CYNTHIA v. SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES

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Court of Appeal, Fourth District, Division 1, California.

CYNTHIA D., Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent. SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.

No. D015670.

Decided: February 20, 1992

Glenn J. Cox, Coronado, for petitioner. Lloyd M. Harmon, Jr., County Counsel, Susan Strom, Chief Deputy County Counsel, and Gary C. Seiser, Deputy County Counsel, for respondent. Gary Plavnick, San Diego, for minor.

Petitioner seeks extraordinary writ review of an order made by the court in the administration of its jurisdiction over a child who had been previously declared a dependent of the court.   The subject order, resulting from a hearing conducted in accordance with Welfare and Institutions Code 1 section 366.22, determined that there existed a substantial risk of detriment to the child if returned to petitioner-parent, terminated reunification services as to parent and child, and scheduled a hearing to determine whether the permanent plan for the child would be long-term foster care, legal guardianship or adoption.   We entertain the writ in accordance with the specific authority of section 366.26, subdivision (k).

Two issues are presented by this petition.   The first raises questions of procedural requirements for the review of decisions which result in a reference to a “selection and implementation” hearing under section 366.26.2  The second calls into question the constitutionality of the procedure whereby a parent may be deprived of parental rights on the basis of an order made upon the preponderance of evidence rather than clear and convincing evidence.   In denying the petition, we confirm that the exclusive means of challenging an order referring a case to a selection and implementation hearing is by extraordinary writ, and that issues decided by the reference hearing (under § 361.5 or 366.21 or 366.22) may not be the subject of appeal following a section 366.26 determination.   We further conclude that this procedure meets constitutional requirements, even though the determination at the section 366.21 or 366.22 hearing may be made on the preponderance of evidence rather than on a higher standard of proof.

The questions presented by this petition are legal rather than factual.   The skeletal factual background necessary as a framework for the legal issues is as follows:  The child was removed from the custody of petitioner in 1989 upon a finding that petitioner was unable to provide for her regular care.   Following several review hearings, an 18–month hearing under section 366.22 was held on May 29, 1991.   At that time, based upon the preponderance of the evidence, the court found that return of the child to petitioner's custody would create a substantial risk of detriment to the child, that reasonable reunification services had been provided petitioner, and that the matter should be set for a selection and implementation hearing under section 366.26.   Petitioner filed this writ just a few days before the date set for the selection and implementation hearing to preserve a challenge to alleged defects in the previous section 366.22 order, fearing that failing to do so might preclude raising such issues following the selection and implementation order.   While the selection and implementation hearing has now been held and an adjudication of issues raised thereat has been made, we have declined to consolidate the now-pending review of that order with the present writ, because we believe issues raised by this writ deserve individual and specific attention.

PROPRIETY OF WRIT REVIEW

 Petitioner reviews the new statutory scheme of the section 300 series, and suggests that the review hearings under sections 366.21 and 366.22 are intermediate “fact finding” hearings which lead to the adjudicative and dispositional hearing of section 366.26.   As an intermediate ruling, not subject to appeal, petitioner contends that errors in the ruling are subject to review after the final selection and implementation determination.  (See, e.g., Estate of Miyagishima (1935) 7 Cal.App.2d 343, 346, 45 P.2d 822;  Heck v. Heck Bros. (1943) 57 Cal.App.2d 599, 134 P.2d 853.)   Accordingly, petitioner argues it should not be necessary to challenge determinations made at a section 366.22 hearing before receiving the ruling which results from the selection and implementation hearing.   In support of this concept petitioner calls to our attention the fact that a parent cannot know, after a section 366.21 or 366.22 hearing, whether the parental right will in fact be terminated at the subsequent selection and implementation hearing.   Of the available dispositions resulting from the selection and implementation hearing, only adoption will result in termination of parental rights;  neither of the other potential dispositional alternatives—legal guardianship and long-term foster care—result in termination of parental rights.   Since a parent may wish to challenge the process only if it has resulted in severance of the parental relationship, petitioner argues that the parent should not be required to commence review processes until the ultimate determination is known.

Petitioner's argument is misdirected because it attempts to draw precedent from traditional types of interlocutory rulings, when the subject before us is the unique status of juvenile dependency procedures.   The saga of a dependency case which ultimately results in severance of the parental relationship is that of a number of hearings and interim decisions, spreading over months and often years.   Some of the orders along the way are appealable (§ 395, and see, e.g., § 300 orders adjudicating dependency, In re Elizabeth M. (1991) 232 Cal.App.3d 553, 563, 283 Cal.Rptr. 483;  and § 366.26 orders terminating parental control (§ 366.26, subd. (h)).  Some of the orders are reviewable only by writ petition (§§ 361.5, 366.21 and 366.22 referrals to a § 366.26 hearing, as per § 366.26, subd. (k)).  The nature of the sequential steps of a dependency case requires that each judicial determination in the process become final if it is not challenged within the appropriate period for either notice of appeal or writ review.   It is apparent that the Legislature intended this finality of interim determinations in order to achieve its objective of more efficient, timely and predictable determination of the permanent placement of children.  (See Rep. of Sen. Select Com. on Children and Youth (January 1988) pp. 10, 11;  and discussion, infra, at p. 913.)

