A Question of Rights : Parenting: A man convicted of unlawful sex with a minor wants custody of the daughter who resulted. Battling the father is an assemblyman whose friends want to adopt the girl.

Like any doting father, Gilbert Torres coos baby talk as his 19-month-old daughter stirs from a nap in his arms, yawns and buries her almond-colored face in his chest.

“She has changed my life completely,” said the beaming, 24-year-old groundskeeper from Santa Barbara. “I wish I could have her with me all the time, but I have to wait.”

Despite the cooing and the $200 savings bonds he buys for her with money saved from his small salary, Torres is not like any other father.

He inspired the state to pass a law designed to stop him from doing what he says is the most important thing in his life: raising his daughter.

The controversy has pitted Torres against a powerful San Fernando Valley assemblyman and the Sherman Oaks couple who want to adopt the girl. It also places the laborer on the front lines of legal skirmishing over the rights of biological fathers in out-of-wedlock births.

A trial court ruled against Torres in June, 1991, but the case is on appeal. Torres has visitation rights.

Torres got into trouble by impregnating a 14-year-old Santa Barbara girl when he was 22. He said he loved the girl and did not know her age, but served a 15-day jail sentence for unlawful sex with a minor.

The mother, who did not feel ready to raise a child, placed the baby with a family in Sherman Oaks. Torres sued to block the adoption with the aim of getting custody. To demonstrate his readiness to be a father, he took a parenting class, learned to change diapers and put the baby on his insurance at work.

But the Sherman Oaks couple had a friend in a powerful place. Assemblyman Richard Katz (D-Sylmar) introduced a bill designed to prevent Torres from winning his custody fight by denying him, because of his criminal conviction on the unlawful sex charge, the use of broad new rights granted unwed fathers this year by the state Supreme Court. The bill became law this year.

Craig Dolge, an attorney for Torres, expressed disappointment in the legislation, asking whether “political pull” should be a criterion for deciding parental rights.

But Katz said the idea that he introduced the bill solely for his friends in Sherman Oaks is “ludicrous.”

“I have heard the charge that this is a special bill,” Katz said. “If I have to choose between protecting the interests of a child and a sleazeball convicted of statutory rape or unlawful sex with a minor, then I will protect the child every time.”

Traditionally, unwed mothers make the decision whether to put newborns up for adoption. But in a decision known as Kelsey S., the state Supreme Court gave a boost to Torres’ case when it said in February that a biological father could stop the adoption by demonstrating a strong and early commitment to the child by offering financial and other support.

The thinking behind Kelsey S., said Scott Altman, associate professor of law at USC, was that good unwed fathers should be rewarded.

The Sherman Oaks couple, a church-going family who own their home and have an interest in a 65-unit apartment building, refused comment.

Torres earns about $2,100 a month and is living at home with his parents. Although there is little question who can provide more material things for the child, Torres argues that the love of a father should count for just as much.

Glen H. Schwartz, an Encino family law expert, said the debate over biological fathers’ rights pits adoptive parents who generally are good, loving people against a single man who is sometimes “not too great of a guy.”

“The conflict between biology and the best interests of a child is a difficult topic we’re going to hear more and more about,” he said.

Torres’ character has become a central issue in his attempt to gain custody.

On one side, Torres, who has a straightforward manner, is seen as a school dropout, a laborer frequently on disability, and a drug user who exploited an innocent girl for his own needs, according to court records and attorneys for the Sherman Oaks couple.

Torres’ attorneys and family say he is a loving father with a dependable job and an earnest desire to raise his daughter. He plans to get his high school diploma and denies being involved with any other girls.

To hear Torres tell it, he was only trying to help someone having family problems when in late 1988 he met the baby’s mother, who he said looked older than her 13 years.

He said she was sitting in front of a Santa Barbara liquor store drinking a wine cooler, which she denied during the trial. The girl and her parents declined to be interviewed.

“It sounded pretty bad about what was going on,” Torres said of her family life. “She said she was thinking of committing suicide.”

