In Re Doe , 52 Haw. 448 ( 1970 )

OPINION OF THE COURT BY

MARUMOTO, J.

This is an appeal by the natural father of a child born out of wedlock from a family court judgment entered pursuant to a petition for termination of parental rights filed by the mother which adjudicated, inter alia: (1) that the parental rights of the mother as the sole legal parent of the child be terminated; (2) that the department of social services be given the care and custody of the child and be authorized to consent to the child’s adoption by suitable adoptive parents and (3) that the father has no custodial or other parental rights to the child which are subject to termination under HRS §§ 571-61 to 571-63, and, consequently, the prayer for termination of such rights be denied.¹

The child, a female, was born on October 17, 1968, in Honolulu. The mother is a Filipina, and the father a Caucasian. At the time of the child’s birth, the mother was 23 years old, unmarried, and a student at the university; and the father was 30 years old, married, and an employee of the post office.

The mother found out in February 1968 that she was pregnant. When the father was told about it, he proposed to the mother that' they marry. The father was not married at that time. The mother agreed at first, but later changed her mind.

In July 1968, the mother consulted the Child and Family Service on adoption planning. She did so because her personal circumstances did not permit her to rear the child and she thought that the best future for the child lay in her adoption by good adoptive parents.

When the child was born, the father attempted to see the mother and the child at the hospital, but was told by a hospital attendant that he could not see either of them. This was in accordance with the desire of the mother. The mother did not want the father to have anything to do with the child.

The child was placed in a foster home by the Child and Family Service three days after her birth. Thereafter, the father contacted the agency with his attorney to inform it that he planned to obtain the custody of the child.

The mother filed her petition on March 19, 1969, pursuant to HRS § 571-61, which provides that the legal parents of a child or the mother of a child born out of wedlock, who desire to relinquish parental rights to the child and thus make the child available for adoption, may petition the family court for entry of a judgment of termination of parental rights. In the petition, the mother sought, in addition to a judgment of termination of her parental rights, an adjudication that the father had no parental rights to the child, and, if he did, that a termination of such rights was necessary for the protection and preservation of her best interests and to facilitate her adoption.

When a petition under HRS § 571-61 is filed, HRS § 571-62 requires that a notice of time and place of the hearing be given to the department of social services and permits any child-placing organization approved by the department to appear with or in the place of the department.

Under HRS § 571-63, the family court is empowered: to terminate the parental rights of the parents or parent seeking termination; to transfer the custody of the child to any person not forbidden by law to place a child for adoption, the department of social services, or any child-placing organization approved by the department; to appoint a guardian of the person of the child; and to authorize the person, department, agency, or guardian to consent to adoption.

HRS §§ 571-61 to 571-63 are parts of the chapter on family courts. HRS § 571-1 enjoins the family courts to construe the chapter liberally to the end that the best interests of any child coming within their jurisdiction be served. Under HRS § 571-3, the family courts exercise general powers of equity in any case in which they have jurisdiction.

Paragraphs (1) and (2) of the judgment appealed from were entered pursuant to HRS § 571-63. Paragraph (3) is a simple declaration that there is no Hawaii law which gives any parental rights to a putative father and the additional relief sought by the mother did not come within the purview of the statutory provisions relating to termination of parental rights.

Although there is no law, statutory or otherwise, which requires that any notice of the time and place of hearing of a petition for termination of parental rights be given to a putative father, such notice was given in this case to the father. In response to the notice, the father appeared at the hearing with his counsel, and presented his case. He did not file any responsive pleading at any time. His case essentially was that he had a prior right to the child as against strangers in blood, although he also stated that he desired to he given consideration as adoptive father.

