MOSK, J. I dissent.
At the outset I note serious omissions in the facts related in the majority opinion. The opinion fails to mention that on August 5, when Edward first met with the social worker, he informed her that he was not interested in obtaining custody of the child because he was the divorced father of two small boys, and the child was a female. He suggested that she be adopted by a family whose acquaintance he had made at his church. Nor did Edward express any desire for custody on his second visit with the social worker on August 10. It was not until later that he made his first request for custody. By this time, the child’s mother had signed the consent for adoption, and the section 7017 petition had been filed. The evidence is in conflict as to whether the child had been placed in the adoptive home before or after Edward purportedly changed his mind and sought custody for himself.
As I point out, infra, the Legislature intended to differentiate between the rights of presumed fathers and natural fathers in a section 7017 proceeding. The holding of the majority makes no such distinction. The result of their opinion is to grant to a biological father, who may have had a single night’s liaison with a stranger, who may not have known about the child’s birth [77]until long after it occurred, and who may not have ever seen the child, the very same custodial rights in a section 7017 proceeding as are afforded to a father who was married to the mother for many years and lived with and supported his children emotionally and financially over a long period. There is no persuasive reason why the best interest of the child should not be a sufficient standard to test the custodial rights of a man who has had no relationship of any nature with a child other than biological.
The practical result of the holding of the majority is that in the future an unwed mother who elects to place her child for adoption in a stable environment with a two-parent family will refuse to relinquish custody whenever, as is commonly the case, she does not desire custody to be placed with the man who became a father as the result of a casual liaison and who has not formed any relationship with the child. In the present case, this scenario is more than theoretical. The mother signed the relinquishment only on condition that custody be transferred to the two-parent family chosen as adoptive parents. The social welfare department implied that it would permit her to withdraw her consent if this condition is not fulfilled.
Turning, then, to the legal flaw in the majority opinion I am of the view their conclusion that a natural father’s right to custody may be terminated only if the court finds such an award would be detrimental to the child can only be reached by disregarding the critical provisions of section 7017. This is precisely what the majority cavalierly do. They do not attempt to explain or to rebut the impact of the crucial provisions of the section. The opinion simply makes no reference to the provision of subdivision (d) of section 70171 that if the man is a presumed father, his consent to adopt is required, whereas if he is not a presumed father “only the mother’s consent shall be required for the adoption of the child.”
The holding of the majority is inconsistent with the clear desire of the Legislature to differentiate between the rights of presumed and natural fathers in a section 7017 proceeding. They conclude that both presumed and natural fathers must be granted custody unless the court finds that such an award would be detrimental to the child. Why, then, did the Legislature direct the trial court must make a determination in that proceeding whether a man is a presumed or a natural father, and then provide that the question whether his consent to adoption is necessary shall be decided solely on the basis of the answer to this question?
The issues of whether a father must consent to an adoption and whether the detriment standard is employed in a section 7017 proceeding are inse[78]parable. The legislative direction that the natural father’s consent is not required is another way of declaring that the court need not make a finding of detriment in order to free the child for adoption. Otherwise, there would be no difference between the custodial rights of presumed and biological fathers in a section 7017 proceeding. That is, a presumed father’s consent to adoption is required under subdivision (d) and, as everyone concedes, he may not be deprived of custody absent his consent unless the court finds that such an award would be detrimental to the child. But inexplicably the majority apply this standard to the biological father’s rights.
In effect, the majority have given the biological father the right to veto an adoption, in contravention of the Legislature’s express direction to the contrary. It is inescapable that the application of the detriment standard to a natural father gives him the identical veto powers over an adoption and the same custodial rights as are granted to a presumed father under section 7017.
The majority concede that the Legislature “intended to differentiate between the veto powers accorded unwed mothers and presumed fathers on the one hand and natural fathers on the other” (maj. opn., ante, at p. 72), but their attempt to explain why this intent is not being violated here is patently untenable.
First, they state that “the natural father, unlike the presumed father, holds no automatic veto power over the adoption” because if the trial court finds that it would be detrimental to the child to allow custody to the natural father, then “as the natural and not the presumed father, his consent would be unnecessary and the adoption could proceed.” (Maj. opn., ante, at p. 73.) But if a finding of detriment were made, the presumed father would also be denied custody, and for that matter the mother or any other person who sought custody would also be rejected. The majority strike out on that point.