In In re Elizabeth M., supra, 232 Cal.App.3d at page 563, 283 Cal.Rptr. 483, the challenge was to orders made at a permanency planning hearing as to five children and semiannual review as to their brother.   The court wrote:

“An order adjudicating a minor a dependent child under section 300 is appealable as a final judgment, and any subsequent order may be appealed from as from an order after judgment.  [Citation.]   An appeal from the most recent order entered in a dependency matter may not challenge prior orders, for which the statutory time for filing an appeal had passed.  [Citation.]   Thus, the appeal as it relates to reunification services for Servando, Jr., and Eric is untimely.   Servando, Sr., may not challenge the adequacy of reunification services in this appeal.”

More specifically in point is In re Rebecca H. (1991) 227 Cal.App.3d 825, 278 Cal.Rptr. 185, where the court considered, in an appeal following a selection and implementation hearing, a challenge to a denial of reunification made at a dispositional hearing under section 361.5.   The court stated:

“Because the juvenile court must promptly conduct a permanency planning hearing when it rejects reunification entirely (§ 361.5, subd. (f)), a challenge to the complete denial of reunification ‘constitutes a direct attack’ on a provision in the disposition order which sets a section 366.26 hearing.  [Citations.]   Consequently, the propriety of the juvenile court's refusal to grant reunification is not reviewable by appeal from the dispositional order (§ 366.26, subd. (k)).

In our view, section 366.26, subdivision (k) carves out an unambiguous and well-conceived exception to the general application of section 395 to disposition orders.   Subdivision (k) is a testament to the Legislature's concern for stability in the lives of dependent minors.  [Citation.]   When a juvenile court has decided against reunification altogether, an expeditious method must exist by which a parent may obtain review of the ruling before the court orders the termination of parental rights.   The Legislature provided such a means by enacting section 366.26, subdivision (k).   In so doing, it has created a scheme sensitive to both the goal of reunification where feasible and the recognition of the importance of providing ‘stable, permanent homes' (§ 366.26) for minor children whose parents are unable to care for them.   The filing of a timely petition for an extraordinary writ permits appellate review of the denial of reunification prior to the date the section 366.26 hearing is held.   Should the reviewing court conclude reunification services were improperly refused, seasonable extraordinary relief could be granted.”  (Id. at p. 836, 278 Cal.Rptr. 185.)

Our own court recently reviewed the statutory scheme governing juvenile dependency hearings, the principal thrust of its opinion being that the limitation to writ review of referrals for selection and implementation hearings does not violate due process requirements.  (In re Taya C. (1991) 2 Cal.App.4th 1, 2 Cal.Rptr.2d 810.)   We cited and approved the language in In re Rebecca H., stating in addition:  “․ it is clear that the petition for extraordinary writ must present all issues then in dispute, including most particularly matters related to the decision to terminate reunification services․   We agree that the Legislature did not intend to preserve the issues resulting in the referral to the section 366.26 hearing, including the adequacy of the reunification services and a parent's compliance, for a second review on appeal․”  (In re Taya C., supra, at p. 8, 2 Cal.Rptr.2d 810;  see also In re Heather P. (1989) 209 Cal.App.3d 886, 890, 257 Cal.Rptr. 545.)

Our review of the procedure contemplated by section 366.26 confirms our conclusion that determinations at earlier hearings may not be reviewed by appeal after the selection and implementation hearing.   A determination to terminate parental rights at such hearing is made only if the court concludes that the minor will be adopted.   After making this decision, the findings made at a prior section 361.5, 366.21 or 366.22 hearing “shall then constitute a sufficient basis for termination of parental rights” unless the court on other grounds determines termination would be detrimental to the minor.  (§ 366.26, subd. (c)(1).)   The earlier findings which lead to the selection and implementation hearing are therefore final, and (absent the presentation of evidence of a change of circumstances under § 388, see In re Marilyn H. (1992) 3 Cal.App.4th 138, 149–150, 4 Cal.Rptr.2d 79) are not open to revisitation.   The statutory scheme appears to provide for extraordinary writ review of referral hearing findings in order to resolve any challenge before the date of the selection and implementation hearing, which must follow the referral within 120 days.   It would be undermining of the process to permit appellate review of the section 366.21 or 366.22 hearing after completion of the selection and implementation hearing.

An editorial comment on page 11 of the Senate Select Committee Report, supra, which reviewed the legislation creative of the present statutory scheme, is instructive:

“The critical substantive change is that in order to terminate parental rights the court need make only two findings:  (a) That there is clear and convincing evidence that it is likely that the minor will be adopted;  and (b) that there has been a previous determination (at the dispositional or six, twelve or eighteen month hearing) that reunification services shall not be offered.   In essence, the critical decision regarding parental rights will be made at the dispositional or review hearing, that is, that the minor cannot be returned home and that reunification efforts should not be pursued.   In such cases, the decision to terminate parental rights will be relatively automatic if the minor is going to be adopted.”  (Emphasis in original.)

Finally, our review of the current work of other districts of the Court of Appeal reveals a very timely decision from the Fifth Appellate District which reviews the precise issue we face:  In re Matthew C. (1992) 3 Cal.App.4th 249, 4 Cal.Rptr.2d 303.   After a complete review of the statutory background and objectives of section 366.26, subdivision (k) and related statutes, including the precursor version of the same provision as contained in section 366.25, subdivision (j), the court concluded:

“In summary we would conclude that orders made nonappealable by section 366.26, subdivision (k) are not reviewable on appeal from the order terminating parental rights.   Rather, such orders are only reviewable on a timely petition seeking writ relief.   Such a conclusion is consistent with the legislative purpose in creating ‘a scheme sensitive to both the goal of reunification where feasible and the recognition of the importance of providing ‘stable, permanent homes' (§ 366.26) ‘for minor children whose parents are unable to care for them.’  (In re Rebecca H., supra, 227 Cal.App.3d at p. 836 [278 Cal.Rptr. 185].)  Moreover, a contrary conclusion delays the ultimate resolution of dependency proceedings, is contrary to the strong public policy against protracted litigation in child custody cases, and perpetuates the problems the new statutory scheme was designed to avoid.”  (In re Matthew C., supra, at pp. 263–264, 4 Cal.Rptr.2d 303.)

