Michael U. v. Jamie B.

705 P.2d 362, 39 Cal. 3d 787, 218 Cal. Rptr. 39, 1985 Cal. LEXIS 336

• Court: California Supreme Court
• Decided: September 19, 1985
• Docket: L.A. 32014
• Status: Published

Opinions

Opinion

BROUSSARD, J.

This case concerns the custody of Eric, the infant son of Michael U. and Jamie B. Eric has been placed for adoption with Mr. and Mrs. Glenn White. Michael, the natural father, sought temporary custody of Eric, which would enable him to qualify as a “presumed father” under Civil Code section 7004 and thus, by withholding his consent, to prevent the proposed adoption (see Civ. Code, § 7017, subd. (d)). Jamie and the Whites appeal an order granting his request. We granted a hearing to consider whether substantial evidence supported the implied finding of the trial court that an award of custody to Michael would not be detrimental to the child, and stayed enforcement of the trial court’s order pending our decision.

I.

When Eric was conceived, Jamie was 12 years old and Michael was 16. Both sets of grandparents were informed of the pregnancy. Michael and his family proposed that they raise the child, but Jamie and her parents preferred that the child be adopted by a married couple.

Eric was born on April 27, 1983. That same day Jamie relinquished the child to the LDS Social Service Agency for adoption. Michael and his mother were notified of the birth two days later. (The evidence is in dispute whether they offered to pay a portion of the maternity costs.)

Michael saw his son briefly in May at the LDS Social Service Agency but when he refused to consent to an adoption he was denied further contact. Michael’s mother, Linda U., then obtained an ex parte order appointing her temporary guardian of Eric, but was unable to locate the adoptive parents to serve the order.

Jamie reclaimed Eric from the agency, and placed him with the Whites for adoption on June 27, 1983. When Michael again refused to consent, the Whites and Jamie filed a petition under Civil Code section 7017 to terminate Michael’s parental rights. He responded with a petition to establish paternity and an order to show cause with respect to custody and visitation. The court put the section 7017 proceeding off calendar, conducted a hearing in which it inquired into the effect upon Eric of an award of custody to Michael, and entered an order awarding him temporary custody, with visitation rights for Jamie. Jamie and the Whites appeal from that order.

II.

In defining the rights of unmarried fathers, California’s Uniform Parentage Act (Civ. Code, § 7000 et seq.) distinguishes between a “presumed father” and one who is merely a “natural father.” Civil Code section 7004 explains that a man may qualify as a “presumed father” in any of several ways.¹ Most of the listed conditions refer to actual or attempted marriage; the only one relevant to the present case is condition 4: “He receives the child into his home and openly holds out the child as his natural child.”²

Michael is a natural father, not a presumed father, because he has not yet received Eric into his home.³ (In re Reyna (1976) 55 Cal.App.3d 288, 301 [126 Cal.Rptr. 138].) If, however, he actually acquired physical custody, he could receive Eric into his home and thereby acquire the status of a presumed father. (In re Tricia M. (1977) 74 Cal.App.3d 125, 135-136 [141 Cal.Rptr. 554]; In re Reyna, supra, 55 Cal.App.3d 288, 301.) The consent of a presumed father is essential to an adoption. (Civ. Code, § 7017, subd. (d).) Thus the present controversy, although nominally about the temporary custody of Eric pending the adoption proceeding, will probably determine the fate of the proposed adoption.

III.

Our recent decision in In re Baby Girl M. (1984) 37 Cal.3d 65 [207 Cal.Rptr. 309, 688 P.2d 918], settled the appropriate standard for resolving a custody dispute between a natural father and prospective adoptive parents. Our decision looked first to Civil Code section 4600, enacted as part of the Family Law Act of 1969. That section, we noted, “sets forth a mandate that custody of a child in a dissolution proceeding could not be awarded to nonparents without both parent’s consent or a finding ‘that an award of custody to a parent would be detrimental to the child.’” (Pp. 69-70.)

Next we turned to In re B.G. (1974) 11 Cal.3d 679 [114 Cal.Rptr. 444, 523 P.2d 244], the leading decision construing section 4600. That decision, we noted in In re Baby Girl M., supra, 37 Cal.3d at page 70, concluded that “ ‘section 4600 expressly recognizes that custody should be awarded to parents in preference to nonparents. As between parents, it permits the court to award custody “according to the best interests of the child,” but in a dispute between a parent and a nonparent, the section imposes the additional stipulation that an award to the nonparent requires a finding that “an award of custody to a parent would be detrimental to the child.” ’ (Id., at p. 698.) ‘There can be no question of the desirability of a uniform rule; the Legislature’s specification that section 4600 applies to “any proceeding where there is at issue the custody of a minor child” demonstrates that section 4600 was enacted to fulfill that objective. ’ (Id., at p. 696, fns. omitted, italics added.)”

