KENNARD, J., Concurring and Dissenting. Upon learning that his girlfriend, Stephanie H., was pregnant, Mark K. promptly acknowledged paternity; he contributed to the costs of her pregnancy; and he tried to maintain [1061]his relationship with Stephanie until she put an end to it. After researching the law himself, Mark filed a petition in propria persona for custody of his son Michael H. Since then, Mark has never wavered in his efforts to attain that goal. The majority terminates Mark’s parental rights in Michael solely because in the early stages of Stephanie’s pregnancy Mark did not oppose her plan to have the child adopted. The majority’s conclusion is at odds with this court’s holding in Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849 [4 Cal.Rptr.2d 615, 823 P.2d 1216] (hereafter Kelsey S.) that a biological father who “sufficiently and timely demonstrated his full commitment to his parental responsibilities” had the right to veto his child’s adoption. In my view, Mark has met the Kelsey S. test.
Nevertheless, I would conclude that Kelsey S., supra, 1 Cal.4th 816, should not be applied retroactively, for reasons I shall discuss later. Thus, I agree with the majority, albeit on a different basis, that Michael, who is now four and one-half years old, should remain with the prospective adoptive parents who have provided a home for him since birth.
I
On February 27, 1991, Stephanie H., an unmarried teenager, gave birth to a son, Michael H., in San Diego. Stephanie immediately relinquished Michael to prospective adoptive parents, John and Margaret S. On April 18, 1991, John and Margaret filed three separate actions in the San Diego County Superior Court: an action to terminate the parental rights of Michael’s biological father, Mark K.; an action seeking temporary guardianship of Michael; and an action to adopt Michael. Five days later, the trial court appointed John and Margaret as temporary guardians of Michael. (This order is still in effect.)
With respect to the action to terminate Mark’s parental rights in his son, the trial court determined that because Mark was not married to the child’s mother and had not taken the child into his home and held him out as his own, Mark did not meet California’s statutory requirements for being a “presumptive father” and therefore lacked legal authority to withhold consent to his son’s adoption. The court then ruled that it would be in the best interest of the child to sever Mark’s parental rights and to proceed with the adoption. A judgment to that effect was entered on October 25, 1991. Mark appealed.
On February 20, 1992, while Mark’s appeal was pending in the Court of Appeal, this court decided Kelsey S., supra, 1 Cal.4th 816. At issue in that case was the constitutionality of the California statutory scheme granting a [1062]“presumed” father the same right as the biological mother to withhold consent to a child’s adoption, but allowing termination of the parental rights of a biological father who did not qualify as a “presumed” father simply upon a showing that the adoption would be in the child’s best interest. We held that a biological father who had “sufficiently and timely demonstrated a full commitment to his parental responsibilities” had a constitutional right to be treated like a “presumed” father, and thus could veto the child’s adoption. (Id. at p. 849.) We directed courts to apply this holding to all cases not yet final. (Id. at p. 851.)
On August 25, 1992, the Court of Appeal, applying our decision in Kelsey S., supra, 1 Cal.4th 816, reversed the trial court judgment terminating Mark’s parental rights and remanded the case to the trial court for a hearing on whether under Kelsey S. Mark had acted promptly enough and done enough to show his commitment to assume parental responsibilities of Michael.
That hearing occurred in March 1993 and lasted two weeks, during which the trial court heard testimony from various witnesses, including Mark and Stephanie (Michael’s biological parents), and Margaret S. (the prospective adoptive mother). The trial court found that Mark had demonstrated “his full commitment to his parental responsibilities” and thus “under Kelsey S. . . . [was] entitled to be treated as though he were a ‘presumed father’ for the purposes of this adoption.” John and Margaret S. filed a notice of appeal from this ruling.1 The Court of Appeal affirmed. We granted review to decide whether the trial court and the appellate court properly applied our decision in Kelsey S., supra, 1 Cal.4th 816, in this case. In the part that follows, I briefly review Kelsey S.