We therefore reaffirm our decision in Taya C., and state that any review of an order terminating reunification services and determining that a child cannot be returned to a parent (under § 361.5 or 366.21 or 366.22) must be undertaken by writ petition, and if not so brought will be waived.

 When must the writ petition be filed?   Obviously, it should be commenced sufficiently early to permit adjudication of the issues raised in the petition before the selection and implementation hearing is commenced.  (See In re Matthew C., supra, 3 Cal.App.4th at pp. 263–264, 4 Cal.Rptr.2d 303.)   All referrals require that the selection and implementation hearing be held within 120 days of the date of referral.  (§ 366.21, subd. (g)(3);  § 366.22, subd. (a);  § 361.5, subd. (f).)  Considering the urgency of juvenile dependency matters generally, and the likely time requirements of the Court of Appeal in ruling on the petition, it is obvious that counsel should file the writ petition within days, or at least weeks of the date of the order claimed to be in error.   County counsel urges us to dismiss this writ as not timely filed, coming as it does almost five months following the questioned order and only three days before the date set for the selection and implementation hearing.

 While there is no statutory time within which the writ petition must be filed, dismissal on the basis of laches is surely an appropriate disposition of a late petition.  (See 8 Witkin, Cal.Procedure (3d ed. 1985) Extraordinary Writs, § 132, p. 773.)   Where the Court of Appeal concludes that it cannot within the time left before the scheduled selection and implementation hearing reach a reasoned disposition of the petition, it will presumably find laches.   In the ordinary case it would be contrary to the statutory framework promotive of expeditious resolution of dependency cases to stay or delay the selection and implementation hearing simply to permit the addressing of a late-filed petition challenging the order of a previous hearing.   We would have dismissed this writ petition on the basis of laches, except for our conclusion that the petition raises serious issues of broad public concern which indicate the desirability of resolution.  (See 8 Witkin, supra, at § 131, pp. 771, 772.)   Also, we must confess some sympathy for counsel for petitioner, dealing with the short time strictures of a relatively new statute with very little decisional precedent—at least as of the time of the petition.

CONSTITUTIONALITY OF JUVENILE PARENTAL TERMINATION PROCESS

Senate Bill No. 1195 in 1986 required the Senate Select Committee on Children and Youth to convene a task force which would recommend ways to achieve greater coordination among child abuse reporting statutes, child welfare services, and juvenile court proceedings.  (Sen.Select Com.Rep., p. i.)   The result of the Senate Committee's study and report was the introduction of legislation in 1987 which modified existing law in the several branches directly affecting children, and specifically in the adoption of new juvenile court dependency proceedings.   The changes were effected by Senate Bill No. 243, amending key provisions in the section 300 series.   In terms of jurisdictional standards for initial assumption of control of children, Senate Bill No. 243 replaced “the current vague language of Welfare and Institutions Code Section 300 with ten specific grounds for declaring a child a dependent of the court.”  (Sen.Select Com.Rep., p. ii.)   Senate Bill No. 243 recognized that “once court intervention is determined necessary, children and parents should receive appropriate legal representation, time-limited and clearly focused protective and/or reunification services, and permanency planning at the earliest possible stage for those children who cannot live safely with their family.”  (Id. at p. ii.)   Senate Bill No. 243 substantially modified the procedure for permanently severing rights of parents and children under dependency of the court, eliminating the requirement of the filing of a new civil court action (as under Civ.Code, § 232) and introducing the termination procedures as part of the continuum of regular review of the status of a dependent child.  (Sen.Select Com.Rep., p. 10.)   The new procedure, it was thought, would eliminate the delay of “months and often years for the opportunity [of a dependent child] to be placed with an appropriate family on a permanent basis.”  (Ibid.)  Under the new procedures the focus is on “preservation of the family whenever possible” (§ 300, subd. (j)), but whenever during the reunification process it is determined that reunification cannot be achieved, the permanent plan for placement of the child in a home other than that of his parents must be determined at a hearing held not later than 120 days subsequent.   This referral to the selection and implementation hearing (§ 366.26) can be made following the initial dispositional hearing (§ 361.5, subds. (b), (f)), the 6–month review (§ 366.21, subd. (e)), the 12–month review (§ 366.21, subd. (g)), but not later than the 18–month review (§ 366.22).  (See Sen.Select Com.Rep., pp. 10, 11.)   The issue before us is whether this new “fast-track” procedure for either reuniting parents with children or terminating parental control comports with constitutional due process.

In In re Taya C., supra, 2 Cal.App.4th 1, 2 Cal.Rptr.2d 810, this court was faced with the argument that precluding appeal (§ 366.26, subd. (k)) from a referral order (in that case a § 366.21 hearing) violated due process because the writ procedure which permitted review of a referral order did not include traditional appellate procedures, such as the right to file a reply brief, to participate in oral argument, or to benefit from a written opinion and have a right to petition for rehearing.   After reviewing the legislative history of section 366.26, subdivision (k) and considering the policy reasons supportive of expedient review by writ rather than delayed review by appeal, our court found the writ review process to satisfy due process requirements.   As we have noted above, our court also concluded that the only review of a referral order was by writ, and that alleged errors in the referral hearing could not be raised by appeal following the selection and implementation hearing (disagreeing with dictum in In re Kristin W. (1990) 222 Cal.App.3d 234, 249, 271 Cal.Rptr. 629).

