Guide To California Independent Adoptions
by Douglas R. Donnelly

The Types, Requirements and Implications of Adoption
California law provides for several different types of adoptions.  There are agency adoptions, independent or direct adoptions, stepparent adoptions, and the adoption of an adult or married minor.

 The basic legal effect of an adoption is that the adopted child becomes, for all legal purposes, without exception, the legal child of the adopting parent or parents.  This means that the adopting parents are responsible for the support and care of the child, and for providing for the child's education.  The birth parents of the adopted child are relieved of all parental duties towards the child and all responsibility for the child.

In all types of adoptions, the judge will not grant the Petition for Adoption unless the judge is convinced that the adoption is in the child's best interest.  The judge's sole concern is the welfare of the child; he or she is not permitted to consider whether the adoption would be beneficial to the adopting parents or to any other party.

California law provides that a child can be placed for adoption only by a licensed adoption agency or by one or both of the child's birth parents.  Thus, in an independent adoption, the birth parent, usually the mother, places the child with the adopting parents.  In California, it is a misdemeanor for anyone other than a licensed adoption agency or the child's birth parent to place a child.  Therefore, if a doctor or lawyer chooses the adopting parents, he or she is committing a crime.

The only other legal requirements for adoption, whether by agency or directly, is that the adopting parents be at least ten years older than the child to be adopted, and that the adoption be in the child's best interest.

Agency Adoption
Most people are familiar with the process of agency adoption.  The State of California licenses certain agencies as adoption agencies.  There are two kinds of licensed agencies.  There are public agencies, operated by the Department of Social Services of most counties, which are an arm of the county government.  There are also private agencies that are privately funded non-profit corporations.  The essence of agency adoptions is that the birth parents relinquish their rights to the child to the agency, trusting that the agency will in turn relinquish its rights to the child to an appropriate adopting home.

Traditionally, agency adoptions were "closed" adoptions, and there was no contact between the birth parents and the adopting parents.  However, there has been a marked trend in recent years towards agencies allowing birth parents to have some contact with the adopting parents.  California law now allows a birth parent to relinquish a child to an agency in something called a "designated" or "identified" adoption, in which the agency agrees that the agency will place the child for adoption only with the adopting family specified by the birth mother.  Even in these cases, however, legally it is the agency which places the child for adoption, not the birth parents. 

There are two primary advantages of an agency adoption.  First, the agency operates as a buffer between the birth parents and the adopting parents, and if the parties wish to remain anonymous, this is possible.  That stated, anonymous adoptions, usually referred to as "closed" adoptions, are extremely rare in California, even in agency adoption.  Second, in an agency adoption, following the child's birth, the birth mother signs a document called a "relinquishment," which, when filed with the California Department of Social Services in Sacramento, has the effect of terminating the birth parent's parental rights.  It generally takes three to four days to file the relinquishment in Sacramento, and at that moment, the relinquishment becomes binding and irrevocable.  The agency may allow the birth parent to revoke the relinquishment if the agency wishes to, but the agency is under no legal obligation to allow the relinquishment to be revoked.

There are several disadvantages of agency adoption.  First, to place a child for adoption through an agency, the birth mother must surrender control of the adoption and of the child to the agency.  Thus, the process is structured to meet the needs and requirements of the agency, rather than to meet the emotional and other needs of the birth parents and the adopting parents.  Second, traditionally, agencies have not placed children in adoptive homes until all uncertainties regarding the child's legal status have been resolved, a process which can take weeks, or even months.  Until these issues are resolved, the child is often placed in foster care.  Many birth parents and adopting parents alike object to the child being in a foster home through the critical first few weeks or months of life.  In response to these concerns, agencies have in recent years begun experimenting with something called "at risk placements," which means that the child is placed in the home with the adopting family while there is still a legal risk that the child would have to be removed from that home. 

The third disadvantage of agency adoption is the typical wait for a child to be placed.  Most agencies have a waiting list of families seeking to adopt a child, and the wait is typically several years or longer.  In independent adoption, the wait is typically much shorter. 

