IN RE: DANIELA M. et al.

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Court of Appeal, Fifth District, California.

IN RE: DANIELA M. et al., Persons Coming Under the Juvenile Court Law. KINGS COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. ELIZABETH A. et al., Defendants and Appellants.

ELIZABETH A. et al., Petitioners, v. The SUPERIOR COURT of Kings County, Respondent; DANIELA M. et al., Real Parties in Interest.

Nos. F014984, F015616, F015747 and F015986.

Decided: January 31, 1992

Carole Greeley, Fairfield, and Debra R. Huston, Carmel, under appointments by the Court of Appeal, for defendants and appellants and petitioners. Denis A. Eymil, County Counsel, Wyleen J. Luoma, Deputy County Counsel, Hanford, for plaintiff and respondent and real party in interest. Patricia L. Watkins, San Mateo, under appointment by the Court of Appeal, for minors and real parties in interest. No appearance for respondent Superior Court.


In these consolidated appeals and writ proceedings petitioners and appellants, Elizabeth and Juan A. (hereinafter referred to jointly as appellants), mount a multi-pronged attack on juvenile court orders made at a 12–month review hearing in dependency proceedings relating to their three minor children and Elizabeth's other minor daughter from a previous relationship.   They also seek review of an order terminating parental rights as to two of the children.   While we reject most of the claims made by the parents, we conclude the matter must be remanded for determination of the children's Indian status, and, if they are found to be Indian children, for compliance with the Indian Child Welfare Act.   In addition, we direct the juvenile court to make appropriate findings and orders regarding visitation with two of the children.


The proceedings were instituted on May 24, 1989, when the Kings County Department of Human Services (Department) filed a petition pursuant to Welfare and Institutions Code 1 section 300, subdivisions (b) and (g), alleging Elizabeth left her four children, Daniela (age five), Sarah (age three), Juan Jr. (age one and a half) and Magdalena (age three months) without making arrangements for their care.   The three older children had been dependents of the court previously (from Jan. 7, 1988–Jan. 26, 1989) due to neglect.   Juan is not the natural father of Daniela but had raised Daniela since birth.   The identity of Daniela's father is unknown.   The petition was later amended to include an allegation that Juan could not protect the children from their mother.   Juan admitted this allegation.

After a contested jurisdictional hearing, the juvenile court found the factual allegations of the petition true.   At the August 8, 1989, dispositional hearing, the juvenile court declared the minors dependents of the court.   It found the minors' best interests required continued removal from their parents' custody and authorized placement in foster care.   Reunification services were ordered.

On August 15, 1989, Juan and Elizabeth signed a reunification plan.   Both parents were told by the court that they had 12 months from the date of the dispositional order to correct the problems which resulted in the removal of the children from their custody.

On October 23, 1989, before the review hearing was held, a second petition was filed alleging that Daniela had been physically abused by her mother and stepfather and sexually abused by her mother, stepfather, and maternal grandfather and therefore, came within the provisions of section 300, subdivisions (a), (c) and (d).   Based on the factual allegations regarding Daniela, the petition also alleged the remaining children came within the provisions of section 300, subdivisions (c) and (j) (abuse of siblings).   Criminal charges were brought against both Elizabeth and Juan although they were eventually dropped.

On November 27, 1989, Elizabeth and Juan entered no contest pleas to the allegations of the second petition.   After advising both parents of the consequences of such a plea and finding the pleas were made knowingly and voluntarily, the juvenile court found the allegations of the petition to be true and ordered that the children remain dependents of the court.   All other existing orders remained in effect.

On December 12, 1989, the court ordered a modified reunification plan be prepared covering the physical and sexual abuse issues.   A new plan was prepared.   The new plan required, in addition to the earlier components, that the parents obtain sexual abuse counseling.   The children remained in foster care.

On February 8, 1990, the juvenile court suspended all visitation with the children.   The no-visitation order was confirmed again on June 1, 1990, after a contested hearing.

The 12–month review hearing was held on September 18, 1990.   The court found the parents had failed reunification efforts and ordered reunification services terminated.   The court also found resumption of visitation would be detrimental to the children and denied the parents' request to resume visitation.   The court ordered that a hearing pursuant to section 366.26 be held to select a permanent plan for the children.