The constitutionality of the interrelationship between referral orders and selection and implementation hearings was again raised in In re Marilyn H., supra, 3 Cal.App.4th 138, 4 Cal.Rptr.2d 79.   The contention was that parents should be able, at the selection and implementation hearing, to show evidence of changed circumstances such that the previous section 366.22 order terminating reunification efforts should be reversed.   The court held that the referral order is final, and when not challenged by writ review is res judicata at the selection and implementation hearing (absent an interim § 388 petition, the filing of which would have had to precede the selection and implementation hearing).   After reviewing the entire statutory framework leading to termination of parental rights, and considering California's “interest in providing stable, permanent homes for children who have been removed from parental custody and for whom reunification efforts with the parents have been unsuccessful” (id. at p. 150, 4 Cal.Rptr.2d 79, quoting In re Heather P. (1989) 209 Cal.App.3d 886, 892, 257 Cal.Rptr. 545), the court found the procedures not violative of constitutional due process.

The challenge in this case is based upon a different facet of due process:  the issue of burden of proof.   Petitioner relies upon Santosky v. Kramer (1982) 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 and In re Angelia P. (1981) 28 Cal.3d 908, 171 Cal.Rptr. 637, 623 P.2d 198 for the proposition that a judgment determining the existence of facts sufficient to deprive a parent of the parental relationship with the child cannot be reached merely upon the basis of preponderance of evidence, but requires a higher standard:  proof by clear and convincing evidence.   Petitioner traces the procedures of the statutes we have been reviewing and concludes that the key determination which results in parting of parent from child is statutorily permitted on the basis of only preponderance of the evidence.

Petitioner's analysis of the statutory structure is correct.   The burden of proof in civil cases, unless specifically otherwise provided, is by a preponderance of evidence.  (Evid.Code, § 115.)   Of the many decisions required or permitted by section 366.26, only one specifically requires proof by clear and convincing evidence:  the determination that it is likely a minor will be adopted.  (§ 366.26, subd. (c)(1).)   If the court makes that determination, then the finding made at the prior referral hearing (a § 361.5 or 366.21 or 366.22 hearing) that there are grounds for concluding that the minor cannot or should not be returned to his parent “shall constitute a sufficient basis for termination of parent rights,” unless extraordinary circumstances indicate that such would be detrimental to the minor.   The finding of nonreturnability provided by section 361.5 requires proof by clear and convincing evidence.  (§ 361.5, subd. (b).)  However, except for the finding that reasonable services have been offered to the parent (§ 366.21, subd. (g)(1)), generally the determinations made at the 12–month or 18–month review hearing to refer for a selection and implementation hearing, and to terminate reunification services, do not require a higher burden of proof,3 and hence are made upon the basis of preponderance of the evidence.  (§ 366.21, subd. (g)(3);  § 366.22, subd. (a).)

 Thus, the decision that a child should not be returned to the parent, and that efforts to change the attitudes and conduct of the parties should be terminated because the child will not in the future be returnable, is a decision which can be made in California by preponderance of the evidence.4  The requirement of proof by clear and convincing evidence as contained in section 366.26 does not pertain to the decision separating child from parent, but only to the determination that the child is adoptable.   The Senate Committee explicitly recognized this value choice in its report, quoted at length at page 913, ante, where it was recognized that “the critical decision regarding parental rights will be made at the dispositional or review hearing, that is, that the minor cannot be returned home and that reunification efforts should not be pursued.”  (Sen.Select Com.Rep., p. 11.)   As we have noted in our discussion in the first part of this opinion, it is clear that the determinations made at referral hearings are not to be reviewed again at the selection and implementation hearing.   The parental separation determination having thus been made by a preponderance of the evidence at the referral hearing, there is no means by which the burden of proof as to that decision can be elevated at the later selection and implementation hearing, even though at the later hearing a different determination—adoptability—may be made by clear and convincing evidence.5

This determination puts us at odds with two very recent Court of Appeal decisions:  the majority opinion of a First District panel in In re Michaela C. (1992) 2 Cal.App.4th 1229, 3 Cal.Rptr.2d 869, and the unanimous decision of the Fifth District panel in In re Daniela M. (1992) 3 Cal.App.4th 226, 4 Cal.Rptr.2d 290.   Each of these cases dealt with the question here under discussion, namely whether the statutory framework of the decisions made at the referral hearings in tandem with the subsequent termination of parental rights at the selection and implementation hearing constitutes a process violative of constitutional rights.   Each of these opinions determines that due process is not abridged because the statutes can be construed as requiring proof of the central determinations upon which parental control is terminated by clear and convincing evidence.