[1063]II
Under California law, a biological father who shoulders the responsibilities of fatherhood by marrying the child’s mother, or by actually living with, caring for, and acknowledging the child as his own, is a “presumed” father with the same right as the biological mother to withhold consent to the child’s adoption. (Fam. Code, § 7611, subd. (d).)2 When a father meets these requirements, the adoption cannot proceed unless it is shown that the father has abandoned the child, has been neglectful or cruel to the child, or is otherwise unfit as a parent. (See §§ 7822-7828.) But when a biological father does not qualify as a “presumed” father, a court can terminate his parental rights and free the child for adoption, upon a finding that the proposed adoption will be in the “best interest of the child.” (§ 7664, subd. (b).)
We observed in Kelsey S. that a biological father who wanted to marry the child’s mother or to take the child into his home, care for it, and hold it out as his own, but who was prevented from doing either by the mother’s unilateral decisions not to marry him and to place the child in an adoptive home would, under the statutory scheme, be deprived of the right to withhold consent to adoption and to keep the child himself. This, we said, would violate the federal constitutional guarantees of equal protection and due process. (Kelsey S., supra, 1 Cal.4th at p. 849.)
Kelsey S. did not, however, strike down the statutory scheme for “presumed” fathers; instead, it established a nonstatutory alternative whereby a biological father could qualify for the same parental rights as those afforded by statute to presumptive fathers. As we stated: “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 comes forward to grasp his parental responsibilities, his parental rights are entitled to equal protection as those of the mother. [¶] A court should consider all factors relevant to that determination. The father’s conduct before and after the child’s birth must be considered. Once the father knows or reasonably should know of the pregnancy, he must promptly attempt to assume his parental responsibilities as fully as the mother will allow and his circumstances permit. In particular, the father must demonstrate ‘a willingness himself to assume full custody of the child—not merely to block adoption by [1064]others.’ [Citation.] A court should also consider the father’s public acknowledgment of paternity, payment of pregnancy expenses commensurate with his ability to do so, and prompt legal action to seek custody of the child.” (Kelsey S., supra, 1 Cal.4th at p. 849, fn. omitted, original italics.)
Applying these factors to the evidence in this case, the trial court found that Mark had sufficiently “grasped” his parental responsibilities, and that therefore his parental rights could be terminated only upon a showing of his unfitness as a parent. Contrary to the majority’s conclusion, the trial court’s determination finds ample support in the evidence, as I shall discuss.
III
Here, settled law (our recent decision in Kelsey S., supra, 1 Cal.4th 816) must be applied to the facts of this case. Consequently, our task “ ‘begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted’ ” to support the trial court’s ruling. (Estate of Leslie (1984) 37 Cal.3d 186, 201 [207 Cal.Rptr. 561, 689 P.2d 133].) That ruling is presumed correct, and “all intendments and presumptions are indulged in favor of its correctness.” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 [275 Cal.Rptr. 797, 800 P.2d 1227].) In other words, the evidence must be viewed in the light most favorable to the prevailing party. (Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 907 [215 Cal.Rptr. 679, 701 P.2d 826]; Munoz v. Olin (1979) 24 Cal.3d 629, 635 [156 Cal.Rptr. 727, 596 P.2d 1143].) Because the majority provides only a cursory review of the relevant evidence, I give a detailed summary.
In December 1988, Mark K. and Stephanie H. met and began dating in their hometown of Prescott, Arizona. In February 1990, Mark proposed marriage to Stephanie, and they considered themselves to be engaged, planning to marry after Stephanie had finished high school. In early July, when Stephanie was 15 and Mark 20, Stephanie discovered she was pregnant. Mark testified the news “shocked and scared” him, and he and Stephanie did not know what to do. Initially, he suggested abortion because of their youth and lack of financial resources, but Stephanie rejected the idea outright. When Mark suggested moving up their wedding date, Stephanie replied she was not ready for parenthood and did not want to leave school.
