IN RE: JOSHUA M. (1990)

OPINION

Does the trial court have jurisdiction to entertain a petition under Civil Code section 232 to terminate the rights of one parent, while leaving the rights of the other intact, without an adoptive parent waiting in the wings?   Yes.

I.

Donna M. and James G. were in their early twenties when, in February 1986, they married.   On February 25, 1987, James left the couple's apartment, never to return.   Three days later, Donna, then seven months pregnant, moved in with her parents.   With the exception of one telephone call a week after his departure, James never again communicated with Donna.   A judgment dissolving the marriage was eventually entered by default on September 26, 1988, service of summons and petition having been effected by publication.   Donna was awarded custody of Joshua, born April 26, 1987.

James has never seen his son.   Nor has he provided Donna directly with any child support.

The record discloses that on December 30, 1987, the family support division of the district attorney's office filed a complaint to establish James' child support obligation and to seek reimbursement for public assistance.   As of March 1988, Donna had received $5,888 in aid for the minor.²  In answering the complaint, James alleged he should not be liable for support because he had been deprived of custody and visitation.   At oral argument, we were informed he was paying $50 per month in arrearages.

Donna's freedom petition was filed July 19, 1988.   It alleged James had abandoned Joshua within the meaning of Civil Code section 232, subdivision (a)(1).³  James did not contest the petition.   On January 12, 1989, he executed a document entitled “Acknowledgment and Consent,” wherein he consented to the termination of his parental rights.

The matter was presented to the court for decision on March 6th.   A probation report, prepared following an investigation by the Orange County Probation Department (§ 233), was submitted for the court's consideration.   Present in court was counsel for James, who was also making a special appearance on behalf of Donna.

The court found clear and convincing evidence to support the allegations of abandonment but denied the petition nonetheless.   It stated:  “Even though it does appear that there is abandonment, the court has to follow the law and the law indicates that the best interests of the minor child ․ [are] served by having at least two legal parents, even though one of them is not an active parent.  [¶] Now, if [James] believes that it is not in the child's best interest for him to take an active role, then he need not take an active role in the child's life.   Obviously, he has never had an active role except in the conception and that may be well in the best interest of the minor child.   But the court cannot see its way clear to sustain the allegations of the petition.” ⁴

Donna filed a motion for reconsideration.   Citing In re Randi D. (1989) 209 Cal.App.3d 624, 257 Cal.Rptr. 421, she argued termination of parental rights is permitted, notwithstanding section 232.6,⁵ even when there is no adoption proceeding pending.   The motion was denied.⁶

On November 27, 1989, the court issued its findings and judgment denying the petition.   On appeal Donna contests findings Nos. 7 and 8, which read as follows:

“7. Terminating the parental rights of one parent under circumstances that result in a minor child having only one legal parent is contrary to public policy;  and

“8. The court lacks jurisdiction to grant the petition herein requested because of the provisions of Section 232.6 of the Civil Code.”

II.

Chapter 4 of Division 1, Part 3, Title 2 of the Civil Code, beginning with section 232, sets forth the statutory scheme for terminating parental rights.   It encompasses children who are dependents of the court as well as those who are not.   A petition may be filed by a state or county social service agency or welfare department, by prospective adoptive parents, or by one parent seeking to terminate the rights of the other.   Nowhere in the chapter does there exist a requirement a petition may be granted only upon a finding that adoption is imminent.

Section 232, subdivision (a)(1) ⁷ contemplates termination of parental rights where “[t]he child has been left ․ by one parent in the care and custody of the other parent for a period of one year without any provision for the child's support․”   This subdivision does not impose a condition that parental rights may be terminated only when a prospective stepparent or adoptive parent is on hand.   As we recognized in In re Randi D., supra, 209 Cal.App.3d 624, 257 Cal.Rptr. 421, “The code section clearly contemplates severance of the parental right in such a situation without reference to whether or not adoption proceedings are pending.”  (Id., at p. 628, fn. omitted, 257 Cal.Rptr. 421.) ⁸

The trial court misunderstood section 232.6.⁹  It concluded a section 232 petition cannot be granted unless an adoptive parent is available.   But section 232.6 is inapt here.   Our case is one in which a mother seeks to terminate the parental rights of her son's father, not one involving a child living in a temporary foster home setting.