At the 366.26 hearing held on February 5, 1991, the juvenile court found Sarah and Magdalena adoptable and ordered termination of parental rights with respect to these two children.   As to Juan Jr. the juvenile court found him adoptable but found no adoptive home had yet been identified.   Therefore, the court identified adoption as the permanent plan for Juan Jr. and continued the matter for further hearing while the Department attempted to find an adoptive home.   The juvenile court ordered long-term foster care as the permanent plan for Daniela, who was in a group home placement at the time.

The parents challenge the September 18 and February 5 orders.


Elizabeth grew up in foster homes, herself the victim of sexual and physical abuse.   Elizabeth suffers from emotional problems and mental deficiencies.   She has a long history of drug and alcohol abuse.   She has a criminal history.   She gave birth to her first child at age 17.   Her first two children have been permanently removed from her care as a result of her inability to care for them properly.   She met Juan when she was pregnant with Daniela.   She has identified two men as Daniela's father, but both have been eliminated as the father by blood testing.   She and Juan are now married.   According to the neighbors and the children, there is domestic violence in the home.   Elizabeth claims to have an “Indian heritage.”

Juan is a farm worker with only a first grade education.   He has a criminal history and a substance abuse problem.   He was incarcerated at the time the children were first removed from the home in May 1989.   Initially, he placed all blame for the children's removal on Elizabeth and on lies purportedly told by the Department.   Later he stated he believed Elizabeth is capable of caring for the children and is a good mother.   He states, however, he is willing to live separately from Elizabeth if the court requires that he do so before allowing him custody of the children.   Juan is primarily Spanish speaking.

In May 1989 the Department received several calls from neighbors concerning the minors.   On one occasion the manager of the apartment complex saw Elizabeth place one of the children, with bare feet and clad only in a diaper, in a garbage dumpster to collect cans and bottles.   Elizabeth was told this was dangerous because there was broken glass in the dumpster and not to put the children in there, but she repeated the act.   On another occasion, Elizabeth left the children with neighbors longer than she had made arrangements to leave them and without making provision for their medical care.   The neighbors did not know Elizabeth's whereabouts.   Later that same week, Elizabeth again left the children, leaving them with her brothers who could not or would not care for the children.   The neighbors were called upon to assist.   Again, Elizabeth's whereabouts were unknown.   Elizabeth's mother and sister tried to find her but were unsuccessful.   They asked the neighbors to care for the children.   The neighbors called the Department.   Upon inspection of the home, social worker Sandy Moore found no edible food or diapers present.   The Department placed the children with the neighbors.   Elizabeth was gone for two weeks.

The original placements were not successful.   Elizabeth harassed the neighbors and the children's behavior was very disruptive.   The children were then placed in various foster homes.   Each of the children, except Sarah, were moved several times because of their severe behavior problems.   After leaving the neighbors, Sarah was placed in the home of foster mother Debra Bowman.   Sarah is very small for her age and developmentally delayed in speech and language skills as well as other areas.   She is diagnosed as having fetal alcohol syndrome.   She has adjusted well in her foster home and has benefitedfrom therapy and schooling.   Ms. Bowman wishes to adopt Sarah.

Juan Jr. was placed five times before joining his sister Sarah at Ms. Bowman's home.   Juan Jr. has severe emotional problems.   He is extremely aggressive, disobedient and oppositional.   He has night terrors.   Initially he exhibited self-destructive behavior.   His speech and language skills are delayed.   These are common symptoms of children who are exposed to cocaine in utero.   He has made significant progress in Ms. Bowman's home and in the therapy provided.

Magdalena was placed in four different foster homes, although she has spent most of her life in the home of foster mother Valerie Kennedy.   She also is very small for her age and developmentally delayed in motor skills and coordination.   She also is diagnosed as having fetal alcohol syndrome.   The Kennedys wish to adopt Magdalena.

Daniela was placed in seven different foster homes until finally placed in a group home residential treatment program.   Her last foster home was that of Ms. Bowman.   Daniela is a seriously disturbed child.   Her behavior is severely disruptive thus causing frequent changes in foster homes.   She throws temper tantrums, screaming fits, and engages in self-destructive behavior.   She acts out sexually which is consistent with a child who has been sexually molested.   During one of her foster home placements, Daniela told her foster family she had been sexually abused by her mother, stepfather, and grandfather.   As a result of this report, Daniela was physically examined by Dr. John McCann at Valley Medical Center.   Dr. McCann testified there is a high probability Daniela was the victim of sexual abuse.   The medical findings are consistent with penetration at least once.   Both Elizabeth and Juan deny molesting Daniela.   They do state she was molested in 1987 by an ex-brother-in-law of Elizabeth's and possibly by a neighbor child.   Daniela is fearful of her parents.   She has been slapped by her mother until her nose bled.   She has witnessed violence between her parents.