Second, the majority declare that there is a distinction between the custodial rights of presumed and natural fathers in that before the mother relinquishes the child for adoption she and the presumed father have equal custodial rights (Civ. Code, § 197), whereas the natural father’s right to custody, if any, does not arise until after the relinquishment. However, we are concerned here only with a section 7017 proceeding, which by definition does not occur until after relinquishment by the mother. It is in such a proceeding the Legislature has directed that a presumed father must consent to adoption, whereas a natural father’s consent is not required. The majority’s reliance on distinctions between the rights of natural and presumed fathers in other contexts is, therefore, unavailing.
[79]The legislative history of section 7017 strongly indicates that it was not the Legislature’s intent to grant the identical custodial rights to biological and presumed fathers. An earlier version of the measure contained a provision that a natural father must be found unfit before a court could dispense with the requirement that he consent to an adoption. (Sen. Bill No. 347, as amended May 20, 1975, § 7023, subd. (d).) Later, the statute was amended to provide, as it does presently, that only the mother’s consent is necessary for an adoption in the case of a father who is not classified as a presumed father. (Sen. Bill No. 347, as amended Aug. 12, 1975, § 7017, subd. (d).) While the circumstances under which the amendment was adopted are not clear, the elimination from the statute of the provision that a natural father must consent to an adoption unless he is found unfit demonstrates at the very least that at some point in the legislative process the right of a natural father to custody was considered and rejected.
Another indication of legislative intent appears from an analysis by the Assembly Judiciary Committee of Senate Bill No. 347, which contains the Uniform Parentage Act. This analysis, published in connection with the third reading of the measure, makes it clear beyond any doubt that the act does not grant any custodial rights to a natural father or require his consent for adoption. The analysis states, inter alia, that the measure abrogates “any right to custody whatsoever” in the natural father.2
Finally, in September 1983, the Legislature passed a statute which expressly declared that the provisions of section 4600 “relating to parental preference shall not apply to an alleged natural father seeking custody in an action brought pursuant to . . . subdivision (d) of section 7017.” (Assem. Bill No. 649 (1983 Reg.Sess.) § 6, subd. (h).) Although the Governor vetoed the measure because it contained certain financial provisions to which [80]he objected, in his message to the Assembly the Governor stated that he supported the substantive changes in the statute. (Governor’s Press Release No. 504, Sept. 29, 1983.)
The majority’s arguments based on legislative history following the veto of Assembly Bill No. 649 are less than convincing. It is incorrect to say, as do the majority, that because the author of a later bill decided to remove from the measure a provision that natural fathers would be granted section 4600 rights the “Senate Committee on the Judiciary confirmed the Legislature did not intend to deprive alleged natural fathers of the parental preference of Civil Code section 4600.” (Maj. opn., ante, at p. 71, italics added.) The Legislature (as opposed to a single member of a legislative committee) made its intention clear beyond any doubt when it enacted Assembly Bill No. 649 in 1983 providing that the section 4600 standard did not apply to section 7017 proceedings.
Nor am I persuaded by the majority’s reliance on the fact that In re B. G. (1974) 11 Cal.3d 679 [114 Cal.Rptr. 444, 523 P.2d 244], had been decided before the Uniform Parentage Act was adopted. From this, the majority draw the inference that the Legislature’s failure to provide that the section 4600 standard did not apply raises an implication it intended to extend the parental preference doctrine to natural fathers.
Preliminarily, I note, that the majority also appear to rely on In re Reyna (1976) 55 Cal.App.3d 288 [126 Cal.Rptr. 138] for the same point, but Reyna was decided after the Uniform Parentage Act was passed, and therefore it cannot support their contention. (See fn. 5, at p. 304.)
The facts and background of In re B. G. are so different from the present case that the implication the majority draw from its holding is untenable. That case involved the rights of a mother whose children had been removed from her custody without her consent—a situation dramatically different from that involved here. The decision was filed and section 4600 became law, before the advent of the Uniform Parentage Act, and at a time when a natural father had virtually no right in his children. Such a father lacked not only the benefit of the parental preference doctrine (Deering’s Civ. Code (1971 ed.) §§ 200, 224; Guardianship of Truschke (1965) 237 Cal.App.2d 75, 80 [46 Cal.Rptr. 601]; Adoption of Irby (1964) 226 Cal.App.2d 238, 241 [37 Cal.Rptr. 879]; Adoption of Laws (1962) 201 Cal.App.2d 494, 500 [20 Cal.Rptr. 64]; Darwin v. Ganger (1959) 174 Cal.App.2d 63, 70 [344 P.2d 353]), but there was no statutory provision which entitled him to notice of a pending adoption proceeding, and he had no right to be heard in such a proceeding. If the Legislature had intended by the enactment of section 7017 to grant to natural fathers rights equal to those of a presumed father, [81]a far more explicit reference would be required to justify such a radical departure from existing law.
