McNamara v. County of San Diego Dept. of Social Servs.

PETITIONER:McNamara
RESPONDENT:County of San Diego Dept. of Social Servs.
LOCATION:Dallas City Hall

DOCKET NO.: 87-5840
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: State appellate court

CITATION: 488 US 152 (1988)
ARGUED: Nov 28, 1988
DECIDED: Dec 06, 1988

ADVOCATES:
James E. Sutherland – on behalf of the Appellant
Lloyd Harmon, Jr. – on behalf of the Appellee

Facts of the case

Question

Audio Transcription for Oral Argument – November 28, 1988 in McNamara v. County of San Diego Dept. of Social Servs.

William H. Rehnquist:

We’ll hear argument next in No. 87-5840, Edward McNamara v. the County of San Diego Department of Adoptions.

Mr. Sutherland, you may proceed whenever you are ready.

James E. Sutherland:

Mr. Chief Justice, and may it please the Court:

This case is a case involving the complete and irrevocable termination of an unwed father’s parental rights to associate with his natural child as contrasted to a custody or even a visitation dispute which would be the province of the state domestic relations courts and would have to be handled there if Mr. McNamara prevails.

This appeal presents equal protection claims by the father who was deprived of that most precious of fundamental rights, the right to be a parent and to raise and care for his biological child, and results in the loss of any chance of a lifelong father-daughter relationship.

Byron R. White:

What were your claims below?

James E. Sutherland:

The claim–

Byron R. White:

Was it a due process claim?

James E. Sutherland:

–The claim in the trial court was that he was entitled to the parental preference under the California statutes, relying on Stanley v. Illinois, both establishing the fundamental right, and both due process and equal protection claims.

Byron R. White:

So you did press equal protection claims below?

James E. Sutherland:

They were pressed there by raising that particular argument in the trial court and on appeal.

The Fourteenth Amendment was not cited.

The California Supreme Court, however, when it took over the case, did address all Fourteenth Amendment issues, equal protection.

Byron R. White:

Including equal protection?

James E. Sutherland:

Equal protection and due process.

It is in the opinion in the jurisdictional statement.

Byron R. White:

Right, all right, thank you.

But you… did you raise or did you not raise equal protection in the Court of Appeals and the Supreme Court?

James E. Sutherland:

Well, we submit that we raised the issue but not as directly or precisely as it might well have been.

Did you ever use the words?

James E. Sutherland:

Yes, in the brief, in Appellant’s opening brief and in discussing the Stanley v. Illinois case, the Appellant, the father, did mention both due process–

Sandra Day O’Connor:

In what, before what court?

James E. Sutherland:

–That would be before the Court of Appeal.

The brief was… the way the procedure works, the California Supreme Court acted on the same briefs.

They just took the case over and went there.

As I recall, the words were used also in the trial briefs in the Superior Court.

We rely primarily here on the jurisdiction claim on the passed upon, under the pressed or passed upon test.

Antonin Scalia:

Excuse me, the words were used in describing Stanley?

Is that–

James E. Sutherland:

Yes, Your Honor.

Antonin Scalia:

–But not applying them to your own factual situation, saying we claim that in this case there has been a denial of equal protection.

You just described Stanley as having spoken about equal protection.

James E. Sutherland:

As establishing the fundamental right that he was trying to rely upon to parent, yes.

That’s–

Byron R. White:

But you rely on the fact that it was actually… the equal protection claim was actually adjudicated in the California Supreme Court.

James E. Sutherland:

–That’s correct, Your Honor, and I believe both–

Byron R. White:

And that therefore you are entitled to bring it here, even if it wasn’t raised prior to that time.

James E. Sutherland:

–That’s correct.

That’s the way we submit the pressed or passed upon test express in Clark v. Jeter and other cases should be interpreted, and certainly the California Supreme Court, when it interpreted the statute, parental rights termination statute under which this case had been handled, examined all the cases, Stanley and Caban, Lehr v. Robertson and Quilloin and said that the California statute, as interpreted, granting a parental preference was constitutional under those cases, particularly because this Court had not interpreted a similar statute and said otherwise, had not ruled such a statute unconstitutional.

Sandra Day O’Connor:

Well, now, you are not raising a substantive due process claim here before us, I take it.

James E. Sutherland:

That’s correct, Your Honor.

Thurgood Marshall:

And if we can’t find equal protection here, you lose.

James E. Sutherland:

Yes, though we do–

Thurgood Marshall:

You agree to that.

James E. Sutherland:

–We do contend that the substantial rights affected are to be considered in determining the equal rights standards and the classification, San Antonio School District, Griswald v. Connecticut and other cases like that, so that the substantive right involved is a factor.

Substantive due process, we would submit, would be more clearly presented if, for instance, the statute were rewritten so that both mothers and all fathers could lose parental rights based upon the best interests of the child test, then we would invoke the reservations in Santosky v. Kramer and Caban and go to the substantial due process.

But as the statutes are now framed and applied, it is these unwed fathers in Mr. McNamara’s situation who are denied the similar rights of mothers and other fathers classified as presumed fathers.

So this–

Antonin Scalia:

Could you tell me where the California Supreme Court discusses this issue of equal protection?

I must say I–

James E. Sutherland:

–Yes, Your Honor.

Antonin Scalia:

–It’s in your jurisdictional statement somewhere?

James E. Sutherland:

It starts at 45A–

That’s the first time?

James E. Sutherland:

–First time, the only time that they have written an opinion in the California Supreme Court.

The second appeal was to the Court of Appeals.