Daniela needs extensive therapy and a structured environment.   She is progressing at the residential treatment program where she was placed soon after the 12–month review hearing.

Initially, the children visited with their parents on a regular basis.   During observed visits, the parents acted appropriately.   The children seemed to be glad to see their parents.   Daniela said she missed and loved her parents.   However, the foster parents reported severe behavioral changes before and after visits.   Daniela's therapist opined visits between Daniela and her parents were harmful to Daniela's progress in therapy.   The court ordered evaluation of the visits.   Based on the recommendation of the evaluating psychologist and Daniela's therapist, visitation was suspended.

Elizabeth has failed miserably in reunification.   Several times during the 12–month period Elizabeth's whereabouts were unknown.   After February 1990, she failed to attend regularly her Narcotics Anonymous (NA) and Alcoholics Anonymous (AA) meetings.   She failed to appear regularly for drug testing and tested dirty on several occasions.   She was dropped from the counseling for poor attendance.   She was arrested for being drunk and disorderly in public on June 13 and again on June 15, 1990.   She has not completed the ordered sexual abuse treatment program.   She continues to deny her children were neglected or abused.

Juan has complied with most of the reunification ordered.   He regularly attended NA and AA meetings and successfully completed the drug and alcohol counseling ordered.   He reported regularly for testing and remained drug free.   He successfully completed a parenting class.   He has maintained a home and has timely paid rent and utility bills.   He did not successfully complete the sexual abuse treatment program ordered.

With the exception of the sexual abuse treatment program, Juan attended counseling sessions regularly and cooperated with the various therapists and social workers.   Attendance required an effort because Juan lacked transportation and worked long hours.



 Juan and Elizabeth contend there is insufficient evidence to support the juvenile court's findings at the 12–month review hearing on September 18, 1990, and the court therefore erred in ordering termination of reunification and setting the 366.26 hearing.   Review of the referral order and those orders and findings necessary to support the referral order are reviewable by a timely-filed writ.2  (366.26, subd. (k);  see also In re Kristin W. (1990) 222 Cal.App.3d 234, 247–248, 271 Cal.Rptr. 629.) Specifically, Juan and Elizabeth contend the services offered Juan were unreasonable because the rigid rules of the sexual abuse treatment program “virtually guaranteed” failure.   They also argue the services were unreasonable because they failed to consider Daniela's recantation of her claims when interviewed by the evaluating psychologist Dr. David Kitch.

The governing standard of review was set forth by this court in In re Albert B.:

“Findings made at a juvenile dependency hearing where the minors are placed out of the home of a parent must be supported by clear and convincing evidence.  (In re Cheryl H. (1984) 153 Cal.App.3d 1098, 1114 [200 Cal.Rptr. 789].) However, on review, this court only determines whether, viewed in the light most favorable to the judgment, there is substantial evidence to support the findings of the juvenile court.  (In re Stanley F. (1978) 86 Cal.App.3d 568, 575 [152 Cal.Rptr. 5] [ ].)  All conflicts must be resolved in favor of the respondent and the reviewing court must indulge in all reasonable inferences to support the findings of the juvenile court.   Where there is more than one inference which can reasonably be deduced from the facts, this court is without power to substitute its deductions for those of the trier of fact, and the findings of the juvenile court will not be disturbed on appeal where there is substantial evidence to support them.  (In re Nicole B. (1979) 93 Cal.App.3d 874, 879 [155 Cal.Rptr. 916] [ ].)” (In re Albert B. (1989) 215 Cal.App.3d 361, 375, 263 Cal.Rptr. 694.)

A. Juan's Right to be Reunified with Daniela

 The first issue we must address is whether Juan may challenge the reunification services offered with respect to Daniela.   Juan is not Daniela's parent or guardian;  he is her stepfather.   Recently the Sixth Appellate District considered this question and concluded a stepparent is not a parent or guardian under the statutes governing juvenile dependency hearings (§§ 361.5, 366.2 and 366.21).  (In re Jodi B. (1991) 227 Cal.App.3d 1322, 1329, 278 Cal.Rptr. 242.) Because a stepparent does not have the legal status of a “parent” or “guardian,” a stepparent is not entitled to reunification services and may not challenge their sufficiency on appeal. (Ibid.) We find the Jodi B. opinion well reasoned.   We adopt the holding of that case.