More important, section 7017, subdivision (d), is inconsistent with section 4600, subdivision (c). While the former provides that the consent of the natural father to an adoption is not required, the latter states that a father’s consent to the adoption is necessary unless the court makes a finding of detriment. As we point out above, if a biological father would be entitled to custody, absent a finding of detriment, his consent to the adoption would also be required. Thus, the Legislature, by providing in section 7017 that only the mother’s consent is required if the child has no presumed father, determined that the parental preference rule stated in subdivision (c) of section 4600 does not apply to natural fathers. Simply stated, application of the parental preference rule here would directly violate the Legislature’s mandate that the natural father’s consent to an adoption is not required.
This conclusion is further supported by the fact that at the same time the Legislature enacted section 7017 (Stats. 1975, ch. 1244, § 11), it amended the provisions of the Civil Code relating to adoptions to provide that the consent of the mother and the presumed father is required for an adoption (Stats. 1975, ch. 1244, § 7). The majority would by their ipse dixit amend this provision to include the natural father.
The majority strain mightily to support their untenable result by an erroneous evaluation of United States Supreme Court decisions relating to natural fathers. It is impossible to read the court’s opinion in Lehr v. Robertson (1983) 463 U.S. 248 [77 L.Ed.2d 614, 103 S.Ct. 2985], and not recognize that due process requires nothing more than notification to the natural father that his rights may be terminated.
In Lehr, the natural father lived with the mother for two years, until the child’s birth. He visited the mother and child in the hospital every day, but from the time of her discharge and for two years thereafter, the mother concealed the child’s whereabouts from the father. During this period, the father never ceased his efforts to locate the child; he even hired a detective agency to find her. When he did find her, he visited the child as often as the mother would permit. He offered financial aid, and set up a trust fund for his daughter. The mother threatened the father with arrest if he persisted in his attempt to see the child. The father retained counsel, who promised legal action if the mother refused to allow visitation rights.
The mother remarried, and her new husband filed a petition to adopt the child. The natural father also filed an action in another county to establish visitation and paternal rights. Even though the court in the adoption pro[82]ceeding was aware of the paternity action, it granted the adoption petition. The United States Supreme Court upheld the decision on the ground that the natural father had failed to comply with a New York procedure to register his name with a “putative father registry.”
The high court’s opinion is replete with references to the effect that a biological father need not be granted the same rights as a presumed father. It observed that the “mere existence of a biological link does not merit equivalent constitutional protection” as is afforded to a father who participates in the rearing of his child (463 U.S. at p. 261 [77 L.Ed.2d at p. 626]) and that since the lower court was not terminating a developed relationship the natural father’s rights were adequately protected by the notification provided by the “putative father registry.”3 For obvious reasons the majority make no reference to these matters; their attempt to distinguish the decision on the ground that it did not involve a newborn child who was refused contact with the natural father is transparently fallacious.4 The implication of the majority that a natural father cannot be deprived of custody unless he voluntarily declines the opportunity to establish a relationship with his child cannot be harmonized with the decision in Lehr.
Case authority is consistent with my conclusion. W. E. J. v. Superior Court (1979) 100 Cal.App.3d 303 [160 Cal.Rptr. 862], recognizes that under the theory employed here by the majority the natural father would have a veto power over an adoption, contrary to the Legislature’s intention. To the same effect is Adoption of Marie R. (1978) 79 Cal.App.3d 624 [145 Cal.Rptr. 122],
A number of cases involving the rights of natural fathers were decided on the basis of the law predating the Uniform Parentage Act. Since the provision of section 7017 that a natural father’s consent to an adoption is not required was not yet in effect, they have no relevance in the interpretation of section 7017. (In re Reyna, supra, 55 Cal.App.3d 288; Adoption of Rebecca B. (1977) 68 Cal.App.3d 193 [137 Cal.Rptr. 100] [holding only [83]that the natural father was entitled to notice and hearing of a pending adoption, and may be entitled to custodial rights if an adoption proceeding is abandoned].) In re Lisa R. (1975) 13 Cal.3d 636 [119 Cal.Rptr. 475, 532 P.2d 123, 90 A.L.R.3d 1017], involved an attempt by the natural father of a child with no living mother or presumed father to establish paternity; neither its holding nor its language is relevant to the present case.
