San Diego County Department of Social Services v. Edward M.

We are asked to determine whether the trial court erred in terminating a natural father’s parental rights by considering only *68 the best interests of the child without first considering whether an award of custody to him would be detrimental to the child. We conclude Civil Code section 4600 1 is applicable to all section 7017, subdivision (d) termination proceedings and reverse the judgment.

I

Edward and Baby Girl M.’s mother dated during the fall of 1980. When the relationship ended in November, neither of them knew she was pregnant. Baby Girl M. was born on July 18, 1981. While in the hospital, the mother requested adoption assistance, met with a social worker, and placed the child in a foster home three days later. She had never informed Edward of the pregnancy and did not tell him of the birth until August 1, 1981.

Edward immediately contacted the San Diego Department of Social Welfare to determine his rights. He met with a social worker on August 5 and requested his daughter be placed with the family who was then providing day care for his sons. Later that day the mother formally relinquished the child for adoption and rejected Edward’s placement request,…

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…