Torres and the girl started dating. “Nobody ever told me her age,” he said. And he did not ask, having by this time fallen too deeply in love to call off the relationship, said Torres’ first attorney, Lessie Nixon.

A friend of the girl testified at the trial that Torres knew her age when they began having sex because he picked her up from junior high school, court records show.

When the girl became pregnant in early 1990, Torres admitted he was the father. His girlfriend’s father became enraged, he said, and threw a screwdriver at him. The girl was sent away to have the baby, and made plans to put it up for adoption, according to court records. She claimed another man was the father and shortly after the baby was born the child was delivered to the Sherman Oaks couple, records show.

Doug Donnelly, a Santa Barbara attorney representing the couple, said he arranged a previous adoption for them, but it fell through when the mother changed her mind. To have problems in a second case involving the same couple is tragic, he said.

Torres could have faded out of the picture and avoided trouble when his girlfriend claimed another man was the father, said his mother, Lucille Torres. Instead, even after the girl’s parents threatened to have him arrested for having sex with their underage daughter, he said, he refused to go away. He took blood tests to prove his paternity and began his battle to gain custody.

When the lawsuit went to trial, the biological mother testified against him, accusing him of using cocaine and being an errand boy for a drug dealer, according to court documents.

Torres said he has used drugs in the past but does not now and has never assisted any drug dealers. Torres’ attorneys point to the light sentence he received after pleading no contest to the misdemeanor charge of unlawful sex with a minor as proof that the criminal courts recognized mitigating circumstances in the case.

Santa Barbara County Deputy Dist. Atty. Joyce Dudley agreed that the fact that both parties had been involved “in a consensual and longstanding relationship” played a significant part in the disposition.

Dr. Michael Bailey, a psychologist appointed by Superior Court Judge William Gordon, testified that Torres has an IQ of 77 and that his manipulative involvement with the mother was “extremely destructive” to her, according to court documents. He also worried how Torres might act toward his daughter when she reached puberty.

“I’m extremely concerned about that period of time,” he said.

Attorneys for Torres called their own psychologist, who questioned the validity of the IQ test because of Torres’ ethnicity.

In the end, the court threw out Bailey’s testimony for technical reasons.

Lucille Torres still keeps a picture of the biological mother in her wallet. Gilbert Torres also has saved letters from her that he said shows the young couple’s commitment to each other. “We’ve made it almost nine months, and I’m telling you, even with all our disagreements, it’s been the best nine months of my life,” she wrote in one.

Gordon ruled against Torres after a three-day trial, but Kelsey S. gave Torres a chance to prevail on appeal, his attorneys said.

A footnote to the Supreme Court decision states the ruling “affords no protection” for males who impregnate females as a result of non-consensual sex. Although 18 is the age of consent, an appellate court later ruled in a San Diego case that a man who impregnated a 16-year-old did not engage in non-consensual sex because the girl agreed to intercourse.

Meanwhile, Katz had been hearing about the problems the Sherman Oaks couple were having with their adoption. He said he and his wife have dinner with them occasionally.

“I found the whole situation outrageous,” Katz said.

He introduced legislation that stated neither rapists nor fathers convicted of unlawful sexual intercourse, when the mother was under 15 and the father at least 21, would be allowed to take advantage of the broadened rights under the Kelsey S. decision.

Asked whether the bill was introduced for his friends, he said: “It was done because of what they brought to my attention.”

Katz said he is sympathetic to the role of biological fathers. “I think legitimate fathers ought to have a say” in what happens to their children, he said. “Most people agree sex between a 22-year-old and 14-year-old is sick at best.”

The appellate court has asked both sides to submit legal arguments over how the Katz legislation, signed into law Aug. 31, should affect the outcome of the Torres case. Despite the law, Torres has not given up hope of gaining custody of his daughter.

Donnelly compared Torres to a mythical creature that keeps rising from the dead. “I feel I killed Gilbert legally about six times. With this bill I may have the wooden stake to finally kill him.”