Finally, even if the detriment standard is improperly applied in evaluating Edward’s custodial rights, I would direct the trial court on remand to give substantial weight, in deciding whether it would be detrimental to award custody to Edward, to the circumstance that the child has been with the adoptive parents virtually all her life. Although the majority recognize the “dilemma” posed by the adoptive parents’ custody (maj. opn., ante, at p. 76, fn. 12), they fail to give this emotional circumstance its appropriate effect.
A number of cases have recognized the trauma in removing a child from a settled home. In adoption proceedings this factor has been given determinative effect. (Adoption of Michelle T. (1975) 44 Cal.App.3d 699, 710 [117 Cal.Rptr. 856, 84 A.L.R.3d 654]; In re Volkland (1977) 74 Cal.App.3d 674, 679-680 [141 Cal.Rptr. 625]; Williams v. Neumann (Ky.App. 1966) 405 S.W.2d 556, 557; In re Adoption of Tachick (1973) 60 Wis.2d 540 [210 N.W.2d 865, 872-873].) Michelle T. quotes from the Williams case: “ ‘[the petitioners have] attended every baby and childhood need and demand of [the child] from the fourth day of her life when she could neither focus her eyes nor raise her head. Up to this hour, according to this record, [she] has known no other mother as she has never seen her natural mother. She is now three and one-half years old and talking. She cannot be suddenly transplanted like a dogwood tree without running serious and dangerous risk of frustration and bewilderment. ’ ” (44 Cal.App.3d at p. 707, italics omitted.)
In In re Reyna, supra, 55 Cal.App.3d 288, the court applied the detriment standard to the custodial rights of a natural father under procedures predating the Uniform Parentage Act. It recognized that on remand “if it is shown that it would be emotionally and psychologically harmful to uproot the child from the care and love of the nonparents with whom it has been living for a substantial period of time and place it with the father with whom it has never had contact, then custody must remain with the nonparents.” (55 Cal.App.3d at p. 302.)
The majority, by not directing the trial court to give substantial weight to this factor, fail to take sufficient cognizance of the trauma of separation of this child from the secure home of the only parents she has ever known, to [84]be placed in the custody of a man she does not know and who originally rejected her. This callous result follows because the majority err by applying an inappropriate legal standard. In so doing they will cause untold disruption of the normal adoption process and serious damage to the valid social and humanitarian purposes orderly adoption procedures heretofore provided.
I would affirm the judgment.
Kaus, J., concurred.
The only reference to these provisions is in the statute quoted in a footnote.
A comment printed with the proposed act states: “In 1972, in Stanley v. Illinois, 92 S.Ct. 1208, the Supreme Court gave natural fathers an undelineated, ill-defined right to the custody of their children. According to the Assembly Judiciary Committee analysis, ‘No one can say with certainty the extent to which that right adheres, the circumstances under which the court can deprive a natural father of that right. In substance, at this point the court has asserted the existence of some right to custody in a natural father, but left the nature and extent of that right to conjecture. This bill seeks to settle the issue by abrogating any right to custody whatsoever unless the father has adopted the child (and become a presumed father) by receiving the child into his home and holding the child out as his natural child. Unless the father is a presumed father, the mother alone can consent to the child’s adoption. Furthermore, while an alleged father must be given notice of an adoption proceeding, and is given the right to come into court and seek custody, there are absolutely no standards under which, if met, the court would be required to grant him custody. In fact, it is questionable whether the court has the authority to grant custody to the natural father. Any such authority must be implied from the fact that the father has the right to seek it. The bill does not contain a provision granting the court express authority to give custody to a non-presumed father. It is questionable whether in this respect the bill meets the constitutional standard of Stanley.’” (1975 Assem. File Analysis, microfiche ed., italics added.)
The court characterized Stanley v. Illinois (1972) 405 U.S. 645 [31 L.Ed.2d 551, 92 S.Ct. 1208], as holding that the “automatic destruction of the custodial relationship” rendered the statute there unconstitutional (463 U.S. at p. 259 [77 L.Ed.2d at p. 625]), quoted from the opinion of the dissenting justices in Caban v. Mohammed (1979) 441 U.S. 380 [60 L.Ed.2d 297, 99 S.Ct. 1760], which relied on the “clear distinction between a mere biological relationship and an actual relationship of parental responsibility,” and distinguished these two cases from Lehr on the ground that they involved a “developed parent-child relationship” (463 U.S. at p. 261 [77 L.Ed.2d at p. 626]).
The majority also attempt to distinguish Lehr on the ground that the father there had not attempted to file notice with the putative father registry. Such registration would only have provided notice similar to that set forth in section 7017 and would not have granted any custodial rights to the natural father.