The Michaela C. case notes that the first prong of a selection and implementation finding leading to termination of rights is that it is likely the child will be adopted, and this finding must be supported by clear and convincing evidence.  (§ 366.26, subd. (c)(1).)   The court then concludes that a second finding is necessary before termination can be ordered, namely “whether parental termination ‘would be detrimental to the minor’ due to one of four enumerated circumstances.”  (In re Michaela C., supra, 2 Cal.App.4th at p. 1239, 3 Cal.Rptr.2d 869.)   While no specific burden of proof is required for this second finding, the court determines the two findings are “interwoven” and hence both controlled by the higher standard.   Thus, the court concludes, “It seems logically certain that, if an adoptability finding is required to be made by a designated evidentiary standard, a second finding the statute posits which wholly nullifies the effect of the adoptability finding—‘that termination would be detrimental to the minor due to one of [several] circumstances'—must be made under the same evidentiary standard.”  (Id. at p. 1240, 3 Cal.Rptr.2d 869.)   The opinion sums up this logic by stating:  “We conclude that section 366.26 was intended to permit the permanent severance of parental rights only by application of a standard of clear and convincing evidence.”  (Ibid.)

Admitting that section 366.26 “is not a model of clarity” (In re Michaela C., supra, at p. 1236, 3 Cal.Rptr.2d 869), and sympathizing with the desire of our brethren in the First District to find a statutory construction which without question would satisfy the due process requirements of Santosky v. Kramer, supra, 455 U.S. 745, 102 S.Ct. 1388 and In re Angelia P., supra, 28 Cal.3d 908, 171 Cal.Rptr. 637, 623 P.2d 198, we nevertheless cannot agree.   We instead accept the reasoning of Justice Kline's concurring opinion.   It is a detailed and scholarly treatment of the subject, and since we agree with it we need not recapitulate its reasoning.  (See In re Michaela C., supra, 2 Cal.App.4th at p. 1243, 3 Cal.Rptr.2d 869 conc. opn. of Kline, J.)   We would but emphasize one of the points made in the concurring opinion.

 The majority in In re Michaela C. appears to say that the court in a selection and implementation hearing must make a binary factual finding:  (1) that the child will be adopted and (2) termination of parental rights will not be detrimental to the minor due to specified circumstances.   Section 366.26, subdivision (c)(1) does not impose this requirement.   It requires only the finding of likely adoptability.   This finding, coupled with the previous finding of nonreturnability of the child to the parent, under section 366.21 or 366.22, constitutes a “sufficient basis” for termination of parental rights.  (§ 366.26, subd. (c)(1).)   From the structure of the wording of the statute, it appears to us that the burden of proof of the finding which would undermine the prima facie determination of nonreturnability is upon the parent.   While no longer statutory law, the principle stated in former Code of Civil Procedure section 1981 still remains sound:  “․ the burden of proof lies on the party who would be defeated if no evidence were given․”   The findings necessary to establish the prima facie case of termination are clearly imposed upon the state.   We conceive that having made these findings the court is required to look no further into the circumstances of the parties, unless the parent presents evidence of detriment to the child from termination, as per section 366.26, subdivision (c)(1)(A) through (D).   Surely, if the burden of establishing detriment to the child from termination of parental rights is on the parent, such burden should not require clear and convincing evidence (as Justice Kline explains).

Suffice it to say, without further explication, that we are simply not persuaded by the majority in In re Michaela C.   The literal wording of the code sections discussed above is too clear to permit the statutory construction of the majority in Michaela C.

In In re Daniela M., supra, 3 Cal.App.4th 226, 4 Cal.Rptr.2d 290, the court noted that a finding of nonreturnability of the child to parents may result in one of several different permanent plans, selection of which will be made at the later selection and implementation hearing.   Making the finding upon only a preponderance of the evidence is constitutionally permissible, the court says, when the later disposition does not terminate parental rights, but instead results in guardianship or long-term foster care.   It is only when, at the later hearing, adoption is the selected plan that the finding at the former hearing must be based on the clear and convincing standard.   Since the Legislature is presumed to know the current law in the subject area of its legislation, and since it is presumed to enact constitutional laws, the Daniela M. court concludes that the Legislature must have intended the higher standard of proof be used in making findings under sections 366.21 and 366.22 which lead to eventual adoption.6

The Daniela M. court was not faced with the prospect of reversing its selection and implementation order because of a defective section 366.21 finding, in that the juvenile court in its case, being “ ‘on its toes' and astutely aware of the constitutional standards invoked when judicial action infringes upon the fundamental right of parenting, expressly made its findings at the 366.21 review hearing ․ using the higher standard.”  (In re Daniela M., supra, 3 Cal.App.4th at p. 246, 4 Cal.Rptr.2d 290.)   We do not have the benefit of such a prescient trial court ruling in our case.   However, we are not required to apply such elastic construction of the statute as recommended by the Daniela M. court, because, as set forth hereunder, we find the use of the preponderance of evidence standard at the section 366.21 or 366.22 hearing to meet constitutional requirements.

With all due deference to the Daniela M. court, its construction of the mechanical procedures by which a section 366.21 preponderance of the evidence finding could at a selection and implementation hearing be upgraded to a clear and convincing finding leaves us baffled.   The authorities and reasoning we have cited previously in this opinion instruct that the findings at the earlier referral hearing are not to be reopened at the selection and implementation hearing.   If a section 366.21 or 366.22 finding is to be reclassified at the selection and implementation hearing as having been made by the higher standard of proof, surely a new evidentiary review would be required.   We not only find nothing in the statute warranting such review, but also believe, as we have stated above, such is explicitly precluded.

 We therefore must address the issue directly, seeking to determine whether the statutory framework (which we find requires only a preponderance of the evidence finding) affords due process.

Our analysis is commenced with a reminder that the concept of due process is not black letter, immutable, or reducible to simple formula or recipe.