A couple of weeks later, Stephanie left for San Diego to visit relatives. They introduced her to family friends, John and Margaret S., who expressed interest in adopting her as yet unborn child. Later, back in Arizona, Stephanie mentioned the adoption plan to Mark, who went along with it.
During the summer of 1990, Mark and Stephanie began living together, initially at the home of Mark’s mother, later at the house of Stephanie’s [1065]parents. Mark testified that during this time he made small contributions toward household expenses from the $190 he earned each week washing dishes at a local restaurant. He also bought some baby items at a yard sale. In late August, Mark decided that he and Stephanie needed a place of their own, so he bought a trailer, which he parked behind the house of Stephanie’s parents. Stephanie never moved into the trailer, however.
In September 1990, Stephanie and Mark began attending birthing classes together. They also enrolled in prenatal nutrition classes and applied for Medicaid. Mark accompanied Stephanie to her medical appointments. At one medical appointment in October, Mark paid to have a sonogram made of the developing fetus. Mark testified that after seeing the sonogram he really began “to warm up to the idea of fatherhood,” and he suggested to Stephanie that they “just go straight through with it” and keep the child. Stephanie testified that by October 1990, she began to feel smothered by Mark’s increasing attention toward her. One day, she threw his things into the hallway and locked him out of their bedroom. Mark pounded on the bedroom door, seeking admittance; in the process, he cracked the door frame. After this incident, Stephanie refused to let Mark go to birthing classes with her. When he did show up, she persuaded the staff not to admit him.
Late in October 1990, during an argument over his refusal to make a videotape of the sonogram for Stephanie’s family, Stephanie “rushed” at Mark with a pen. He pushed her down on a chair, bruising her arm. She had him arrested. Mark, depressed by the deterioration of his relationship with Stephanie, attempted suicide and was hospitalized. Mark described this event as the “turning point” in his life; he resolved to get his life together and to keep and raise his child.
While Mark was still recovering in the hospital, Stephanie moved to her grandparents’ home in Mesa, Arizona. Mark testified that after the move Stephanie limited communications with him to just a few times. On those occasions, Mark avoided any mention of his opposition to the planned adoption because, as he testified, he did not want “to risk the sort of polarization which might totally close the door to further communication.”3 Mark did, however, take several steps in an effort to secure his parental rights.
[1066]Thus, in November 1990, Mark began contacting various politicians and media personalities to find out what he could do to contest the adoption and gain custody of his child. He also talked to Legal Aid attorneys and to private lawyers, but he was unsuccessful in finding anyone to take his case. Undeterred, Mark researched the law himself and drafted his own petition asserting paternity and seeking custody of his yet unborn child. He filed the petition in an Arizona court on February 27, 1991. That same day, unbeknownst to Mark, Stephanie gave birth in San Diego to a son, Michael.
A week later, Mark learned of his son’s birth from a lawyer who, after agreeing to represent Mark in the Arizona custody case, had telephoned John and Margaret S., the prospective adoptive parents. Mark immediately had the complaint in the Arizona custody case served on John and Margaret in San Diego and also on Stephanie at her last known residence with her grandparents in Mesa, Arizona. In the ensuing five weeks, before John and Margaret commenced their court actions to terminate Mark’s parental rights and to adopt Michael, Mark made repeated demands on them and on the San Diego Department of Social Services for custody of Michael.
In the two years between Michael’s birth and the evidentiary hearing, Mark established a home, maintained steady employment, and continued his legal efforts to prevent the adoption and to gain custody of his son.
Based on all this evidence, the trial court made several findings, including these: “Mark conceived this child in love (however ill-fated), attempted to maintain a partnership with the mother throughout the pregnancy (however unwanted that partnership became to her), and has fought unyieldingly for custody since [Michael’s] birth.”