We concluded that: “A natural father may not have initial custodial or veto rights equal to those of a presumed father. However, both classes of fathers share the same burdens of support for the child and liability for the reasonable expenses of the mother’s pregnancy and confinement. ([Civ. Code,] §§ 7010 and 7012.) Thus when the natural father’s rights do arise, upon relinquishment by the mother, and he claims custody at a section 7017 hearing, an additional finding of detriment is necessary to terminate his parental rights.” (P. 75.)

As summarized in Adoption of Baby Boy D. (1984) 159 Cal.App.3d 8 [205 Cal.Rptr. 361], “when a nonpresumed natural father claims custody to his child in opposition to petitioning adoptive parents, pursuant to section 7017, and the doctrine of parental preference is applied, the court must find that an award of custody to the father would be detrimental to the child and leaving custody with the prospective adoptive parents is in the child’s best interest in order to terminate the natural father’s rights and proceed with the adoption. (Civ. Code, § 4600, subd. (a); In re B.G., supra, 11 Cal.3d 679, 699.) Should the court fail to find detriment, the natural father will gain pendente lite custody of the child and a consequent voice in the child’s future. Whether viewed as obviating the need for an adoption (W. E. J. v. Superior Court, supra, 100 Cal.App.3d 303, 311 [160 Cal.Rptr. 862]) or as providing the natural father with the opportunity to qualify as a presumed father under subdivision (a) of Civil Code section 7004 (In re Tricia M., supra, 74 Cal.App.3d 125, 136; see also In re Reyna, supra, 55 Cal.App.3d 288, 301), the father has gained all that he sought.” (Pp. 23-24.)

IV.

Although custody is a special proceeding, statutory and decisional law nevertheless require findings of fact when requested by a party. (In re Rose G. (1976) 57 Cal.App.3d 406, 416-418 [129 Cal.Rptr. 338].) The substitution of a “statement of decision” for “findings of fact” under the 1977 amendment of Code of Civil Procedure section 632 works no significant change; the court still must address the essential findings required by Civil Code section 4600 if requested by a party.

In the present case, however, the parties did not request a statement of decision or findings of fact. Under these circumstances, all intendments favor the ruling below (Walling v. Kimball (1941) 17 Cal.2d 364, 373 [110 ]), and we must assume that the trial court made whatever findings are necessary to sustain the judgment. (See Homestead Supplies, Inc. v. Executive Life Ins. Co. (1978) 81 Cal.App.3d 978, 984 [147 Cal.Rptr. 22] and cases there cited.) In this case, the essential finding is that an award of custody to Michael would not be detrimental to Eric.

Consequently, the only issue before us is whether substantial evidence supports that implied finding. The only significant dispute in the evidence relates to the efforts of Michael and his mother to contact Eric, to obtain custody of him, and their offer to pay part of the maternity expenses. Resolving that conflict in support of the trial court, we may fairly conclude that Michael and his mother made reasonable efforts to maintain contact with Eric and to participate in the care of the child.

The record, however, contains uncontroverted evidence which indicates that Michael lacked the maturity needed to care for a child and that to award custody of Eric to Michael, after he has established a bond with the Whites, would be detrimental.⁴

Jamie was 12 years old when Eric was conceived—and the fact that Michael had intercourse with a 12-year-old girl itself shows poor judgment and lack of maturity. Jamie testified that one week after the discovery of her pregnancy, Michael told her he was having intercourse with a 16-year-old girl, but that he had told her to get the pill so that she would not become pregnant like Jamie had. On another occasion, he told Jamie that he had had intercourse with his new girlfriend’s 14-year-old sister while she was under the influence of marijuana. Jamie added that he smoked marijuana on several occasions when he was with her.⁵

Gary Holman, Michael’s school counselor, testified that Michael had serious academic difficulties. He did not have sufficient academic credits to graduate with his class, and was attempting to acquire sufficient credits through home study supervised by a continuing high school education program.

