTY INTEREST BY COMING FORWARD TO

TAKE FULL PARENTAL RESPONSIBILITY

A. An unwed father gains a protected parental

interest by demonstrating a full commitment to

the responsibilities of parenthood

The Court has required a demonstration of commit-

ment to fatherhood to gain a protected interest. Mr. Stan-

ley was undisputedly the father, had lived with his

children, and had supported them. Stanley, 405 U.S. at

650, n. 4.

Mr. Quilloin did not take advantage of his ability to

legitimize his child for 11 years. He never had custody,

did not seek custody,® and provided support irregularly.

He never “shouldered any significant responsibility .. . ,”

emphasis should not be placed on that as a necessary element

of accepting parental responsibility. Millions of fathers play

significant roles with visitation and build life-long relation-

ships. The mother here, of course, did not want her child, so

only a custody request was initially available to Edward,

which he eagerly accepted.

(Continued on following page)

nor took advantage of legal remedies available to estab-

lish his paternity. Quilloin v. Walcott, 434 U.S. 246, 251,

256 (1978). Therefore, the courts could consider the

“extent of [his] commitment to the welfare of the child.”

Id. at 256; see, Caban v. Mohammed, 441 U.S. 380, 389, n. 7

(1979). It was held permissible to grant a stepfather adop-

tion, over his objections, on the grounds that it was in the

best interests of the child. Id. at 255.

(Continued from previous page)

In some situations, perhaps the one at bar, custody with

someone else might be best, but parental rights and contact

could still be preserved. Perhaps a mother would want to keep

custody and the father would still want parental rights.

(Edward's inability to establish parental rights under the Cali-

fornia scheme until the mother relinquished for adoption

raises interesting due process and equal protection issues not

presented where there has been a hearing for the father.) If it

is best for the child to be in someone else’s custody, at least for

the present, a father should not be faulted - not denied basic

civil rights — if he does not demand immediate custody. And

not if he fails to get immediate custody because of current

circumstances, either.

So long as the unwed father takes full legal responsibility

and assumes all other responsibilities available to him, he

should have a protected parental interest and a right to further

develop the relationship. Buchanan, The Constitutional Rights

of Unwed Fathers Before and After Lehr v. Robertson, 45 Ohio

State L.J. 313, 351-352, nn. 294-300, 368, n. 416 (1984).

“(T)he message is that if an unwed biological father is

willing and able to perform those functions that society

has always deer.ed critical for the protection and develop-

ment of children, the Constitution requires the state to

allow him to do so, initially and to continue doing so, in

the absense of circumstances not of the state’s own mak-

ing.” Id., at 382, see, Lehr, 463 U.S. at 271, n. 3, 271-272

(White, J., dissenting).

Mr. Caban, however, was entitled to the same rights

in an adoption proceeding as the unwed mother: a

requirement that he consent to adoption unless he was

found incompetent as a parent or abandoned his chil-

dren. Caban, 441 U.S. at 385-386. To give him less protec-

tion was a denial of equal protection. /d., at 382. “The

effect***is to discriminate against unwed fathers even

when their identity is known and they have manifested a

significant parental interest in the child.” Id., at 394.

Mr. Caban had been named as father on the birth

certificate, lived with the children, supported them, and

petitioned to adopt. Id., at 382-383. He had admitted

paternity, established a substantial relationship, and par-

ticipated in rearing his children. Id., at 392-393.

Mr. Lehr, on the other hand, was not even entitled to

a hearing because he had not availed himself of an avail-

able procedure to register as the father. Lehr v. Robertson,

463 U.S. 248 (1983). He was not named on the birth

certificate, never supported the child, and rarely saw her.

He never offered to marry the mother.” /d., at 252.

7 Marriage. Attempts at marriage were not required of

Messieurs Stanley and Caban. This mother eschewed marriage,

J.S. 21a, and surrendered her child. A marriage proposed in

these circumstances would have added nothing to Edward’s

demonstration of a full commitment.

Additionally, current societal mores do not require mar-

riage. Many couples live together without marrying and many

children born out of wedlock are reared successfully. Wheeler,

A Father's Right To Know His Child: Can It Be Denied Simply

Because the Mother Married Another Man?, 20 Loyola L. A. L.

Rev. 705, 722 (April 1987). California recognizes these informal

arrangements. Marvin v. Marvin, 18 Cal.3d 660, 134 Cal.Rptr.

(Continued on following page)

The threshold test for acquiring a protected liberty

interest in parenthood was synthesized in Lehr:

“When an unwed father demonstrates a full commit-

ment to the responsibilities of parenthood by

‘com{ing] forward to participate in the rearing of his

child,’ Caban, 441 U.S., at 392. His interest in personal

contact with his child acquires substantial protection

under the due process clause. At that point it may be

said that he ‘act[s] as a father toward his children.’

Id., at 389, n. 7. But the mere existence of a biological

link does not merit equivalent constitutional protec-

tion. **** The significance of the biological link is that

it offers the natural father an opportunity that no

other male possesses to develop a relationship with

his offspring. If he grasps that opportunity and

accepts some measure of responsibility for the child’s

future, he may enjoy the blessings of the parent-child

relationship and make uniquely valuable contribu-

tions to the child’s development. !f he fails to do so,

the Federal Constitution will not automatically com-

pel a State to listen to his opinion of where the child’s

best interests lie.” Id., 463 U.S. at 261-262.

Edward demonstrated a full commitment. He is enti-

tled to the same protection as unwed mothers and other

fathers under the Equal Protection Clause of the Four-

teenth Amendment, just like Messieurs Stanley and

Caban. He also was denied completely the opportunity to

develop a relationship he valiantly is trying to grasp.

(Continued from previous page)

815, 557 P.2d 106 (1976). California found no basis for distin-

guishing because of no marriage or attempt by Edward. J.A.

48a-49a.

B. Edward did all he could to establish a full legal

and personal relationship with Katie

Seventeen days after learning of Katie’s birth,

Edward asked for full custody so he could raise her. That

was 12 days after first talking to the adoption worker. In

the meantime, he had sought counsel, personal and legal,

from the adoption worker and others. He accepted his

responsibilities although the mother and the County were

urging him to shirk his duties.

He responded to the petition to terminate his paren-

tal rights by asserting his paternity, admitting the truth of

the birth certificate, and asking for full custody. J.A. 5.