Adoption Facilitators
Most people are unaware of the difference between an adoption 'facilitator' and an adoption agency. Briefly, an adoption agency is licensed and closely regulated by the state, and is required to maintain specified levels of staffing with personnel who are licensed as counselors and social workers. Although some states allow 'for-profit' adoption agencies, California does not, and all adoption agencies licensed by this state are non-profit corporations. In contrast, an adoption facilitator has no license, no regulation, no education requirements, and is a 'for-profit' business with no accountability. All too many facilitators deliberately (and fraudulently) operate in such a way as to pass themselves off as licensed agencies. 

Independent Adoption
Independent adoption represents the vast majority of adoptions in California, and official statistics from the State Department of Social Services consistently put independent adoptions at roughly 86% of all adoptions in this state.

For a birth parent to place a child for an independent adoption, the parent must have enough information about the adopting parents to make an intelligent and informed decision that this is a proper home for his or her child.

For the placement to be considered an informed and intelligent one, the law requires that the birth parent possess personal knowledge regarding the adopting family.  The birth parent must have knowledge of the adopting family's full legal names, ages, religion, race or ethnicity, length of current marriage and number of previous marriages, employment, number of other persons who reside in their home, whether there are other children who do not reside in their home and the child support obligation for these children and any failure to meet these obligations, any health conditions curtailing their normal daily activities or reducing their normal life expectancies, any convictions for crimes other than minor traffic violations, any removals of children from their care due to allegations of child abuse or neglect, and their general area of residence, or, upon request, their address.  This information can be communicated to the birth parent either directly by the prospective adopting parents, or indirectly through an intermediary. 

When the birth mother has been provided with all information she deems necessary as to the background and qualifications of the adopting parents, she is then asked whether this is a home into which she would like to place her child.  If so, after the birth, the child is released directly from the hospital to the adopting parents.  Shortly thereafter, the adopting parents file a petition with the court requesting that the court issue a decree of adoption.  The judge does not act on the request for a period of about six months, and in the meantime appoints the State Department of Social Services or, in some counties, the County Adoption Agency, to make an investigation to see whether the home of the adopting parents is a fit home for adoption.  The appropriate agency then conducts an investigation quite similar to the home study it would have conducted had the placement been an agency adoption rather than an independent adoption, the only major difference being that the investigation is made after the child is in the home, rather than before.  If the recommendation of the agency is a favorable one, as it usually is, a brief court hearing is held in the judge's chambers, at which time the judge signs the decree.

Independent adoptions have both advantages and disadvantages to the natural and adopting parents.  From the standpoint of the adopting parents, the greatest advantage of an independent adoption is that the long wait for an agency adoption, which can often be five years or more, is eliminated.   In addition, many birth parents feel that independent adoptions are advantageous in that there is a direct placement into the home of the adopting parents, rather than the child spending weeks or months in a foster home.  The greatest advantage from the birth mother's perspective is that she has total control over the selection of the home into which her child is to be placed, unlike the situation in an agency adoption.  As a result, for the rest of her life the birth mother has the comfort of knowing that she did everything within her power to find the best possible home for her child. 

The only significant disadvantage of an independent adoption for either the birth or adopting parents is that there is no possibility for anonymity, unlike the case in agency adoptions, if the parties desire anonymity.  However, most people seem to feel that independent adoptions meet their needs better than agency adoptions, for in California independent adoptions outnumber agency adoptions by roughly four to one.

In contrast to an agency adoption, in an independent adoption the birth mother decides how much contact she wishes to have with the adoptive parents before the birth of the child, at the hospital when the child is born, and afterward.  In a great many cases, she will want to spend a good deal of time with them, and get to know them very well, so that she can have absolute confidence in their ability to effectively parent her child.

Independent Adoption Procedure -- The Adoption Service Provider
Starting in 1995, there is a new type of social worker involved in independent adoption, called an "Adoption Service Provider," which is usually abbreviated as "ASP."  The basic function of the ASP is to act as an impartial third party to oversee the adoption process, however, the legislature has also specified that the ASP is to have a fiduciary duty to the birth parents, and to act as advocate for the birth parents.  There are several critical functions which should be performed by the ASP. 

