IN RE: MICHAELA C. et al. (1992)

In these two consolidated cases, we review an order terminating the parental rights of the biological father of twin infants Michaela and Angela C.   We conclude the trial court's order was proper under Welfare and Institutions Code section 366.26;  and the statutory system leading to the termination of parental rights in California adequately protected appellant's rights, by requiring clear and convincing evidence in support of termination.   We, therefore, affirm.

I. FACTS AND PROCEDURAL HISTORY

Twin girls were born on September 25, 1988.   They were born addicted to methadone and cocaine.   During their first three months of life, the twins spent almost every waking hour screaming, due to drug withdrawal symptoms.   One infant had also suffered a stroke in the womb as a result of drug exposure, and was diagnosed as suffering from cerebral palsy and damage to the soft palate.   Both children had apparent mental problems as a result of their medical history;  they were described as “severely disabled” and “very needy”;  they required twenty-four hour care.

The father, appellant, never visited the children.   He had been incarcerated for child endangerment, due to injury to one of his other three children, for their entire lives.

Due to the twins' medical problems and the inability of either parent to remain off of drugs and provide necessary care, the twins were declared to be dependent children while still hospitalized after their birth;  at the age of seven weeks, they were placed in the care of foster parents.   This placement was a success, and the foster parents desire to adopt the children.

After a hearing on a petition for the termination of parental rights, Judge Sweeney made these observations:

“Unsaid by County Counsel or counsel for the minors is the fact that the overriding consideration is that the natural parents of these children have not provided for these children, at all.   And that's the only reason why we're dealing with the issue here before us.  [¶] And they are very needy children.   I certainly concur with the comment that it's very difficult to find appropriate adoptive parents for extremely needy children in this situation.   [¶] Also I would add that any time the Social Services Agency, through County Counsel or otherwise, completes an adoption within six months of the time that the Court authorizes it, I would buy drinks for the whole house.   It's never happened to my knowledge in the history of man, certainly not in the last nine years.   It takes them longer than that to complete a family study even when the children are living with them for the last 20 years.  [¶] The Court finds that it would be detrimental to the children to maintain the current [nonexistent] parental relationship.  [¶] The Court finds that it's beneficial, in [the children's] best interests, that the parental rights of both of these natural parents be terminated at this time.  [¶] The court does order the parental rights of the natural mother of these children ․ and the father ․ to be terminated and the permanent plan for these children is adoption.  [¶] THE MINORS' FATHER:  No.   No.  And I'm objecting to everything.  [¶] THE COURT:  The Court orders the agency to commence with that proceeding.  [¶] ․ [¶] The return of either child to either parent would be detrimental to each of the children.”

The biological mother did not appeal.   On our own motion we consolidate these two appeals, nos. A048689 and A050714, which pertain to the order terminating the appellant biological father's parental rights.

II. DISCUSSION

We affirm, since Welfare and Institutions Code section 366.26 ¹ and the remainder of the statutory scheme adequately protect the due process rights of parents, by requiring that a termination of parental rights be supported by clear and convincing evidence.

A. Appellant's Contention

 The trial court here found that its order allowing termination of parental rights and adoption of the minors was supported by clear and convincing evidence;  as the evidence before the trial court and the trial judge's own oral observations make clear, there was nothing unclear or unconvincing about the evidence in this case.

Appellant claims, however, that the trial court's order terminating parental rights under section 366.26 is technically vulnerable, since it made reference to and allegedly may have been based in part upon a prior order under section 366.22,² which order had refused to turn the minors over to appellant.   Since the prior order may have been based only upon a preponderance of the evidence, and since the later order made reference to the first, appellant suggests his right to have the issue of parental rights termination determined by a clear and convincing evidence standard may have been violated.   He relies on In re Angelia P. (1981) 28 Cal.3d 908, 919, 171 Cal.Rptr. 637, 623 P.2d 198, which held a termination of parental rights must be supported by clear and convincing evidence.   We disagree with appellant's contention for the reasons which follow.

Initially, we note that In re Angelia P., supra, was decided under the statutory scheme embodied in section 232, subdivision (a) of the Civil Code.   By virtue of subdivision (e) of Civil Code section 232, that statutory scheme is inapplicable to minors adjudged dependents of the juvenile court after January 1, 1989.   Those minors, such as the two in issue here, are governed by section 366.26.

B. The Statutory Scheme

Examination of the statutory scheme in issue here shows that the Legislature has in fact adequately safeguarded appellant's rights by mandating numerous procedural protections and periodic reviews, and by codifying the clear and convincing evidence standard as the test to be used at critical stages of the process.   We, therefore, recount the statutory scheme in detail.

First, before a child can be initially taken from the custody of the parents under section 361, there must be a showing by clear and convincing evidence, as mandated by section 361, subdivision (b), of serious harm or substantial danger to the child as a result of the parents' actions or neglect.

Second, after the child is taken from the custody of the parents, the statutory scheme envisions further efforts to avoid the necessity for an ultimate termination of parental rights.   Section 361.5 requires the provision of reunification services in most cases to the minor and the minor's parents, in an effort to alleviate the dangerous conditions which required state intervention in the first place.   As part of this process, section 362.1 mandates frequent visitation by the parents during the reunification period.

Third, the statutory scheme mandates periodic six-month reviews, per section 366, of the status of every child in foster care.   Sections 366.21 and 366.22, in turn, specify an elaborate panoply of procedural safeguards governing the conduct of such hearings, in order to assure due process to all parties and a full knowledge of the operative facts before the trial court makes a decision to continue the process of state intervention.³

Fourth, section 366.26, subdivision (c)(1) directs that 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 findings pursuant to [other sections of the code] shall then constitute a sufficient basis for termination of parental rights unless the court finds that termination would be detrimental to the minor․”  (Emphasis added.)  Section 366.26, subdivision (c)(1) then specifies four circumstances in which the termination of parental rights should not occur:  (1) where there is regular visitation and contact between the minor and parents which benefits the minor;  (2) where the minor objects and is over the age of ten;  (3) where the minor is in a residential treatment facility, adoption is unlikely or undesirable, and continuation of parental rights will not be detrimental to later adoption if necessary;  and (4) where the minor resides with a relative or foster parent who for some reason cannot adopt the minor, and removal of the child would be detrimental to the minor.   Significantly, the only evidentiary standard specified for termination decisions in section 366.26 is one of clear and convincing evidence.

C. Clear and Convincing Evidence Is Required for the Termination of Parental Rights

The statutory scheme under section 366.26 explicitly imports and carries over the “clear and convincing evidence” standard found applicable to proceedings under Civil Code section 232 by In re Angelia P., supra, 28 Cal.3d at page 919, 171 Cal.Rptr. 637, 623 P.2d 198.  (Cf. also Santosky v. Kramer (1982) 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 [holding the clear and convincing evidence standard applies in the context of an analogous New York law].)  Section 366.26 further refines and narrows the scope of the court's discretion, by positively forbidding termination of parental rights in the four enumerated circumstances of detriment to the minor.