“After [Mark’s] release from the hospital, and particularly after the birth of his son, Mark’s efforts were nothing short of impressive. Beginning with relatively little knowledge or experience, he acted with a tenacity that demonstrates undeniable commitment and speaks well of his ability to weather the frustrating demands of parenthood.”
“In the two years since his son’s birth, Mark has never wavered in expressing his desire to take full responsibility of fatherhood. He defended against the action to terminate his parental rights, and pursued his own paternity action. Testimony from three of his attorneys establishes that he incessantly, relentlessly urged them to seek visitation for him . . . [but] [h]is efforts for custody or court ordered visits were consistently resisted by Stephanie and [by John and Margaret].”
[1067]The trial court ruled: “In the context of all of the facts of this case [Mark’s] efforts sufficiently demonstrate his full commitment to his parental responsibilities [and thus] under Kelsey S. he is entitled to be treated as though he were a ‘presumed father’ for the purposes of this adoption.”
The trial court’s ruling, which the Court of Appeal upheld, is supported by substantial evidence.4 As set forth above, Mark acknowledged paternity, he contributed to the costs of Stephanie’s pregnancy commensurate with his ability to do so, he stayed with Stephanie and tried to provide her with emotional support until she ended the relationship, he took prompt legal action to gain custody of Michael, and he has never wavered in his pursuit of custody. Thus, by his conduct both before and after Michael’s birth, Mark has done everything that Kelsey S., supra, 1 Cal.4th 816, deemed pertinent in determining whether a biological father has made a full commitment to assume his parental responsibilities.
Notwithstanding the strong evidence supporting the trial court’s ruling that Mark was a “Kelsey 5.” father, the majority reaches a contrary conclusion. Why? That is the question I now address.
[1068]IV
The majority never evaluates Mark’s conduct against the various factors this court set forth in Kelsey S., supra, 1 Cal.4th 816, 849, to determine whether he is entitled to be treated as a “presumed” father. In Kelsey S., this court stressed the importance of considering “[t]he father’s conduct both before and after the child’s birth ....’’ (Ibid., original italics.) Of significance are the father’s emotional support for the mother during her pregnancy; his “public acknowledgment of paternity, payment of pregnancy and birth expenses commensurate with his ability to do so”; and prompt legal action by him to gain custody of the child. (Ibid.) Yet the majority does not consider a single one of these factors. There is no mention of Mark’s acknowledgment of paternity; his attempts to provide Stephanie with emotional support; his financial contributions, commensurate with his ability, to the costs of Stephanie’s pregnancy; his impressive efforts in researching the law and drafting his custody petition; and, following the birth of his son, his continued pursuit of legal custody.
Instead, the majority rests its decision on this one statement by the trial court: “Looking at the time period between conception and Mark’s hospitalization, it cannot be said he was fully committed to his parental responsibilities. While he always acknowledged his paternity, he clearly planned with Stephanie to give the child up.” When read in context of all of the trial court’s findings, however, it becomes clear that in making this statement the trial court did not suggest that Mark had undertaken no actions early in Stephanie’s pregnancy to demonstrate his commitment to parental responsibilities. Rather, it was merely an observation, and a correct one, that until Mark’s hospitalization at the end of October 1990, which was late in the fifth month of Stephanie’s pregnancy, he did not object to Stephanie’s plan to have their child adopted by John and Margaret S. Nonetheless, the majority seizes upon this one statement by the trial court in faulting Mark for not objecting in the early stages of Stephanie’s pregnancy to her plan to relinquish their child for adoption. (Maj. opn., ante, at pp. 1054-1055.) But Kelsey S., supra, 1 Cal.4th 816, never suggested that a biological father could forfeit his chance to obtain the legal rights of parenthood simply by acquiescing to adoption in the early months of the mother’s pregnancy but then changing his mind later in the pregnancy, here the fifth month.
