Daniel B. timely initiated a proceeding in the superior court to vacate and set aside a decree of adoption (Civ. Code, § 227d)
Rebecca was born June 29, 1972. Her mother and Daniel B., her natural father, were not then married nor does it appear that they have ever married. Stepfather married Rebecca's mother August 31, 1973. Thereafter he filed his petition for adoption alleging that Rebecca's mother retains all her rights to custody and control of the child. The probation officer's report (§ 227a) related that Rebecca had resided with her mother and stepfather since their marriage and was receiving good care. The probation officer recommended in favor of the adoption. The trial court granted the decree, finding that under the provisions of the Civil Code, the consent to adoption of Rebecca's mother alone was required.
In the proceeding to vacate the adoption decree Daniel averred that he had not received notice of the adoption proceedings; that he had not been afforded a hearing as to his rights with reference to Rebecca; and that he had not consented to her adoption. In awarding judgment in favor of Daniel, the trial court cited and relied upon Stanley v. Illinois (1972) 405 U.S. 645 [31 L.Ed.2d 551, 92 S.Ct. 1208].
We are unaware of any decided case extending the benefit of the Stanley rule to the putative father where, as here, the natural mother retains custody and control of the child. In In re Lisa R., supra, 13 Cal.3d 636, the standing of the putative father to assert his custodial rights was recognized where the mother and the statutorily presumed father, to whom she was married when the child was born, were both deceased. (At p. 651.) In Cheryl H. v. Superior Court, supra, 41 Cal.App.3d 273, the court acknowledged the right of a putative father to be heard in any proceeding to change legal custody of the child after the natural mother had first surrendered her rights in the child to an adoption agency (at pp. 279-280). In In re Reyna (1976) 55 Cal.App.3d 288 [126 Cal.Rptr. 138], the court (applying § 4600) recognized the right of a putative father to seek custody of the child from an adoption agency to which the mother had previously relinquished the child for adoption (at p. 297). Factually similar to Reyna are State ex rel. Lewis v. Lutheran Social Services of Wis. & Upper Mich. (1970) 47 Wis.2d 420 [178 N.W.2d 56], vacated and remanded sub nom. Rothstein v. Lutheran Social Services of Wisconsin and Upper Michigan (1972) 405 U.S. 1051 [31 L.Ed.2d 786, 92 S.Ct. 1488], and People ex rel. Slaweck v. Covenant Children's Home (1972) 52 Ill.2d 20 [284 N.E.2d 291]. In Vanderlaan v. Vanderlaan ((1970) 126 Ill.App.2d 410 [262 N.E.2d 717], vacated and remanded (1972) 405 U.S. 1051 [31 L.Ed.2d 787, 92 S.Ct. 1488]), custody of the children had been surrendered voluntarily to the natural father by the mother.
The instant factual situation is readily distinguishable. Here the natural mother has not relinquished her rights in the child. To the contrary, as in the typical stepparent adoption, one natural parent retains custody and control (see §§ 226, 226.9, 227a) even though consenting to the adoption. We must decide whether in these circumstances the provision of section 224 prior to its amendment (see fn. 3, ante, p. 196, and text thereat) requiring the consent of the mother alone to the adoption of an illegitimate child is consonant with the constitutional doctrine announced in the Stanley case. Weighing the competing private and state interests involved (In re Lisa R., supra, 13 Cal.3d at p. 648), we conclude that it is.
By implication, Daniel claims the right, by withholding his consent, to thwart the adoption of Rebecca by her stepfather. For all the record
To invest the putative father with the power to thwart an adoption in the instant circumstances would run counter to the policy of the law favoring legitimation (see Adoption of Graham (1962) 58 Cal.2d 899, 904 [27 Cal.Rptr. 163, 377 P.2d 275]; Adoption of Irby (1964) 226 Cal.App.2d 238, 240 [37 Cal.Rptr. 879]). An adoption itself accomplishes legitimation (§ 228). Frustration of the adoption for lack of the natural father's consent, while preventing legitimation by adoption, would not assure legitimation by the natural father. (See former § 230; cf. § 7004, subds. (a)(3) and (4).)
It is settled that the consent of Rebecca's mother is not a legal prerequisite to Daniel's receiving the child into his family. (Former § 230; In re Richard M., supra, 14 Cal.3d at p. 796; cf. § 7004, subd. (a)(4).) However, lack of consent and cooperation by Rebecca's mother, in whose sole custody and control she remains, may well have imposed an insuperable practical obstacle to Rebecca's legitimation. (Cf. In re Reyna, supra, 55 Cal. App.3d at p. 301.) Thus, to have required the consent of the natural father to accomplish an adoption such as this could have had the unfortunate effect of suspending the child, perhaps indefinitely, in the status of illegitimate, with its attendant stigma and unfavorable legal treatment. (Cf. In re Richard M., supra, 14 Cal.3d at p. 798.)
The state also has "a legitimate interest in promoting marriage, and in furtherance of that policy of not impugning a family unit." (In re Lisa R., supra, 13 Cal.3d at p. 650; see Kusior v. Silver (1960) 54 Cal.2d 603, 619 [7 Cal.Rptr. 129, 354 P.2d 657].) The only family unit to which Rebecca
It has been held that section 224 as applied in a closely analogous factual context "is in accord with the interests of children in need of adoption and is necessary to further the state's compelling interest in making adoptions possible in proper cases." (Adoption of Ahmed (1975) 44 Cal.App.3d 810, 814 [118 Cal.Rptr. 853].)
Accordingly, we hold that the balance of competing interests between the state and the putative father justifies the provision for stepparent adoption of an illegitimate child on the basis of the consent of the mother alone who retains custody and control of the child.
We conclude that there inhere in the natural father certain residual rights in the child which cannot be terminated by adoption (see § 229) without notice and the opportunity to be heard. Until the child is adopted, the natural father of an illegitimate child is a parent within the meaning of section 4600 (In re Reyna, supra, 55 Cal. App.3d at p. 297). As against the mother who retains custody and control, he has no right to custody. But if for any reason the adoption proceedings are abandoned (e.g., withdrawal of consent, § 226a; withdrawal of petition, § 226b), or the petition is denied, the natural father retains the custodial preference accorded a parent by section 4600. That preference may ripen into a right in the event of changed circumstances. The death of the mother pending finality of the adoption proceedings (see Adoption of Bird (1960) 183 Cal.App.2d 140, 147 [6 Cal.Rptr. 675]; § 227d), the denial of the petition for the existence of the conditions constituting grounds for a
The judgment is affirmed.
Regan, J., and Evans, J., concurred.
Respondent's petition for a hearing by the Supreme Court was denied May 12, 1977.