Getting custody would have made him a presumed

father, § 7004(a)(4), J.S. 71a, able to stop the adoption. It

also, of course, would have made him fully liable to

support Katie. § 196, SA 1b.

Unlike Messieurs Lehr and Quilloin, he assumed full

responsibility and pursued all available legal remedies to

establish his paternity. He is trying hard to be like Messi-

eurs Stanley and Caban. He failed so far only because the

statute allowed the mother full control and the County

interfered.* He most certainly is not a disinterested father

looking just for the right to veto an adoption.

8 Newborns. The fact that Katie was recently born means

that Edward promptly did all that the law and the circum-

stances allowed and all that time allowed him to do to estab-

lish personal contact. Only the mother and the adoption

agency, acting under the statutory scheme, prevented him.

Therefore, the issues of identifying fathers promptly or

using more stringent tests to measure abandonment, Caban,

441 U.S. at 392, n. 11, do not arise on the record, or the statute,

(Continued on following page)

The courts below recognized that Edward had done

everything he reasonably could to establish a parent-

child relationship. J.S. 12a. He did everything required

by the criteria of this Court. He is entitled to legal status

and to develop personal contact. Lehr, 463 U.S. at 261;

Wheeler, op. cit., 20 Loyola L. A. L. Rev. at 718. Indeed,

the California statute requires a full commitment, as

described by the Court, even to get a hearing.

§ 7017(d)(2), J.S. 72a. The statute ought to confer parental

rights and provide an opportunity for a personal relation-

ship by its terms.

C. Acceptance of full parental duties carries recip-

rocal parental rights

Parental rights are linked to acceptance of parental

responsibilities. Lehr, 463 U.S. at 257-258. When the

father makes the commitment, the child has a right to rely

on his unique contributions. Bowen v. Gilliard, 107 S.Ct. at

3023, 97 L.Ed.2d at 508 (Brennan J., dissenting). By

accepting all parental duties, Edward undertook signifi-

cant financial burdens, Clark v. Jeter, No. 87-5565 (1988),

56 U.S.L.W. 4527, 4528-4529 (June 7, 1988), unlike the

typical father in a paternity proceeding who disavows

any interest in providing financial, physical, and moral

(Continued from previous page)

despite the California Supreme Court's attem istingui

' pt to distinguish

on that basis. J.S. 45a, n. 8. There is no reason — no “a on

these facts - to require more or sooner than Edward did.

——— a no such more stringent requirements for

newborns in other termination proceedings. § 224

§ 232, SA 3b.) ’ ™* polis

support for the child. Rivera v. Minnich, 107 S.Ct. 3001,

3004-3005, 97 L.Ed.2d 473, 480 (1987).

Edward volunteered to undertake “a life-long rela-

tionship with significant financial, legal, and moral

dimensions.” Id., at 107 S.Ct. at 3006, 97 L.Ed.2d at 482

(Brennan, J., dissenting). He assumed a “cultural role

with distinct moral expectations. Most of us see parent-

hcod as a lifelong status whose responsibilities flow from

a wellspring far more profound than a legal decree.*** It

has***the potential to set in motion a process of engage-

ment that is powerful and cumulative and whose dura-

tion spans a lifetime.” Id., 107 S.Ct. at 3007, 97 L.Ed.2d at

483 (Brennan, J., dissenting).

Despite the denial of Edward’s rights and oppor-

tunities, he still has a protected interest and should be

allowed as much opportunity as is still available to him.

Ill. THE DISTINCTIONS MADE BETWEEN UNWED

FATHERS AND BOTH UNWED MOTHERS AND

PRESUMED FATHERS SHOULD RECEIVE

HEIGHTENED SCRUTINY UNDER THE EQUAL

PROTECTION CLAUSE

A. Gender-based distinctions are examined with

heightened scrutiny

To permit discrimination between unwed mothers

and unwed fathers, the distinction must bear a substan-

tial relationship to achieving important governmental

objectives. Caban, 441 U.S. at 382, 388, 391. That is the

test given to all gender-based distinctions. Clark v. Jeter,

No. 87-5565 (1988), 56 U.S.L.W. 4527, 4528 (June 7, 1988).

There must be exceedingly persuasive justification for the

classification. Mississippi Universtiy for Women v. Hogan,

458 U.S. 718, 724 (1982).

“Although the test for determining the validity of a

gender-based classification is straightforward, it

must be applied free of fixed notions concerning the

roles and abilities of males and females. Care must

be taken in ascertaining whether the statutory objec-

tive itself reflects archaic and stereotypic notions.”

Id., at 724-725.

The distinctions may not be based solely on differences

that are irrelevant to the legitimate governmental objec-

tive. Lehr, 463 U.S. at 265.

B. The distinctions between fathers should be

tested with heightened scrutiny

The Court has yet to examine the distinctions

between unwed fathers with protected interests and other

fathers as to withholding consent to adopt. Caban, 441

U.S. at 394, n. 16 (gender-based rejected); Quilloin, 434

U.S. at 255-256 (no manifestation of significant parental

interest); but cf., Stanley, 405 U.S. at 658.

Appellant submits that the distinctions at bar should

be reviewed with heightened scrutiny because of the

basic civil rights at stake, Stanley, 405 U.S. at 651; rights

“particularly important” and “more substantial than

mere loss of money”; a “significant deprivation of lib-

erty.” Santosky v. Kramer, 455 U.S. at 756. Heightened

scrutiny is generally applied to classifications based on

illegitimacy. Clark v. Jeter, supra, 56 U.S.L.W. at 4528.

If a less stringent test is applied, the disparate treat-

ment still must be rationally related to a legitimate gov-

ernmental purpose. I/d., 56 U.S.L.W. at 4528. The

distinctions then must rest on a fair and substantial rela-

tionship to the objective of the legislation so all persons

similarly situated are treated alike. Clehurne v. Cleburne

Living Center, Inc., 473 U.S. 432, 451, 452-453 (1985); Roys-

ter Guano Co. v. Virginia, 253 U.S. 412, 415 (1920).

The California statute does not pass either test.

IV. THE STATE’S INTEREST IS SERVED BY FIND-

ING PERMANENT, LOVING HOMES FOR CHIL-

DREN, WHICH EDWARD OFFERED

The legitimate state interests are served when a good,

permanent home is provided for Katie. § 232.6, SA 10b;

J.S. 20a; Santosky v. Kramer, 455 U.S. at 766; Stanley, 405

U.S. at 652, 657. Nothing is to be gained by completely

separating Edward from Katie if he can provide good

parenting, guidance, and emotional and moral support.

