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In re Adoption of O.M.

December 22, 2008


(San Francisco County Super. Ct. No. 21585) Trial Judge: Hon. Donna J. Hitchens.

The opinion of the court was delivered by: Ruvolo, P.J.



A biological father who does not qualify as a statutory presumed father, but who also has not been shown to be an unfit parent, is constitutionally entitled to prevent the termination of his parental rights if, as soon as he knew or should have known of the mother's pregnancy, he demonstrated a full commitment to his parental responsibilities. This entitlement may also exist when the father's attempt to demonstrate such a commitment is unilaterally frustrated by the child's mother.

In this case, a biological father's effort to assume his parental responsibilities was frustrated, in part, by the child's mother, who broke off their relationship and decided to relinquish the child for adoption. However, the father's ability to demonstrate his commitment was impeded to a far greater extent by the predictable consequences of his own criminal activity. Under these circumstances, we hold that the father did not make a showing of commitment to his parental responsibilities sufficient to entitle him to a hearing on his fitness before his parental rights could be terminated. Accordingly, we affirm the trial court's order granting the prospective adoptive parents' petition to terminate the biological father's parental rights.


The minor who is the subject of this appeal is O.M.,*fn1 who was born in San Bernardino County on September 11, 2006. O.M.'s biological father is appellant B.R.,*fn2 who was 28 years old at the time of the hearing in the trial court. O.M.'s biological mother is a woman named L.T., who is not a party to this appeal. B.R. and L.T. knew each other for several years before O.M. was born, but were never married, and never lived together.

In February 2006, B.R. learned that L.T. had received a positive result on a home pregnancy test, and he took her to a medical clinic to confirm the result. L.T. was expected to deliver on or about October 17, 2006. B.R. was happy about the pregnancy, and he and L.T. discussed raising the child together. They told B.R.'s parents about the pregnancy, and they were also happy about it.

B.R. has a history of drug use, and between 1998 and 2006, he was convicted of numerous crimes, including possession of marijuana for sale; attempted kidnapping; criminal threats; vandalism; and various Vehicle Code violations.*fn3 He was on parole when he learned that L.T. was pregnant, but even after he took her to the clinic, he continued to use methamphetamine and marijuana, and avoided his parole officer because he knew he could not pass a drug test. About a week after L.T.'s pregnancy was confirmed, B.R. was arrested for a parole violation, which resulted in his being incarcerated for about four months.

While B.R. was incarcerated, he maintained contact with L.T. by telephone and email, but did not provide her with any material support. She remained on good terms with his parents B.R. Sr.*fn4 and W.R., however, and they provided her with maternity clothes and some money. During this time, L.T. was arrested for shoplifting, and B.R.'s parents told her they would care for the child if she went to prison.

After B.R. was released from prison, around June 10, 2006, he saw L.T. at least once. At that time, B.R. stopped using drugs for a while. However, L.T. soon resumed her relationship with another man, who was the father of her older child, and began to avoid contact with B.R. He made some efforts to find her, both by physically searching for her and through mutual friends and her mother, A.T., but was unable to contact her. He did not give A.T. or any of L.T.'s friends any correspondence to transmit to L.T., however, and did not attempt to provide her with any money or material support through them, even though he was working and living with his parents at the time.

Meanwhile, respondents T.M. and J.R., who are O.M.'s current caretakers and his prospective adoptive parents, learned through an adoption facilitator that L.T. might be willing to surrender her baby to them, and contacted her in early July 2006. T.M. is a veterinarian, and J.R. is a registered nurse. They are residents of San Francisco, had been domestic partners for over seven years, and had decided to start a family by adopting a child. After making that decision, they contacted an adoption agency in 2005, and successfully completed its screening process for potential adoptive parents.

When T.M. and J.R. met with L.T. in July 2006, she told them that she was interested in placing her baby with a same-sex couple. She also told them, falsely, that she had gotten pregnant from a one-night stand at a party and was not in contact with the baby's father. During L.T.'s pregnancy, T.M. and J.R. helped her move into new housing, and gave her some financial assistance.

L.T. never talked to B.R. about giving up the baby for adoption, but in July or August 2006, he learned from A.T. that she was planning to do so. B.R. wanted to "have some say-so" over his child, and made an appointment with a lawyer to discuss the issue. By then, however, B.R. had begun using methamphetamine again. On August 6, 2006, the day before he was scheduled to meet with the lawyer, B.R. was arrested. He was charged with being a felon in possession of a handgun and ...

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