Antonin Scalia:

Where… I’m looking for the word “equal protection”.

I just don’t really find it very quickly.

Do you want to tell me the first time you see the word “equal protection”?

Just say bingo or something.

James E. Sutherland:

Well, I guess I haven’t underlined or outlined that particular part of it.

Antonin Scalia:

Well, they also don’t seem to be talking about equal protection.

It’s not just that they are not using the magic word I don’t… I must say, it’s a very subtle discussion of the issue to me.

James E. Sutherland:

They talk in Footnote 8 on page 45A of the Caban case and the undifferentiated distinctions which were not permissible.

William H. Rehnquist:

The second paragraph of that footnote does mention equal protection, right down towards the bottom of 45A.

James E. Sutherland:

Thank you.

William H. Rehnquist:

That’s a quote–

–That’s described, that’s a quote from Caban.

–from another case.

Just all a description of another case.

I don’t see in the text of the opinion any discussion of, you know, the difference between the mother and the father.

That’s what we’re talking about here, aren’t we, treating the mother differently from the father, and I fall to see any discussion of it in the California opinion, and you acknowledge you never raised it.

James E. Sutherland:

Well, may I proceed without taking the Court’s time to–

William H. Rehnquist:

We are going to recess in about three minutes for lunch.

Why don’t you proceed with the rest of your argument, and perhaps you’ll have something to say about that point when we resume at 1:00 o’clock.

James E. Sutherland:

–All right.

So the situation presented is that Mr. McNamara was deprived permanently of all right to have contact with his daughter, even though he was found in the California courts to have done everything that he could, everything that was necessary to assert and protect his rights, and even though he was found to be a good and loving father.

The facts of the situation are that he had a relationship with the mother in the fall of 1980.

When they split up he was not aware of the pregnancy, nor was she.

He did not learn of it until about two weeks after the child was born, when the mother asked his permission or his consent to the adoption.

William H. Rehnquist:

When was the child born?

James E. Sutherland:

July 18, 1981.

William H. Rehnquist:

So, what, he hadn’t seen the mother from November of 1980 till July of 1981?

James E. Sutherland:

That’s correct, hadn’t seen her, nor had he had any contact from her.

Sandra Day O’Connor:

Would you be making the same argument if it had been a so-called one night stand?

James E. Sutherland:

Well, I think we might get to that if we… if he performed all the other requirements to come under the definitions of this Court of manifesting significant parental interest, and that he would be entitled to the opportunity.

It’s a little close to see whether it is one night or five nights, you know, where would you draw the line as to duration–

Sandra Day O’Connor:

That would certainly go substantially beyond any of this Court’s cases, wouldn’t it, where there has been an established relationship.

James E. Sutherland:

–It would go beyond all the cases.

There have been no opportunities… this is the first case where the courts have considered a newborn.

James E. Sutherland:

In all the other cases the father either had an opportunity to establish a relationship or to show disinterest in establishing a relationship with the child.

So the critical question here is what can he do or what does he have to do as to a newborn, and when is he entitled to that right?

California again found that he did what was available.

William H. Rehnquist:

We will resume there at 1:00 o’clock, Mr. Sutherland.

We will resume the argument in No. 87-5840, McNamara v. County of San Diego Department of Adoptions.

Mr. Sutherland?

James E. Sutherland:

Mr. Chief Justice, and may it please the Court:

To return to the California Supreme Court’s consideration of the constitutional equal protection issues for the jurisdiction point, I can only refer to the statements in the jurisdictional statement, the opinion recited there, point out again that the California Supreme Court did discuss Caban and the equal protection provisions and the requirements of that case.

The Court did not cite chapter–

Sandra Day O’Connor:

Did you find anything other than that footnote?

James E. Sutherland:

–Not other… in that opinion, not other than that footnote citing the words and the case and the general discussion.

I would point out, however, that when the second appeal case, the Court of Appeal invited additional argument on the significance of the involvement of state action, and the county responded that all constitutional issues concerning that and the need for a finding of unfitness to terminate the parental rights had been squarely presented to the California Supreme Court; the California Court of Appeal agreed that the constitutional issues, state action and others had been foreclosed.

That’s in the opinion of that court, and we are in the situation where the county has also conceded here at page 10 of the brief for Appellee that those issues were raised and considered.

So we would submit that, though it’s not artfully stated with chapter and verse, that it was a necessary part of the judgment, and it was obvious that that’s what they were intending to do is uphold it against all those claims.

Antonin Scalia:

I don’t understand why it was a necessary part of the… it certainly wasn’t a necessary part of the judgment if you never raised the point.

I mean, at most you can argue they happened to address the point, but it wasn’t necessary for them to address it if you had never raised it.

James E. Sutherland:

It wasn’t necessary to meet the points raised.

It is perhaps necessarily included in their broad statement that the statute as interpreted passes muster under the Fourteenth Amendment and this Court’s cases applying it to unwed fathers’ illegitimate children.

I would point out as to the various issues before the Court that Mr. McNamara was easily identified and established as the father of the child.

He was named on the birth certificate, he was found, he claimed paternity, he was stipulated to be the father, and he was adjudged the father.

So many of the issues that might come up in other cases are not presented here.

We are addressed only with the situation where the father was known and identified, the mother has relinquished for adoption, the father then came forward, asked to be the full parent, offered to take and requested full parental responsibility and was denied any opportunity to form a relationship with the child and was denied any protected liberty interest by the California courts.

William H. Rehnquist:

Mr. Sutherland, your complaint is that your client is denied equal protection both with respect to other fathers and with respect to the unwed mother?

