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Court of Appeal, Second District, Division 6, California.

IN RE: REYLENE A., a Person Coming Under the Juvenile Court Law. PUBLIC SOCIAL SERVICES AGENCY, Petitioner and Respondent, v. CAROL T., Respondent and Appellant.

Civ. B058055.*

Decided: July 10, 1992

Jerry L. Gottsdanker, Santa Barbara, under appointment by the Court of Appeal, for respondent and appellant. James L. McBride, County Counsel, County of Ventura and Mary C. Ward, Asst. County Counsel, for petitioner and respondent.

Effective January 1, 1989, the Legislature revised the procedures for terminating parental rights to children declared dependents of juvenile court under the Welfare and Institutions Code.1  Unfortunately, the Legislature failed to appreciate the holding of Santosky v. Kramer (1982) 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (hereinafter, Santosky ):  “Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence.”  (Id., at pp. 747–748, 102 S.Ct. at pp. 1391–1392, 71, 71 L.Ed.2d at p. 603.)

Appellant meritoriously contends that section 366.26 violates due process because it allows for permanent severance of the parent-child relationship by reference to a prior order that was made on a preponderance of the evidence standard.   We reverse the order terminating parental rights and remand for a determination consistent with Santosky.2

Carol T., the mother of Reylene A., appeals from the February 26, 1991 order terminating her parental rights.   Reylene was born on August 7, 1989, addicted to cocaine.   She was placed in emergency foster care and declared a dependent child under section 300 subdivisions (a), (b), and (g) due respectively to her physical condition;  her mother's drug addiction and inability to provide proper care for Reylene;  and the fact her biological father's whereabouts were unknown.   The dependency court sustained the petition and found “[b]y clear and convincing evidence that it is detrimental to the welfare of the minor for custody to be returned to the parent ․ [because] there is a substantial danger to the physical health of the minor or would be if the minor was returned home․”  While not factually so phrased, this finding is, in essence, a euphemism for a finding of temporary parental unfitness.

Reylene was placed in foster care with a person who has had continuous custody and wishes to adopt her.   The placement was based on a finding, again by clear and convincing evidence, that Reylene's physical health was then in substantial danger and there were no reasonable means to protect her without removing her from appellant.  (§ 361, subd. (b)(1).)

Reunification services including parenting classes, drug rehabilitation and drug testing were offered to appellant.   At the February 7, 1990 six-month hearing and the August 7, 1990 twelve-month hearing the dependency court found by a preponderance of the evidence standard, that return of the minor to appellant's custody would then create a substantial risk of detriment to the minor.   The written orders cite to section 366.2 subdivision (e) which specifies a preponderance of the evidence standard.

Appellant participated in residential drug treatment and other programs up to the time of the permanency planning hearing.   At the 12–month hearing the dependency court lauded appellant's efforts at overcoming her addiction and developing parenting skills with her other three children.   Nevertheless, uncertainty regarding her future progress resulted in the termination of reunification services at the 12–month hearing.  (§ 366.21, subd. (f).)  Appellant continued her rehabilitative efforts and made some progress up to the date of the permanent planning hearing.

At the February 26, 1991 section 366.26 permanency planning hearing, appellant's parental and visitation rights were permanently terminated.   The dependency court found that (1) Reylene will be adopted by clear and convincing evidence, (2) “[t]ermination of parental rights is indicated based on previous findings that:  [¶]  Minor cannot be returned to her parent pursuant to 366.21(g),” (emphasis added) and (3) termination of parental rights is not detrimental to Reylene due to any circumstance in section 366.26 subdivision (c)(1).   This appeal followed.

Section 366.26 provides in pertinent part as follows:  “(a) This section applies to minors who are adjudged dependent children of the juvenile court pursuant to subdivision (c) of Section 360 on or after January 1, 1989.   The procedures specified herein are the exclusive procedures for conducting these hearings;  Section 4600 of Civil Code is not applicable to these proceedings.   For minors who are adjudged dependent children of the juvenile court pursuant to subdivision (c) of Section 360 on or after January 1, 1989, this section and Sections 221.20, 222.10 and 7017 of the Civil Code specify the exclusive procedures for permanently terminating parental rights with regard to, or establishing legal guardianship of, the minor while the minor is a dependent child of the juvenile court.