Michael Cook, the dean in charge of discipline at Serrano High School, said he had become acquainted with Michael through frequent discipline visits. He described Michael as “very defiant. I would say very immature, disruptive, lack of respect for authority.” Michael was involved in numerous fights at school, defied school regulations, and was dismissed from the football team because of fighting. Michael left school at least twice and was “in and out of Serrano at different times.” He received a social promotion from the eighth grade after spending two years at that level.

Michael was 16 years old and in the 9th grade when Eric was conceived.⁶ He was living at home with his parents and his younger brother. Michael testified that he was not employed, but had previously worked as a busboy and waiter. He was attempting to get the credits to graduate from high school and was taking courses at a community college. Conscious of his lack of experience at “fathering,” he had taken a community college course in child development. When asked by counsel whether he loves his son, Michael replied, “Yes, I do, from what I saw of him.”

Linda U., Michael’s mother, described their family life, said she would care for Eric when Michael was away, and had arranged with a housekeeper to come over when she was at work. Indeed, the gist of Michael and Linda’s testimony, as well as the argument of counsel, supported placement of Eric in a family setting with Linda assuming principal responsibility for his care. Counsel made no attempt to show that Michael could provide suitable care on his own, and in closing argument suggested that if Michael ceased to live with his mother in the family residence, another change in custody might be necessary.

The Whites testified briefly. They are a married couple with a three-year-old adopted daughter. Glenn White is a fireman, Gayle is a homemaker. At the time of trial they had cared for Eric for about five months, and he appeared to be developing normally and happily. No one here questions the Whites’ suitability as parents.

Dr. Irving Gislason, a child psychiatrist, testified that Eric had established an emotional attachment to the Whites, and that to remove him from their home would be detrimental.⁷ He would experience anaclitic depression, which is characteristically “tension, protest, generally poor emotional development, failure to thrive and increased susceptibility to infections.” While temporary depression and anxiety would be inevitable, the long-term effects are less predictable, but a critical psychological event of the first year of life is the development of trust, and interference with that development increases the probability of adult psychological disorders. Dr. Gislason had not examined Michael, but in response to a hypothetical question stated that in his opinion Michael had a “moderate to marked amount of immaturity in reference to necessities that [the child] would need.” On cross-examination he acknowledged that if Eric remained with the Whites, he might as an adolescent suffer emotional trauma from the knowledge that he was adopted and that the adoption had prevented him from having a relationship with his natural father.

V.

If this case could be decided solely on the basis of the best interest of Eric, it would not be a close case. On this record we could not possibly justify taking Eric from the stable and loving home where he now lives. Michael, however, is entitled to the parental preference established by Civil Code section 4600, and to custody unless such an award would be detrimental to the child.

Even under this higher standard, however, we conclude that under the undisputed evidence we should reject the trial court’s award of custody to Michael. Michael was an unemployed high school student whose social and sexual relationships and academic record demonstrate his lack of maturity and judgment. His ability to care for the child himself was open to question. We recognize that at the time of trial Michael was living with his family in an established and loving family relationship, but the award of custody is to Michael himself, and upon reaching majority he would be entitled to leave and take the child with him. Yet the act of changing custody would itself inflict serious harm on Eric, and if, as seems quite possible, Michael proves unable to care for Eric properly and further changes are required, that initial custody change would still have conferred on Michael a permanent right to veto any proposed adoption. We conclude that the implied finding that an award of custody to Michael would not be detrimental to Eric is not supported by substantial evidence, and that the court’s order awarding Michael temporary custody of Eric was an abuse of discretion.⁸

We therefore remand the matter for a new custody hearing. We recognize that during the pendency of this appeal additional circumstances may have developed which bear upon the determination of the issues involved. “Any such circumstances may, of course, be considered by the trial court on remand.” (In re Marriage of Carney (1979) 24 Cal.3d 725, 741 [157 Cal.Rptr. 383, 598 P.2d 36, 3 A.L.R.4th 1028]; In re Baby Girl M., supra, 37 Cal.3d 65, 76.)

The order awarding temporary custody to plaintiff Michael U. is reversed, and the cause remanded for further proceedings consistent with the views expressed herein.

Grodin, J., concurred.

1 For convenience we shall use the term “presumed father” to mean a man who qualifies under section 7004, and “natural father” to mean one who does not. The statutes, however, use more cumbersome wording, distinguishing between a natural father who is a presumed father, and a natural father who is not a presumed father.