James E. Sutherland:

That’s correct, Your Honor, that no mother would lose her parental rights under the California scheme without a finding either of unfitness, neglect or abandonment of the child.

The classification of presumed fathers is treated the same.

The presumed father is one who has married the mother, who has attempted to marry the mother by going through a ceremony which might be void or voidable, or whom the mother has let take the child into his home, and he receives it into his family and holds it out as his own.

We contend that as against both mothers and the presumed fathers under the statute, that Mr. McNamara has a protected interest under this Court’s cases and is entitled to equal protection with both of them.

William H. Rehnquist:

And you say there’s no reasonable basis for treating an unwed father differently than an unwed mother in this situation?

James E. Sutherland:

In this situation, yes, where she is–

William H. Rehnquist:

My question was you say there’s no reasonable basis for treating an unwed father differently than an unwed mother.

James E. Sutherland:

–Under these circumstances, yes.

We do not contend that all unwed fathers should be treated like all unwed mothers.

Our contention is that once they cross the threshold, once they act like a father and manifest a significant parental interest, then they are entitled to the same protection.

William J. Brennan, Jr.:

Well, Mr. Sutherland, how much contact did Mr. McNamara have with the child since its birth?

James E. Sutherland:

Well, the short answer is all that he was allowed.

He had two visits, one when the child was approximately a month old, and then a couple of months–

William J. Brennan, Jr.:

And how long was that visit, how long?

James E. Sutherland:

–Thirty to 45 minutes, approximately.

That was the–

William J. Brennan, Jr.:

And the second one?

James E. Sutherland:

–About the same time.

It was in November of 1981.

They went to trial.

The child was born in July, and it went to trial the first time in December.

Byron R. White:

And from then on was he deprived of the chance of doing so?

James E. Sutherland:

Yes.

Byron R. White:

By whom, the state?

James E. Sutherland:

By the state.

Byron R. White:

By the county?

James E. Sutherland:

The county–

Byron R. White:

By placing the child with an adoption–

James E. Sutherland:

–Well, first by placing it with a foster parent, and then placing it with prospective adoptive parents.

That was done a week after he asked for custody.

Byron R. White:

–Was he denied any visitation rights during that period?

James E. Sutherland:

Yes.

And he has consistently tried.

We are litigating hard all the way up here.

Byron R. White:

May a… can a mother be deprived, have her parental rights taken away by… just on a best-interests-of-the-child basis?

James E. Sutherland:

No, not in California, not anywhere in any state, to my knowledge.

Byron R. White:

Do you think it requires some finding of unfitness?

James E. Sutherland:

Yes.

There’s two California statutes.

Byron R. White:

How about, how about constitutionally?

Would it violate the Constitution to terminate parental rights just on the basis of the best interests of the child without any finding of unfitness?

James E. Sutherland:

We would certainly contend so.

We would think that we would be walking into an amorphous area of conflicting psychiatric, psychological testimony, conflicting opinions, and even sort of wandering off into 1984 and Brave New World where we are deciding parental rights, and this basic, fundamental relationship based on what expert might have as conflicting opinions.

William H. Rehnquist:

Do you think it would be any more amorphous than the area you’re asking us to walk into on kind of a case-by-case determination as to when an unwed father can have his rights cut off?

James E. Sutherland:

No, Your Honor… well, yes.

I think it… I’ll answer the question.

I think that this Court has gone forward in Lehr v. Robertson, synthesizing the prior cases, to establish pretty definite guidelines which are subject to proof and subject to court interpretation as to when you acquire this protected liberty interest.

When you act like a father, to use the language of the case, is fairly obvious.

It’s certainly a lot more obvious than conflicting psychiatric opinion, trends in child custody determination which have evolved and changed consistently, and where there’s a tremendous amount of conflicting opinion and testimony in custody cases.

Antonin Scalia:

Mr. Sutherland, most states that I’m aware of, all that I’m aware of, have laws against polygamy.

I guess, I guess that they wouldn’t make a whole lot of difference if you wanted to have a lot of children by different women, you just would not marry the women and become the biological father of children by a number of different women, and you are telling us you would have some legal rights to be declared the father of all of those children.

James E. Sutherland:

Rights and responsibilities.

Antonin Scalia:

Mm-hmm.

James E. Sutherland:

Yes.

Antonin Scalia:

So those polygamy laws are really sort of dead letters, really.

James E. Sutherland:

Our position would be that if that is a concern of the state, then the state first ought to address it in legislation.

Antonin Scalia:

They have.

They have antipolygamy laws.

I think what that means to say is you can be the father of as many children as you beget in a legally constituted marriage.

James E. Sutherland:

Well–

Antonin Scalia:

I think that’s the purpose of those laws.

I think that means you cannot beget as many children as you like by as many women as you like and be their father.

James E. Sutherland:

–Well, it means precisely, I thought, Your Honor, that you couldn’t marry them and be wise to them, but paternity litigation is rife with men who have been married, had children by another woman who was not their wife, and they are still stuck with support, they still could be good parents.

If Mr. McNamara had been married at this time, he still would have been a good parent, as the court found him to be.

He could have provided a good and loving home.

If the state feels that that is some particular fact situation that should prevent a father in that situation from establishing a parent-child relationship with a child born out of wedlock, then the state should address that first, and it could, just as it could address in a statute various other situations, incest or rape or various other matters of policy.

Sandra Day O’Connor:

Well, the state has done that here by effectively providing a mechanism for cutting off a biological father’s right.