“(b) At the hearing, which shall be held in juvenile court for all minors who are dependents of the juvenile court, the court, in order to provide stable, permanent homes for these minors, shall review the report as specified in Section 361.5, 366.21, or 366.22, shall indicate that the court has read and considered it, shall receive other evidence that the parties present, and then shall do one of the following:  [¶]  (1) Permanently sever the parent or parents' rights and order that the child be placed for adoption․[¶] 3  In choosing among the above alternatives the court shall proceed pursuant to subdivision (c).  [¶]  (c) At the hearing the court shall proceed pursuant to one of the following procedures:  [¶] (1) The court shall terminate parental rights only if it determines by clear and convincing evidence that it is likely that the minor will be adopted.   If the court so determines, the finding pursuant to ․ Section 366.21 ․ that a minor cannot or should not be returned to his or her parent or guardian, shall then constitute a sufficient basis for termination of parental rights unless the court finds that termination would be detrimental to the minor due to one of the following circumstances:  [¶] (A) The parents or guardians have maintained regular visitation and contact with the minor and the minor would benefit from continuing the relationship․” 4  (Emphasis added.)

Where, as here, the court finds by clear and convincing evidence that the child is likely to be adopted, it must terminate parental rights unless one of the above exceptions apply.

The only other statutory requirement for termination is a prior determination that the minor should not be returned to his or her parent.  (§ 366.26, subd. (c)(1).)   In this instance the statutory requirement was fulfilled at that 12–month review hearing wherein the dependency court found that return of the minor to appellant “would create a substantial risk or detriment to the physical or emotional well-being of the minor.”  (§ 366.21, subd. (f).)  The statute only requires this finding on a preponderance of the evidence standard.  (Id.)

Our analysis of the constitutionality of this scheme begins with the nature of the right affected by the termination.  “It is cardinal ․ that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”  (Prince v. Commonwealth of Massachusetts (1944) 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645.)   State intervention to terminate the relationship between a parent and the child must be accomplished by procedures which comply with the Due Process Clause.  (Lassiter v. Department of Social Services (1981) 452 U.S. 18, 37, 101 S.Ct. 2153, 2164, 68 L.Ed.2d 640.)   The question is what “process” is due?

In Santosky the United States Supreme Court answered that question.  “The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State.   Even when blood relations are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life.   If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs.   When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.  [Fn. omitted.]”  (455 U.S. at pp. 753–754, 102 S.Ct. at pp. 1394–1395, 71 L.Ed.2d at p. 606.)

The New York statute under review in Santosky required a determination of permanent neglect as a basis for termination of parental rights.   The burden of proof was on the state but the standard of proof was by a preponderance of the evidence, characterized by Santosky as “․ no greater than that necessary to award money damages in an ordinary civil action.”  (455 U.S. at p. 747, 102 S.Ct. at p. 1391, 71 L.Ed.2d at p. 603.)

The preponderance standard equally allocated the risk of erroneous fact-finding between the parties.   The Supreme Court disapproved and held that “․ at a parental rights termination proceeding, a near-equal allocation of risk between the parents and the State is constitutionally intolerable.”   (Santosky, supra, 455 U.S. at p. 768, 102 S.Ct. at p. 1402, 71 L.Ed.2d at p. 616.)  “ ‘The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to “instruct the factfinder concerning the degree of confidence our society thinks he [or she] should have in the correctness of factual conclusions for a particular type of adjudication.” ’ ”  (Id., at pp. 754–755, 102 S.Ct. at p. 1395, 71 L.Ed.2d at p. 607 quoting Addington v. Texas (1979) 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323.)

As indicated, the Santosky court determined that a clear and convincing evidence standard was required for the critical factual determination permitting severance of parental rights.  (Id. at p. 770, 102 S.Ct. at p. 1403, 71 L.Ed.2d at p. 617.)   In the analogous Civil Code section 232 proceeding to terminate parental rights, the California Supreme Court, expressly citing the federal due process guaranty, held that the state must prove its allegations by clear and convincing evidence.  (In re Angelia P. (1981) 28 Cal.3d 908, 922, 171 Cal.Rptr. 637, 623 P.2d 198.)

Respondent argues that (1) the section 366.26 subdivision (c) requirement of clear and convincing evidence that the minor is likely to be adopted satisfies due process requirements, and (2) the procedures and findings at the six-month and twelve-month review hearings satisfy due process requirements.   In addition, at oral argument, respondent argued that the finding of detriment to the minor if returned to appellant at the jurisdictional hearing by clear and convincing evidence satisfies due process requirements.   Adherence to the principle of stare decisis requires that we reject respondent's first two theories.   Common sense requires that we reject the third theory.