Adoption is merely a substitute when the biological

family cannot be maintained. J.S. 20a-21a. Indeed, termi-

nating parental rights to free for adoption does not even

guarantee any particular, or any, home for the child.

Santosky, 455 U.S. at 765, n. 15. The County argued at the

first trial that the court did not have the power to decide

custody in the proceeding. Even a denial of the petition

to terminate parental rights did not give Edward custody,

just the right to apply for custody later. R.26793, C.T. 35.

The California Supreme Court agreed, J.S. 50a, despite

the fact that Edward had to be entitled to custody against

the world to keep his parental rights.

By stepping forward to take full responsibility,

Edward met the test of Lehr and fulfilled the State’s

legitimate interest in caring for Katie. Buchanan, op. cit.,

45 Ohio State L. J., 363, n. 387, 367, nn. 402-404. The State

defeats its own interest if it terminates parenial rights

when the parent is able to care for his child. Stanley, 405

U.S. at 652-653.

California admittedly had no legally cognizable

interest in terminating Edward’s parental rights in 1981.

J.S. 20a, 48a-49a. There were no policy reasons to give the

mother a veto of his desire to have Katie. J.S. 48a-49a.

The judgment was reversed for lack of evidence.

The issue in the second trial was whether Edward

should have custody, as of that time; not whether Edward

had forfeited his rights, or was unable to care for Katie

then or in the future. Current custody is not a State

interest which justifies terminating all rights; it is a sepa-

rate issue.

In this setting, the distinctions between unwed

mothers (already rejected by the California Supreme

Court, J.S. 48a-49a) and presumed fathers, and Edward

and those like him (all who come forward under section

7017) serve no legitimate state objective requiring termi-

nating parental rights.

V. THE DISCRIMINATION AGAINST NATURAL

FATHERS IS IRRATIONAL AND SERVES NO

STATE INTEREST

A. Giving complete control of the child to the

mother serves no State interest

California gives complete control to the mother: title

to child. He could not start a paternity proceeding. J.S.

43a-44a. She must consent if he is to become a presumed

father: There must be a marriage or an attempt to marry,

or she must allow him to take the child into his home so

he may openly hold it out as his own. § 7004(a), J.S. 70a.

Her consent is always needed to adopt. § 7017(d)(2), J.S.

72a. Edward could not get Katie from the County

because the mother wanted the child to go to someone

neither the mother or father knew, even after she relin-

quished the child. Only that gave Edward some legal

rights, if he were willing to be a complete parent: abso-

lute control even though the mother wanted nothing

more to do with the child.

The treatment is as disparate and complete as the

differing presumptions of fitness (and of the same kind

where different standards are used) found a denial of

equal protection in Stanley, 405 U.S. at 649, 658, and

exactly the same kind of veto power to a mother without

like power to an unwed father with protected interests

invalidated in Caban, 441 U.S. at 394.

The California scheme allows a father’s rights to be

cut off by arbitrary action of the mother; it is an

undifferentiated distinction applicable to all circum-

stances. Ibid. The distinctions are irrelevant to legitimate

objectives and are distinctions with an important differ-

ence. See, Lehr, 463 U.S. at 265-266. It is an example of

over-broad, gender-based generalization, Caban, 441 U.S.

at 394, impermissibly carrying the “baggage of sexual

stereotypes.” Orr v. Orr, 440 U.S. 268, 283 (1979).

This complete control is not based on any universal

difference between maternal and paternal relations. A

father may be a good parent, Caban, 441 U.S. at 389;

Stanley, 405 U.S. at 654-657; Weinberger v. Wiesenfeld, 420

U.S. 636, 652 (1975), even an unwed one. Herzog, Some

Notes About Unmarried Fathers, 25 Child Welfare 194

(April 1966). “The actions of both parents after the birth

of their child determine their ability to accept parental

responsibility.***Her decision to release the child for

adoption should not deprive the father of a meaningful

opportunity to retain and develop his relationship.” J.S.

48a-49a, emphasis original. Yet she has absolute title and

he is subjected to a different and vague test for terminat-

ing parental rights. It makes no sense to presume that all

natural fathers who are not presumed fathers are disin-

terested, J.S. 18a-19a; especially when he must manifest

complete interest to get a hearing.

This mother opted out of parenthood at birth. Her

status as a mother, and hence any differences she may

have as a mother, should cease once she relinquishes.

She should not be allowed unilaterally to interfere with

the father’s parent-child relationship. Lehr, 463 U.S. at

271, n. 3 (White, J., dissenting); Buchanan, op. cit., 45 Ohio

State L.J. at 361-362 (“(H)er interest should be considered

no further in the adoption process”), Id., at 366, n. 401.

(In other parental rights terminations, state interference

would prevent the finding of intent to abandon necessary

to terminate. In re George G., 68 Cal.App.3d 146, 160, 162,

164, 137 Cal.Rptr. 201 (1977); Buchanan, op. cit., 45 Ohio

State L.J. at 374, n. 468.)

The final balancing at bar is the wishes of a mother

who has rejected further parenthood versus an able and

loving father who promptly, on learning of the birth,

eagerly sought all parental responsibility. She won

because she wanted the child placed with someone else,

although he would serve well the child’s interests and the

State’s. His interests in parenthood and a personal rela-

tionship, commanding interests, far outweigh hers. She

serves only her own private concerns.

Yet, she wins because of her sex and the child’s

status; flimsy excuses for cutting off basic civil rights.

That, appellant submits, is what equal protection is

about: Edward was denied.

B. There is no rational basis for discriminating

between defined presumed fathers and other

unwed fathers who come forward to assume

parental duties

All presumed fathers are given the same custody

rights, § 197, SA 1b, and rights to withhold adoption

consent as unwed mothers. § 7017(d)(2), J.S. 72a. Their

parental rights may be terminated only for incapacity to

parent, neglect, or abandonment on specified grounds

with particular proof. § 224, SA 2b; § 232, SA 3b; Cal.

Welf. & Inst. Code § 300, SA 10b.