Juan's reliance on In re Venus B. (1990) 222 Cal.App.3d 931, 934–935, 272 Cal.Rptr. 115, is misguided. Venus B. holds that a juvenile court may order a stepparent to participate in counseling as a condition of reunification.   It does not grant to stepparents a legal entitlement to reunification services.   De facto parents do have standing to participate in juvenile dependency proceedings but they do not have a statutory right to reunification services.   (In re Jodi B., supra, 227 Cal.App.3d at p. 1329, 278 Cal.Rptr. 242; In re Jamie G. (1987) 196 Cal.App.3d 675, 679–680, 241 Cal.Rptr. 869.)

Elizabeth argues that Jodi B. is distinguishable because Juan is seeking reunification in conjunction with Elizabeth and not independent of a biological parent. The reasoning in Jodi B. is sound and rests not on the connection with the biological parent but on the lack of legal status of the stepparent.   We hold that Juan has no standing to challenge the reunification services offered with respect to Daniela.

 B.–IC **


Appellants challenge the court's permanent plan for the minors.   They contend the orders violate the Indian Child Welfare Act of 1978 (ICWA), 25 United States Code Annotated section 1901 et seq., that the juvenile court failed to find adoption was the least drastic alternative for Sarah and Magdalena, that they were denied substantive due process, and that Elizabeth was denied effective assistance of counsel.

A. Indian Child Welfare Act ***

B. Least Detrimental Alternative

 Elizabeth contends the juvenile court erred because it failed to make a finding at the 366.26 hearing that adoption was the least detrimental alternative for Sarah and Magdalena.   She cites numerous cases, decided under pre–1989 law, which requires this finding before termination of parental rights may be ordered.

The current statutory scheme, applicable to minors who are declared dependents on or after January 1, 1989, was designed as a step-by-step process.   The goal of each step is to reunify the family while protecting the welfare of the child.   Only after a determination that reunification is not in the best interests of the child, despite reasonable attempts at facilitating reunification, will dependency move on to the next step.   Termination of parental rights under 366.26 is the last resort.

The statute provides for 12 months of reunification services with an additional 6 months when the required showing is made.  (§ 361.5.)   A 366.26 hearing is set only after the court concludes at the 366.21 hearing that the required services have been given but the problems causing dependency have not been resolved and will not be resolved in the near future.   The findings required at the 366.21 hearing which lead to a 366.26 referral are the equivalent of a finding by the juvenile court that termination is the least detrimental alternative available to protect the best interests of the child.   The duty of the trial court to consider less drastic alternatives to termination of parental rights refers to the services and programs offered to the parents and designed to assist in reunification of the family.4  (In re Raymond H. (1985) 175 Cal.App.3d 556, 561, 221 Cal.Rptr. 165.)   As we discuss later in this opinion, the statutory scheme must be read as a whole.   A finding that termination of parental rights is the least drastic alternative is implicitly made at the 366.21 hearing when the matter is referred to a 366.26 hearing for termination.

 Moreover, at the 366.26 hearing there is a final check to ensure termination of parental rights is in the best interests of the child, and is the least detrimental alternative.   Section 366.26, subdivision (c) provides that adoption is the preferred permanent plan when there is no probability of reunification unless one of the listed less detrimental alternatives is appropriate.   This is further recognition that a plan other than adoption may be appropriate and less detrimental to the rights of both parent and child in certain circumstances.   However, when all else fails, the scheme clearly contemplates adoption as the preferred permanent plan.5

 The rationale for this is clear.   The right to parent is not absolute but must be balanced against the best interests of the children.   (In re Albert B., supra, 215 Cal.App.3d at p. 377, 263 Cal.Rptr. 694, citing In re Angelia P. (1981) 28 Cal.3d 908, 916–917, 171 Cal.Rptr. 637, 623 P.2d 198.)   Children need a permanent stable home life and cannot wait for parents to accept the responsibilities of parenting.  (In re Elise K. (1982) 33 Cal.3d 138, 147–148, 187 Cal.Rptr. 483, 654 P.2d 253 (conc. opn. of Bird, C.J.);  In re Emily L. (1989) 212 Cal.App.3d 734, 742, 260 Cal.Rptr. 810;  In re Mark V., supra, 177 Cal.App.3d at pp. 760–761, 225 Cal.Rptr. 460.)   Thus when reunification has failed and none of the statutory exceptions exist, adoption is the least detrimental alternative.

