Biological Father Denied Custody; Waited Too Long, High Court Says

The California Supreme Court held Monday that an Orange County man is not entitled to custody of his biological son because he waited too long to assert his paternity in court proceedings.

The ruling paves the way for a San Juan Capistrano couple to adopt 4-year-old Zacharia D., who has lived with the couple since April.

“What they have said is that the father has to stand up and come forward and be counted at an early stage or he gets nothing,” said attorney John Dodd, who represented the child in the case.

The biological father, Javan W., had a two-week relationship with the child’s mother, Wendy, while she was living with another man. Wendy named the other man as the father on Zacharia’s birth certificate.

Javan, 26, did not know he was the biological father until a year and a half after Zacharia’s birth, when a Juvenile Court was about to revoke Wendy’s parental rights.

She had used drugs during her pregnancy, and Zacharia was born with traces of methamphetamine in his blood. The Orange County Social Services Agency took custody.

The child was later returned to his mother’s home, but a court terminated her parental rights after she failed to attend drug rehabilitation or parenting classes, apparently continued to use drugs, and abandoned the child’s care to a step-grandmother.

Javan testified that he began to suspect that he was the child’s father after seeing photographs of him in November, 1990, more than a year after Zacharia’s birth. Three months later he asked to be tested for paternity, and, when the results showed he was the father, he asked for custody.

But Javan was jailed for a probation violation stemming from a felony drug conviction, and a Juvenile Court terminated his parental rights.

The boy was placed in the home of the San Juan Capistrano couple through a county foster adoption program. The couple, who are in their 40s, had been unable to have a child and wanted to adopt. He is a consultant and she is a computer-resource specialist.

But a Court of Appeal in Santa Ana reversed the lower court ruling and said that Zacharia should be placed with Javan immediately.

The county and Dodd, acting as Zacharia’s attorney, appealed the case to the state’s high court.The child remained with the San Juan Capistrano couple while the appeal was pending.

Justice Armand Arabian, writing the unanimous decision for the court, noted that Javan did not know he was the boy’s father because of “his own indifference.”

“Under the Court of Appeal’s rationale,” Arabian wrote, “whenever a biological father comes forward, his child must be automatically placed with him absent a finding of detriment.”

But Arabian said that decision “elevates the rights of a biological father above the child’s interest in stability and permanency.”

“Javan had done almost nothing to develop a relationship with Zacharia,” Arabian wrote, “and had only vague plans of how he would care for him. Indeed, Javan’s articulated impetus for coming forward was not one based on Zacharia’s needs and interests, but rather Wendy’s impending loss of parental rights.”

Stephen S. Buckley, an attorney who represented Javan, said his client was going to be “gravely disappointed.”

“He wants the child,” Buckley said. “I feel very bad for Javan, and frankly, I feel very badly for biological fathers.”