Section 366.26 comes into play only after numerous proceedings under other sections of the Welfare and Institutions Code, and the passage of many months during which the parent is unable or unwilling to care adequately for the minor.⁴  Most significantly, section 361, subdivision (b) mandates that the minor cannot be taken from the physical custody of the minor's parent at all, “unless the juvenile court finds clear and convincing evidence of” such serious detriments to the minor as “substantial danger to the physical health of the minor” or “severe emotional damage.”

As hereinafter discussed, section 366.26, subdivision (c) requires the court to reevaluate, under the clear and convincing standard, as a predicate condition to an order terminating parental rights, the situation of the minor and parents in light of this procedural background, and the possibility of detriment to the minor from the specified circumstances.

Section 366.26 is not a model of clarity.   Subdivision (b) requires that in a hearing, inter alia, to terminate parental rights the court “shall review the report as specified in Section ․ 366.22, ․ 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.  [¶] (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.  [¶] In choosing among the above alternatives the court shall proceed pursuant to subdivision (c).”  (Emphasis added.)

Subdivision (c)(1) makes the first mention in section 366.26 of a standard of proof thereunder in this language:  “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.”  (Emphasis added.)

As here pertinent, subdivision (c)(1) continues:  “If the court so determines, the findings pursuant to ․ Section 366.22 that a minor cannot or should not be returned to his or her parent ․ 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.   [¶] (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.”   (Emphasis added.)

The statute does not explicitly state what standard of proof the court is to apply in deciding, after considering the “other evidence,” if any, of the parties it is required to hear under subdivision (b), the ultimate issue of whether termination of parental rights would be detrimental to the minor due to the circumstances posited by subdivision (c)(1), even if it finds by clear and convincing evidence that “the minor will be adopted.”   Clearly, some evidentiary standard is applicable to this separate finding.

Subdivision (c)(4) also contemplates separate findings by the court, without explicitly specifying the evidentiary standard on which findings that termination of parental rights are not in the minor's best interests are to be posited:  “If the court finds that adoption of the minor or termination of parental rights is not in the interests of the minor ․” certain action is directed.⁵  (Emphasis added.)

One interpretation of section 366.26 appears to be that, in a hearing to terminate parental rights under section 366.26, the clear and convincing standard of proof is applied only to the issue of the likelihood of the minor's adoption;  and that once that determination is made, the juvenile court's previous finding by a preponderance of the evidence under section 366.22 “that a minor cannot or should not be returned to his or her parent” constitutes the sole basis for termination of parental rights.   This seems to be the position of our concurring colleague, who appears through similar reasoning to conclude the Legislature abandoned a clear and convincing statutory standard of proof for termination of parental rights by enactment of section 366.26.   He concludes, however, that the scheme and continuum of dependency proceedings contained in sections 360 to 370 meet the constitutional requirements for parental termination by clear and convincing evidence established by In re Angelia P. and Santosky v. Kramer, supra.

We reject such a construction of section 366.26.   As properly interpreted, the statute itself requires a standard of clear and convincing evidence to be applied to all aspects of the termination of parental rights.   We, consequently, do not reach the issue of equivalency for purposes of constitutional due process discussed by our concurring colleague, who by that analysis reaches the same result.

First, once the minor's adoptability is established under section 366.26, subdivision (c)(1), the statute does not automatically trigger termination of a parent's right to custody of the juvenile because of a prior order made pursuant to section 361.5, subdivision (b) (reunification services shall not be offered);  section 366.21, subdivision (e) (parent's whereabouts are unknown;  parent's failure to visit for six months;  parent is convicted of a felony indicating unfitness);  or section 366.22 (minor cannot or should not be returned to parent).   To the contrary, the court, inter alia, is required by section 366.26, subdivision (b) to “receive other evidence that the parties present,” if any, and to determine which of four alternative dispositions of the custodial status of the juvenile shall be made.   This latter determination must be made “pursuant to subdivision (c)” of section 366.26.

Second, section 366.26, subdivision (c)(1) requires a finding of adoptability by an explicit standard of proof—clear and convincing evidence, and requires a second finding of whether parental termination “would be detrimental to the minor” due to one of four enumerated circumstances.   The standard of proof for this second finding, inextricably interwoven with the first finding, is not explicitly set forth in the statute.   The requirement of these separate findings is further apparent in section 366.26, subdivision (c)(4) which speaks in the disjunctive of two findings to be undertaken by the court at the hearing it requires:  “If the court finds that adoption of the minor or termination of parental rights is not in the interests of the minor․”  (Emphasis added.)

In short, this statute allows the remedy of termination of parental rights and requires that remedy and alternatives thereto to be applied by the court in accordance with section 366.26, subdivision (c).   It also establishes a clear and convincing standard of evidence for determining adoptability, while wholly negating an affirmative finding of adoptability as a basis of parental rights termination if the court finds that any circumstance specified in subdivision (c)(1) makes termination detrimental to the minor.

The related questions of evidence of (1) the juvenile's adoptability, (2) the detriment to the minor of parental rights termination which negates the effect of a finding of adoptability, and (3) the required consideration by the court of “other evidence,” if any, the parents or juvenile offer at the hearing, are all integral parts of a section 366.26 hearing.   The evidence to be considered in a section 366.26 hearing, concerning such separate issues of the likelihood of the minor's adoptability and of the detriment to the minor of a parental rights termination, includes any offered at the section 366.26 hearing by the parties.   It is not solely limited to prior reports and orders in the juvenile court's file and to evidence restricted to the adoptability issue.

Further, the fact that section 366.26, subdivision (b) requires the court to “consider[ ]” the prior reports which were prepared in the case, as evidence on the issue of termination, certainly allows the court to consider them in light of the clear and convincing evidence standard in section 366.26.   The fact that such reports may also have been considered as evidence previously, in a different context with a lesser standard of proof, does not impair in any way their usefulness as evidence under section 366.26.

The Legislature expressly provided that termination of parental rights, as one of the court's alternatives under section 366.26, subdivision (b), should be chosen by the court after proceeding “pursuant to subdivision (c).”  Subdivision (c) explicitly requires the court to find a likelihood of the minor's adoptability by a standard of clear and convincing evidence;  yet this finding is wholly negated if the court also finds an insufficient justification for parental rights termination under one of the specified circumstances of subdivision (c)(1)(A)–(D) based, inter alia, on the evidence the parties present at the section 366.26 hearing.   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.

A contrary interpretation would require simultaneous application of different standards of proof on two related evidentiary issues which generate the juvenile court's ultimate decision to permanently sever a parental relationship.   We cannot find the Legislature to have so intended.⁶

 The Legislature is presumed to have enacted statutes with knowledge of the constitutional requirements the courts have announced as to the subject matter legislated upon:  “The adopting body is presumed to be aware of existing laws and judicial construction thereof [citation]․”  (In re Lance W. (1985) 37 Cal.3d 873, 890, fn. 11, 210 Cal.Rptr. 631, 694 P.2d 744;  accord, Larson v. Duca (1989) 213 Cal.App.3d 324, 329, 261 Cal.Rptr. 559.)

