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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appellants Brief
- **Published:** January 1, 1988
- **Citation:** 484 U.S. 1002

## Text

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
I

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?

Il

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

iv

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

Vv

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

vi

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

ix

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.

1

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

7

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.

9

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.

10

].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

11

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.

12

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.

13

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

14

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.

15

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

16

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.

17

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,

18

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.

19

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.

20

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).

21

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 .. . ,”

© Custody. Although Edward asked for custody, undue
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)

22

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).

23

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)

24

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.

25

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)

26

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

27

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

28

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.

29

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.

30

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.

31

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;

32

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,

33

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

34

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.

35

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

36

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.

37

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

38

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

39

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

40

(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

41

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

42

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).

43

“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

44

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.

45

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

46

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.

+—

47

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

lb

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.

2b

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

3b

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

4b

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

5b

(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.

6b

(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.

7b

(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

8b

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:

9b

(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.

(c) Clear and convincing evidence. A finding pur-
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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1468%3A05. Public record. Not legal advice.