James E. Sutherland:

They haven’t precluded them or made some finding that this is a policy.

They just say all the fathers–

Sandra Day O’Connor:

Well, they’ve adopted it as a policy that the state will consider the best interests of the child over the alleged rights of the biological father, isn’t that right?

James E. Sutherland:

–But that… yes, but that applies to all the unwed fathers who are not presumed fathers.

They are not cutting off all unwed fathers because presumed fathers would get the different protection and the same standard as the mother.

Sandra Day O’Connor:

Do you think the state has some interest here in promptly placing illegitimately born newborns in stable family homes?

James E. Sutherland:

I think the state has an interest.

That interest would have been satisfied here by giving custody to Mr. McNamara, and the interests of the state to–

Sandra Day O’Connor:

Well, by the time that hearing came up, is it possible that the bonding had already taken place of the baby with the adoptive parent?

James E. Sutherland:

–Well, not sufficiently.

Certainly the California Supreme Court said no.

The trial court said yes to that question, and the California Supreme Court said there was no basis in the record for terminating his parental rights and interest for not… no reason to not give him custody under that.

Bonding becomes one of the amorphous problems when you walk in to a best-interests-of-the-child test in that sort of litigation, and you have all sorts of competing ideas and theories.

You have, used to have a tender years presumption.

You used to have a belief that all children should be in two-parent homes.

Now one parent, single parents are allowed to adopt children.

William H. Rehnquist:

Why isn’t that for the state to decide, though, if there are all these ideas floating around, why isn’t it reasonable for the state to choose one or the other as California has done here?

James E. Sutherland:

But they haven’t chosen within the best interests standard.

They have just said if you are not a presumed father, then we wander off, and we’re going to decide in some trial what’s best for the child, whether it should be placement with you or placement with somebody else that–

William H. Rehnquist:

Well, but that’s certainly a determination of state policy.

James E. Sutherland:

–But it’s a determination of state policy which deprives fathers who have achieved protected liberty interest from the equal protection with other people covered by state laws.

William H. Rehnquist:

Well, but that really begs the question.

None of our cases hold that a father in your client’s position has achieved a protected liberty interest.

James E. Sutherland:

None hold otherwise, but if we must look to the particular holdings of this Court and the factual situations addressed in order to achieve that interest, it would be impossible for the father of a newborn child to have a relationship over a period of years to either demonstrate interest or disinterest.

And so the state policy, we submit, denies equal protection.

Thurgood Marshall:

You have no trouble with just taking equal protection and saying I have been denied equal protection, so that means due process of law, you have no trouble with that at all, do you?

James E. Sutherland:

I would have no trouble with it.

Thurgood Marshall:

By saying that a denial of equal protection is a denial of due process.

Do you see any difference between… do you see any difference between the two?

James E. Sutherland:

Not really as to substantive due process and procedural due process–

Thurgood Marshall:

That’s your position, right?

James E. Sutherland:

–Yes.

Thurgood Marshall:

Is that your position?

James E. Sutherland:

Yes, that would be–

Thurgood Marshall:

Do you prove equal protection… you claim due process, you prove equal protection, therefore you win.

James E. Sutherland:

–Well, I’m claiming equal protection–

Sir?

James E. Sutherland:

–I’m claiming equal protection and ending up arguing that substantive due process denial and the denial of equal protection in a situation are the same.

I would like to reserve the rest of the time for argument if I might.

William H. Rehnquist:

Very well, Mr. Sutherland.

Mr. Harmon, we will hear now from you–

Lloyd Harmon, Jr.:

Mr. Chief Justice, may it please the Court:

First I would like to address the issue what does the 1984 decision of the California Supreme Court actually hold with regard to these federal constitutional issues, and I think in all candor we have to say that the decision and the discussion in that case is not as precise as we would have liked it to be.

However, we do believe that it certainly hit the substantive due process issue head on and that it did conclude that the California statutory scheme did not violate federal–

Sandra Day O’Connor:

Well, Mr. Harmon, the substantive due process issue is not what the petitioner raises here.

Lloyd Harmon, Jr.:

–Yes, that also baffles us a little bit because if you look at his opening brief, the argument is, of course, that Edward has a protected liberty interest.

He cites all the cases that are traditionally discussed in substantive due process cases, and on page 21 of that brief he says termination of parental rights interferes with a “fundamental liberty interest”.

So as you will note from the brief that we filed, we talk about substantive due process and we talk about equal protection, but from our vantage point there’s no question in our mind that the California Supreme Court dealt with the substantive due process issue.

With respect to the equal protection issue, again, Footnote 8 is the only place that you really find any discussion of equal protection, and as has been pointed out, that’s in a quotation.

Antonin Scalia:

And the purpose of the quotation is to set the stage for the last paragraph of the footnote, which simply concludes: Because we have ruled that the New York statute is unconstitutional under the equal protection clause, we similarly express no view as to whether a state is constitutionally barred… it’s not a substantive discussion of equal protection at all.

The point of it, if you go back to the text to see what the footnote is for, is to establish, is to establish that Caban, like Stanley, involved biological fathers who had established strong ties and held them out as their own.

That’s the only purpose it’s cited for.

Lloyd Harmon, Jr.:

Well, it certainly does not have any discussion of the equal protection issue.

There’s… we don’t dispute that.

In looking at the decision as phrased by the California Supreme Court, we were of the view that in citing Caban, which is solely an equal protection case out of this Court, that the Court was considering that case and therefore, under the more general rule that raised and decided that the California Supreme Court in 1984 had attempted to decide both federal constitutional issues.