The legislative presumption, upheld by California

courts, is that many of the nonpresumed fathers, natural

fathers, do not care about their children. The “class will

contain a substantial portion of fathers who are strangers

to the child and whose objections to adoption will be

based on something other than a mature consideration of

the child’s best interest.” W.E.J. v. Superior Court, 100

Cal.App.3d 303, 314, 160 Cal.Rptr. 862 (1979). But this

assumption is not rational: “It may be that, given the

opportunity, some unwed fathers would prevent the

adoption of their illegitimate children. This impediment

to adoption usually is the result of a natural parental

interest***” Caban, 441 U.S. at 391-392. The statute

requires that they be interested and caring. That is also

required to get a constitutionally protected interest under

the Court’s cases. Edward disproved the presumption,

too, by his conduct.

Further, his conduct, and the conduct required to get

into court, show a greater commitment to the child than

necessary to become a presumed father. If married, the

marriage may have been terminated 300 days before

birth. If not married, but the father has attempted mar-

riage, the same applies. Not all will know of the birth.

Where marriage is attempted after birth, the father must

consent to having his name on the birth certificate or

have a written, voluntary agreement to support the child.

Or he may take the child into his home and openly hold

her out as his. J.S. 70a-71a.

Edward did not offer to marry, but his law suit to

establish paternity must be the equivalent promise. Mar-

riage was not an option for him: Katie had been surren-

dered. He certainly ratified his name on Katie’s birth

certificate. And he openly held her out as his child and

tried all he could to get her into his home. That serves

the State’s interest and makes him more committed than

many presumed fathers.

It makes no sense to work the presumption against

him, denying him individualized proof. Stanley, 405 U.S.

at 647. The California statute casts too wide a net. The

very definition of men whose rights are to be considered

takes them out of the presumption, but it is applied

anyway.

Further, there is no reason to believe that a child

raised by her natural father who was never married to or

lived with the mother will thrive any less than one raised

by a father who was once married to the mother. Stanley,

405 U.S. at 654, n. 7.

The classification is overbroad and misapplied. It

does not relate to the stated objective: no vetoes if not

interested in the child, W.E.J. v. Superior Court, supra, 100

Cal.App. 3d at 314; Caban, 441 U.S. at 394; Stanley, 405

U.S. at 654. All distinctions between presumed fathers

and those who achieve a protected paternal interest by

manifesting significant parental interest should be

stricken. Particularly, all should lose their parental rights

only on the same evidence.

C. Terminating Parental Rights Because Of Cur-

rent Circumstances Regarding Custody Is

Irrational

There simply is no rational basis for terminating

parental rights based on a custody standard, as done

here. J.A. 10. That is what the best interest standard is,

even with the requirement of a finding of detriment. J.S.

48a; In re B. G., 11 Cal. 3d 679, 695, 114 Cal.Rptr. 444, 523

P.2d 244 (1974).

In other termination proceedings specific proof is

required of the elements justifying termination. /n re Car-

maleta B., 21 Cal.3d 482, 492-493, 496, 146 Cal.Rptr. 623,

579 P.2d 514 (1978); In re David C., 152 Cal.App.3d 1189,

1210-1211, 200 Cal.Rptr. 115 (1984). But custody awards

are discretionary. 6 Witkin, Sum. Cal. Law, Parent and

Child, § 72 (8th ed. 1974). That means an order not

beyond the “bounds of reason,” In re Marriage of Connolly,

23 Cal.3d 590, 597-598, 153 Cal.Rptr. 423, 591 P.2d 91

(1979); rarely reversible. 9 Witkin, Cal. Procedure, Appeal,

§ 275 (3d ed. 1985).

Further, custody is always modifiable, § 4600, and

visitation is permitted. § 4601. Adoption is final; all rights

end. § 229. The action is severe and irreversible, no

matter what the father’s circumstances, or the child’s,

might be later. J.S. 48a; Stanley, 405 U.S. at 648-649; Lehr,

463 U.S. at 270 (White, J., dissenting).

Any father who is not interested or cannot provide

paternal care will walk away and not contest termination.

Those who do are more interested and likely more capa-

ble than those whose rights might be terminated in other

proceedings. The State purpose is the same, though.

There is no reason to treat them, mothers and presumed

fathers, differently.

The stakes - the rights - at issue in termination

proceedings are dramatically different from custody mat-

ters. An unwed father may lose all rights because of

present, changeable circumstances. Even visitation is

denied. All because he is a man and unwed: carry-over

stereotypes. A loving, committed father is entitled to

more.?

% Amended statute. The statute has been amended to give

him less. J.S. 13a-14a. Natural fathers no longer get the paren-

tal preference, and custody qualifications are not an issue

Only the best interests test, without a need for a finding o:

detriment, is considered in terminating his parental rights. The

former statute was applied to Edward, J.S. 7a, but the new

statute raises even more serious constitutional questions.

VI. HAVING CROSSED THE THRESHOLD TO

FATHERHOOD, EDWARD IS ENTITLED TO THE

SAME GROUNDS FOR TERMINATING HIS

RIGHTS

A. A like finding of unfitness should be required

to terminate the rights of a protected paternal

interest

The Court has reserved ruling on the requirement of

a finding of parental “unfitness” to terminate parental

rights. Caban, 441 U.S. at 394, n. 16 (statute invalid on

equal protection grounds); Santosky v. Kramer, 455 U.S. at

760, n. 10 (judgment not rendered on “best interest”

grounds); Quilloin, 434 U.S. at 255 (father had not

achieved a protected interest, so adoption in the “best

interests” of the child permissible.) The cases, however,

express doubt about the validity of such a standard for

fathers who have protected interests.

Fathers with protected interests, however, are enti-

tled to the same grounds or rights to object as other

parents, and the “best interests” test is not sufficient

protection. Caban, 441 U.S. at 394; Stanley, 405 U.S. at 658.

Although California does not use the term “unfitn-

ess” in most of its statutes, the conduct required to termi-

nate is well within the traditional use of that term.

Specific conduct is described, § 224, SA 2b; § 232, SA 3b;

Cal. Welf. Inst. Code § 300, SA 10b, and specific, clear and

convincing proof is required. In re Carmaleta B., supra, 21

Cal. 3d at 492-493.

Generally, these conditions may be described as some

parental incapacity, neglect, or abandonment. Edward

argued that some negative evidence regarding him was

required. J.S. 8a. The dissent below argued that there

must be something wrong with the natural parent per-

sonally or with his or her circumstances that would detri-

mentally impact the child. J.S. 24a, 29a.

In Caban the New York test was parental incompe-

tence or abandonment. 441 U.S. at 385-386. In Illinois, the

test of unfitness was neglect. Stanley, 405 U.S. at 650.