 At the 366.21 hearing the juvenile court found reunification efforts had failed miserably.   It found a return to the parents' home would place all the children at substantial risk of harm.   The evidence supports both findings.   There was evidence concerning the severe emotional and developmental problems faced by the children and of the progress made while in their foster homes.   Although there is no express finding that termination is the least detrimental alternative, this court may infer all necessary findings which are supported by the evidence.  (In re Albert B., supra, 215 Cal.App.3d at p. 374, 263 Cal.Rptr. 694;  In re Venita L. (1987) 191 Cal.App.3d 1229, 1239, 236 Cal.Rptr. 859.)

Under the current statutory scheme we hold a finding that termination of parental rights is the least detrimental alternative is implicit in a referral to the 366.26 proceeding if the necessary findings are made and if the analysis provided for by section 366.26, subdivision (c) is undertaken before adoption is ordered.   In this case, the juvenile court made the necessary findings, which are supported by the evidence, and undertook the required analysis.

C. Substantive Due Process

Appellants' claim section 366.26 is constitutionally flawed can be summarized as follows:  (1) section 366.26 does not require sufficient findings, by clear and convincing evidence, that a return of the child would be detrimental to its well-being thereby allowing termination in less than extreme cases of deficient parenting and (2) it does not require consideration of present rather than past circumstances or of the parents' future ability to parent.

1. Sufficiency of the findings

Both the state and federal Constitutions protect persons from the deprivation of life, liberty, and property without due process of law.   In analyzing a substantive due process claim, the court must first determine whether a fundamental right protected by the Fourteenth Amendment and its state counterpart is at risk.   Second, it must determine whether the state has significantly infringed upon the protected right.   Finally, if so, the court must determine whether an important state interest justifies the infringement.  (Adoption of Kay C. (1991) 228 Cal.App.3d 741, 747–748, 278 Cal.Rptr. 907.)

 Parenting has long been considered a fundamental right.  (In re Carmaleta B. (1978) 21 Cal.3d 482, 489, 146 Cal.Rptr. 623, 579 P.2d 514;  In re David B. (1979) 91 Cal.App.3d 184, 192, 154 Cal.Rptr. 63.)   Termination is obviously a significant infringement of this important right.   Thus the termination statute is subject to a strict standard of judicial review.   Termination can be upheld only if it is necessary to the legislative purpose of the statute—the welfare of the child.  (Id. at pp. 192–193, 154 Cal.Rptr. 63.)

 The new statute was adopted in 1987 and governs all dependency proceedings in which the children were declared dependents of the court after January 1, 1989.  (§ 366.26, subd. (a).)  The new section 366.26 combines the previous permanency planning hearing and the previous Civil Code section 232 termination of parental rights proceeding.6  No longer is it necessary to file a separate civil action to terminate parental rights.   When the juvenile court determines that adoption is to be the permanent plan, it may itself, upon an appropriate showing, terminate parental rights.  (§ 366.26, subd. (b)(1).)

 The 366.26 hearing is linked closely to the 12–month review hearing.   At the 12–month review hearing the child must be returned to the parents unless the juvenile court finds by a preponderance of evidence that the return would create a substantial risk or detriment to the child's physical or emotional well-being.   If the court makes this initial detriment finding, the court must then find that reasonable services have been offered but nonetheless reunification has failed.   Findings required by section 366, subdivision (a) are also required.7  (§ 366.21, subd. (f).)  These initial findings, which go to the issue of whether further dependency is needed and whether or not to retain the status quo, can be made by a preponderance of the evidence standard.   Appellants do not contend otherwise.   The same initial determinations are required under section 366.22.

 If the child is not returned to the parents, the juvenile court has several options.   It may continue the review hearing if it determines there is a substantial probability that the child will be returned within six months or that reasonable services have not been provided.  (§ 366.21, subd. (g)(1).)   Or, it may terminate reunification services and schedule a 366.26 hearing.  (§ 366.21, subds. (g)(3), (h).)   It may also order long-term foster care if it finds by clear and convincing evidence the child is not adoptable and there is no available guardian.  (§ 366.21, subd. (g)(2).)

The 366.26 hearing must be held within 120 days of the 12–month review hearing.  (§ 366.21, subd. (g)(3).)   At the 366.26 hearing, the court must determine whether the child is adoptable (by clear and convincing evidence) and whether any of the exceptions to the preferred permanent plan of adoption are present.  (§ 366.26, subds. (b), (c).)