The majority’s decision creates a dilemma for a biological father: if in the early stages of the mother’s pregnancy he vigorously opposes the mother’s decision to relinquish their child for adoption, he runs the risk of irreparably damaging his relationship with the mother and causing her emotional upset, quite the opposite of the emotional support he must give under Kelsey S., [1069]supra, 1 Cal.4th 186. If, on the other hand, he initially acquiesces in the mother’s decision to place the child for adoption, hoping to change her mind before the child is born, he has, under the majority’s holding, forfeited his right to object later in the pregnancy to the child’s adoption.
To justify its departure from Kelsey S., supra, 1 Cal.4th 816, the majority states “that during pregnancy the mother must make many important decisions, most importantly whether to have an abortion, to prepare an adoption plan, or to keep the baby, and that she has only a relatively short time to make and implement her choice.” (Maj. opn., ante, at p. 1055, italics added.) Thus, the majority reasons, an unwed father must give the mother “prompt notice whether he plans to object or consent to adoption so that she can evaluate that and other options on an informed basis.” (Ibid., italics added.)
The majority is wrong in asserting that a pregnant woman has “only a relatively short time” to consider the options of keeping her baby or relinquishing it for adoption. Even after agreeing to adoption, the mother can months later legally revoke her consent to the planned adoption. (See § 8814.5 [originally permitting revocation of consent to an adoption for 120 days but reducing that to 90 days effective January 1, 1995].) Since the majority acknowledges the mother’s right to do so (maj. opn., ante, at p. 1059), it is puzzling why the majority insists that the mother has “only a relatively short time” in which to make her decision and that therefore the father must decide in the early stages of the mother’s pregnancy whether to object or consent to adoption.5
As further justification for its holding, the majority states that a biological father who fails to object to adoption early in the mother’s pregnancy should not be allowed to prevail “over prospective adoptive parents who have made a significant and continuing effort, both before and after birth, to discharge the responsibilities of parenthood.” (Maj. opn., ante, at p. 1058.) In that situation, the majority says, the parental rights of the biological father must give way to “the state’s clear interest” in encouraging adoptions. (Maj. opn., [1070]ante, at p. 1056.)6 I readily acknowledge that the state’s interest in providing for the welfare of children born to unwed parents is a compelling one. Adoption is a means of bringing stability to the lives of these children and securing for them loving homes. But the state’s strong interest in adoption arises only when a child’s biological mother and father are unfit or unable to care for the child. Therefore, in the case of a “Kelsey 5.” father (an unwed biological father who comes forward to assume parental responsibility for his child before the child’s birth), the state has an interest in the child’s adoption only if the father is proven to be an unfit parent.
Unlike the majority, I would uphold the trial court’s ruling, affirmed by the Court of Appeal, that Mark is a “Kelsey 5.” father. As I have discussed, there is ample evidence in the record to support the trial court’s decision. Nevertheless, for reasons given below, I am of the view that, contrary to this court’s directive in Kelsey S., supra, 1 Cal.4th 816, that decision should not be applied retroactively.
V
We made our decision in Kelsey S., supra, 1 Cal.4th 816, retroactive to all actions to terminate the parental rights of an unwed father that were not yet final on February 20, 1992, the day of its filing. We did so in these brief sentences: “In recognition of the importance of prompt resolution of adoption proceedings, we find it necessary to explain the applicability of our decision in this action to other cases. ‘The general rule that judicial decisions are given retroactive effect is basic in our legal tradition.’ (Newman v. Emerson Radio Corp. (1989) 48 Cal.3d 973, 978 [258 Cal.Rptr. 592, 772 P.2d 1059].) We have also recognized, however, that narrow exceptions to the general rule of retroactivity may sometimes be justified for compelling reasons of fairness and public policy. (Id. at p. 983.) No such reasons warrant any exception to a retroactive effect of our present decision.” (Id. at p. 851.)