However, as the Court knows, we have also raised the jurisdictional issue of finality, that this Court lacks jurisdiction because in 1984 the Appellant should have proceeded to seek review in this Court at that time since all federal constitutional issues had been raised.

With respect to–

William H. Rehnquist:

Well, that’s almost the converse of finality, to say that you must come immediately to this Court if you possibly could.

Have we ever held that?

Lloyd Harmon, Jr.:

–No, not exactly in those words, Mr. Chief Justice, but the point of the finality rule, which is to protect federalism and also to have efficiency within the court system, would be served in this type of case where the federal constitutional issues have been decided by the highest court of the State of California so that on any remand of state issues only, the lower courts are going to be judged by what the California Supreme Court has said is the appropriate federal constitutional application.

Byron R. White:

But there was a remand, wasn’t there?

Lloyd Harmon, Jr.:

There was a remand–

Byron R. White:

Well, there was a remand, so it really isn’t… the case wasn’t over yet.

So you have to find some excuse for saying it was final.

And after all, the father could have prevailed on remand and won his case.

Lloyd Harmon, Jr.:

–Well, right, but–

Byron R. White:

And there would have been no judgment at all to review.

Lloyd Harmon, Jr.:

–That’s–

Byron R. White:

Isn’t that right?

Lloyd Harmon, Jr.:

–That’s possibly true.

There’s no question that could have happened.

Byron R. White:

Well, they remanded to determine a–

Lloyd Harmon, Jr.:

State law issue.

Byron R. White:

–Yes.

Well, he could have prevailed in the whole case on that very issue.

Lloyd Harmon, Jr.:

But the–

Byron R. White:

And the federal issue would have no longer been in the case.

Lloyd Harmon, Jr.:

–But the federal issue was certainly a basic underpinning of what the trial court was going to have to do in that case with respect to the construction of the statute, and I think another aspect of this case that may differ from other types of cases where folks are asking a construction of the finality rule, this Court has recognized that in child custody cases time is of the essence, that it impacts a child’s development to delay, and I think one could say this case is a classic example.

It has been in the court system now seven and one half years, or almost seven and one half years.

If it would have had to come to this Court four years ago, there would have been four years less anxiety on the part of the adoptive parents, anxiety on the part of the adopted child, Katie.

So in this kind of case there may be some benefit to having a finality rule in custody, child custody cases.

With respect to the–

Antonin Scalia:

Excuse me.

Lloyd Harmon, Jr.:

–Yes.

Antonin Scalia:

Your argument still does, even if you limit it to that narrow category of cases, it does hinge upon what the Chief Justice suggested, that is, that if we might have taken it, you must apply to us.

If we make an exception from our normal finality rules ever, you have to take a shot at getting us hear it, right?

Lloyd Harmon, Jr.:

That’s correct.

Antonin Scalia:

So in all custody cases, even though you might win on remand, you have to go through the expense of filing cert petitions here.

Lloyd Harmon, Jr.:

Only if the highest court in the state has ruled on a federal constitutional issue properly raised.

Sure, sure.

Lloyd Harmon, Jr.:

With respect to the substantive issue, as we characterize it, the central substantive issue is whether the Constitution requires a state to give the same consensual rights to the father, to the unwed father as it gives to the unwed mother of a newborn child.

In this case we have Katie Moses who was born July 18, 1981.

Three days later she was placed with the county adoptions agency at the request of her mother.

Approximately three weeks after her birth, her mother signed a formal relinquishment of the child to the county adoptions agency for adoption.

And approximately five weeks after her birth, she was placed in the adoptive family.

She has resided with that adoptive family since that time.

There has been no interruption in that placement.

The requirement for the consent of only the mother of an unwed newborn is designed to implement the state policy which is the speedy placement of children, to put them into a stable setting so they can nurture and nourish.

The reason that the limiting the consent to the mother is reflected in both the enormity of the problem.

In 1986 in California one-quarter of all births were to unwed mothers.

And as this Court recognized in the Lehr case, that mothers… excuse me, unwed fathers are typically not as identifiable and not as necessarily not as interested in fatherhood.

So–

Sandra Day O’Connor:

Well, apparently California has chosen to require at least notice and an opportunity to be heard if the father is known, is that correct?

Lloyd Harmon, Jr.:

–That is right once the child is going to be placed in adoption.

This proceeding arises as a part of the adoption process, and that’s how the notice is required.

As this Court knows, as a result of Stanley, there’s a lot of gnashing as to what procedures should the states implement in order to meet those procedural due process requirements.

The California law is basically the Uniform Parentage Act.

So at a point in time, yes, the father is given notice.

It gives the father an opportunity to come in and claim custody, and he’s entitled to a hearing on the best interests standard, or he can simply ignore it, and a default is entered.

Anthony M. Kennedy:

And what are the constitutional purposes served by requiring that hearing?

I take it you concede that that hearing is constitutionally required?

Lloyd Harmon, Jr.:

That hearing is required through… is implementing Stanley v. Illinois.

Anthony M. Kennedy:

All right.

And what values are served by that?

Lloyd Harmon, Jr.:

The value is it does give the unwed father an opportunity to come in and seek custody.

First the unwed father establishes the parentage, and then under the statute, as it existed at the time of this proceeding, the father, if he claims custodial rights, has a hearing on that issue.

And in the first trial the trial court used the best interests of the child standard, and based on that standard, denied his request, awarded the custody to the Moses family.

That went up on the appeal.