 The Supreme Courts of the United States and California have previously imposed the requirement that proof by clear and convincing evidence support termination of parental rights.  (See Santosky v. Kramer, supra, 455 U.S. at pp. 747–748, 102 S.Ct. at 1391–1392;  and In re Angelia P., supra, 28 Cal.3d at p. 919, 171 Cal.Rptr. 637, 623 P.2d 198.)   We must, if possible, construe statutes to avoid their conflict with such constitutional requirements.   (Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 598, 135 Cal.Rptr. 41, 557 P.2d 473;  accord, In re Lance W., supra, 37 Cal.3d at p. 890, fn. 11, 210 Cal.Rptr. 631, 694 P.2d 744;  In re Kay (1970) 1 Cal.3d 930, 942, 83 Cal.Rptr. 686, 464 P.2d 142.)

We cannot attribute to the enactment of section 366.26 a legislative intent to require proof of adoptability by a clear and convincing evidence standard, while only mandating a lesser standard of proof to the related and intertwined issue of the detrimental effect on the minor of termination of parental rights and the ultimate issue of permanently severing the rights of the minor's parents.   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.

D. Application of the Standard in This Case

 In the case at bench, the record clearly indicates that the court applied the proper standard of proof in the section 366.26 hearing.

The trial court explicitly referred to the standard of clear and convincing evidence in its written order terminating parental rights, and its comments from the bench also demonstrated a clear conviction by the uncontested and convincing evidence that appellant's parental rights should be terminated.   Appellant is simply arguing (while implicitly conceding its relevancy) that a portion of the evidence the lower court heard consisted of results of prior proceedings generated by a lesser standard of proof—even though there was no conflict in the evidence at all, and appellant's argument ignores the critical fact that the court applied the correct standard of proof to the total evidence it properly heard.

Further, while it is true the order terminating parental rights followed other orders which declined to turn the minors over to appellant, and the relevant statute indicates that the prior orders may be based upon a preponderance of the evidence only, appellant never made any objection on this ground to the trial court.

In fact, he appears to have stipulated to the prior order:  When the trial court asked if he agreed that the children should not be turned over to him and should be adopted by the foster parents, he not only presented no evidence in his favor, his counsel seems also to have explicitly agreed that his client would submit the matter.   Whether this is viewed as a waiver, or as a mere concession that there was no evidence he could present against this outcome, it is clear that the prior order was indeed supported by clear and convincing evidence, since all the evidence favored this result and appellant presented no contrary evidence.

 We also reject appellant's contention that a juvenile court which considers an interim order previously rendered in a section 366.22 hearing, when later conducting a section 366.26 hearing to terminate parental rights in the same case, thereby ipso facto injects an impermissible standard of proof of preponderance of the evidence into the latter hearing.⁷  This claim is bottomed on the erroneous concept that any juvenile proceedings which antedate the section 366.26 hearing, and which are decided under a different standard of proof than that of clear and convincing evidence, cannot be considered in such hearing for that reason.   An analogous and equally unpersuasive argument could be advanced that civil judgments, offered to prove relevant predicate facts in a criminal case, could not be there introduced because the preponderance of evidence standard, by which such civil judgment was obtained, does not meet the proof beyond a reasonable doubt standard by which the trier of fact in the criminal case must weigh the total evidence it hears.

Such contentions ignore the certain reality that in all cases or proceedings the relevant and legally admitted evidence must be considered in toto by the finder of fact, and weighed, as it was here, against the standard of proof the court or jury is obligated to apply in the subject case or proceeding.

 Application of the concept appellant urges would produce an absurd result where judgments and orders resulting from prior cases and proceedings, long admissible under the statutes of this state,⁸ would be denied admissibility in any subsequent case solely because the standard of proof in the latter case differed from that applied in those prior cases and proceedings.   We see no reason of public policy that would justify adoption of appellant's claim and must wholly reject it.

E. Conclusion

Termination of parental rights is governed by a standard of clear and convincing evidence.   In making this determination, the juvenile court judge will necessarily revisit many of the same facts already established at prior hearings in juvenile cases.   In a proceeding to terminate parental rights, the juvenile court may review or consider the record of previous relevant proceedings, even though the latter may have generated a prior order based upon a preponderance of evidence.   The court below plainly and properly applied the standard of clear and convincing evidence to the total evidence it considered in the subsequent termination proceeding.⁹

III. DISPOSITION

The trial court's order is affirmed.

I concur in the judgment because I believe the statutory scheme for terminating parental rights to dependent children, considered in its entirety, satisfies the due process clause of the Fourteenth Amendment.

I write separately to disassociate myself from that portion of the majority opinion which reasons that Welfare and Institutions Code section 366.26,¹ in and of itself, “requires a standard of clear and convincing evidence to be applied to all aspects of the termination of parental rights.”   (Maj. opn., at p. 875.)   I will explain my disagreement with my colleagues before turning to the different reason I believe the termination process regarding dependent children passes constitutional muster.

I.

Section 366.26, which only applies to minors adjudged dependent children of the juvenile court on or after January 1, 1989, provides that at the termination hearing the court has only four options, the first of which is to “[p]ermanently sever the parent or parents' rights and order that the child be placed for adoption.” ²  (§ 366.26, subd. (b)(1).)   If the court decides upon termination, subdivision (c)(1) of section 366.26 specifies the following procedure:  The court “first determines by clear and convincing evidence that it is likely that the minor will be adopted.”   If the court so determines, then any of three alternate findings, one of which must earlier have been made, “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 [any one of four specified circumstances].” ³  Two of the earlier types of findings that may provide a sufficient basis for termination of parental rights had to have been made upon clear and convincing evidence.⁴  However, the third category of findings that may independently serve as a sufficient basis for termination is “that a minor cannot or should not be returned to his or her parent or guardian,” a finding which is not required to have been made on the basis of clear and convincing evidence but only upon a preponderance of the evidence.  (§§ 366.21, subds. (e) and (f), 366.22, subd. (a).)

It must be understood, preliminarily, that the likelihood the child will be adopted, the issue to which the clear and convincing evidence standard is made applicable by section 366.26, is unrelated to the fitness of the parents and whether there would be detriment to the minor if left in their custody.   Because the question of adoptability is so peripheral to the dispute between the parents and the state, the use of the clear and convincing evidence standard with respect to this question does not satisfy the due process concerns discussed in 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.

Justice Peterson's elaborate explanation of why section 366.26 applies the clear and convincing standard not just to the question of adoptability but to the question whether termination would be detrimental to the child is puzzling, to say the least, because his interpretation of the statute exacerbates the constitutional problem it was presumably designed to avoid.