The finding of likelihood of adoption does not focus on much less deal with the fitness of the child's biological parent.   Instead, that determination under section 366.26 focuses entirely on the prospective adoptive parent and the child.  (§ 366.21, subd. (i)(4), (5), and (6).)

While there are significant procedural protections prior to permanent termination of parental rights, none are a substitute for clear and convincing evidence of detriment or unfitness at the time of the order permanently severing the relationship.5  In Santosky four justices dissented based on the adequacy of other procedural rights afforded the parents under the statutes.   These procedural rights included, as here, multiple hearings, right to counsel (§ 317), notice of hearings (§§ 307.4, 332, 338, 366.21, 366.23) right to produce evidence (§ 358(b)), limitation on admissible evidence and reunification services.  (§§ 366.21, subd. (c), 366.21, subd. (e).  The New York statute also required findings regarding the diligence of the state in attempting reunification, as does section 366.21 subdivisions (f) and (g).  (Santosky, supra, 455 U.S. at pp. 774–781, 102 S.Ct. at pp. 1405–1409, 71 L.Ed.2d at pp. 620–624.)

 The similarity of California statutes to those found deficient in Santosky requires our determination that a finding of substantial risk of detriment by clear and convincing evidence before permanent severance of parental rights is required by due process of law.   The antecedent and other procedural safeguards are insufficient.   As stated by the Supreme Court:  “The statutory provision of right to counsel and multiple hearings prior to termination cannot suffice to protect a natural parent's fundamental liberty interests if the State is willing to tolerate undue uncertainty in the determination of the dispositive facts.”  (Id., at p. 757, fn. 9, 102 S.Ct. at p. 1397, fn. 9, 71 L.Ed.2d at p. 609.)

The finding of detriment by clear and convincing evidence at the jurisdictional hearing cannot save the scheme, even though expressly referred to at the permanency planning hearing.   The jurisdictional finding dictating temporary removal of Reylene was just that:  temporary.   It required subsequent efforts to reunify the family.   That a temporary finding could mature to permanency by the simple passage of time while reunification efforts are ongoing does not comport with our notion of due process.6

Our California Supreme Court has recognized that the federal Constitution may require a determination of parental unfitness prior to the permanent severance of parental rights.  (See In re Baby Girl M. (1984) 37 Cal.3d 65, 73–75, 207 Cal.Rptr. 309, 688 P.2d 918.)   It recently held Civil Code section 7004 unconstitutional because it permitted termination of parental rights of a biological father based solely on the best interests of the child without a finding of unfitness by clear and convincing evidence.  (Adoption of Kelsy S. (1992) 1 Cal.4th 816, 849–851, 4 Cal.Rptr.2d 615, 823 P.2d 1216.)   This holding was predicated on the due process and equal protection clauses of the United States Constitution.   The same principles apply here.

 We hold that insofar as section 366.26 permits permanent termination of parental rights without a finding of substantial risk of detriment by clear and convincing evidence, it violates the federal due process of law guaranty.   Findings regarding likelihood of adoption and the best interests of the child are insufficient.7  Our holding does not compel dismissal of the instant dependency petition.   It does not require us to wreak havoc upon the comprehensive statutory scheme.

We proceed to the appropriate remedy and construe the comprehensive statutory scheme to avoid the effect of our holding.  (Conservatorship of Hofferber (1980) 28 Cal.3d 161, 175, 167 Cal.Rptr. 854, 616 P.2d 836.)   Section 366.26 simply does not go far enough.   The states were specifically instructed by the United States Supreme Court to enact a burden of proof equal to or greater than that mandated in Santosky.  (Santosky, supra, 455 U.S. at pp. 769–770, 102 S.Ct. at p. 1403, 71 L.Ed.2d at p. 617.)   Here the dependency court need only make the additional finding of substantial risk of detriment by clear and convincing evidence at the 366.26 hearing.   In doing so, of course, the trial court may consider the history of the case and antecedent findings.   The new finding, however, must be made as of the time of the permanency planning hearing, i.e., when the parent-child relationship is permanently severed.