The California Supreme Court concluded that it was a detriment/best interests test that should have been applied.

It came back to the trial court in 1985.

Lloyd Harmon, Jr.:

There was a hearing.

Based on the evidence provided at that hearing, the court concluded it would be detrimental to the child to be returned to her father or placed with her father, and it was in the best interests that she remain with the Moses.

So that’s the statutory scheme with respect to the 7017 proceeding that is here.

Now, California, though, does make it possible for the unwed father to grasp the opportunity for fatherhood, and that is found in Civil Code Section 7006(c).

It allows a father to file a filiation proceeding where the father can establish the parent-child relationship, where the court can award custody, can award visitation, can order the father to pay support, and at the same time, when this action was filed in 1982, when the TROF action was filed in 1982, the mere filing of the 7006(c) action would have stayed the termination proceeding.

Sandra Day O’Connor:

Well, I think it’s hard for you to argue that the father didn’t do everything he could do, and the state courts seem to have so held.

I think we are better off addressing the question rather than going off on some theory that he didn’t do all that he could do here.

Lloyd Harmon, Jr.:

Well, Justice O’Connor, from our view, the father did not do all he could have done, and in fact, he did not do anything.

Just to recite the facts, he learned about the birth on August 1, 1982.

He first met with the social worker on August 5.

He did not want custody at that time.

He met with her again on August 10; he did not want custody at that time.

He met with her on August 17, and that was the first time that he raised the issue of custody.

He then did not meet with the social worker until November 11 where he saw the child the second time.

So during that whole period, there was still no contact from the father with respect to his child.

So I think there is a question, did he do everything he could have done in order to have established or perfected his rights.

Sandra Day O’Connor:

Well, am I mistaken, or did the courts below find that he had done what he could do?

Lloyd Harmon, Jr.:

The trial court certainly did not find that he could have done all that he could have done.

John Paul Stevens:

May I ask you, if he had initiated the kind of proceeding you describe in, say, August 17 when he decided he did want custody, if he had initiated that proceeding and he had been able to prove that he was a fit parent, would he have prevailed under California law?

Lloyd Harmon, Jr.:

If he had, if he had established that it was in, would have been in the best interests to have the child placed with him–

John Paul Stevens:

No, would he… he would have had to prove it was in the best interests of the child to be with him at that time?

Lloyd Harmon, Jr.:

–Yes.

John Paul Stevens:

Would the issue have been any different in that proceeding than in this proceeding?

Lloyd Harmon, Jr.:

The issue would not have been any different.

However, it would have been an affirmative action on his part in order to perfect his rights, and that I think is a significant factor in the opportunity that the California statute–

John Paul Stevens:

Well, why is it significant if… why is that significant at all?

If the test is simply best interests of the child, why couldn’t the court at that time have said we think the child is better off with the adoptive parents?

Lloyd Harmon, Jr.:

–Well, for one thing, a timely filing of that kind of action could have prevented some of the bonding issues that have arisen in this case.

John Paul Stevens:

Well, how?

He wouldn’t have gotten custody right away, would he?

Lloyd Harmon, Jr.:

He could have asked for interim custody.

He could have–

John Paul Stevens:

Would the judge have given it to… under your view, would it have been up to the judge to give it to him?

Lloyd Harmon, Jr.:

–Under our view–

John Paul Stevens:

When the county agency is saying we think the child is better off with the adopting parents, and that’s where the mother wants the child?

Lloyd Harmon, Jr.:

–The county agency’s perspective is that the child is better off wherever it is in the best interests of the child to be.

John Paul Stevens:

And the position of the county was the child was better off with the adoptive parents.

Lloyd Harmon, Jr.:

Well, yes, but by the time we were making that judgment in court, the child had been with the parents for some four months.

John Paul Stevens:

Wouldn’t they have taken the same position on August 17 or 18th?

Lloyd Harmon, Jr.:

Well, in all candor I can’t say.

My feeling is, my sense of it is the issue would have been what is best for the child?

Does this man have a serious interest in raising this child?

Has he come forth with a plan that warrants serious consideration?

If so, that might well have been in the best interests of the child at a particular time.

But we will never know because that avenue was not pursued.

So what has happened is this case has been in litigation for some seven years now, and we have a child that has been in this placement for seven years now, and from the country’s perspective, there’s a lot of inaction on his part to have created this problem.

John Paul Stevens:

Well, there’s one inaction: he didn’t file that lawsuit right away.

Lloyd Harmon, Jr.:

Certainly.

Antonin Scalia:

Well, I suppose he didn’t, marry the woman.

Lloyd Harmon, Jr.:

That would have been an alternative, certainly.

Antonin Scalia:

Yes, which is what the state would have preferred.

I was looking through the statutes here.

Wouldn’t he have occupied a different status if he, not only if he had married her, but if he had offered or sought to marry her?

Lloyd Harmon, Jr.:

His different… excuse me.

John Paul Stevens:

I can’t find it in the appendix here, but I–

Lloyd Harmon, Jr.:

His different status could have arisen from filing the filiation proceeding, having obtained some custodial interest in the child through visitation or otherwise, he would have become a presumed father.

That would have put him into a class of father where his consent would have been necessary in order for the adoption to take place.

John Paul Stevens:

–Do you become a presumed father by marrying after the birth of the child?

Lloyd Harmon, Jr.:

You can become one, yes.

John Paul Stevens:

Any limit on that?

Lloyd Harmon, Jr.:

No, no limit.

John Paul Stevens:

Clear this up for me.