Appellants acknowledge the state's interest in protecting the welfare of its minor children.   However, they contend the statute does not properly safeguard their parental rights and allows termination even when this drastic step is not necessary to protect the child's welfare.   We disagree.

 Appellants argue that unlike Civil Code section 232, section 366.26 requires only a finding of adoptability and not the required finding that placement with the natural parents would be detrimental to the children.

Section 366.25 itself does not require a finding that placement with the parents would be detrimental to the children.   However, the language of the section cannot be read in isolation.   The entire statutory scheme must be considered.  (Bowland v. Municipal Court (1976) 18 Cal.3d 479, 489, 134 Cal.Rptr. 630, 556 P.2d 1081.)  Section 366.26 “piggybacks” the 12–month review hearing.   It assumes the necessary findings were made before a 366.26 hearing was scheduled and expressly states these findings are sufficient to support termination.  (§ 366.26, subd. (c)(1).)   Section 366.21 mandates the necessary findings.   Specifically, it requires a finding that there is a substantial risk of harm or detriment to the child if returned to the parents, that reasonable reunification services have been offered but were not successful, and the continuing necessity for, and progress in, out-of-home placement.  (§§ 366.21, subd. (e);  366, subd. (a).)  The Legislature clearly intended the 366.21 hearing to be the decisive point in dependency.

The new statutory procedures for terminating parental rights were added as a result of recommendations made by the Senate Select Committee Task Force on Children & Youth, charged with reviewing current practices and recommending needed changes.   The Committee's report expressly states that pursuant to the proposed statutory changes, later enacted as the 1987 amendments, the “critical decision regarding parental rights will be made” at the review hearing and termination of parental rights at the 366.26 hearing will be “relatively automatic” if adoption is the permanent plan.  (See Sen. Select Com.Rep. on Children & Youth, Sen. Bill No. 1195, p. 10 (1988 Reg. Session).)

Thus, under the current scheme the necessary findings are made at the 366.21 hearing.   The decision to terminate parental rights cannot be made unless the required findings are made at the 366.21 hearing.   These findings are sufficiently contemporary to the 366.26 hearing to meet constitutional requirements if supported by the record.

 Acknowledging we might reach this conclusion, appellants argue the 366.21 findings cannot be relied upon at the 366.26 hearing because the findings at the 366.21 hearing are made pursuant to a lower standard (preponderance of the evidence) than that constitutionally required for termination of parental rights.   Appellants argue that because termination of parental rights involves extinguishment of a fundamental right, the juvenile court must use the higher clear and convincing evidence standard in order to satisfy the dictates of substantive due process.

We agree findings made at the 366.21 hearing if used to support a 366.26 referral order, and in most cases, the termination of parental rights, must be made using the clear and convincing evidence standard.   It is well settled the fundamental nature of parental rights of necessity invokes the higher standard.  (See Santosky v. Kramer (1982) 455 U.S. 745, 769–770, 102 S.Ct. 1388, 1403–1404, 71 L.Ed.2d 599;  In re Carmaleta B., supra, 21 Cal.3d at p. 489, 146 Cal.Rptr. 623, 579 P.2d 514 [parental rights may be disturbed only upon a clear showing of necessity].)

However, the absence of language in 366.21 requiring use of the higher standard when a referral order is made does not require invalidating the statute on constitutional grounds.

 “ ‘In considering the constitutionality of a legislative act we presume its validity, resolving all doubts in favor of the Act.   Unless conflict with a provision of the state or federal Constitution is clear and unquestionable, we must uphold the Act.  [Citations]’ ” (County of Sonoma v. State Energy Resources Conservation etc. Com. (1985) 40 Cal.3d 361, 368, 220 Cal.Rptr. 114, 708 P.2d 693.)   If the statute by reasonable construction can be brought within constitutional limitations, the courts are to adopt the construction which eliminates the constitutional infirmity.  (Fuss v. Superior Court (1991) 228 Cal.App.3d 556, 562, 279 Cal.Rptr. 46;  People v. Green (1991) 227 Cal.App.3d 692, 704, 278 Cal.Rptr. 140;  In re Marriage of Shupe (1983) 139 Cal.App.3d 1026, 1035, 189 Cal.Rptr. 288.)   Whenever possible a harmonious adjustment of constitutional mandates and the challenged statutory provisions should be found.  (McKirdy v. Superior Court (1982) 138 Cal.App.3d 12, 20, 188 Cal.Rptr. 143.)