First, the ASP is supposed to meet with the birth mother at least ten (10) days prior to the birth mother signing the adoption consent papers, to advise the birth mother of her rights.  This usually happens before the child's birth.  This pre-birth "advisement" can be waived by the ASP for "exigent circumstances," but the statute does not define what the "exigent circumstances" means, therefore most ASPs are insisting upon an advisement at least ten (10) days before any other paperwork is performed. 

The second task of the Adoption Service Provider is to oversee the execution of a document called an "Independent Adoption Placement Agreement."  The Independent Adoption Placement Agreement is a State form which must be signed by the birth mother and by the adopting family, and all persons must sign that document in the presence of the ASP.  The Adoption Placement Agreement is also often referred to as a "consent to adoption."  Once the ASP oversees the signatures by all parties on the Adoption Placement Agreement and other related documents, and once those documents are mailed to the Department of Social Services, the role of the ASP is completed.

The law allows certain persons and organizations to serve as an Adoption Service Provider.  A private adoption agency can serve as an ASP, as can a licensed clinical social worker who has been employed by an adoption agency for at least five (5) years.  If there is no ASP "reasonably available" and if the birth mother has a separate lawyer, then her separate lawyer can serve as the ASP.  An ASP is considered to be not "reasonably available" if there is no ASP available within 24 hours or within 100 miles of the birth mother, or if no ASP within 100 miles will perform that function for a fee of $500. or less.  Alternatively, if 3 ASPs within 100 miles are contacted and none of them can do the job, then an ASP is considered to be "not reasonably available." 

Confidentiality of Adoption Records
California law provides that all court adoption records are sealed, regardless of whether the adoption was independent or through an agency.  The law provides that a court's adoption file can be unsealed only by court order, and that the court should order the unsealing of an adoption file only in the event of very exceptional circumstances.  For example, if the birth mother developed a rare hereditary disease after relinquishing the child for a closed agency adoption, access to the file would probably be granted so that the adopting parents might be warned.  Needless to say, these orders are extremely rare.

In addition to the court records, the State Department of Social Services in Sacramento also keeps a file on each independent adoption.  Although the state has in the past kept its files closed to the parties, a new law concerning access to adoption files has been in effect since 1986.  That law provides that, at the time the relinquishment or consent documents are signed, the birth parents are to specify in writing as to whether or not they wish the child to be provided with the name(s), last known address and last known telephone number of the birth parents should the child request this information upon attaining the age of 21, or at age 18 with the consent of the adopting parents.  This information will be provided only if the birth parents have specified that the information is to be provided.   The specification to either allow or disallow disclosure of one's name may be changed at any time. 

Conversely, the child, upon reaching age 21, may specify whether or not (s)he wishes for his or her adopted name and address to be disclosed should either birth parent request this information.  Although this statute went into effect in 1986, it applies to all adoptions (both agency and independent) in which the relinquishment or consent documents were signed after January 1, 1984.


Financial Considerations
The buying or selling of babies is a very serious crime in California, as in all other states; therefore, California law forbids the adopting parents to pay any money to the birth parents.  However, the adopting parents may pay bills incurred by the birth mother by reason of the pregnancy, including medical bills.   California law provides that there are six (6) conditions and limitations on what the adopting parents may pay.  Those conditions and limitations are that each payable expense must be:

(1) Reasonable in amount;
(2) Necessary in amount;
(3) Related to the pregnancy;
(4) For the period of the birth mother's "confinement";
(5) Paid unconditionally; and
(6) Paid as an act of charity.

Thus, for example, adopting parents can assist a birth mother with her medical bills and may buy her maternity clothes.  They may not buy her a car or give her a college scholarship, as these expenses are not "related to the pregnancy."  No court has yet interpreted the term "confinement," but it is likely that a court would define this term as the period of time for which she is disabled by reason of the pregnancy.  This is typically four and one-half months...three (3) months before the delivery and six (6) weeks after.

The basic intent of this law is that, viewed from the perspective of the birth mother, placing a child for adoption should be a financially neutral option; she should not make money by placing a child for adoption, but it also should not cost her money to place a child.  Ideally, the arrangements should be made with the goal that when the adoption is completed, the birth mother is no better and no worse off financially than she would have been had she not become pregnant in the first place. 