[1071]I joined this court’s retroactivity holding in Kelsey S., supra, 1 Cal.4th 816. Now, however, “I feel myself bound to state that I must, when I decided that case, have seen it in a point of view, in which, after most laborious consideration, I cannot see it now.” (Lord Eldon, L.C., Ex parte Nolte (1826) 2 Glynn & Jam. 295, 307.) In a nutshell, “The matter does not appear to me now as it appears to have appeared to me then.” (Bramwell, B., Andrews v. Styrap (Ex. 1872) 26 L.T.R. (N.S.) 704, 706.)
This case vividly illustrates why we should not have made Kelsey S., supra, 1 Cal.4th 816, retroactive. Given that holding, the trial court had no choice but to rule that, having found that Mark satisfied the test of Kelsey S., Mark had the right to veto Michael’s adoption by John and Margaret S., the prospective adoptive parents with whom Michael had lived since his birth (two years at the time of the trial court’s ruling). That the trial court was troubled by having to apply Kelsey S. to a case such as this, in which family relationships had been formed in reliance on law predating Kelsey S., is apparent from this statement in the court’s findings: “[B]ased on the timing of this case, a good and loving couple have unavoidably bonded with this child over the last two years. This decision threatens undeserved and painful disruption for both them and the child.”
Since then, as the case wended its way through the Court of Appeal and this court, more than two years have passed, and Michael is now four and one-half years old. To remove Michael at this stage from the only family he has ever known and to turn him over to Mark, Michael’s biological father but, through no fault of his own, a stranger to Michael, would disrupt Michael’s emotional and psychological universe for reasons that young Michael would likely be incapable of understanding or accepting.
Precisely to avoid such a result, the Louisiana Supreme Court, in enunciating a rule similar to the one we thereafter adopted in Kelsey S., supra, 1 Cal.4th 816, refused to apply that rule to pending cases. (In re Adoption of B.G.S. (La. 1990) 556 So.2d 545.) The court explained: “In perhaps no other area of the law is the interest in finality and certainty greater than in the area of adoption. Consequently, if our holding were to be given retroactive effect, it could lead to disruption of established, settled families in favor of the placement of children with what now amount to strangers.” (Id. at p. 559; see also Caban v. Mohammed (1979) 441 U.S. 380, 415-416 [60 L.Ed.2d 297, 321-322, 99 S.Ct. 1760] (dis. opn. of Stevens, J.) [expressing the view that the “reliance interests” of adoptive families should foreclose retroactive application of the high court’s decision in Caban holding that an unwed father who had lived with his children and their mother had a constitutional right to withhold his consent to the children’s adoption]; People in Interest of [1072]C.A.K. (Colo. 1982) 652 P.2d 603, 607 [declining to give retroactive effect to a new rule requiring proof by clear and convincing evidence of the grounds for terminating parental rights: “By the time a termination proceeding has wound its way through appellate proceedings, no one benefits from a retrial of the facts that served as the basis for the termination. In the context of a parental termination proceeding, finality of decision outweighs retroactive application of a new standard of proof.”].)
This case demonstrates that this court’s retroactivity holding in Kelsey S., supra, 1 Cal.4th 816, 851, far from ensuring the “prompt resolution of adoption proceedings,” has instead prolonged the adoption proceedings in this case and no doubt in other cases as well. In cases such as this one, the retroactive application of Kelsey S. requires trial courts essentially to start the proceedings over again years after they were first begun and to revisit issues already decided under the law existing before this court’s decision in Kelsey S. No form of litigation, however, is less suited than an adoption proceeding to the delay caused by retroactive application of a new rule of law. A child’s emotional growth and development do not wait for the law to take its sometimes ponderous course before reaching a decision. A child cannot be put on hold. From birth onward, a child forms its world and attaches itself to the persons nurturing the child. That world and those attachments can be severed only at great cost to the child.
