Termination of Parental Rights for Non-Presumed Father

Posted on 06/10/12 Child Custody

The determination of the fitness of a “Kelsey S. father” to parent his child must be based upon the statutory standards found in Family Code sections 7820 through 7829.

The paternal rights of a “Kelsey S.” father, including the right to withhold consent to an adoption, cannot be terminated unless he is found “statutorily unfit under section 232 [now Fam. Code, §§ 7820-7829].”. (Kelsey S. pp. 850-851.. This finding must be by clear and convincing evidence. (§ 7821.) The grounds for parental unfitness include abandonment (§ 7822), disability due to alcohol or controlled substance (§ 7824), and conviction of a felony, the facts of which prove unfitness (§ 7825).

In the recent case of Adoption of H.R., (filed April 24, 2012), a woman and man began a dating relationship and the woman became pregnant.  The parents both had problems, including a criminal history for the father.  The woman and man broke up, and the woman put the child up for adoption, but not before the father filed a Petition to Establish Parental Relationship.  The prospective adoptive parents filed an action to adopt the child and terminate the father’s relationship with the child based on the allegations that the father failed to emotionally and financially support the child.  The father was given two hours of visitation per week with the child during the pendency of the adoption action.  The father indicated that he had been sober from drugs and alcohol for two years at trial, and he would parent the child as best he could.

The trial court concluded Father would not meet minor’s needs and could not “provide the stability and protection” but that the prospective adoptive parents could. Because placing the child with Father posed a substantial risk of harm to her, the trial court concluded “her best interests are served by not placing her in an unfit home.” Father’s parental rights were terminated. Father appealed and the Court of Appeal reversed the trial court.

“[E]stablishment of the parent-child relationship is the most fundamental right a child possesses to be equated in importance with personal liberty and the most basic of constitutional rights.”…Likewise, parents have a fundamental liberty interest in the custody, care, management and companionship of their children…Thus it is only under specified circumstances, and upon specific findings that include the interests of the child, that a court has authority to terminate parental rights.”. (Kristine M. v. David P, (2006) 135 Cal.App.4th 783, 791).

“Parenting is a fundamental right, and accordingly, is disturbed only in extreme cases of persons acting in a fashion incompatible with parenthood.”. (In re Carmaleta B., (1978) 21 Cal.3d 482, 489). “We have previously recognized that ‘”the interest of a parent in the companionship, care, custody, and management of his children is a compelling one, ranked among the most basic of civil rights.”… A parent’s interest in maintaining a parent-child relationship is an extremely ‘important interest’ …, and termination of that right by the state must be viewed as a drastic remedy ‘to be applied only in extreme cases.’”. (In re Guardianship of Christian G, (2011) 195 Cal.App.4th 581, 597-598.)

Generally, a man is presumed to be the natural father of a child if he is married to, or has attempted to marry, the child’s mother when the child is born, or he has received the child into his home and he holds the child out as his natural child. (§ 7611)

In Adoption of Kelsey S., (1992) 1 Cal.4th 816, an exception was created to the rule permitting adoption without the consent of a father who is not a presumed father. A biological father “has a constitutionally cognizable opportunity interest in developing a relationship with his child.” (Kelsey S, at p. 844.) “If an unwed father promptly comes forward and demonstrates a full commitment to his parental responsibilities–emotional, financial, and otherwise–his federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent. Absent such a showing, the child’s well-being is presumptively best served by continuation of the father’s parental relationship. Similarly, when the father has come forward to grasp his parental responsibilities, his parental rights are entitled to equal protection as those of the mother.  In this case, the father took a paternity test and was conclusively determined to be the father, and he exercised the amount of time he was allowed to care for the child evidencing his commitment to emotionally support the child.

Ultimately, there was not sufficient evidence shown under the statutes to terminate the “non-presumed” father’s status as the child’s parent.  Paternity cases involving child custody can be complicated; if you have any questions about your case, call us today at (619) 284-4113.