Justice Peterson states his central thesis as follows:  “It seems logically certain that, if an adoptability finding is required to be made by a designated evidentiary standard [clear and convincing evidence], 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 [certain circumstances]’—must be made under the same evidentiary standard.  [¶] A contrary interpretation would require simultaneous application of different standards of proof on two related evidentiary issues which generate the juvenile court's ultimate decision to permanently sever a parental relationship.   We cannot find the Legislature to have so intended.”  (Maj. opn. at p. 876, italics in original.)

There are several flaws in this argument.   First of all, as the Supreme Court and other courts have indicated, the finding that the minor will likely be adopted is not necessarily related or, as Justice Peterson says “inextricably interwoven” with the question whether termination would be detrimental to the minor.  (See In re Laura F. (1983) 33 Cal.3d 826, 838, 191 Cal.Rptr. 464, 662 P.2d 922 [“no authority for the proposition that termination is improper unless there is an adopting parent waiting in the wings”];  In re Marcel N. (1991) 235 Cal.App.3d 1007, 1013, 1 Cal.Rptr.2d 240;  cf. In re Randi D. (1989) 209 Cal.App.3d 624, 627–628, 257 Cal.Rptr. 421.)   Moreover, one of the four circumstances that subdivision (c) of section 366.26 permits to be used to show termination would be detrimental is that the parents “have maintained regular visitation and contact with the minor and the minor would benefit from continuing the relationship.”  (§ 366.26, subd. (c)(1)(A).)   Elsewhere in subdivision (c) of the statute the Legislature specifies that the preponderance of the evidence standard should be used in connection with the question whether “visitation would be detrimental to the physical or emotional well-being of the minor.”  (§ 366.26, subd. (c)(4).)   It would therefore be inconsistent and confusing (as well as illogical) to employ different standards of proof when considering virtually the same issue under the same subdivision of the same statute, which is the result of my colleague's reading of section 366.26.

The most curious aspect of Justice Peterson's argument is his unspoken and clearly erroneous assumption that applying the clear and convincing evidence standard to the narrow question of detriment that may be raised under section 366.26 solves the due process problem because it provides better protection for the parents.   The reverse is true.   The burden of showing the detriment described in subsection (c)(1) is not on the petitioning agency;  that is, the question is not whether the failure to terminate would be detrimental to the child (in which case the burden would be on the petitioning agency), but the opposite:  whether termination would be detrimental to the minor, which it is the burden of the parent to demonstrate, if he or she can, by evidence of one of the limited circumstances that may negate the effect of the finding that the minor is adoptable.   If, as the majority insists, this evidence must be clear and convincing the parents will have a heavier burden than they would under the preponderance of the evidence standard.   Thus my colleagues have aggravated the due process problem they believe they have solved.

Justice Peterson's interpretation of section 336.26 reveals a fundamental misconception about the purpose of that statute.  Section 366.26 does not, as Justice Peterson claims, require any inquiry into detriment.   Indeed, by relieving the petitioning agency of any need to produce additional facts justifying termination and by limiting the circumstances that may be alleged by the parent to show that termination would be detrimental to the minor the statute seems designed to discourage further inquiries into these issues at the section 366.26 hearing.   As will be seen, this is reasonable given the numerous hearings on the question of parental fitness and detriment to the minor previously held and the abundant earlier findings of the court that support severance of parental ties.

The primary purpose of the section 366.26 hearing is not to accumulate further evidence of parental unfitness and danger to the child, but to begin the task of finding the child a permanent alternative family placement.   As noted, section 366.26, subdivision (c)(1) declares that once the court determines by clear and convincing evidence that it is likely that the minor will be adopted, earlier findings pursuant to section 366.21 or section 366.22, “that a minor cannot or should not be returned to his or her parent,” findings made on the basis of a preponderance of the evidence, “shall then constitute a sufficient basis for termination of parental rights․”  In cases in which the limited circumstances that may justify a finding that termination would be detrimental to the minor (set forth, ante, at fn. 3) do not exist or are not claimed the court need not inquire into that issue.   The present case provides a perfect illustration of the manner in which the court properly infers from previous findings that termination would not be detrimental to the child.

Because neither appellant nor the facts suggested the existence of any of the limited circumstances warranting denial of termination despite the finding of adoptability, the trial judge in this case was not asked or required to make any inquiry along these lines.   After finding “That it is likely, by clear and convincing evidence, that the minors will be adopted,” the juvenile court's Order and Judgment Terminating Parental Rights merely states the additional finding “That termination of parental rights will not be detrimental to the minors, based on this Court's previous finding pursuant to section 366.22 that the minors cannot and/or should not be returned to their parents [ ] ” (italics added).   The determination in favor of the petitioning agency that termination would not be detrimental to the interests of the minor was therefore clearly made on the basis of an inference from an earlier finding made on the basis a preponderance of the evidence.

I now turn to the reasons I believe the process for terminating parental rights with which we are dealing is constitutional despite the fact that section 366.26 does not require the petitioning agency to revisit the issue of detriment or apply the clear and convincing evidence standard to that question in the limited circumstances in which it may be raised at the 366.26 hearing.

II.

Section 366.26 cannot be properly understood except in the context of the entire dependency process of which it is part.   Unlike the termination hearings evaluated in 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, the main purpose of the hearing held pursuant to section 366.26 is not to establish the facts warranting severance of parental rights—which, as will be seen, were repeatedly required to have been established at a series of earlier proceedings—but to determine whether a suitable alternate home for the child has been found.   As I see it, the question this case presents is not whether the constitutional rights of the parents described in Santosky and Angelia P. are adequately protected at the section 366.26 hearing, but whether these rights are protected during the earlier proceedings at which the dispositive issues of parental fitness and detriment are most thoroughly addressed.

The nature of the process due in termination proceedings, the court stated in Santosky v. Kramer, supra, 455 U.S. at p. 754, 102 S.Ct. at p. 1395, turns on a balancing of the “ ‘three distinct factors' ” identified in Mathews v. Eldridge (1976) 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18:  the private interests affected by the proceedings;  the risk of error created by the state's chosen procedure;  and the countervailing governmental interest supporting use of the challenged procedure.   After analyzing the termination procedure prescribed under the New York Family Court Act, the court concluded in Santosky that due to the risk of erroneous factfinding about a matter in which there is a commanding private interest, the fundamental liberty interests of natural parents in the care, custody and management of their child is not adequately protected by the preponderance of the evidence standard, which allocates the risk of error nearly equally between the parties.   The stricter standard of clear and convincing evidence is essential to satisfy due process because the factfinder under the New York system might not otherwise appreciate the level of subjective certainty about his or her factual conclusions that is constitutionally required.  (Id., 455 U.S. at p. 769, 102 S.Ct. at p. 1403.)   Finally, this elevated standard also advanced the two state interests at stake:  the interest in preserving natural familial bonds and the interest in reducing factual error without undue fiscal burden.  (Id., at pp. 766, 767, 102 S.Ct. at p. 1401, 1402.)