As the courts of other states have recognized, these compelling reasons ultimately but decisively weigh against the retroactive application of rules that would disrupt and delay ongoing adoption proceedings. I am persuaded by these authorities that we should have made our holding in Kelsey S., supra, 1 Cal.4th 816, prospective in its effect, applying it only to actions seeking to terminate a biological father’s parental rights that had not yet gone to trial. Because in this case the trial court had already entered judgment terminating Mark’s parental rights before we decided Kelsey S., I would not apply the Kelsey S. rule. Mark, of course, is not to blame for this state of affairs, and in a perfect world his constitutional rights would have been recognized in time for him to be united with his son, Michael, before Michael had established his emotional and psychological ties to the prospective adoptive parents. That time, however, has long since passed. Mark’s rights, important though they are, and impressive as his efforts have been in pursuing custody of Michael, cannot be given effect without also considering the emotional impact on Michael. In balancing the various competing rights, I would conclude that ensuring the continued stability of Michael’s emotional and psychological well-being must outweigh giving full retroactive effect to Mark’s rights under Kelsey S.
[1073]Because of my view that Kelsey S., supra, 1 Cal.4th 816, should not be applied retroactively, I join the majority in holding that four-and-one-half-year-old Michael H. should remain in the home of his prospective adoptive parents, John and Margaret S.
Respondent’s petition for a rehearing was denied September 28, 1995. Kennard, J., was of the opinion that the petition should be granted.
The ruling, which merely determined that Mark met the standards this court established in Kelsey S., supra, 1 Cal.4th 816, thus giving him the right to withhold his consent to the adoption, did not dispose of the action seeking to terminate Mark’s parental rights. Therefore, it was not a final judgment, but an interlocutory order, which is not appealable. (Code Civ. Proc., § 904.1.) When a party flies a notice of appeal from a nonappealable order, the reviewing court has discretion to treat the purported appeal as a petition for writ of mandate if the technical requirements for mandate petitions are otherwise met. (See Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 745-746 [29 Cal.Rptr.2d 804, 872 P.2d 143].) Rather than invoking this rule, however, the majority oddly concludes that the appeal here is proper because by filing the notice of appeal from the interlocutory order “John and Margaret waived the contention that Mark is unfit.” (Maj. opn., ante, at p. 1050, fn. 2.) I doubt that John and Margaret expected their notice of appeal to be a waiver of any future evaluation of Mark’s parental fitness. Nonetheless, given this conclusion by the majority, in future cases prospective adoptive parents seeking immediate review of a trial court’s ruling that a natural father qualifies to withhold consent to an adoption should file a petition for a peremptory writ rather than a notice of appeal lest the latter course be deemed an abandonment of any challenge to the natural father’s parental fitness.
The relevant statutory provisions, formerly in the Civil Code, now appear in the Family Code. Unless otherwise indicated, all further statutory references are to this code.
Mark gave this same reason for not making clear to the prospective adoptive parents, John and Margaret S„ his opposition to the planned adoption. Nonetheless, there is evidence suggesting that Mark made his views known to Margaret five days before Christmas 1990 in a telephone conversation that lasted over an hour. According to Mark, he had asked Margaret during this conversation if she and John would fight him if he sought custody of the child. Margaret denied that Mark ever raised the issue of custody. But other evidence presented at the hearing seems to contradict Margaret’s recollection of her discussion with Mark. At one point, Margaret testified that while speaking with Mark on the telephone in December 1990, [1066]she used a legal pad to make notes of what was said. The word “custody” appears in those notes.
In reaching this conclusion, I have not overlooked conduct by Mark that the majority refers to as “violent outbursts,” nor have I ignored his attempt at suicide. Although these incidents may bear on Mark’s fitness as a parent, they are not particularly probative of the quite different issue presented here—whether under Kelsey S., supra, 1 Cal.4th 816, 849, Mark has demonstrated willingness to assume parental responsibilities for his child.