Unfitness might also be described as unwillingness or

inability to care for the child. Buchanan, op. cit., 45 Ohio

State L. J. at 316, n. 14. Some such finding is the usual

basis for terminating parental rights. Hershkowitz, Due

Process and the Termination of Parental Rights, 19 Fam. L. Q.

245, 284-285 (Fall 1985).

There was no such evidence against Edward; just the

opposite. J.S. 8a, 49a. Yet he was deprived of all possi-

bility of contact with Katie, after crossing the threshold to

fatherhood drawn by the Court. That is contrary to Stan-

ley and Caban.

B. The best interests test is different, irrational for

these proceedings, and promotes no State

interest

The best interest test is a custody standard. Mistakes

may be corrected and visitation granted; all involved

parents remain in the child’s life. The term is noble and

high-minded - we all want the best for children - but the

application is confusing, uncertain, and subject to arbi-

trary definition from case to case.

There is continuing debate among psychologists as to

what is in the best interests of children. Lehr, 463 U.S. at

262, n. 18. Opinions change regularly. The experts at trial

disagreed as to Katie’s interests and whether the effect of

a change of custody with a transitional period would be

so adverse as to preclude the possibility forever. Other

experts disagree, too, as the process goes through study

and application: the normal thesis, antithesis, synthesis

process of social (and legal) development. Garrison, Why

Terminate Parental Rights?, 35 Stanford L. Rev. 423, 459,

nn. 164-165 (Feb. 1983). The term is vague and arbitrary

and should be rejected.

“In the absence of legislative definition, decisions

merely reflect each judge’s own ‘folk psychology.’ As

a result this standard promotes excessive, and often

discriminatory, removal. It also permits judicial deci-

sions to be based on value judgments not commonly

held by society or approved by the legislature.”

Wald, State Intervention on Behalf of “Neglected” Chil-

dren: Standards for Removal of Children from Their

Homes, Monitoring the Status of Children in Foster Care,

and Termination of Parental Rights, 28 Stanford L. Rev.

623, 650, n. 124 (April 1976).

We are unable to predict accurately human behavior

and lack a social consensus about the values that should

shape our decisions. “(T)he very lack of consensus about

values that makes the best-interests standard indetermi-

nate may also make the formulation of rules inappropri-

ate: a legal rule must, after all, reflect some social value

or values.” Mnookin, Child-Custody Adjudication: Judicial

Functions in the Face of Indeterminacy, 39 Law and Contem-

porary Problems 226, 264 (Summer 1975).

“Unlike the standard of ‘parental fitness’ which

imposes a high burden on the state in an adversary

proceeding, the standard of “best interest’ of the child

provides an open invitation to trample on individual

rights through trendy redefinitions and administra-

tive or judicial abuse.” In re ].P., 648 P.2d 1364, 1376

(Utah 1982); see also, In re Jones, 34 Ill.App.3d 603,

340 N.E.2d 269, 273 (1975); In re Adoption of Baby Boy

C., 31 Wn.App. 639, 644 P.2d 150 (1982).

California courts have changed their views on how cus-

tody should be decided, too. In re B. G., supra, 11 Cal.3d

at 693-699.

Whatever the utility of the best interests standard for

modifiable custody orders, usually in divorce, it is not

appropriate here; it is too subject to abuse. Buchanan, op.

cit., 45 Ohio State L. J. at 346-347. Because there sup-

posedly is to be no one to compare the unwed father to,

J.S. 50a, he ends up having to prove he is the most

suitable parent available, as a practical matter. Stanley,

405 U.S. at 648. His rights are at the unfettered discretion

of the trial judge subject to review only under the sub-

stantial evidence test, difficult to reverse for different

results on nearly identical facts. Crawford v. Southern Pac.

Co., 3 Cal.2d 427, 429, 45 P.2d 183 (1935).

It is incumbent on the State to specity what parental

conduct justifies termination of parental rights, to satisfy

due process requirements. Roe v. Conn, 417 F.Supp. 769,

780 (M.D. Ala. 1976) (three-judge court).

“When is a home an ‘unfit’ or ‘improper’ place for a

child? Obviously, this is a question about which men

and women of ordinary intelligence would greatly

disagree. Their answers would vary in large measure

in relation to their differing social, ethical, and reli-

gious views.” Ibid.

If ordinary people may differ over unfitness, their

diverse views on the best interests of children are likely

to be chaotic. The California legislature has defined unfit-

ness through its statutes. Unwed fathers with protected

liberty interests are entitled to no less.

Because the right to fair and equal grounds for rights

termination is a substantive one, it is entitled to equal

protection, too. Stanley, 405 U.S. at 658. That seems plain

when the State has meticulously articulated the grounds

for dispensing with the need for other parents to consent

to adoption.

C. Adding a detriment finding does not make the

best interests test any clearer or make it the

same as a finding of unfitness

The requirement of a finding of detriment does not

make the best interest test the equivalent of unfitness. It

still is not like those statutes at all.

The requirement of a detriment finding was incorpo-

rated into the best interest test. It is not an independent

standard. The purpose was to avoid comparisons of par-

ents to others who might seek custody. The requirement

of a finding of unfitness was dropped. In re B. G., supra,

11 Cal.3d at 693-699. There is much disagreement over its

application, particularly to termination of parental rights.

Much of the controversy has been about bonding, the

disputed fact issue below. The judges of the Court of

Appeal disagreed on the definition of detriment to be

applied and what definition was required to meet federal

constitional requirements. J.S. 7a-14a, 24a-33a: the

straight custody definitions, or adding some act or omis-

sion of the father, negative evidence. They also disagreed

on whether Katie could make a successful transition to

Edward's custody after bonding, getting emotionally

attached to someone else.

The Court of Appeal judges also disagreed on the

application of a California Supreme Court case applying

the detriment standard. Michael U. v. Jamie B., 39 Cal.3d

787, 218 Cal.Rptr. 39, 705 P.2d 362 (1985). That application

of the detriment standard resulted in three opinions for

the five concurring justices plus a dissent for the other

two. The courts disagree sharply on whether bonding

should be a basis for terminating rights. See, /d., at 801

(Reynoso, J., dissenting).