In order to keep it clear that the birth mother is not selling her baby, and that the adopting parents are not attempting to buy the child, the law requires that, to the extent these bills are paid by the adopting parents, this is to be viewed as charity to the birth mother.  It is a misdemeanor for there to be any agreement that the payment is contingent upon the birth mother placing her child with the adopting parents.  Likewise, it is a misdemeanor for a birth parent to accept this charity unless that birth parent actually intends at that time to place the child for adoption with those adopting parents.  Because the payment by the adopting family is unconditional and an act of charity, if for any reason the adoption fails, the adopting family cannot expect, demand or sue for a refund from the birth mother.  The loss of these funds is a risk inherent in the adoption process, and this risk typically applies to both independent and agency adoptions. 

In addition to the financial assistance paid to the birth mother, an adopting family should anticipate other expenses as well.  First, the law requires that an Adoption Service Provider be employed, and the law allows the Adoption Service Provider to charge up to $500., therefore all of the ASPs charge $500. and not a penny less.  In fact, a few ASPs have banded together and have agreed collectively to charge as much as $800.00.   Fortunately, there are enough ASPs still charging the statutorily allowed $500.00 fee that it is usually possible to avoid the ASPs charging more than the law allows. 

In addition, the law allows the State Department of Social Services to charge a home study fee, which, effective October 1, 2008, was increased from $2950.00 to $4500.00.  This fee formerly could be waived by the Department of Social Services where imposing that fee would impose a hardship upon the adopting family, but under a new law effective October 1, 2008, the Department cannot waive the fee, but may reduce it by no more than one-half.  However, very few adopting families apply for a hardship exception to the home study fee.  Part of the purpose of the home study is for the adopting family to demonstrate to the Department of Social Services that the adopting family has sufficient financial resources to adequately provide for the child.  Thus, in order to claim financial hardship, the adopting family would, in effect, have to undermine their own prospect of convincing the Department of Social Services that they have the financial resources to provide for the child.  If the adopting family has a preexisting private agency home study that is still considered "current" (i.e., it is dated within the past 12 months), the state will charge a fee of $1500.00 for the postplacement supervision.  The term "postplacement supervision" refers to the process of checking up to see how the child is doing in the new placement.  If the adopting family does not have a preexisting private agency preplacement home study, the California Department of Social Services will provide the postplacement supervision at no additional charge beyond the home study fee.

In addition to these expenses, the adopting family has to pay a court filing fee (presently $20.00 per child), document certification fees, fingerprinting fees, and other fees and costs which are typically less than $20.00 each.  In addition, legal fees must be paid, and in the case of an interstate adoption, it is usually necessary to hire an attorney in each state. 

Changes of Mind and Adoptive Placement Disruption
The question is often asked regarding what happens if a birth mother places her child for adoption following the child's birth, and then changes her mind and wishes to have the child back.  In agency adoptions, the birth mother retains the unrestricted legal right to change her mind and recover the child until she signs a formal relinquishment, and that formal relinquishment has been filed with the State Department of Social Services in Sacramento.  In agency adoption, the birth mother generally signs a relinquishment of the child to the agency, approximately 72 hours after the child's birth.  Once this relinquishment is filed with the State Department of Social Services, it is irrevocable except with the consent of the agency. 

In independent adoption, the law regarding this issue was completely revised effective January 1, 1995.  Under the old law, the birth mother had the right to change her mind until she signed the consent form, which was typically signed about six weeks after delivery.  Once the consent was signed, the birth mother could change her mind only with the permission of the court, which was very difficult to obtain.  This former law led to a great deal of litigation between birth parents and adopting parents, and it was universally acknowledged that litigation of that nature was detrimental to the child.

Therefore, effective in 1995, the law was rewritten and clarified in order to discourage, if not actually prevent, adoption litigation between birth mothers and adopting families.  Under the new law, before the child is to be deemed placed for adoption with the adopting family, the birth mother and the adopting family all sign an Adoption Placement Agreement, and that agreement must be signed in the presence of an Adoption Service Provider.  The Adoption Placement Agreement has a Consent to Adoption within it, and the law provided that the Consent to Adoption was freely revocable at will for 90 days following the execution of the Adoption Placement Agreement.  On the 91st day, the birth mother's consent became irrevocable.  On January 1, 2002, this law was changed to allow a birth mother to change her mind for 30 days only, rather than 90 days as under former law.  