Accordingly, we presume the Legislature intended to enact a valid statute governing child dependency matters within the scope of constitutional mandates.   We conclude the statutory language requiring findings at the 366.21, subdivision (f) hearing be made by a preponderance of the evidence applies only to the initial finding, i.e., whether the child shall be returned to the parents.   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.

 Courts do have the power to remedy a statutory constitutional defect by rewriting statutory language.   This is a drastic alternative to be invoked sparingly.  (Arp v. Workers' Comp. Appeals Bd. (1977) 19 Cal.3d 395, 407–408, 138 Cal.Rptr. 293, 563 P.2d 849;  see also People v. Skinner (1985) 39 Cal.3d 765, 775–776, 217 Cal.Rptr. 685, 704 P.2d 752.)   However, if the result achieved is more consistent with legislative intent than outright invalidation, judicial construction is necessary.   (Ibid.)  The legislative history of the 1987 amendments is clear and we are convinced the Legislature intended to shift the emphasis in dependency proceedings from reunification to permanent placement if after 12 (or 18) months of reasonable efforts reunification has failed.   We are also convinced the Legislature intended to enact a statutory scheme which provides an expedient process for handling dependency matters and which carefully balances the rights of parents against the need of children to find secure and permanent homes before childhood escapes them.   Therefore, we believe this is one of the instances in which the court is justified in requiring by judicial construction that the decision to seek termination of parental rights be based on findings made by the constitutionally mandated clear and convincing standard.

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.

The rule we announce today is not inconsistent with the statute as it currently reads.   Moreover, despite its failure to identify the correct standard in section 366.21, the Legislature apparently understands the need to use the constitutionally mandated higher standard when terminating parental rights.  Section 366.26 requires use of the higher standard in making the adoptability determination.   We believe the failure to designate the higher standard in section 366.21, subdivision (f) is nothing more than a legislative oversight which may be corrected by judicial construction.

Despite the correctness of appellants' position, they do not “win” on this issue.   In this case the juvenile court was “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 and at the 366.26 permanency hearing using the higher standard.   Thus appellants have no cause to complain.   There has been no miscarriage of justice and no denial of due process.

2. Present circumstances v. future ability

 Appellants' next contention is that the statute does not look to the parents' future ability to provide adequate parenting.   We agree an order terminating parental rights must be based on present circumstances, not past acts.  (In re Carmaleta B., supra, 21 Cal.3d at p. 493, 146 Cal.Rptr. 623, 579 P.2d 514;  In re Terry E. (1986) 180 Cal.App.3d 932, 949–950, 225 Cal.Rptr. 803.)   However, the statutory scheme when read as a whole allows for termination based on an evaluation of the parents' present ability to take responsibility for their children.

 Section 366.21, subdivision (f) expressly requires the juvenile court make a finding pursuant to section 366, subdivision (a) at the final review hearing and thus before referral to a 366.26 hearing.   Section 366, subdivision (a) requires a finding regarding the continued necessity for placement out of home, compliance with the reunification plan, progress toward eliminating the reasons for dependency, and the likelihood the child may be returned home or placed for adoption.   Thus, the statute expressly requires consideration of the parents' progress toward, and the likelihood of, reunification.

At the same time the statute recognizes the period for reunification must be limited because of the children's need for a permanent and stable home.   Appellants cite no authority holding that the Constitution mandates that children be placed in limbo indefinitely while their parents attempt reunification.   There is a strong state interest in placing children in stable homes in a speedy and efficient manner.   Appellants argue speed and efficiency are not sufficient justifications for the infringement of parental rights occasioned by the 366.26 hearing.   However, it is not speed and efficiency in isolation which motivated the 1987 changes of the statutory scheme.   The purpose of juvenile law is to ensure the well-being of children whose parents are unable to provide a stable and permanent home.   Children do not wait for the legal process or for their parents to get their lives in order.   They continue to grow and develop as time passes.

The interest in a child's welfare justifies termination of parental rights when the reunification period has expired without success notwithstanding the possibility the parents may eventually be rehabilitated.  (In re Christina A. (1989) 213 Cal.App.3d 1073, 1080, 261 Cal.Rptr. 903.)

“Expressions of love and concern do not equate to the day to day care and devotion the average parent expends on behalf of children.   The reality is that childhood is brief;  it does not wait while a parent rehabilitates himself or herself.   The nurturing required must be given by someone at the time the child needs it, not when the parent is ready to give it.”  (In re Debra M. (1987) 189 Cal.App.3d 1032, 1038, 234 Cal.Rptr. 739.)