Removal of Katie from the pre-adoptive home would

not have been sufficient detriment at 5 months, as a

matter of law, J.S. 49a, or apparently at 2'/2 years. J.S. 15a,

n. 1. Other cases have held there would not be sufficient

detriment, or no detriment at all, from terminating the

relationship with the primary caretaker at 1'/2 years (to

trial), In re Marriage of Halpern, 133 Cal.App.3d 297,

302-303, 311, 184 Cal.Rptr. 740 (1982), or at 3'/2 years (to

time of appeal), In re Cheryl E., 161 Cal.App.3d 587, 594,

607, 207 Cal.Rptr. 728 (1984) (despite social workers’

opinions to the contrary, where the parent was loving and

capable). “If a child’s immediate bonding or attachment

to foster parents could outweigh all other considera-

tions***(a)t best the court would merely pay lip service to

the concept of parenting as a fundamental constitutional

right. A dependent child’s psychological bond with a

foster parent may not be so easily used to satisfy the

requirement” of detriment to terminate parental rights. In

re Venita L., 191 Cal.App.3d 1229, 1240, 236 Cal.Rptr. 859

(1987) (child 2/2 at trial, nearly 4 when appeal decided).

“I reject the idea that the ordinary consequences of

removing a child from a settled home can constitute,

themselves, the kind of ‘detriment’ which justifies

the forced termination of parental rights. The major-

ity’s analysis of this issue furnishes a rationale for

unwarranted intrusion in all kinds of custody cases

into the ‘private realm of family life which the state

cannot enter.’ * * * * Situational emotional distur-

bance is likely to occur whenever a child undergoes a

change of environment. If this were sufficient for

termination of parental rights, the state could convert

any temporary loss of custody into a permanent and

irrevocable one.” In re B. J. B., 185 Cal.App.3d 1201,

1213, 1217, 230 Cal.Rptr. 332 (1986) emphasis original

(Poché, J., concurring and dissenting) - that, of

course, precisely describes Edward’s situation.

Allowing termination of parental rights on such an

ephemeral, dramatically different standard is patently

inappropriate: a denial of substantive rights and equal

protection.

VII. DECLARING THE USE OF THE BEST INTER-

EST/DETRIMENT TEST A DENIAL OF EQUAL

PROTECTION WOULD LEAVE THE COURTS

FREE TO DECIDE APPROPRIATE CUSTODY

AND VISITATION ARRANGEMENTS

A. Parental rights should be decided on the

threshold conduct of full parental commitment

with custody decided on present circumstances

The history and treatment of a case previously before

the Court on similar issues may provide some useful

analytical framework. Rothstein v. Lutheran Social Services

of Wisconsin and Upper Michigan, 405 U.S. 1051 (1972). The

Wisconsin Supreme Court had permitted termination of

an unwed father’s parental rights without notice, and the

mother was given a veto. State ex rel. Lewis v. Lutheran

Social Services, 47 Wis.2d 420, 178 N.W.2d 56 (1970). The

appeal was vacated and the case remanded for recon-

sideration in light of Stanley with “due consideration for

the completion of the adoption proceedings and the fact

that the child has apparently lived with the adoptive

family for the intervening period of time.” 405 U.S. 1051.

The Wisconsin court refused to decide the termina-

tion issue on the current circumstances. If custody were

left with the adoptive parents, it had to be done on a

basis other than the adoption decree. Termination of par-

ental rights and custody are different issues. The adop-

tion could be vacated and custody still left with the

adoptive parents or given to the father. State ex rel. Lewis

v. Lutheran Social Services, 59 Wis.2d 1, 207 N.W.2d 826,

829 (1973).

Termination of parental rights was to be based on the

initial conduct towards the child, 207 N.W.2d at 831, not

on the best interest test.

“The phras® ‘best isiterests of the child’ means all

things to all people ** * but the tendency in man is to

apply intuition in deciding that a child would be

‘better’ with one set of parents than with another,

and then to express this intuitive feeling in terms of

the legal standard of being ‘in the best interests of the

child.’ Courts have not laid down any definite guide-

lines which can be followed to insure protection of

what the average person means by ‘best interests of

the child.’ The ‘best interests of the child’ test does

not speak in terms of the present, the immediate

future, or even the ultimate future of the child.” [bid.

After further hearings, it was held that the father had

abandoned the child by denying paternity and refusing to

assist or marry the mother before the child was born.

State ex rel. Lewis v. Lutheran Social Services, 68 Wis.2d 36,

227 N.W.2d 643 (1975).

Edward’s conduct should entitle him to retain his

parental rights, as a matter of law, for having manifested

full parental interest. Custody should then be decided

separately.

B. Continuing contact with Katie will benefit her

and allow Edward to develop a relationship

Because the California courts erroneously held that

the statute was constitutionally valid under the Equal ,

Protection Clause and that Edward had not been denied

any constitutional rights, his parental rights should be

restored. That leaves the question of custody.

It is doubtful that Edward would get custody at this

time. The case has already been tried on custody stan-

dards and Edward lost. Katie has been with the prospec-

tive adoptive parents since August of 1981. But Edward

can still develop a relationship through visitation. Not all

he wanted, nor all he should have received in 1981, but

still something significant.

He would be eligible to seek custody in t.e future if

circumstances change. Perhaps Katie would want to live

with him. Perhaps the custodians would become inca-

pacitated, or possibly die, leaving Edward the natural

successor. Perhaps a lot of factors could change: custody

is changed often. Older children become more interested

in their fathers. Michael U. v. Jamie B., supra, 39 Cal.3d at

801 (Reynoso, J., dissenting).

Most importantly now: he could visit. The experts

and the custodians agreed that contact would be good

and important for Katie. The voiced reservations about

court-ordered visitation, p. 15, supra, were innocuous; the

kind millions adjust to daily. The trial court recom-

mended it. Visitation would allow a parent-child relation-

ship with a loving father.

Visitation is part of the custody powers, part of the

parent-child relationship that goes with parental rights.

Caban, 441 U.S. at 406, n. 13 (Stevens, J., dissenting); it

may be all that ever will be available. Cf., Michael H. v.

Gerald D., No. 87-746, appeal pending, 191 Cal.App.3d 995,

1001, 236 Cal.Rptr. 810 (1987); see footnote 6, p.21, supra.

Visitation would permit Edward to make a valuable

contribution to Katie’s emotional, social, and moral

development. The continuing contact is important. Bowen

v. Gilliard, supra, 107 S.Ct. at 3024, nn. 9-10, 97 L.Ed.2d at

509-510, nn. 9-10 (Brennan, J., dissenting); Garrison, op.

cit., 35 Stanford L. Rev. at 425.