Also, if the birth mother wants to, she can request that the Department of Social Services allow her to sign a waiver of her right to revoke the consent, and the Department is required to meet with the birth mother to allow her to sign this form within 10 days of the birth mother's request to do so.  Therefore, to summarize, the birth mother has a right to change her mind and reclaim her child for 30 days after she signs the Adoption Placement Agreement, or until she signs the waiver, whichever happens first.  Once she signs the waiver, or once 30 days have elapsed, her consent becomes irrevocable, and she cannot change her mind or legally demand the return of her child. 

Until October 1, 2008, the mechanics of executing a waiver of the mother's right to revoke her consent was a bit involved if the birth mother delivered in California.  However, effective October 1, 2008, the birth mother is now allowed to sign the waiver in the presence of the Adoption Service Provider in California, if the birth mother has a separate lawyer.  If the birth mother does not have separate legal counsel, the ASP cannot witness the birth mother's waiver in California, but may do so if the birth mother is in another state.  Thus, the birth mother may sign the waiver of her right to revoke the consent to adoption, three different ways:  (1) If she is in California and has separate legal counsel, she may sign the waiver in the presence of the ASP.  (2)  If she is in California but does not have separate legal counsel, she can only sign the waiver in the presence of a social worker employed by the California Department of Social Services, or, in a few counties, by the county adoption agency.  (3)  If she is not in California, she can sign the waiver in the presence of the ASP, regardless of whether or not she has separate legal counsel. 

These documents can be signed at any time after the birth mother has been discharged from the hospital following the child's delivery.  It is common in interstate independent adoptions for the birth mother to sign the Adoption Placement Agreement and the Waiver, just two to four days after delivery, and the birth parents' consent to adoption becomes irrevocable as of that moment.  Under those circumstances, the birth mother actually has a shorter time to change her mind and disrupt the adoption, than she would have in an agency adoption.

Counseling
It is always recommended that the birth mother be counseled regarding the grieving process that accompanies the placement of a child for adoption.  Although most conscientious adoption lawyers have been recommending counseling all along, since 1995 the law has required that the birth mother be offered at least three counseling sessions at the expense of the adopting family.  The law provides that each of these counseling sessions must be on a different date, must be at least 50 minutes in duration, and must be provided by a licensed counselor.

Legal Representation
The law also requires that the birth mother be offered a separate lawyer of her very own, to look after her interests and to make sure that no one takes advantage of her.  The law provides that if the birth mother desires a separate attorney, the adopting family is required to offer at least $500. for that purpose.  The adopting family can agree to pay more, but they must offer to pay at least $500.


Currently, California law allows one lawyer to represent the birth mother and the adopting family simultaneously, provided that there is full disclosure and written consent signed by all parties.  This statute exists because the California Legislature has recognized that adoption is not an adversary proceeding in which the birth mother is opposed to the interests of the adopting family.  Instead, it is reasonably clear that in a typical adoption, the birth mother and the adopting family are on the same side, working together in team work to do what they all agree is best for the child.  Nonetheless, although representation of all parties to an adoption is legal, it is considered quite controversial, and the practice has been criticized both in the legislature and by the courts.  Therefore, most adoption lawyers prefer not to represent all parties to an adoption for fear of criticism or out of sensitivity to the creation of an appearance of impropriety.   

'Presumed' and 'Alleged' Birth Fathers
One of the interesting by-products of the women's liberation movement has been an increase in the parental rights of the biological fathers of children being placed for adoption.

Biological paternity is almost, but not quite, irrelevant under California law.  The law groups all possible fathers into two categories: "presumed" fathers and "alleged" fathers.  Oddly, the category into which a possible father is placed has nothing to do with whether or not he is the actual biological father. 