We are confident that “․ the Legislature would have intended to put into effect [this standard of proof] if it had foreseen the constitutional restriction.”  (In re Edgar M. (1975) 14 Cal.3d 727, 736, 122 Cal.Rptr. 574, 537 P.2d 406;  see also Metromedia, Inc. v. City of San Diego (1982) 32 Cal.3d 180, 193–194, 185 Cal.Rptr. 260, 649 P.2d 902;  dissenting opinion of Kaus, J.)   There is nothing novel about our remedy.  Santosky itself remanded for “․ a hearing conducted under a constitutionally proper standard․”  (Santosky, supra, 455 U.S. at p. 770, 102 S.Ct. at p. 1403, 71 L.Ed.2d at p. 617.)   If the trial court cannot make the finding by clear and convincing evidence, it should not terminate parental rights.   If it can, and does, then appellant's parental rights should be terminated.

The order terminating parental rights is reversed and the matter is remanded for further proceedings consistent with this opinion.


1.   All statutory references are to this code unless otherwise indicated.

2.   We acknowledge that this issue is pending in the California Supreme Court.  (E.g., Cynthia D. v. Superior Court, formerly 3 Cal.App.4th 913, 4 Cal.Rptr.2d 909, rev. granted 7 Cal.Rptr.2d 808, 828 P.2d 1195 (1992);  In re Daniela M., (1992), formerly 3 Cal.App.4th 226, 4 Cal.Rptr.2d 290, rev. granted 7 Cal.Rptr.2d 530, 828 P.2d 671 (1992.)   The matter was argued before us on June 24, 1992.   We have given this appeal priority over all other cases because “[a] judgment under section 300 ․ shall have precedence over all other cases in which the appeal is taken.”

3.    The other options available to the court are:  “(2) Without permanently terminating parental rights, identify adoption as the permanent placement goal and order that efforts be made to locate an appropriate adoptive family for the minor for a period not to exceed 60 days.  [¶] (3) Without permanently terminating parental rights, appoint a legal guardian for the minor and issue letters of guardianship.  [¶] (4) Order that the minor be placed in long-term foster care, subject to the regular review of the juvenile court.”

4.   The other circumstances permitting the court not to terminate parental rights are:  “(B) A minor 10 years of age or older objects to termination of parental rights.  [¶] (C) The child is placed in a residential treatment facility, adoption is unlikely or undesirable, and continuation of parental rights will not prevent finding the child a permanent family placement if the parents cannot resume custody when residential care is no longer needed.  [¶] (D) The minor is living with a relative or foster parent who is unable or unwilling to adopt the minor because of exceptional circumstances, which do not include an unwillingness to accept legal responsibility for the minor, but who is willing and capable of providing the minor with a stable and permanent environment and the removal of the minor from the physical custody of his or her relative or foster parent would be detrimental to the emotional well-being of the minor.”  (§ 366.26, subd. (c)(1) (B–D).)

5.   Nearly identical procedures to those considered here are currently provided to parents of children made dependents of the court prior to January 1, 1989.  (Compare § 366.2 and 366.25 to § 366.21, subd. (e) and (f).)   For those children, the parent's rights can only be terminated by clear and convincing evidence of unfitness under Civil Code section 232 subdivisions (a)(1–7).  (Civ.Code, § 232, subd. (c).)

6.   The passage of time usually results in the child bonding with the “foster parent.”   If one were to view the issue strictly in terms of the child's best interests, the new bond should not be disrupted.   However, a best interest analysis prior to permanent severance of the parent-child relationship puts the cart before the horse.   It also erroneously “․ assumes that termination of the natural parents' rights invariably will benefit the child.  [Fn. omitted.]”  (Santosky, supra, 455 U.S. at p. 765, 102 S.Ct. at p. 1401, 71 L.Ed.2d at p. 614.)

7.   While unnecessary to the opinion and therefore dicta, the United States Supreme Court has foreshadowed the ruling in this case.   In Santosky, supra, 455 U.S. at page 760, 102 S.Ct. at page 1398, footnote 10, the court indicated doubt the state could terminate parental rights over parental objection without proof of unfitness.   It quoted from an earlier case that “․ [n]or is it clear the State constitutionally could terminate a parent's rights without showing parental unfitness.   See Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554, 54 L.Ed.2d 511 (1978) (‘We have little doubt that the Due Process Clause would be offended “[i]f a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children's best interest.” ’   quoting Smith v. Organization of Foster Families, 431 U.S. 816, 862–863, 97 S.Ct. 2094, 2119, 52 L.Ed.2d 14 (1977) (Stewart, J., concurring in judgment)).”

YEGAN, Associate Justice.

STEVEN J. STONE, P.J., and GILBERT, J., concur.