Neither custody or visitation is in issue here. But

Edward still has protected parental rights which may be

exercised with benefit to Katie.

+—

CONCLUSION

The California statute, as written and as construed,

denied appellant equal protection of the laws, on its face

and as applied. The judgment should be reversed with

directions to deny the petition to terminate parental

rights, which will result in further proceedings to deter-

mine custody and visitation.

Respectfully submitted,

James E. SUTHERLAND

Counsel for Appellant

STATUTORY APPENDIX

California Civil Code section 196.

Support and education of children; equal responsibility

The father and mother of a child have an equal

responsibility to support and educate their child in the

manner suitable to the child’s circumstances, taking into

consideration the respective earnings or earning capaci-

ties of the parents.

California Civil Code section 196a.

Father's obligation to support and educate;

civil action to enforce

The father as well as the mother of a child must give

him support and education suitable to his circumstances.

A civil suit to enforce such obligations may be main-

tained in behalf of a minor child, and in such action the

court shall have power to order and enforce performance

thereof, the same as in a suit for dissolution of marriage.

California Civil Code section 197.

Custody, services, and earnings of child

The mother of an unmarried minor child is entitled to

its custody, services and earnings. The father of the

child, if presumed to be the father under subdivision (a)

of Section 7004, is equally entitled to the custody, services

and earnings of the unmarried minor. If either the father

or mother be dead or unable or refuse to take the custody

or has abandoned his or her family, the other is entitled

to its custody, services and earnings.

California Civil Code section 224.

Consent of parents; when consent not necessary

A child having a presumed father under subdivision

(a) of Section 7004 cannot be adopted without the consent

of its parents if living; however, if one parent has been

awarded custody by judicial decree, or has custody by

agreement of the parents, and the other parent for a

period of one year willfully fails to communicate with

and to pay for the care, support, and education of the

child when able to do so, then the parent having custody

alone may consent to the adoption, but only after the

parent not having custody has been served with a copy of

a citation in the manner provided by law for the service

of a summons in a civil action that requires him or her to

appear at the time and place set for the appearance in

court under Section 227; failure of a parent to pay for the

care, support and education of the child for the period of

one year or failure of a parent to communicate with the

child for the period of one year is prima facie evidence

that the failure was willful and without lawful excuse;

nor a child with no presumed father under subdivision

(a) of Section 7004 without the consent of its mother if

living; except that the consent of a father or mother is not

necessary in the following cases:

1. When the father or mother has been judicially

deprived of the custody and control of the child (a) by

order of the court declaring the child to be free from the

custody and control of either or both of his parents

pursuant to Chapter 4 (commencing with Section 232) of

Title 2 of Part 3 of Division 1, or (b) by similar order of

the court of another jurisdiction, pursuant to any law of

that jurisdiciton authorizing the order; or when the father

or mother has, in a judicial proceeding in another juris-

diction, voluntarily surrendered his right to the custody

and control of the child pursuant to any law of that

jurisdiction provided for the surrender.

2. Where the father or mother of any child has

deserted the child without provision for its identification.

3. Where the father or mother of any child has

relinquished the child for adoption as provided in Section

224m; or where the father or mother has relinquished the

child for adoption to a licensed or authorized child-

placing agency in another jurisdiction pursuant to the

law of that jurisdiction.

California Civil Code section 232.

Persons entitled to be declared free from

parental custody and control

(a) Description of persons. An action may be brought

for the purpose of having any child under the age of 18

years declared free from the custody and control of either

or both of his or her parents when the child comes within

any of the following descriptions:

(1) Person abandoned by parents to care and custody of

another; intent; support or communication with child. The

child has been left without provision for the child’s iden-

tification by his or her parent or parents or by others or

has been left by both of his or her parents or his or her

sole parent in the care and custody of another for a

period of six months or by one parent in the care and

custody of the other parent for a period of one year

without any provision for the child’s support, or without

communication from the parent or parents, with the

intent on the part of the parent or parents to abandon the

child. The failure to provide identification, failure to

provide support, or failure to communicate shall be pre-

sumptive evidence of the intent to abandon. If the parent

or parents have made only token efforts to support or

communicate with the child, the court may declare the

child abandoned by the parent or p?rents. In those cases

in which the child has been left without provision for the

child’s identification and the whereabouts of the parents

are unknown, a petition may be filed after the 120th day

following the discovery of the child and citation by pub-

lication may be commenced. The petition may not be

heard until after the 180th day following the discovery of

the child.

(2) Person neglected or cruelly treated by parents. Who

has been neglected or cruelly treated by either or both

parents, if the child has been a dependent child of the

juvenile court under any subdivision of Section 300 of the

Welfare and Institutions Code and the parent or parents

have been deprived of the child’s custody for one year

prior to the filing of a petition pursuant to this section.

Physical custody by the parent or parents for insubstan-

tial periods of time shall not serve to interrupt the run-

ning of the one-year period.

(3) Person whose parents under disability due to use of

alcohol or controlled substances or morally depraved. Whose

parent or parents suffer a disability because of the habit-

ual use of alcohol, or any of the controlled substances

specified in Schedules I to V, inclusive, of Division 10

(commencing with Section 11000) of the Health and

Safety Code, except when these controlled substances are

used as part of a medically prescribed plan, or are mor-

ally depraved, if the child has been a dependent child of

the juvenile court, and the parent or parents have been

deprived of the child’s custody continuously for one year

immediately prior to the filing of a petition pursuant to

this section. As used in this subdivision, “disability”

means any physical or mental incapacity which renders

the parent or parents unable to adequately care for and

control the child. Physical custody by the parent or

parents for insubstantial periods of time shall not inter-

rupt the running of the one-year period.

(4) Person whose parents convicted of felony. Whose

parent or parents are convicted of a felony, if the facts of

the crime of which the parent or parents were convicted

are of a nature so as to prove the unfitness of the parent

or parents to have the future custody and control of the

child.

(5) Person whose parents are declared to be developmen-

tally disabled or mentally ill. Whose parent or parents have

been declared by a court of competent jurisdiction, wher-

ever situated, to be developmentally disabled or mentally

ill, if, in the state or country in which the parent or

parents reside or are hospitalized, the Director of Mental

Health or the Director of Developmental Services, or their

equivalent, if any, and the superintendent of the hospital

of which, if any, the parent or parents are inmates or

patients, certify that the parent or parents so declared to

be developmentally disabled or mentally ill will not be

capable of supporting or controlling the child in a proper

manner.