Approximately one year prior to Santosky the California Supreme Court rendered a similar opinion in In re Angelia P., supra, 28 Cal.3d 908, 171 Cal.Rptr. 637, 623 P.2d 198, regarding the findings necessary to terminate parental rights under Civil Code section 232.   The court believed the clear and convincing evidence standard is consistent with the goal of section 232 to provide “ ‘the fullest opportunity to the parents for exercise of their rights not inconsistent with the ultimate best interests of the child.’  [Citation.],” and that it serves to properly “ ‘allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.’ ”  (Id., at p. 919, 171 Cal.Rptr. 637, 623 P.2d 198, quoting Addington v. Texas (1979) 441 U.S. 418, 423, 99 S.Ct. 1804, 1808, 60 L.Ed.2d 323.)

As indicated, I believe the termination process with which we are concerned in this case, which is not governed by Civil Code section 232, adequately safeguards constitutional rights of the parents that would otherwise need the protection of a more elevated standard of proof.

A.

Termination of parental rights is the least favored result of the process of state intervention in behalf of neglected children established by the California dependency statutes.   This process, which reflects the influential ideas of Stanford Law Professor Michael S. Wald (see especially Wald, State Intervention on Behalf of ‘Neglected’ Children:  Standards for Removal of Children from Their Homes, Monitoring the Status of Children in Foster Care, and Termination of Parental Rights (1976) 28 Stan.L.Rev. 623 [hereinafter Wald] ), may be seen as consisting of three phases.   The initial phase, which centers around the adjudication of dependency, focusses upon the immediate need “to provide maximum protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to protect children who are at risk of that harm.”   Since the new statute became effective in 1989, dependency may be adjudicated only where the minor has suffered or there is “substantial risk” the minor will suffer “serious physical harm” or “serious emotional harm” or “sexual abuse” or “severe physical abuse” as a result of the conduct of the parent.  (§ 300, subds. (a), (b), (c), (d) and (e).)   If “emotional” rather than “physical” harm is claimed, the petitioning agency must show the child is suffering from “severe anxiety, depression, or withdrawal, untoward aggressive behavior toward self or others, as a result of conduct by the parent or guardian.”  (§ 300, subd. (c).)  In short, termination proceedings under section 366.26 pertain to children previously judicially found to have suffered much more than mere “neglect” as a result of parental unfitness.

The first phase of the dependency process concludes if and when the juvenile court determines the family is unable or unwilling to cooperate with the social and health services provided to help the child and the family and to prevent reabuse of the minor.  (§ 360.)   At this crucial juncture the court may remove the child from the physical custody of the parents.   In order to do this, however, the court must make specific and detailed findings showing substantial danger to the physical health of the minor, or that the minor is suffering severe emotional damage, or has been sexually abused, or that the parent is unwilling or unable to provide care.  (§ 361.)   Significantly, the detailed factual findings that must be made in order remove a child from parental custody must be made upon “clear and convincing evidence.” ⁵  (Ibid.)

Removal of the child from parental custody marks the beginning of the second phase of the dependency process, which is characterized by a lengthy and intensive effort to reunify the family.  (§ 361.5.)   Reunification services must be provided during a period of at least a year unless the court finds, again by “clear and convincing evidence,” that the whereabouts of the parents is unknown, that a parent is so mentally unstable that he or she is incapable of utilizing such services, or that there has been a continuing pattern of physical or sexual abuse of the child.  (§ 361.5, subd. (b).)  In the absence of such findings, reunification services are to be provided, even if the parent is institutionalized or incarcerated, unless for specified reasons it would be detrimental to the child to do so.  (§ 361.5, subd. (e).)  The reunification assistance that must be provided includes “any additional services reasonably believed to facilitate the return of the minor to the custody of his or her parent ․”  (§ 366.21, subd. (e).)

The status of every child removed from parental custody must be reviewed no less frequently than once every six months during a period of at least a year but possibly eighteen months.  (§§ 361.5, subds. (a), (e), 366.)   There is a statutory presumption the child will be returned to parental custody during this period.   At each status review hearing “[t]he court shall order the return of the minor to the physical custody of his or her parents or guardians unless, by a preponderance of the evidence, it finds that the 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, subds. (e) and (f), 366.22, subd. (a).)  The burden of establishing detriment is clearly placed upon the petitioning agency.  (§ 361.2, subd. (e).) ⁶

At the time the child was first removed from parental custody and at every status review hearing thereafter the court is required to inform the parent that if the minor remains out of his or her custody for a specified period a termination proceeding pursuant to section 366.26 may be instituted and the child declared free from parental custody and control.  (§§ 361, subd. (b)(2), 366.21, subd. (e).)

The third and final phase of the dependency process, at which the state's interest shifts to finding a permanent alternative home for the child, commences only after repeated judicial findings that, despite repeated notice to the parents of the possibility their rights may be terminated, reunification services have failed and there would be a substantial risk to the physical or emotional well-being of the child if he or she were returned to the parents.   (§ 366.21, subd. (f).)  As earlier noted, termination can be ordered at this point simply upon clear and convincing evidence “that it is likely that the child will be adopted.”   In that event, a sufficient factual basis for termination of parental rights is provided by findings previously made, from which it is inferred that termination will not be detrimental to the child.

In sum, termination of parental rights under the dependency statutes is the end result of a lengthy process involving numerous hearings and multiple findings of parental unfitness:  the finding that the child has suffered serious physical harm as a result of parental failure to supervise or protect him or her (§ 300);  the finding on clear and convincing evidence that there would be substantial danger to the physical health of the minor if not removed from parental custody (§ 361, subd. (b));  the finding that the agency petitioning for termination made reasonable efforts to prevent or to eliminate the need for removal of the minor from his or her home (§ 361, subd. (c));  and two or three separate findings during a twelve to eighteen month period that return of the child would create a substantial risk of detriment to the child.  (§§ 366.21, subds. (e) and (f), 366.22, subd. (a).)

The multiple specific findings that must be made in order to terminate under the dependency statutes contrast with the fewer and less demanding findings that will suffice to terminate under the statutes examined in 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.   For example, the New York statute examined in Santosky did not require the State to previously have produced clear and convincing evidence that there would be “substantial danger to the physical health of the minor” or “severe emotional damage” if the child were not removed from parental custody;  nor did it require the State to repeatedly rebut a statutory presumption the child will be returned to the parents by showing that return would seriously endanger the child.   By the same token, termination under Civil Code section 232, the statute involved in In re Angelia P., did not condition termination upon prior showings by the petitioning agency that parental unfitness resulted in serious physical harm or illness or serious emotional damage to the child.

B.