The legislative history of section 232.6 indicates the statute was enacted as part of Assembly Bill No. 3070,¹⁰ approved by the Governor on September 27, 1980.   The bill's objective essentially was to provide a state policy for foster care of children.   The Legislative Counsel's Digest states, in part:  “This bill would set forth legislative policy declaring that foster care should be a temporary method of care.”   Accordingly, the beneficiaries of section 232.6's stated purpose of facilitating adoption are dependent children living in foster or other temporary home environments, without either parent—children in need of stability and security because these crucial elements are missing from their lives.¹¹

Thus, the trial court erred in finding adoption a condition precedent in all situations.   Our Supreme Court has rejected that notion, stating “there [is no] authority for the proposition that termination is improper unless there is an adopting parent waiting in the wings.   The statute itself imposes no duty on the superior court to make an express finding as to the prospects for adoption of a particular child.”  (In re Laura F. (1983) 33 Cal.3d 826, 838, 191 Cal.Rptr. 464, 662 P.2d 922, fn. omitted.)   Acknowledging that the policy underlying termination of parental rights to foster children is to facilitate the adoptive process, the court noted that the possibility of adoption is sufficient.  (Ibid.)

Finally, we fail to understand the rationale for finding it would be contrary to public policy to place a child in a situation where he or she would have only one legal parent.   Indeed, single parent adoptions are routinely permitted and are viewed favorably by the state as well as various social service agencies.   It would be ludicrous to conclude a parent who is ineffectual, unfit and unsuitable is better than no parent at all.

The order is reversed.   The trial court is directed to issue an order granting appellant's petition and to enter judgment accordingly.   The parties shall bear their own costs on appeal.

I respectfully dissent for the reasons previously expressed in my dissent in In re Randi D. (1989) 209 Cal.App.3d 624, 631–634, 257 Cal.Rptr. 421.   But in this case additional reasons for affirming the trial court—and an additional dire consequence of the majority's holding—are presented by the record.

James G. is anything but a model parent.   His disappearance while his wife was pregnant and his total neglect and abandonment of his moral and financial responsibility to her and Joshua deserve condemnation.   His failure to meet his moral responsibility by actively parenting his son is inexcusable;  however, a parent cannot be forced to exercise visitation or assist in raising a child.  (Louden v. Olpin (1981) 118 Cal.App.3d 565, 173 Cal.Rptr. 447.)

But James' failure to meet his financial responsibility is an entirely different matter.   As the majority notes, Donna had received $5,888 in public assistance before Joshua's first birthday.   In response to a complaint filed by the district attorney, James is now reimbursing the state for at least some of that money at the rate of $50 per month.   It is no wonder he joins Donna on this collusive appeal and that his counsel appeared for her below.   Allowing James to be legally free of his financial responsibility to Joshua where there is no prospective “long-term replacement for the otherwise permanent parental relationship that is being terminated” (In re Elise K. (1982) 33 Cal.3d 138, 146, 187 Cal.Rptr. 483, 654 P.2d 253 (conc. opn. of Bird, C.J.)) makes no fiscal sense.   If Donna cannot support herself and Joshua, and the state provides the needed financial support, the taxpayers should retain the right to proceed against James for reimbursement.   If Donna becomes self-supporting and does not need child support from James, I am confident he will not force her to accept it.   But why not give Joshua an additional resource, however inadequate it presently appears, by preserving his right to financial support from his father?

I agree with the trial court, as the Legislature has clearly stated in Civil Code section 232.6, the purpose of a section 232 proceeding is to free a child for adoption.   This does not mean an adoptive parent must be “waiting in the wings.”  (In re Laura F. (1983) 33 Cal.3d 826, 838, 191 Cal.Rptr. 464, 662 P.2d 922.)   It does mean there must be the realistic possibility of an adoptive substitute for the terminated parent.