“For all its consequence, ‘due process' has never been, and perhaps can never be, precisely defined.  ‘[U]nlike some legal rules,’ this Court has said, due process ‘is not a technical conception with a fixed content unrelated to time, place and circumstances.’  (Cafeteria Workers v. McElroy [1961], 367 U.S. 886, 895 [81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230].)  Rather, the phrase expresses the requirement of ‘fundamental fairness,’ a requirement whose meaning can be as opaque as its importance is lofty.   Applying the Due Process Clause is therefore an uncertain enterprise which must discover what ‘fundamental fairness' consists of in a particular situation by first considering any relevant precedents and then by assessing the several interests that are at stake.”  (Lassiter v. Department of Soc. Serv. of Durham Cty. (1981) 452 U.S. 18, 24–25, 101 S.Ct. 2153, 2158, 68 L.Ed.2d 640.)

We therefore first consider the cited precedents.   In Santosky v. Kramer, supra, 455 U.S. 745, 102 S.Ct. 1388, the United States Supreme Court considered a New York statutory procedure for termination of parental rights.   A child could be removed from his home temporarily upon a finding of “neglect.”   Thereafter the child could be freed permanently from parental control upon a determination of “permanent neglect,” which required a factual determination that (1) diligent efforts had been made by the state to encourage and strengthen the parental relationship, and (2) during a period of more than one year the natural parents had failed “ ‘substantially and continuously or repeatedly to maintain contact with or plan for the future of the child, although physically and financially able to do so.’ ”  (Id. at p. 748, 102 S.Ct. at p. 1392, quoting Fam.Ct.Act, § 614.1.(d).)  The burden of proof with respect to all these factual findings was by a preponderance of the evidence.

The court found that the rights being terminated were fundamental and that the magnitude of the decision mandated a higher standard of proof than preponderance of the evidence.   In reaching this conclusion the court considered various aspects of the procedure which might weigh in favor of the state's effort to terminate and undermine the parents' objective of reunification.   The state is armed with well-educated agents, the court said, while the parents are “often poor, uneducated or members of minority groups ․ vulnerable to judgments based on cultural or class bias.”  (Santosky v. Kramer, supra, 455 U.S. at p. 763, 102 S.Ct. at p. 1400.)   The state's power to present its case usually dwarfs the parents' efforts at defense, the court surmised.   In light of the severe damage an erroneous decision to terminate would cause, as compared with the lesser societal costs of an erroneous decision to postpone termination, the court concluded the prophylactic benefit of the higher standard of proof was constitutionally mandated.  (Id. at p. 765, 102 S.Ct. at p. 1401.)

The California Supreme Court in In re Angelia P., supra, 28 Cal.3d 908, 171 Cal.Rptr. 637, 623 P.2d 198, reviewed a proceeding brought under Civil Code section 232, subdivision (a).   This procedure for terminating parental rights as to dependent children, which preceded the present statutory framework, required the filing of a new petition.   The termination proceeding was distinct and separate from any prior wardship or custody proceedings which predated the termination action.  (See In re Zimmerman (1962) 206 Cal.App.2d 835, 843, 24 Cal.Rptr. 329.)   Referring to the importance of the 232 hearing and the “fundamental nature of the respective rights involved,” the court concluded that parental rights could be terminated only on the basis of findings made upon clear and convincing proof.  (In re Angelia P., supra, 28 Cal.3d at pp. 917–919, 171 Cal.Rptr. 637, 623 P.2d 198.)   The court quoted at length from Justice Harlan's concurring opinion in In re Winship (1970) 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, which evaluated alternative burdens of proof in terms of the gravity of the inevitable potential for a mistaken judgment.   Noting that money damage judgments are awardable upon merely the preponderance of the evidence, and that a natural parent's rights are much “weightier” than mere cash, the court concluded a higher standard of proof was appropriate.  (Angelia P., supra, 28 Cal.3d at p. 918, 171 Cal.Rptr. 637, 623 P.2d 198.)

Taking instruction from our Supreme Court (and almost every other court which has seriously considered the issue) we look to Justice Harlan's teaching.   He noted that the different burdens of proof are “quantitatively imprecise.”   Their use is nevertheless valuable because they “communicate to the finder of fact different notices concerning the degree of confidence he is expected to have in the correctness of his factual conclusions.”  (In re Winship, supra, 397 U.S. at p. 370, 90 S.Ct. at p. 1076.)   The goal of the standard in terms of burden of proof is to impose more care and assuredness in the making of a decision which, if made erroneously, will have severely adverse consequences.   Since, as noted by our Supreme Court in Angelia P., severance of parental ties, if made erroneously, is much more damaging than a civil money judgment, the burden of proof should be more stringent.

It seems logical to us that when applying Justice Harlan's philosophy one should look not only to a specific burden of proof in a subject procedure, but also to all of the surrounding facets of the procedure which may enforce the likelihood that the decision is not erroneous.   Consider, for example, the hypothetical adjudication of fault of an employee in an administrative proceeding.   If the accused may take multiple appeals, as for instance a first appeal from his supervisor to a referee, then another appeal to the head of the department, and finally an appeal to a civil service board, the likelihood of an erroneous decision of discharge is minimized.   It would not detractfrom this conclusion if each of the several decision-makers ruled on the basis of only preponderance of the evidence.

It is with this conceptual approach that we find the present design of the system for termination of parental rights to be constitutionally sound.   The totality of the system is such as to provide a measure of confidence in the probable correctness of the decision which exceeds the benefits derivable at any particular hearing from use of a “clear and convincing” standard.   A brief review of the statutory scheme illuminates this thesis.