2 The Uniform Parentage Act carefully avoids the terms “legitimate” and “illegitimate.” Condition 4 in section 7004, however, is based on the common law concept of legitimation by reception of the child into the father’s family, previously codified in former Civil Code section 230.

3 In Adoption of Marie R. (1978) 79 Cal.App.3d 624 [145 Cal.Rptr. 122], the father argued a theory of “constructive receipt, ” claiming that since the mother had prevented him from receiving the child into his home, he should qualify as a presumed father without proving actual receipt. The court disagreed, stating that “[t]he cases have recognized that a mother may, by her conduct, prevent a natural father from securing even the minimal contact with the child that old section 230 required.” (P. 630.)

4 The dissenting opinion sets out the evidence showing that Michael wants to obtain custody of Eric and the efforts that he and his mother made to obtain custody. But the fact that a natural father seeks custody does not indicate that an award of custody to him will not be detrimental to the child. There is a lack of evidence that Michael—as distinguished from his mother and her housekeeper—has the maturity to care for a child.

5 Jamie also testified that her relinquishment of Eric was predicated on the belief that the child would be adopted and that Michael would not gain custody. She relinquished Eric for adoption in order to give him the opportunity to be raised by two mature adults who could properly care for him. The record shows her expressed desire to keep Eric if the only alternative would be releasing him into Michael’s custody. Her mother also expressed a desire to bring Eric into their home should the court refuse to terminate Michael’s parental rights.

The mother in the case of Adoption of Baby Boy D., supra, 159 Cal.App.3d 8, testified in a similar vein. Discussing that testimony, the court commented that “[w]hile this testimony would support a finding she had asserted a contingent claim to custody, no such finding was made and the proceeding below was not conducted in that posture. Unless and until [the mother] unmistakably asserts her right to custody, [the father’s] claim must be considered to be in opposition to [the adoptive parents’] claim, i.e., a parent versus nonparent contest in which the court is required to find detriment in order to deny [the father] custody.” (P. 22.)

6 Jamie and the Whites point out that Michael is an unemancipated minor who could not legally establish his own residence, contract for medical care for Eric, or contract for child care. (See Civ. Code, § 63.) It is clear that the statutes do not prohibit the award of custody to an unemancipated minor. While a court could take into account the legal disabilities of an unemancipated minor in assessing the best interest of a child and the possible detriment arising from a custody award to the minor, we are dealing with a subject in which practical considerations, emotional ties, and psychological impact all tend to be more important than such legal disabilities.

7 Judicial decisions have recognized the harm to a child which results when he is removed from a stable home environment. (See Marriage of Carney (1979) 24 Cal.3d 725, 730-731 [157 Cal.Rptr. 383, 598 P.2d 36, 3 A.L.R.4th 1028] and cases there cited.) In Adoption of Michelle T (1975) 44 Cal.App.3d 699 [117 Cal.Rptr. 856, 84 A.L.R.3d 654], the court took judicial notice of the book Beyond the Best Interests of the Child by Goldstein, Freud & Solnit (1973), which “emphasizes the importance to a child of continuity of parental relationships. According to the authors, changes or interruptions in this relationship cause the child to regress ‘along the whole line of his affections, skills, achievements, and social adaption.’ (Id., at p. 18) ‘Physical, emotional, intellectual, social and moral growth does not happen without causing the child inevitable internal difficulties. The stability of all mental processes during the period of development needs to be offset by stability and uninterrupted support from external sources. Smooth growth is arrested or disrupted when upheavals and changes in the external world are added to the internal ones’ (id., at p. 32).” (P. 706.) The court concluded with a quotation from Williams v. Neumann (Ky.App. 1966) 405 S.W.2d 556, 557: “‘[A child] cannot be suddenly transplanted like a dogwood tree without running serious and dangerous risk of frustration and bewilderment.’ ” (P. 707.)

8 We do not imply that Michael is “unfit” in the sense that, if he received custody of Eric, the state would have grounds to intervene and remove the child. As the court explained in In re Reyna, supra, 55 Cal.App.3d 288, 302, the concept of unfitness under Civil Code section 232 or Welfare and Institutions Code section 300 is distinct from the test of detriment under Civil Code section 4600. It is presumably detrimental to a child to award custody to a parent who is so unfit that the state might have to intervene to retrieve custody, but it might also be detrimental to place him with a parent who is not unfit, depending upon the child’s current circumstances and the available placement alternatives. (In re Reyna, supra, 55 Cal.App.3d at pp. 302-303.)