“The three distinct factors” identified in Mathews v. Eldridge, supra, 424 U.S. at p. 335, 96 S.Ct. at p. 903 and relied upon in Santosky to require an elevated standard of proof of the need to sever parental ties at the termination hearing do not compel that result in this case.

1.

The first Eldridge factor—the private interest affected—was said in Santosky to weigh heavily in favor of the natural parent at “the factfinding stage” of a state-initiated permanent neglect proceeding at which it is the burden of the State to show “that the natural parents are at fault.”   (Santosky v. Kramer, supra, 455 U.S. at p. 759, 102 S.Ct. at p. 1398.)   As we have seen, it is not the purpose of the section 366.26 hearing to show parental inadequacy, which had to have been previously established, and there is no burden on the petitioning agency to show at the section 366.26 hearing that the parents are “at fault.”

Indeed, it is the number of previous findings of “fault,” coupled with the seriousness of the danger to the minor found to result, that most clearly differentiates the section 366.26 hearing from the termination hearing in Santosky.   The due process rights of a parent whose conduct has already and on numerous occasions been found to grievously endanger his or her child no longer possesses the same due process rights as a parent whose neglect or abuse has not so clearly been established.

The due process rights of a parent whose inadequacy has already been established certainly should not exceed those of a presumed father, not found to be an unfit parent, whose rights are sought to be terminated under Civil Code section 7017.   Subdivision (d) of section 7017 provides, in effect, that it is unnecessary to inquire whether an award of custody to the presumed father would be detrimental to the child;  all that is required is that termination serve the best interests of the child.  (In re Andrew V. (1991) 232 Cal.App.3d 1286, 1292, 284 Cal.Rptr. 38.)   Thus a presumed father not guilty of any neglect has lesser rights in connection with the termination of his parental rights than a neglectful or abusive parent has under the dependency statutes.   If the fewer rights of the presumed father comport with procedural due process, as found in In re Sabrina H. (1990) 217 Cal.App.3d 702, 711–713, 266 Cal.Rptr. 274, the greater rights available to a more culpable parent under the Welfare and Institutions Code cannot be deemed constitutionally deficient.

2.

The second factor that led the court in Santosky v. Kramer, supra, 455 U.S. 745, 102 S.Ct. 1388 to require clear and convincing evidence at the termination hearing was the risk of erroneous factfinding.   The court noted that proceedings under the New York statute “employ imprecise substantive standards that leave determinations unusually open to the subjective values of the judge․  In appraising the nature and quality of a complex series of encounters among the agency, the parents, and the child, the court possesses unusual discretion to underweigh probative facts that might favor the parent.”  (Id., at p. 762, 102 S.Ct. at p. 1399, fn. omitted.)   The court provided several examples of this weakness in the New York statute.  “[A] New York court appraising an agency's ‘diligent efforts' to provide the parents with social services can excuse efforts not made on the grounds that they would have been ‘detrimental to the best interests of the child.’  [Citation.]  In determining whether the parent ‘substantially and continuously or repeatedly’ failed to ‘maintain contact with ․ the child,’ [citation], the judge can discount actual visits or communications on the grounds that they were insubstantial or ‘overtly demonstrat[ed] a lack of affectionate and concerned parenthood.’  [Citation.]  When determining whether the parent planned for the child's future, the judge can reject as unrealistic plans based on overly optimistic estimates of physical or financial ability.”  (Id., at pp. 762–763, fn. 12, 102 S.Ct. at pp. 1399–1400, fn. 12.)

The statutes with which we are here concerned are far less open to subjective judicial values than those described in Santosky.   The overall constraint on judicial intervention is, of course, the statutory emphasis on “preservation of the family whenever possible” and the direction to the judicial branch not to “disrupt the family unnecessarily or to intrude inappropriately into family life, to prohibit the use of reasonable methods of parental discipline, or to prescribe a particular method of parenting.”  (§ 300.)   Nowhere in the dependency statutes has the Legislature invited value judgments comparable to those described in Santosky.   In In re Rocco M. (1991) 1 Cal.App.4th 814, 823, 2 Cal.Rptr.2d 429 we observed that the magnitude of the danger that must be shown in order to declare dependency (“a substantial risk that the minor will suffer serious physical harm”), which is virtually identical to the showing that must be made to remove a child from parental custody and, subsequently, to justify not returning the child to the parents,⁷ was deliberately calculated by the Legislature to “eliminate the wide discretion given to courts and child welfare workers under the old provisions․”  (Id., at p. 821, 2 Cal.Rptr.2d 429.) ⁸  Thus, unlike termination under Civil Code section 232, parental rights cannot be severed under the Welfare and Institution Code without a showing of concrete harm or risk of physical harm to the minor;  such harm or the risk thereof must be shown, not just once but on several separate occasions.   As has been pointed out, limiting intervention under the dependency statutes to cases of serious harm diminishes the risks that might otherwise result from the use of less restrictive standards for removal and termination.  (Wald, supra, 28 Stan.L.Rev. at p. 642.)

Judicial discretion is constrained by the dependency statutes in other ways.   For example, while the court may declare dependency where a parent willfully or negligently “fails to provide the minor with adequate food, clothing, shelter or medical treatment” it may not do so where the failure is the result of the poverty of the parents and the unavailability of emergency shelter.  (§ 300, subd. (b).)  If the parents are alleged to have failed to provide the child adequate medical treatment, the court is obliged to “give deference to the parent's or guardian's medical treatment, nontreatment, or spiritual treatment through prayer alone in accordance with the tenets and practices of a recognized church or religious denomination” and must consider the risks and likelihood of success of the treatments proposed by the parents and the petitioning agency and their likelihood of success.  (Ibid.)  Even where the court asserts jurisdiction due to the failure of a parent to supervise or protect the minor or to provide the basic necessities of life, dependency may be continued “only so long as is necessary to protect the minor from the risk of suffering serious physical harm or illness.”  (Ibid.)  Similarly, in deciding whether return of a child to his or her parents would be detrimental, “ ‘[h]arm to the child cannot be presumed from the mere fact of the mental illness of the parent․’ ”  (In re Heather P. (1988) 203 Cal.App.3d 1214, 1228, 250 Cal.Rptr. 468, quoting In re Jamie M. (1982) 134 Cal.App.3d 530, 540–541, 184 Cal.Rptr. 778.)   Neither can detriment be deemed to result from the fact that a parent is unemployed nor because the child is “happy and satisfied” away from the parent.  (In re Kristin W. (1990) 222 Cal.App.3d 234, 252–253, 271 Cal.Rptr. 629.)