Allowing the custodial parent to obtain an order which has as its only practical effect the termination of the noncustodial parent's financial obligations opens new frontiers for negotiation in family law cases.   Many noncustodial parents will be eager to make other concessions in return for the custodial parent's cooperation in obtaining their release from the financial obligations of child support.   But the children who need that financial support, and the taxpayers who frequently will have to provide it, will be the ultimate losers.

Finally, the majority opinion suggests that reversal is required as a demonstration of support for single parent adoptions.   But this confuses apples with oranges.   Single parent adoptions are favored because a child with no parents at least gains one loving, nurturing parent.   This has nothing whatever to do with the majority's decision that Joshua, who already has his mother as a parent but who apparently lives in straitened economic circumstances, should be deprived forever of the financial support of his father.

I would affirm the judgment.

FOOTNOTES

2.   This data is set forth in a probation officer's report prepared October 18, 1988, in connection with the termination proceeding.

3.   All further statutory references are to the Civil Code unless otherwise indicated.

4.   Earlier, the court explained that “legally speaking, it would appear that there has in fact, indeed, been abandonment of the minor child by [James].  [¶] And the court would otherwise be prepared to make a finding by clear and convincing evidence.   However, it does appear to the court from review of the file, that is, the petition and the AD file, that there has been no petition for adoption of the minor child.   That would mean that the minor child legally would have only one parent and no substitute father.  [¶] And the code section, that is, section 232.6 of the Civil Code, specifically states that the purpose of the chapter is to serve the welfare and best interest of the child by providing the stability and security of an adoptive home when those conditions are otherwise missing from his or her life.  [¶] And the entire thrust of the 232.6 section has to deal with freeing children up for purposes of adoption, not just freeing children up.   Otherwise, one could conceivably actually free the children up from both of their parents and they would have no parents at all, and that we do when the Department of Social Services has indicated that the child is adoptable and is already in the adoption pipeline.  [¶] There is no indication from the file or from the probation report or from any of the representations that this child is in the adoption pipeline.   And as a result, the court simply does not have any jurisdiction to grant the petition.   I cannot free this child up.”

5.   Section 232.6 states:  “The purpose of this chapter is to serve the welfare and best interests of a child by providing the stability and security of an adoptive home when those conditions are otherwise missing from his or her life.   A declaration of freedom from parental custody and control pursuant to this chapter terminates all parental rights and responsibilities with regard to the child.”

6.   Although he did not appear at the initial hearing, Donna's lawyer, whose offices are situated in Northern California, was present at the hearing on the reconsideration motion.   At the hearing, counsel represented to the court that Donna “has been employed and she is no longer on welfare since the end of December '88.”   The court “accept[ed counsel's] representation as if [it were] sworn testimony․”

7.   Section 232, subdivision (a)(1), provides for the termination of parental rights when:  “The child has been left without provision for the child's identification by his or her parent or parents or by others or has been left by both of his or her parents or his or her sole parent in the care and custody of another for a period of six months or by one parent in the care and custody of the other parent for a period of one year without any provision for the child's support, or without communication from the parent or parents, with the intent on the part of the parent or parents to abandon the child.”  (Emphasis added.)

8.   We take exception to a statement in California Juvenile Court Practice (Cont.Ed.Bar Supp.1990) § 21.20, p. 130, which reads:  “A termination proceeding may be brought only for the purpose of freeing the child for adoption.”

9.   Our dissenting colleague also misunderstands.   His concern over the possibility of collusion is meaningless.   We are confident trial judges will not sanction such behavior.   Notwithstanding our colleague's conclusionary leap, we note the trial court made no finding of collusion.

10.   AB 3070 also provided for the amendment of sections 224m and 224s of the Civil Code and section 11212 of the Welfare and Institutions Code, and for the addition of Article 13.5 (commencing with section 396) to Chapter 2 of Part 1 of Division 2 of the Welfare and Institutions Code, relating to child care.

11.   Perhaps “the taxpayers should retain the right to proceed against James for reimbursement.”  (Dis. opn. of Wallin, J., p. 225.)   However, that determination is for the Legislature.

SONENSHINE, Associate Justice.

MOORE, Acting P.J., concurs.