Generally, a man is a "presumed" father if he has done one or more of the following: (1) he is or was married to the birth mother within 300 days prior to the birth of the child; (2) they participated in a marriage ceremony together which appeared to be valid but was actually invalid for technical reasons (such as bigamy);  (3) he has received the child into his home and has publicly acknowledged his paternity of the child; (4) he met with the ASP, was advised of his rights, and then signed the Placement Agreement, or (5) he and the mother, together at the hospital, each executed a voluntary declaration in which they both agreed that he was the biological father of the child.  This last provision is new to California law, and this new law provides that an unmarried woman is not allowed to name the father on the birth certificate unless they both sign a voluntary declaration of paternity form at the hospital.  Every possible father who is not a "presumed" father is categorized as an "alleged" father.  Roughly 80% of all birth fathers could be classified as "alleged fathers," and only about 20% of all birth fathers could be classified as "presumed fathers."

It is absolutely critical to determine into which category a father falls, because it is legally required that a presumed father consent to the adoption of the child, but an alleged father's consent is not required. 

It is possible for there to be more than one presumed father.  For example, in one case, a woman was married to father "A" but had been separated from him for over a year; she was living with father "B" at the time of conception, and he was the actual biological father.  Following the child's birth, she took the child home, and father "B" publicly acknowledged to others that he was the father of the child.  Under the circumstances, both "fathers" were presumed fathers, and the consent of both had to be obtained before the child could be adopted. 

However, the presumption of paternity is rebuttable, and if father "A" had refused to consent to the adoption of the child, a court order could have been obtained to compel him to submit to a blood test.  If a blood test demonstrated conclusively that the presumed father was not the actual biological father, the test results would be admissible in court and would serve to rebut the presumption of paternity and thereby remove him from the category of "presumed father," eliminating any further necessity for his consent to the adoption. 

A presumed father has essentially the same rights as the mother, including the right to rescind his consent to the adoption within 30 days or until he signs a waiver, whichever happens first.  Also, a presumed father can sign a consent without acknowledging that the child is his.  There is a legally acceptable consent form which provides that the man signing the form denies that he is the biological father of the child, but agrees to waive whatever parental rights he might have, if he does have any parental rights to the child. 

Occasionally, the whereabouts of a presumed father is unknown, and the law provides a lengthy procedure by which the parental rights of the missing presumed father might be terminated. However, if the presumed father later appeared and claimed the child, the Order terminating his rights could be appealed.

Although an alleged father's consent to the adoption is not required, the law says that he is entitled to "notice" that an adoption is pending of a child which could possibly be his, and he is entitled to an opportunity to be heard in court as to why the child should not be adopted.  The procedure for this is quite simple.

First, the alleged father is "served" with a formal written notice informing him that he is or might be, the natural father of a child or expected child who is being placed for adoption.  The law allows him thirty (30) days within which to file a lawsuit to object to the adoption.  The thirty (30) days begin to run on either the date of service of the notice, or the date of birth of the child, whichever is later.  If he does not file a lawsuit within the thirty days allowed, then at any time thereafter the adopting parents may apply to the court for an order terminating his rights.

If an alleged father does file a lawsuit within the time allowed, then the adoption proceeding is held in abeyance until the lawsuit is resolved.  Formerly, the adopting parents could not win this kind of lawsuit unless they could prove that it would be detrimental to the child to give custody to the father (i.e., the father was 'unfit'), which is very difficult to prove.  However, the law changed in 1987, and now the adopting parents do not have to prove the birth father unfit, they need to prove only that the adoption is in the child's best interest.  It is typically rather easy to convince a judge that a child is much better off with a happily married, well-adjusted adopting couple, than with a single birth father.

To make the case even easier, the law specifies that in determining the best interest of the child, the court is required to consider the possible harm to the child if the child is uprooted from his/her living environment and custody given to the birth father.  Numerous studies have shown that even as early as age 5 or 6 months, a child has already developed strong attachments to the child's primary care-givers, and that the child can, and probably will, suffer devastating and long-term emotional harm if removed from the accustomed home environment and primary care-givers.  It typically takes about six (6) months for one of these cases to reach trial, therefore it is generally relatively easy for adopting parents to make a convincing case that the child will be severely harmed if the alleged father's rights are not terminated.