State officers may detain minors and place them into temporary custody by reason of a number of conditions (physical or sexual abuse, immediate need of medical care, being left unattended, etc.) as provided in sections 305 and 306.   Prompt hearings and release, absent good cause otherwise, are required.  (§ 345 et seq.)   While a minor can be determined to be subject to the jurisdiction of the court upon the basis of preponderance of the evidence (§ 355), physical custody can be taken from the parents only upon a specific finding of the existence of one of several enumerated dangerous conditions (§ 361, subd. (b)(1) through (5)), and this finding must be made upon the basis of clear and convincing evidence (§ 361, subd. (b)).  Initial removal of the child from his parents' household, except for a temporary period, must therefore be based upon the elevated burden of proof.

Once the child is removed, a period of lengthy and recurrent reviews aimed at reuniting child with parent commences.   This reunification process can be short-circuited if a finding is made of the existence of one of five conditions which would either present immediate danger to the child or prevent practical reunification.   Such conditions include (1) the whereabouts of parents being unknown, (2) parents suffering severe mental disability, (3) previous determination that a parent had inflicted sexual or physical abuse on the minor and had inflicted additional abuse after the minor was returned to the parent, and (4) the parent had caused the death of another child.   The effect of such determination is to preclude reunification efforts and refer the child to a selection and implementation hearing.   This decision, however, also requires proof by clear and convincing evidence.  (§ 361.5, subd. (b).)

In the ordinary case a course of treatment and consultation must be commenced for the purpose of “facilitating reunification of the family.”  (§ 361.5, subd. (a).)  Progress hearings at the juvenile court must be held at least every six months.  (§ 366, subd. (a).)  The burden at these hearings is not on the parent to show circumstances warranting reunification, but on the probation department to show by a preponderance of the evidence that “return of the child would create a substantial risk of detriment to the physical or emotional well-being of the minor.”  (§ 366.2, subd. (e);  366.21, subd. (e), (f).)

It is to be noted here that continued deprivation of the parent from the return of custody of the child requires an affirmative showing of a high degree of risk.   While the proof is but a preponderance of the evidence, the child must be returned to the parent unless it can be shown that such “would create a substantial risk of detriment․”  (366.21, subd. (e), emphasis added.)   This elevated finding results in a “measure of confidence in the probable correctness of the decision,” which accords with the principles of Justice Harlan's Winship instruction.

At the first review hearing, held six months from the date of the initial dispositional hearing, reunification efforts can be terminated and the case referred for a selection and implementation hearing only upon proof of relevant facts by clear and convincing evidence.  (§ 366.21, subd. (e).)  If at the six-month hearing the child is not returned to the parent, but clear and convincing evidence does not warrant referral for a selection and implementation hearing, then the court “shall direct ․ reunification services previously ordered shall continue.”  (Ibid.)  Each time when, at a review hearing, the court determines not to return a child to the parent, it must advise the parent that failure of reunification at a subsequent hearing may result in referral for a selection and implementation hearing.  (Ibid.;  366.21, subd. (g)(1).)

Referral of the case to a selection and implementation hearing without further findings based on clear and convincing evidence can be made only at the 12–month review hearing (§ 366.21, subd. (g)(1)) or the 18–month review hearing (§ 366.22, subd. (a)).   Even then, a referral for a selection and implementation hearing at the 12–month hearing must be accompanied by a determination based on clear and convincing evidence that reasonable reunification services have been provided or offered to the parents.  (§ 366.21, subd. (g)(1).)

The final hearing, at which the permanent plan for the child is selected and implementation is ordered, can result in complete termination of parental rights only if the child is found to be adoptable.   This finding, as with several of the other benchmark findings referenced above, must be made upon the basis of clear and convincing evidence.  (§ 366.26, subd. (c)(1).)

We are convinced that this framework for adjudication, involving not one but several opportunities for a parent to demonstrate competence to care for the child, provides a setting in which the potential for error in removing the child is squeezed to its smallest reasonable dimension.7  The child does not initially come into indefinite physical custody of non-parents without a clear and convincing finding of need.   The parent is then afforded a course of treatment and assistance for a period of from six to eighteen months, designed to reunite the parent with the child.   The presumption in every hearing is in favor of the parent, and continued severance of parental relationship is achieved only if the state meets its affirmative burden of proof.   The decision with the potential of removing the child permanently from parental control—which is the reference to a selection and implementation hearing—is but confirmation of an earlier decision made on clear and convincing evidence.   In this elaborate scheme of measures designed to protect parental interests while yet focusing on the well-being of the child, we find compliance with constitutional due process.8

These procedures are to be distinguished from those considered by the courts in both Santosky and Angelia P.   In each of these precedential cases a monumentally important hearing was held which portended fatal results for a parent's interests.   A single and severable decision was made, without benefit of foundational prior hearings which required a high degree of proof.   We believe that the totality of the procedures now included in the California framework for depriving parents of child custody affords at least as much due process and practical protection as did the higher burden of proof imposed by Santosky and Angelia P. upon the single and separate hearing each of those cases involved.

DISPOSITION

The petition for writ of mandate is denied.

FOOTNOTES

FN1. All statutory references are to the Welfare and Institutions Code unless otherwise specified..  FN1. All statutory references are to the Welfare and Institutions Code unless otherwise specified.