One of the reasons the court in Santosky felt it necessary to elevate the government's burden of proof was the fact that “[t]he State's ability to assemble its case almost inevitably dwarfs the parent's ability to mount a defense.”  (Santosky v. Kramer, supra, 455 U.S. at p. 763, 102 S.Ct. at p. 1400.)   Among other things, the government's attorney “enjoys full access to all public records concerning the family” and, “because the child is already in agency custody, the State even has the power to shape the historical events that form the basis for termination.”  (Ibid.)  The California dependency statutes provide the parents a much more level playing field.   Not only must the court appoint counsel for a parent unable to afford one whenever a petitioning agency recommends out-of-home care (§ 317, subds. (a), (b)), but such counsel must continue to represent the parent “at all subsequent hearings ․ unless relieved by the court upon the substitution of other counsel or for cause.”  (§ 317, subd. (d).)  Importantly, counsel for the parents are required to be given “access to all records relevant to the case which are maintained by state or local public agencies․ [or] by hospitals or by other medical or nonmedical practitioners or by child care custodians․”  (§ 317, subd. (f).)  The petitioning agency has diminished power “to shape the historical events that form the basis for termination” because it must not only produce clear and convincing evidence that removal is necessary but additionally persuade the court that the agency made “reasonable efforts ․ to prevent or to eliminate the need for removal.”  (§ 361, subd. (c).)  Finally, if the child is removed, there is a statutory presumption he or she will be returned, with the burden on the state to persuade the court otherwise on multiple occasions.  (See, e.g., § 366.21, subd. (e).)

3.

In connection with the last of the three Eldridge factors the Santosky court explained that two state interests are at stake in parental termination proceedings:  “a parens patriae interest in preserving and promoting the welfare of the child and a fiscal and administrative interest in reducing the cost and burden of such proceedings.”  (Santosky, supra, 455 U.S. at p. 766, 102 S.Ct. at p. 1401.)   The court declared that a standard of proof more strict than preponderance of the evidence is consistent with both interests for two reasons:  “the parens patriae interest favors preservation, not severance, of natural familial bonds” and “a stricter standard of proof would reduce factual error without imposing substantial fiscal burdens upon the State.”  (Id., at pp. 766, 767, 102 S.Ct. at pp. 1401, 1402.)

The dependency statutes endeavor to preserve the parent-child relationship and reduce the risk of erroneous factfinding in so many different ways that it is fanciful to think these state interests require what in most cases would be a sixth inquiry whether the severance of parental ties would be detrimental to the child.   The number and quality of the judicial findings that are necessary preconditions to termination convey very powerfully to the factfinder the subjective certainty about parental unfitness and detriment required before the court may even consider ending the relationship between natural parent and child.

Moreover, by the time termination is possible under the dependency statutes the danger to the child from parental unfitness is so well established there is no longer “reason to believe that positive, nurturing parent-child relationships exist” (Santosky, supra, 455 U.S. at p. 766, 102 S.Ct. at p. 1401), and the parens patriae interest of the state favoring preservation rather than severance of natural familial bonds has been extinguished.   At this point, unlike the situations in Santosky and In re Angelia P., it has become clear “ ‘that the natural parent cannot or will not provide a normal family home for the child’ ” (id., at p. 767, 102 S.Ct. at p. 1402), and the state's interest in finding the child a permanent alternate home is fully realized.   In light of the earlier judicial determinations that reunification cannot be effectuated it becomes inimical to the interests of the minor to heavily burden efforts to place the child in a permanent alternative home.   (In re R.S. (1985) 167 Cal.App.3d 946, 958, 213 Cal.Rptr. 690.)   Our Supreme Court has recognized that in situations such as this “ ‘the legal system should protect the child's interest.   Not only is the child a helpless party but the parents should suffer the consequences of their inadequacy rather than the child.’ ”  (In re Angelia P., supra, 28 Cal.3d at p. 917, 171 Cal.Rptr. 637, 623 P.2d 198, quoting Wald, supra, 28 Stan.L.Rev. at p. 638.)   In light of the statutory goal of protecting abused and neglected children and the level of harm to the child that has already been shown, “ ‘it seems indisputable that ․ the state as parens patriae not only has a compelling interest but also a duty to sever the parental bonds once a situation contemplated by the statute arises.’ ”  (In re Laura F., supra, 33 Cal.3d 826, 837, 191 Cal.Rptr. 464, 662 P.2d 922, quoting In re Eugene W. (1972) 29 Cal.App.3d 623, 629, 105 Cal.Rptr. 736.)   By the time of the section 366.26 hearing, no state interest requires further evidence of the consequences to the child of parental unfitness, let alone evidence that meets an elevated standard of proof.

“Standards for termination must be related to the standards for removing children and returning them to their parents in order to achieve a systematic and sensible intervention process.”  (Wald, supra, 28 Stan.L.Rev. at p. 628).   Considered in the context of the entire process for terminating parental rights under the dependency statutes, the procedure specified in section 366.26 for terminating parental rights comports with the due process clause of the Fourteenth Amendment because the precise and demanding substantive and procedural requirements the petitioning agency must have satisfied before it can propose termination are carefully calculated to constrain judicial discretion, diminish the risk of erroneous findings of parental inadequacy and detriment to the child, and otherwise protect the legitimate interests of the parents.   At this late stage in the process the evidence of detriment is already so clear and convincing that more cannot be required without prejudice to the interests of the adoptable child, with which the state must now align itself.

FOOTNOTES

1.   Unless otherwise indicated, all subsequent statutory references are to the Welfare and Institutions Code.Following the order made herein, the text of section 366.26 was modified in certain minor respects not relevant here.   For the sake of clarity, we use the currently operative text rather than the version in effect at the time of the subject hearing.Section 366.26 provides, inter alia, for hearings terminating parental rights to children adjudged dependents of the juvenile court pursuant to section 360.  “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.”  (§ 366.26, subd. (c)(1).)

2.   Section 366.22 deals with the procedure on an 18–month review of a dependent minor's status:  “[T]he court, at the 18–month hearing, shall order the return of the minor to the physical custody of his or her parent ․ unless, by a preponderance of the evidence, it finds [such action] would create a substantial risk of detriment to the physical or emotional well-being of the minor.”  (§ 366.22, subd. (a).)  Thus, section 366.22 governs the 18–month hearing which served, in this case, as the culmination of the periodic reviews of the minors' status which section 366 requires to be held every 6 months.

3.   These sections become operative after a juvenile's custody is taken from his parents under the provisions and clear and convincing evidence standard of section 361, subdivision (b).   Section 366.21, subdivision (e) provides for status review hearings at which the minor must be returned to parental custody unless, “by a preponderance of the evidence, [the court] finds that the return of the child would create a substantial risk of detriment to the physical or emotional well-being of the minor.”   If an 18–month review hearing is held, section 366.22 requires the same preponderance of evidence standard of proof to be applied in weighing the evidence regarding the minor's return to parental custody at that stage of the proceedings.

4.   The provision of periodic six-month status reviews also redounds to the parent's advantage by reducing the likelihood of an erroneous termination of parental rights, and by allowing the parent an opportunity to recover from disabling conditions, such as drug dependency, which are only temporary.   It is only after all these steps fail that section 366.26 proceedings would occur.