As yet another instance of improper conduct by Mark, the prospective adoptive parents point to the fact that Stephanie was only 15 years old when she became pregnant by Mark, then 20. They cite a statement in Kelsey S. specifically excluding from its holding those situations in which a man has impregnated a woman by “nonconsensual sexual intercourse.” (Kelsey S., supra, at p. 849, fn. 14.) Because our law deems unlawful sex with a minor to be “nonconsensual” (see Pen. Code, § 261.5 [defining statutory rape]), they argue that as a matter of law Mark cannot qualify for the more favorable treatment afforded natural fathers under Kelsey S. This exact issue, however, was decided adversely to the prospective adoptive parents by the Court of Appeal in its initial decision in this case, filed on August 25, 1992. There, the Court of Appeal concluded that footnote 14 of Kelsey S. did not pertain to statutory rape but only to forcible rape, and that therefore the fact that Mark was 20 when he impregnated 15-year-old Stephanie did not disqualify him from obtaining the full rights of parenthood under Kelsey S. Because that conclusion by the Court of Appeal was necessary to its decision to remand the matter to the trial court in light of Kelsey S., and we did not review that initial decision, the Court of Appeal’s interpretation of footnote 14 resolves that issue for purposes of this case. (See Kowis v. Howard (1992) 3 Cal.4th 888, 892-893 [12 Cal.Rptr.2d 728, 838 P.2d 250] [explaining the “law of the case” doctrine].) I note, parenthetically, that in apparent response to footnote 14 in Kelsey S., supra, 1 Cal.4th 816, 849, the Legislature recently enacted section 7611.5. Under this statute, the effect of footnote 14 in Kelsey S. in cases involving unlawful sex with a minor is limited to those situations in which the father is convicted of statutory rape and “the mother was under the age of 15 years and the father was 21 years or older at the time of conception.” (§ 7611.5, subd. (b).)
The majority is correct that a pregnant woman who wants to have an abortion is under a time constraint to do so. Generally, an abortion can be performed only within the first two trimesters of a pregnancy (that is, before the seventh month). (See People v. Davis (1994) 7 Cal.4th 797, 816 [30 Cal.Rptr.2d 50, 872 P.2d 591] (conc. opn. of Kennard, J.), and Roe v. Wade (1973) 410 U.S. 113 [35 L.Ed.2d 147, 93 S.Ct. 705].) But the majority never explains why this time constraint on a pregnant woman’s decision to choose abortion over carrying a child to full term leads the majority to conclude that the unwed father must decide early in the mother’s pregnancy that he does not agree to adoption. In any event, this is an odd case in which to fashion such a rule. Here, Mark’s failure to make up his mind about adoption early in Stephanie’s pregnancy had no effect on her decision to rule out abortion, which she did in July 1990, during the second month of her pregnancy and before she and Mark had even considered placing their child for adoption.
The majority also asserts that permitting an unwed father to contest an adoption after the child is born might “dissuade prospective adoptive parents from attempting to adopt the children of unwed mothers who, like Stephanie, have chosen for whatever reason not to keep and raise their child themselves.” (Maj. opn., ante, at p. 1056.) The majority’s concern seems to be baseless. According to recent data, the number of couples seeking to adopt healthy infants far exceeds the number of available infants. (See Gubemick, How Much Is That Baby in the Window? (Oct. 14, 1991) Forbes, at p. 90 [citing the National Committee for Adoption’s estimate of a million couples looking for children to adopt]; Reid, Abortion and the Adoption Option; What the Numbers Show About Women’s Choices, Wash. Post (Aug. 15, 1989) p. Z6 [noting the “huge supply-and-demand gap in the adoption system” of “at least 40 potential families for each baby currently placed for adoption”]; Bodnar, Adoption: The Long and Costly Road (Aug. 1992) Kiplinger’s, at p. 68 [stating that the wait for a child can be 5 years or longer].)