2.   One publisher's unofficial title to section 366.26 is “Hearings terminating parental rights or establishing guardianship of minors adjudged dependent children of court on or after Jan. 1, 1989.”   We are aware of several other unofficial names used by the bench and bar to refer to this new type of hearing (since 1989).   That apparently favored by the county counsel is the term “Selection and Implementation Hearing”;  since this name seems validly descriptive, we adopt it and will sometimes use it hereafter in referring to a section 366.26 hearing.

3.   Section 366.21, subdivision (e) requires that if referral to a selection and implementation hearing is made on the basis that the minor was removed initially under section 300, subdivision (g), and the parent's whereabouts are still unknown or that the parent has been convicted of a felony indicating parental unfitness, the finding must be made on the basis of clear and convincing evidence.

4.   The form order utilized by the juvenile court in San Diego contains a standard potential finding that “The return of the minor to the custody of the parents would create a substantial risk of detriment to the physical and/or emotional well-being of the minor by (a preponderance of the) (clear and convincing) evidence.”   Presumably, juvenile court judges could preclude the contest here presented simply by always deleting the “preponderance of the evidence” reference and thus making the finding by the “clear and convincing” standard.   We decline to enter the philosophical discussion as to whether, in making judicial decisions, there is any practical difference in result from the use of one or the other of the standards.   The issue is moot in this case since the judge did not delete either reference.   In such circumstance we presume we must give the petitioner the benefit of the doubt and assume that the court used the lesser standard.

5.   If the court determines at the 12–month hearing to terminate reunification services and order a hearing for final selection and implementation of the future plan for the minor, it must determine by clear and convincing evidence that reasonable services have been provided or offered to the parents.  (§ 366.21, subd. (g)(1).)   Key concurrent factual determinations, however, do not require the higher standard of proof.   These factual determinations include a finding that return of the child to the physical custody of the parent would be detrimental (§ 366.21, subd. (f)), and that there is no substantial probability the child can within the next six months be returned to the physical custody of the parent.  (§ 366.21, subd. (g)(1).)

6.   The court reasoned:  “The statute can reasonably be read as silent on which standard is to govern any further findings or orders generated at the 12– (or 18–) month review hearing.   In order to bring the statute within the parameters of constitutionality, it is necessary to read into the statute a requirement that any findings made at the final review hearing when a referral to the 366.26 hearing is made must be made using the higher standard—by clear and convincing evidence.”“․“We thus hold when a juvenile court has determined through its initial finding that the child should not be returned to the parents, and anticipates a referral to a 366.26 hearing for purposes of adoption and termination of parental rights, the necessary findings mandated by section 366.21, subdivision (f) must be made using a clear and convincing evidence standard.”  (In re Daniela M., supra, at p. 245, 4 Cal.Rptr.2d 290.)

7.   The petition in this case is based upon legal assertions and in no respect relies upon any asserted factual or practical deprivation of due process as to this particular parent.   We have, however, reviewed the record in this case, and find that in a substantive sense this petitioner was accorded much due process.   The child originally came to the attention of state authorities because of injuries including abrasions and bruises around her eyes and hypervascularity around the hymen and urethra suggestive of multi-event molest.   On June 23, 1989, the mother entered a plea of no contest to the allegations of the petition, the minor was declared dependent and removed from the mother's custody, being placed with relatives.   In May 1990 these relatives indicated inability to continue to care for the minor, and a supplemental petition was filed.   At a hearing on June 7, 1990, at which mother was represented by counsel, she submitted the cause to the court without evidence or argument, and the court found the allegations of the petition to be true upon “clear and convincing” evidence.   The Department of Social Welfare was ordered to facilitate visitation between minor and mother, and an early review hearing date was set.   At this review hearing, held June 20, 1990 and attended by mother and her counsel, the court found there was a probability the minor and mother could be reunited, continued the reunification program, and set another review hearing for five months later.   At that hearing, in November 1990, attended by mother and her counsel, the matter was continued for a 366.22 “18–month” hearing.   This hearing was subsequently continued several times, and was finally held on May 29, 1991.   The May 29 hearing was the “referral” hearing which resulted in an order terminating reunification services and referring the case for a selection and implementation hearing.   After several additional continuances, the selection and implementation hearing was held before Judge Kutzner on November 27, 1991.   It appears that the state devoted a sufficiency of process to this case.

8.   The analysis of due process in Santosky v. Kramer depended not only on the learning of Justice Harlan's concurrence in In re Winship (Santosky v. Kramer, supra, 455 U.S. at pp. 756, 764, 102 S.Ct. at pp. 1396, 1400) but also upon the three-tier analysis of Mathews v. Eldridge (1976) 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18.   (Santosky v. Kramer, supra, 455 U.S. at p. 758, 102 S.Ct. at at p. 1397 et seq.)   We do not engage in this analysis as applicable to this case because, for one reason, we think it not necessary in light of what we conceive to be the weight of the conclusion resulting from close review of the several sections of the law which provide multilayered due process.   A second reason is that the Mathews v. Eldridge analysis has already been provided, in accurate depth, by Justice Kline in his concurring opinion in In re Michaela C., supra, 2 Cal.App.4th at pp. 1252–1257, 3 Cal.Rptr.2d 869.   We conceive that our opinion is in substantial accord with Justice Kline's views.   Were it not for the fact that his opinion is but a concurrence, and hence not of precedential value (see 9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 808, p. 788), we could have been spared much of the length of this opinion.

FROEHLICH, Associate Justice.

KREMER, P.J., and TODD, J., concur.