At the hearing, the presentation of the mother’s case in chief took only a brief moment. The balance of the hearing was taken up in the presentation of the father’s case. The case so presented developed sufficient evidence to enable the court to determine the question of the best interests of the child vis-a-vis the father. But the court ignored that aspect of the case, and focused its attention, insofar as the father was concerned, on the question of the existence or absence of legal rights to the child. It stated in its decision:

“This same kind of situation was presented in recent proceedings in this court, In the Interest of [a child] Born May 2, 1967, F.C. No. 67-9757-A, Civil No. 22953, Termination No. 0177, decision filed May 31, 1968. In the referred proceedings, Judge Corbett discussed this general problem at length and concluded:

‘That the natural father of the child does not have any custodial or other legal parental rights to the child which are subject to termination.’

“I will follow Judge Corbett’s decision in this regard. As a matter of law in Hawaii, it is my opinion that the putative father of an illegitimate child has no rights in or to the child which require the mother or any person or agency to whom the mother has voluntarily relinquished the child to surrender the child to the father. The father may be considered as a possible adoptive parent, but this would be without any priority or right to first consideration.”

Upon a review of the record, we reverse and remand the case for rehearing on the question as to whether the interests of the child would be best served by an award of her custody to the father. If the decision should be in the affirmative, the court could appoint the father as guardian of the person of the child pursuant to its authority under HRS § 571-63. An award of custody will follow as a corollary to such appointment and will be preliminary to the child’s adoption by the father and his wife.

Thé decision that the father here has no parental rights is correct, if the sole focus of the court should be on the legal rights of the father. However, we think that in a ease such as this, where the father has made a timely appearance and manifested a concern for the child, the focus of the court should be on the best interests of the child, and such concern should be given careful consideration, for it may disclose a probability: of the development of a' meaningful relationship conducive to the child’s future welfare. The lot of a child born out of wedlock is an unenviable one without the court being overly technical. In any case involving such a child, the lodestar to be followed should always be the child’s best interests. In re Brennan, 270 Minn. 455, 134 N.W. 2d 126 (1965); In re Mark T., 8 Mich. App. 122, 154 N.W. 2d 27 (1967). It may be stated that the decision in F. C. 67-9757-A, Civil No. 22953, and Termination No. 0177, which the court professed to follow, contained a holding that “an award of the child to the child’s natural father would not serve the best interest of the child,” in addition to a holding that the father had no custodial or other legal parental rights.

In ordering a rehearing, we do so without providing any guidelines except to express our agreement with the court’s statement in its decision that the father is “without priority or right to first consideration.” The concept of the best interests of the child is one that is without any measuring rod. Necessarily, reliance must be placed on the wisdom of the family court. A decision made in the exercise of that wisdom, and which has support in the record, should stand. In re Zink, 269 Minn. 535, 132 N.W. 2d 795 (1964); In re Mark T., supra. If the paramount consideration in any case involving a child born out of wedlock is the best interests of the child, we see no reason for a rule which' gives preference to the father.

There are cases which contain language according a right of first consideration to the putative father as against all the world, except the mother, provided that he is fit. Such language is based on nothing more substantial than an a priori assumption that “it may be * * * the child will have a better home with the putative father than with an entire stranger.” In re Shady, 264 Minn. 222, 118 N.W. 2d 449 (1962). In all of such cases, the language is qualified with the statement that the right “must always be subordinated to the best interests of the child.” In re Zink, supra; In re Mark T., supra. In practice the language does not mean much because trial courts make their determination according to their own notion of fitness of the father and the best interests of the child, and such determinations- are sustained on appeal unless they are' clearly erroneous.

HelenB. Ryan (Ryan & Ryan of counsel) for appellant. Alana W. Lau, Deputy Attorney General (Bert T. Kanbara, Attorney General, with her on the brief) for appellee.

Reversed and remanded with direction to proceed in accordance with this opinion.

1 The paragraph mentioned above as (3) is the fifth and last paragraph of the judgment, but, for convenience of discussion, it will be referred to as paragraph (3). The third and fourth paragraphs have no bearing on the questions involved in this appeal.