He became a… he would have become a presumed father by filing the filiation proceeding, by offering to marry the mother, or by doing both?

Lloyd Harmon, Jr.:

He would, by… he would become a presumed father by having married the–

John Paul Stevens:

No, say he offered.

Lloyd Harmon, Jr.:

–Not, no, no, he would not have become a presumed father by offering to marry.

John Paul Stevens:

So if she says no, than–

Lloyd Harmon, Jr.:

Or merely filing the filiation.

The presumed father status is akin to what we used to call legitimation, and one of the concepts in that is you can bring your illegitimate child into your home, hold that child out as your own, and that legitimated the child.

That was the law in California before the Uniform Parentage Act.

John Paul Stevens:

–Well, but he… that option wasn’t open to him here.

Lloyd Harmon, Jr.:

No, it was not open to him.

John Paul Stevens:

And marrying her wasn’t open to him because she didn’t want to marry him.

Lloyd Harmon, Jr.:

That’s right.

John Paul Stevens:

So, but did… would institution of the filiation proceeding have made him a presumed father?

Lloyd Harmon, Jr.:

Only if he would have gotten the custody, but it would have–

John Paul Stevens:

I mean, no, just that.

Lloyd Harmon, Jr.:

–No, just, no.

John Paul Stevens:

So that there really was no way he could become a presumed father on these facts.

Lloyd Harmon, Jr.:

On these facts, no, no.

Okay.

Lloyd Harmon, Jr.:

The argument that we’ve made is that the policies of California established by the gender distinction that’s made in 7017(d) are consistent with the test of this Court dealing with gender distinctions.

Justice Powell’s opinion in the Caban case recognized that

“in those cases where the father never has come forward to participate in the rearing of his child, nothing in the equal protection clause precludes the state from withholding from him the privilege of vetoing the adoption of that child. “

William H. Rehnquist:

Well, in Caban, though, the role of the father was a good deal more passive than it was here, wasn’t it?

I mean–

Lloyd Harmon, Jr.:

In Caban, the father had actually had custody of the child.

That dealt with an older child where there had been two sets of married folks competing.

William H. Rehnquist:

–It was in Lehr that the father’s role had been very [inaudible].

Lloyd Harmon, Jr.:

Right.

Lloyd Harmon, Jr.:

This case is similar, we think, to Lehr and Parham because in Lehr this Court said it was not a denial of equal protection or due process where the father had sailed to send in the postcard that would have put him on the putative fathers registry so that he would have received notice and an opportunity to appear at the adoption of his child.

And this was held, notwithstanding the fact that the father was also pursuing a separate court action to attempt to claim custody of the child.

In Parham, that’s where the Court held that it was not a denial of equal protection to preclude the unwed father of an illegitimate child from maintaining a wrongful death action if the father had not taken the necessary steps under Georgia law to legitimate the child.

And what we’re… what we’re suggesting here is that like Parham and like Lehr, Mr. McNamara did have an opportunity through the use of 7006(c) to put himself in the type of position where he could have been a presumed father.

William H. Rehnquist:

I thought your answers to Justice Stevens’ question indicated that this particular appellant could not have, other than marrying the mother.

Lloyd Harmon, Jr.:

No, no, what I was saying to Justice Stevens was that merely filing the action itself would not have put him in the presumed father status.

William H. Rehnquist:

Well, how could this fellow have put himself, brought himself within the presumed father status?

Lloyd Harmon, Jr.:

By getting custody, some type of custody of the child.

William H. Rehnquist:

But how was he to do that?

Lloyd Harmon, Jr.:

The filiation proceeding would have been an available resource to him, Mr. Chief Justice.

He just did not–

William H. Rehnquist:

So what would a filiation proceeding have given him?

Lloyd Harmon, Jr.:

–The right to obtain custody of the child or visitation with the child.

Sandra Day O’Connor:

But wouldn’t they have applied exactly the same standard as they did here, the best interests of the child?

I don’t see how that would have altered his position at all.

Lloyd Harmon, Jr.:

Well, no, they might have… the point is they might have applied the same tests, they would have applied the best interests, but when you’re dealing with the child custody timing is all important, and I think that’s what the decisions of this Court have recognized, that it is that substantial relationship between parent and child that warrants the protection and if a father is going to sleep on his rights, such as not send the postcard in, take those steps that are possibly available to fasten some relationship between him and the child, at least as a matter of constitutional law that father is not going to be denied equal protection.

Anthony M. Kennedy:

But your position goes further than that.

Suppose in this case we stipulate that the father did everything that he could have done, isn’t your position exactly the same, that the natural father is in a different category than presumed fathers?

Lloyd Harmon, Jr.:

Certainly.

Anthony M. Kennedy:

All right.

Then why don’t you argue the case on that… that’s what the case is about, isn’t it?

Lloyd Harmon, Jr.:

That is what the case is about, that’s true.

And in that respect, looking at the test used by this Court in Craig v. Boren, where the classification serves an important governmental objective, which in this case would be speedy and stable placements of newborn children, we believe the classification is substantially related to that point.

And if I might just quote from Justice Stevens in the Caban case, the reasons for the substantial relationship, only the other carries the child.

It is she who has the constitutional right to decide whether to bear it or not.

These differences continue at birth and immediately thereafter.

During that period, the mother and child are together, the mother’s identity is known with certainty.

The father, on the other hand, may or may not be present.

These natural differences between unmarried fathers and mothers make it probable that the mother and not the father or both parents will have custody of the newborn infant.

And that’s the way it was in this case.