5.   The only reference section 366.26 makes to a preponderance of the evidence standard is expressly limited in subdivision (c)(4) to the court's findings regarding visitation of parents or guardians after certain specified findings (e.g., termination of parental rights is not in the minor's interests) are made.

6.   Contrary to the assumption of our concurring colleague, the burden under section 366.26 remains on the state, not the parent, to negate by a clear and convincing evidentiary standard any contention of detriment to the minor from one of the four specific circumstances listed in section 366.26, subdivision (c)(1)(A–D), or from any “other evidence the parties present,” (§ 366.26, subd. (b)) at the hearing on termination of parental rights.   The concurrence fails to consider that the purposes of the initial hearing under section 361 and the final hearing under section 366.26 are not the same.   Section 361 contemplates the temporary severance of the parental relationship, to be followed by parent-minor reunification through the active intervention and assistance of the state in achieving that goal.   A section 366.26 hearing contemplates a far more severe result—the final severance of a parent's custodial interest in the minor.   Our concurring colleague's construction would apply a lesser standard of proof to the termination hearing, which finally and most severely impacts a parent's constitutionally protected right to custody of the minor, than to the section 361 hearing where that right is only temporarily curtailed.   The statute clearly requires the trial court to address any evidence offered on the question of detriment to the minor;  the trial court must also be satisfied by clear and convincing evidence that termination of parental rights is “in the best interests of this child.”  (§ 366.26, subd. (g).)

7.   Appellant makes no specific contention that such matters here considered were legally inadmissible in the parental termination proceeding.   We note that section 366.22 in fact requires a report on the status of the affected minor, the biological parents, and the possible adoptive parents be prepared by the relevant child welfare agency.   Section 366.26, subdivision (b), in turn, requires that the trial court “shall review the report as specified in Section ․ 366.22, [and] shall indicate that the court has read and considered it․”  Thus, certain evidence gathered as a result of the first proceeding must be “read and considered” in the second.

8.   “Judicial notice may be taken of the following matters to the extent that they are not embraced within [Evidence Code] Section 451:  [¶] ․ [¶] (d) Records of (1) any court of this state․”  (Evid.Code, § 452, subd. (d)(1).)   The trial court's juvenile file is such a record.   “The admission and exclusion of evidence [in juvenile court proceedings] shall be pursuant to the rules of evidence established by the Evidence Code and by judicial decision.”  (§ 701.)   While application of these statutes does not mean every assertion in the juvenile file is necessarily accepted as proof of the matter stated (cf. Day v. Sharp (1975) 50 Cal.App.3d 904, 914, 123 Cal.Rptr. 918 [Hearsay may not be treated as true simply because it is included in a COURT RECORD.), no blanket rule makes all such statements inadmissible (In re Malinda S. (1990) 51 Cal.3d 368, 385, 272 Cal.Rptr. 787, 795 P.2d 1244 [Social studies are admissible and competent evidence for the purposes of jurisdictional findings.] ).   Further, one objecting to portions of the juvenile file must identify the portions objected to, stating a proper objection thereto in order to set aside a decision on the ground of erroneous admission of evidence.  (Evid.Code, § 353, subd. (a).)

9.   Assuming arguendo appellant could establish error by the means herein discussed, on this record, it is most certainly and classically harmless.  (Cf. Chapman v. California (1967) 386 U.S. 18, 22, 87 S.Ct. 824, 827, 17 L.Ed.2d 705.)   All the evidence presented to the trial court overwhelmingly indicated appellant's parental rights should be terminated.   No contrary evidence was presented;  the trial court's order was indisputably proper.

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

2.   The three remaining options, which do not entail permanent severance of parental rights, are to “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” (§ 366.26, subd. (b)(2));  to “appoint a legal guardian for the minor and issue letters of guardianship” (§ 366.26, subd. (b)(3));  and to “[o]rder that the minor be placed in long-term foster care, subject to the regular review of the juvenile court.”  (§ 366.26, subd. (b)(4).)

3.   The four circumstances, which are set forth in subparagraphs (A), (B), (C) and (D) of subdivision (C)(1) of section 366.26, are those in which “(A) The parents or guardians have maintained regular visitation and contact with the child and the minor would benefit from continuing the relationship.  [¶] (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 ․ but who is willing and capable of providing the minor with a 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.”

4.   These are “the findings pursuant to subdivision (b) of section 361.5 that reunification services shall not be offered” and “the findings pursuant to subdivision (e) of Section 366.21 that the whereabouts of the parent have been unknown for six months or that the parent has failed to visit or contact the child for six months or that the parent has been convicted of a felony indicating parental unfitness.”  (§ 366.26, subd. (c)(1).)

5.   Section 361 provides in subdivision (b) that:“No dependent child shall be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated unless the juvenile court finds clear and convincing evidence of any of the following:“(1) There is a substantial danger to the physical health of the minor or would be if the minor was returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parents' or guardians' physical custody.   The fact that a minor has been adjudicated a dependent child of the court pursuant to subdivision (e) of Section 300 shall constitute prima facie evidence that the minor cannot be safely left in the custody of the parent or guardian with whom the minor resided at the time of injury.“(2) The parent or guardian of the minor is unwilling to have physical custody of the minor, and the parent or guardian has been notified that if the minor remains out of their physical custody for the period specified in Section 366.25 or 366.26, the minor may be declared permanently free from their custody and control.“(3) The minor is suffering severe emotional damage, as indicated by extreme anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, and there are no reasonable means by which the minor's emotional health may be protected without removing the minor from the physical custody of his or her parent or guardian.“(4) The minor has been sexually abused by a parent, guardian, or member of his or her household, or other person known to his or her parent, and there are no reasonable means by which the minor can be protected from further sexual abuse without removing the minor from his or her parent or guardian, or the minor does not wish to return to his or her parent or guardian.“(5) The minor has been left without any provision for his or her support, or a parent who has been incarcerated or institutionalized cannot arrange for the care of the minor, or a relative or other adult custodian with whom the child has been left by the parent is unwilling or unable to provide care or support for the child and the whereabouts of the parent is unknown and reasonable efforts to locate him or her have been unsuccessful.”

6.   The policy reasons for placing this burden on the agency rather than on the parents are discussed in Wald, supra, 28 Stan.L.Rev. at pp. 687–688.

7.   In order to establish dependency it must be shown that “there is substantial risk of serious future injury” to the minor.  (§ 300, subd. (a).)  The substantive standard for removal of a child from parental custody is that there would otherwise be “substantial danger to the physical health of the minor.”  (§ 361.)   To overcome the presumption that the child will be returned to parental custody it must be shown that return “would create a substantial risk of detriment to the physical or emotional well-being of the minor.”  (See, e.g.. § 366.22, subd. (a).)

8.   The policy arguments in favor of limiting judicial discretion are set forth in Wald, supra, 28 Stan.L.Rev. at pp. 639–640.

PETERSON, Associate Justice.

SMITH, J., concurs.