(6) Person whose parent or parents are mentally dis-

abled. Whose parent or parents are mentally disabled and

are likely to remain so in the forseeable future. As used

in this subdivision, “mentally disabled” means that a

parent or parents suffer any mental incapacity or disor-

der which renders the parent or parents unable to ade-

quately care for and control the child. The evidence of

any two experts, each of whom shall be either a physician

and surgeon, certified either by the American Board of

Psychiatry and Neurology or under Section 6750 of the

Welfare and Institutions Code, or a licensed psychologist

who has a doctoral degree in psychology and at least five

years of postgraduate experience in the diagnosis and

treatment of emotional and mental disorders, shall be

required to support a finding under this subdivision. If,

however, the parent or parents reside in another state or

in a foreign country, the evidence required by this subdi-

vision may be supplied by the affidavits of two experts,

each of whom shall be either a physician and surgeon

who is a resident of that state or foreign country, and who

has been certified by a medical organization or society of

that state or foreign country to practice psychiatric or

neurological medicine, or by a licensed psychologist who

has a doctoral degree in psychology and at least five

years of postgraduate experience in the diagnosis and

treatment of emotional and mental disorders and who is

licensed in that state or authorized to practice in that

country. If the rights of any parent are sought to be

terminated pursuant to this subdivision, and the parent

has no attorney, the court shall appoint an attorney for

the parent pursuant to Section 237.5, whether or not a

request for the appointment is made by the parent.

(7) Person in supervised out-of-home placement for one

year period. Who has been in out-of-home placement

under the supervision of the juvenile court, the county

welfare department, or other public or private licensed

child-placing agency for a one-year period, if the court

finds that return of the child to the child’s parent or

parents would be detrimental to the child and that the

parent or parents have failed during that period, and are

likely to fail in the future, to maintain an adequate paren-

tal relationship with the child, which includes providing

both a home and care and control for the child.

If the minor has been adjudged a dependent child of

the juvenile court and placed in out-of-home placement

pursuant to Section 361 of the Welfare and Institutions

Code, the one-year period shall be calculated from the

date of the dispositional hearing at which the child was

placed in out-of-home placement pursuant to that sec-

tion. If the minor is in placement under the supervision

of a county welfare department or other public or private

licensed child-placing agency, pursuant to a voluntary

placement, as described in Section 16507.4 of the Welfare

and Institutions Code, the one-year period shall be calcu-

lated from the date the minor entered out-of-home

placement.

The court shall make a determination that reasonable

services have been provided or offered to the parents

which were designed to aid the parents to overcome the

problems which led to the deprivation or continued loss

of custody and that despite the availabilty of these ser-

vices, return of the child to the parents would be detri-

mental to the child. The probation officer or social

worker currently assigned to the case of the child shall

appear at the termination proceedings.

If the minor has been adjudged to be a dependent

child of the court pursuant to Section 300 of the Welfare

and Institutions Code, the court shall review and con-

sider the contents of the juvenile court file in determining

if the services offered were reasonable under the

circumstances.

Trial placement of the child in the physical custody of

the parent of visitation of the child with the parent dur-

ing the one-year period when the trial placement or

visitation does not result in permanent placement of the

child with the parent, shall not serve to interrupt the

running of the one-year period.

(8) Minor found to be dependent child and reunification

services not to be provided. A minor who has been found to

be a dependent child of the juvenile court and the juve-

nile court has determined, pursuant to paragraph (3), (4),

or (5) of subdivision (b) of Section 361.5 of the Welfare

and Institutions Code, that reunification services shall

net be provided to the minor’s parent or guardian.

(b) Wishes and best interest of child; testimony of minor

in chambers. At all termination proceedings, the court

shall consider the wishes of the child and shall act in the

best interests of the child.

The testimony of the miner may be taken in cham-

bers and outside the Presence of the minor’s parent or

parents if the minor’s parent or parents are represented

by counsel, the counsel is present, and any of the follow-

ing circumstances exist:

(1) The court determines that testimony in cham-

bers is necessary to ensure truthful testimony.

(2) The minor is likely to be intimidated by a formal

courtroom setting.

(3) The minor is afraid to testify in front of his or

her parent or parents.

After testimony in chambers, the parent or parents of

the minor may elect to have the court reporter read back

the testimony or have the testimony summarized by

counsel for the parent or parents.

The testimony of a minor also may be taken in cham-

bers and outside the presence of the guardian or guard-

ians of a minor under the circumstances specified in this

subdivision.

suant to this section shall be supported by clear and -

convincing evidence.

(d) Nonapplication of § 5158. Section 5158 shall not

apply to proceedings pursuant to this section.

(e) Nonapplication to dependent children of juvenile

court on and after Jan. 1, 1989. This section does not apply

to minors adjudged dependent children of the juvenile

court pursuant to subdivision (c) of Section 360 on and

after January 1, 1989, during the period in which the

minor is a dependent child of the court. For those

minors, Section 366.26 of this code and Section 7017 of

the Civil Code provide the exclusive means for the termi-

nation of parental rights.

10b

California Civil Code section 232.6.

Purpose of chapter; effect of declaration of freedom

The purpose of this chapter is to serve the welfare

and best interests of a child by providing the stability and

security of an adoptive home when those conditions are

otherwise missing from his or her life. A declaration of

freedom from parental custody and control pursuant to

this chapter terminates all parental rights and respon-

sibilities with regard to the child.

California Civil Code section 7002.

Application regardless of marital status of parents

The parent and child relationship extends equally to

every child and to every parent, regardless of the marital

Status of the parents.

California Welfare and Institutions Code Section 300.

[The following are dependent children within the

Juvenile Court’s jurisdiction. One:]}

*> es &

(B) Who is destitute, or who is not provided with

the necessities of life, or who is not provided with a home

Or suitable place of abode.

> es &

(D) Whose home is an unfit place for him by reason

of neglect, cruelty, depravity, or physical abuse of either

11b

of his parents, or of his guardian or other person in

whose custody or case he is.

(e) Who has been freed for adoption from one or

both parents for 12 months by either relinquishment or

termination of parental rights and for whom an interlocu-

tory decree has not been granted pursuant to Section

224n of the Civil Code or an adoption petition has not

been granted.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.