Lloyd Harmon, Jr.:

Justice Stevens continued, but as a matter of equal protection analysis, it is perfectly obvious that at the time and immediately after a child is born out of wedlock, differences between men and women justify some differential treatment of the mother and father in the adoption process.

Most particularly, these differences justify a rule that gives the mother of the newborn infant the exclusive right to consent to its adoption.

In Lehr, this Court made the… states the same rule, equal protection does not prevent a state from according the two parents different legal rights if a parent has never established a custodial, personal or financial relationship with a child.

The fundamental point we’re making is that biology in and of itself does not create any substantial relationship or create a protected relationship.

There must be something substantial between the father and the child.

Absent that, the classification is reasonable.

And it is on this point that I think the Appellant misconceives the role of this Court.

This Court is not to sit as an intermediate state appellate court to review the sufficiency of the evidence supporting the determination of the trial court as to who should have custody of the child.

The issue before this Court is whether or not the unwed father classification meets constitutional principles.

We submit that it does.

I’d like to make a point with respect to what is the remedy that the Appellant seeks in this case, because quite frankly, he has never made it clear.

On page 3 of his reply brief, he says that it is the termination of rights of the father proceeding is set aside, no adoption will be permissible without his consent, and he will be able to seek custody, visitation, pay support and be a full participant in Katie’s life.

On the other hand, on page 4 he states it is not likely that Edward will get custody, and why is that?

In all candor, I think it’s for the same reasons that he did not get custody in the trial court: the best interests of the child are such that custody should remain with the Moses.

So if we are down to the point where visitation is the only remedy that he is seeking, that again is subject to the requirements of Section 4600 of the Civil Code, which is the detriment/best interests of the child standard.

So even that type of action by the father is subject to the same statutory standard that this termination proceeding was subject to.

With respect to the substantive due process argument, again, McNamara ignores the fact that he did have an opportunity to establish a relationship with his child under state law.

We again refer to 7006(c) of the Civil Code.

John Paul Stevens:

May I ask you on that point, Mr. Harmon, did you argue that in your brief, 7006(c)?

Lloyd Harmon, Jr.:

Yes, that is in the brief.

But in any event, this is not an intrusion into an existing family unit.

Mr. McNamara and his daughter were never a family.

They never had any relationship.

As counsel indicated, the most they saw of each other may have been an hour and one half some seven years ago.

So we would submit that under the tests that this Court has applied in Stanley, Caban, that before a personal liberty interest occurs, there must be a substantial relationship between the father and the child.

Absent that, there is no protected liberty interest.

Thank you.

William H. Rehnquist:

Thank you, Mr. Harmon.

Mr. Sutherland, you have six minutes remaining.

James E. Sutherland:

Thank you, Your Honor.

James E. Sutherland:

May it please the Court:

The paradox in the situation under California law is that to get a hearing, Mr. McNamara had to come under Section 7017, seek to establish his paternity by filing a 7006 petition, which he did.

That argument was never raised below, and California found that procedures had been followed.

So he had to come in, seek to take full custody, become a parent, act like a father, take full responsibility, and yet, he’s cut out by that statutory scheme and treated as one who had no interest in his child at all.

That would be another sort of natural father.

What we are asking the Court to do is determine that Mr. McNamara’s parental rights should not be terminated except on the same grounds as the mother or the presumed father, unfitness, neglect or abandonment.

That will result in a new trial to see if those grounds may be established.

On the basis of this record, they cannot be because he is a good and loving father and always has been.

That will leave custody open.

Custody will be decided by the California courts according to the best interests of the child.

Mr. McNamara would have the right to seek custody, perhaps not now but perhaps sometime in the future, he would have the right to try for visitation, he would have the right to establish a lifelong relationship, all subject to the trial facts and the supervision of the California courts.

The main points raised to justify the disparate treatment are supposed effects upon adoptions and upon unwed mothers in certain circumstances.

We submit that that is speculative, there is no proof offered that there would be those adverse consequences.

It doesn’t seem to bother Texas, Illinois or Wisconsin which require the same grounds.

It doesn’t bother the commissioners on uniform laws and the Uniform Parentage Act, Section 4 when they become a presumed father merely by filing an affidavit of paternity, which is not contested.

San Diego County, according to the newspapers, its current administration under these circumstances would give custody to the father subject to change, but it does indicate that all these adverse consequences don’t come about.

It doesn’t bother California.

The delay, the possible placement with the father all arise now because the statutory scheme requires notice and a hearing so that the father might get custody.

It didn’t bother the California Supreme Court which found no policy reason, no factual reason nor any legal reason to deny parental rights, terminate parental rights at the first trial.

If merely placing the child with prospective adoptive parents or foster parents is going to become determinative of these issues, then agencies may act with impunity because the courts will take time, there is certainly some delay even pendente lite litigation.

This trial as done in about three or four months, which is pretty fast, but there’s still delay that they complain of.

So that–

William H. Rehnquist:

You mean the trial itself lasted three–

James E. Sutherland:

–No, no, was within three or four months.

–Oh.

James E. Sutherland:

I’m sorry, Your Honor.

It was started, a petition was put up in August and the trial went in December.

So that there simply is, we submit, no basis for the differential.

No important state interest is served, certainly no compelling state interest is served.

Again, state interest is to find a good home, and Mr. McNamara offered one.

James E. Sutherland:

He offered one well within the time the state thought he should do so.

If there are no further questions, I would submit, Your Honor.

William H. Rehnquist:

Thank you, Mr. Sutherland.

The case is submitted.