It should be noted that these disputes are statistically quite rare, and that most birth fathers do cooperate with the adoption of their child, or at least to not actively oppose the adoption.  In fact, there is a substantial financial incentive to do so, for if the birth father prevents the adoption of the child, the father will be legally required to support the child for the next 18 years.  Furthermore, under federal law, if the birth mother becomes a recipient of welfare payments from the state, as do a great many women who keep their child, the district attorney's office is required to sue the birth father for child support, so that the government might recover at least some of the funds it is expending to support the birth mother and child.  The law allows, and in some cases requires, the district attorney to garnish or attach the wages of the birth father to make sure that the birth father pays what he owes.  An adoption has the effect of terminating the birth father's obligations for support of the child, therefore most birth fathers, especially the more intelligent or highly compensated ones, are pleased to have the child adopted.

To summarize the rights of birth fathers, it would be fair to say that presumed fathers almost always win these cases, because their consent to the adoption is required, but alleged fathers almost always lose these cases, because their consent is not required unless they can prove that it is in the child=s best interest that the alleged father retain his parental rights.  However, this begs the question: What happens if the birth mother takes affirmative steps to prevent the birth father from becoming a presumed father?  For example, what happens if he asks her to marry him but she says no?  In the same vein, what happens if the birth father does everything he can to take responsibility for the child, but he is thwarted from taking responsibility by the birth mother or her family or the prospective adopting parents?

In 1992, the California Supreme Court addressed this issue in a case called Adoption of Kelsey S., where the birth father argued that he had done everything he could to take responsibility for the child, but he claimed that he had been thwarted from becoming a presumed father by the conduct of the birth mother.  In a lengthy decision, the California Supreme Court ruled that the right to parent one's child is a fundamental constitutional right, but that mere biological paternity did not bestow significant constitutional rights.  Instead, the court ruled, it was the acceptance of parental responsibilities that bestowed significant constitutional rights upon the birth father.  Thus, the court stated that if an alleged father has done everything he can to take responsibility for his child (both emotionally and financially), but is thwarted from doing so by the conduct of the birth mother, then he is to be treated as if he were a presumed father anyway.

More recently, in the summer of 1995, the California Supreme Court reached this issue again in a case called Adoption of Michael H.  The birth father in Michael H. did little to take responsibility for the child during the pregnancy, but diligently attempted to take responsibility for the child following the child's birth.  Thus, the precise issue was WHEN must the father act responsibly if he is to possess the Constitutional right to block an adoption of his child.  The court ruled that to possess this Constitutional power, the birth father must act to take responsibility for the child promptly and 'within a short time' after he first learns, or should have known, of the pregnancy.   Thus, the court reasoned, he cannot block the adoption if he has waited until the child is born and only then seeks to assume his parental responsibilities.

Thus, in summary, the "thwarted but diligent" Kelsey S. father is to be treated as if he was a presumed father, but if he has not been diligent or thwarted during the pregnancy, then he is not a Kelsey S. father, and he has the rights of a mere alleged father. 

Conclusion
In conclusion, adoption is, in many cases, the single most effective way of serving the separate needs of birth parents, adopting parents, and the child.  There are distinct advantages and disadvantages between agency and independent adoptions, and both birth parents and prospective adopting parents considering adoption will have to weigh the advantages and disadvantages of each to determine which most completely satisfies his or her needs and concerns.

WHO IS DOUG DONNELLY?
Douglas R. Donnelly is an attorney in Santa Barbara, California, whose practice is limited to adoption law and related child custody proceedings.  He is a graduate of Westmont College and Loyola University Law School, and is a Fellow and former President of the Academy of California Adoption Lawyers.  He currently serves as Chairman of the Ethics Committee of the Academy of California Adoption Lawyers.  He was also a charter member of the American Academy of Adoption Attorneys, and served two terms as Chairman of the Ethics Committee of that organization.  He has handled adoption cases at all levels up to and including the California Supreme Court, and is a frequent public speaker on adoption related topics at gatherings throughout the United States.

He and his wife Gail are the parents of two adopted daughters.

He is the author of A GUIDE TO ADOPTION, published by Focus on the Family Publications in 1987, and the co-author of THE COMPLETE ADOPTION HANDBOOK, published by Zondervan Publications in 1992.  He also authored the chapter on adoption law in West Publishing's California Transaction Forms, a how-to set of books for attorneys.