On Dec. 22, 2008, the First Appellate District rejected the appeal from an incarcerated man seeking to retain parental rights and prevent adoption of his biological son.
In re: T.M. et. al. v. B.R., the child was born in September of 2006 in San Bernardino County. Father and mother knew each other for several years prior but were never married and never lived together. Father learned of mother’s pregnancy in February of 2006, and they discussed raising the child together. Father had a history of of drug use and was incarcerated for a four month term for breaking parole one week after discovering mother’s pregnancy.
At the time of father’s release, mother actively avoided contact with the father and in July of 2006, she put the unborn child up for adoption. Father learned of this and scheduled an appointment with an attorney, but he was arrested for methamphetamine use and sale as well as possession of a handgun.
Child was born on Sept. 10, 2006. After birth, mother relinquished child to a same-sex couple which had agreed to adopt in July.
That day, father filed a petition with the San Bernardino Superior Court to determine that he was the father and to halt any adoption proceedings until paternity was established. The adopting couple was unaware of these proceedings and filed an adoption request.
Father received a 12 year sentence for his crimes. From prison, he filed an objection to the adoption and stated that if his parental rights were not terminated, father’s parents should care for the child until father was released from prison.
On January 15, 2008, the San Francisco Superior Court held a hearing regarding the adopting couple’s request to terminate father’s parental rights. An expert testified that the child had bonded to the couple.
At the conclusion of the hearing, the trial court announced its decision that father did not qualify as a statutory presumed father, and was not entitled to the rights afforded to unmarried fathers by the Kelsey S. and Michael H. cases. The court found by clear and convincing evidence that child’s best interests would be served by terminating father’s parental rights, and ordered that his adoption by the couple should proceed despite father’s lack of consent. Father appealed.
Under the applicable statutory scheme in California (Fam. Code, §§ 7610-7612, 8604), the consent of a child’s biological father is not needed for an adoption unless he has qualified as a presumed father.
But under Kelsey S.,
an unwed father who has no statutory right to block a third party adoption by withholding consent may nevertheless have a constitutional right to do so under the due process and equal protection clauses of the Fourteenth Amendment and thereby to preserve his opportunity to develop a parental relationship with his child
In Michael H. the Supreme Court clarified that the father does not have this right unless he has promptly come forward and declared willingness to accept parental responsibilities.
Father maintained that mother’s avoidance prevented him from meeting the Michael H. criteria. Court rejected this assertion noting that father gave no support before mother began avoiding him and that it was his own actions which led to incarceration and inability to support the mother.
The court determined that;
Under these circumstances, we hold that the father did not make a showing of commitment to his parental responsibilities sufficient to entitle him to a hearing on his fitness before his parental rights could be terminated. Accordingly, we affirm the trial court’s order granting the prospective adoptive parents’ petition to terminate the biological father’s parental rights.
The court’s decision can be found here.