After the reunification period has expired, the overriding concern is to provide a stable, permanent home in which a child can develop lasting emotional attachment to his or her caretakers.  (In re Baby Girl D. (1989) 208 Cal.App.3d 1489, 1493–1494, 257 Cal.Rptr. 1.)

 Under the statutory scheme, the juvenile court must evaluate at each review hearing the current status of the parents, their progress in reunification, and whether the problems leading to dependency still persist.   (§§ 366, subd. (a), 366.21.)   Before ordering termination at the 366.26 hearing, the juvenile court is to review and consider the social worker's report and, if offered, receive new evidence.8  (§ 366.26, subd. (a).)  Proceedings under section 366.26 must take place within 120 days of the 366.21 hearing.  (§ 366.21, subd. (g)(3).)   There is no lengthy delay as under previous law.   The factual basis for the findings remains fresh and includes consideration of present circumstances and the parents' future ability to parent.

Lastly, contrary to appellants' assertion, termination is ordered only in extreme cases.   The statute, when read as a whole, clearly anticipates that termination of parental rights is a last resort.   Termination is a final step in a carefully designed statutory scheme to reunify the family unless, when the process draws to an end, there remains a substantial risk of detriment or harm to the physical and emotional well-being of the child if returned to the home.

Pursuant to the foregoing analysis, we reject appellants' contention that the current statutory scheme is constitutionally invalid because it infringes upon appellants' right to substantive due process.



The writ petitions (case nos. F015747 and F015986) are denied.

In the appeals, the matter is remanded with directions to determine the children's Indian status.   If they are found to be Indian children, the juvenile court shall comply with the ICWA.   Upon remand the juvenile court shall immediately conduct one or more hearings to determine whether appellants, or either of them, should be allowed visitation with Magdalena during the pendency of juvenile court proceedings respecting her.   In addition, the juvenile court shall make a finding concerning Daniela's continued visitation with her parents.   In all other respects, the orders of the juvenile court are affirmed.


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

2.   There was no challenge to the timeliness of the writs filed by counsel in this case and therefore the issue is not before us and we do not decide it.   However, we note that it would behoove counsel to read our decision in In re Matthew C. (1992) ––– Cal.App.3d ––––, 4 Cal.Rptr.2d 303 , filed this same date, which sets forth the parameters of a timely writ when seeking review of the 366.26 referral order.

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote *, ante.

4.   We recognize a 366.26 referral may also arise from findings made at a 366.22 hearing in an appropriate case.   Although this case does not involve a referral from a 366.22 hearing, we believe our analysis is consistent with the language and intent of section 366.22 as well.

5.   The Legislature has determined that adoption is the preferred permanent plan and it is free to do so.  (See In re Robert J. (1982) 129 Cal.App.3d 894, 904–905, 181 Cal.Rptr. 188;  cited with approval in dicta by this court in In re Mark V. (1986) 177 Cal.App.3d 754, 761–762, 225 Cal.Rptr. 460.)

6.   Civil Code section 232 in pertinent part is as follows:  “(a) An action may be brought for the purpose of having any child under the age of 18 years declared free from the custody and control of either or both of his or her parents when the child comes within any of the following descriptions:“․“(2) Who has been neglected or cruelly treated by either or both parents, if the child has been a dependent child of the juvenile court under any subdivision of Section 300 of the Welfare and Institutions Code and the parent or parents have been deprived of the child's custody for one year prior to the filing of a petition pursuant to this section.   Physical custody by the parent or parents for insubstantial periods of time shall not serve to interrupt the running of the one-year period.“․“(c) A finding pursuant to this section shall be supported by clear and convincing evidence.”

7.   Section 366, subdivision (a) reads as follows:  “The status of every dependent child in foster care shall be reviewed periodically as determined by the court but no less frequently than once every six months, as calculated from the date of the original dispositional hearing, until the hearing described in Section 366.25 or 366.26 is completed.   The court shall determine the continuing necessity for and appropriateness of the placement, the extent of compliance with the case plan, and the extent of progress which has been made toward alleviating or mitigating the causes necessitating placement in foster care, and shall project a likely date by which the child may be returned to the home or placed for adoption or legal guardianship.”

8.   We do not mean to state issues decided in the 366.21 hearing are to be relitigated at the 366.26 hearing.

FOOTNOTE.    See footnote *, ante.

THAXTER, Associate Justice.

ARDAIZ, Acting P.J., and DIBIASO, J., concur.

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