IN RE: CASSANDRA V. (1992)

OPINION

Michael V. and Kim S., parents of Cassandra V., appeal from a juvenile court order terminating their parental rights (Welf. & Inst.Code 1, § 366.26), as well as from an earlier order setting the permanency planning hearing.   We will reverse the termination order as to both parents on federal constitutional grounds.

STATEMENT OF CASE AND FACTS

In April 1989, Michael V. was in custody for allegedly assaulting Kim S.   On a date set that month for a hearing on the criminal charges, Kim brought Cassandra (then less than six months old) with her to the courthouse.   At some point, the mother was overheard to say she was going to break Cassandra's neck because the child was making too much noise sucking on her bottle.   Some time thereafter, Kim approached a stranger and handed the baby to her.   The mother told the stranger “ ‘here, take care of my baby before I hurt her.’ ”   The stranger took Cassandra to Child Protective Services.

The Stanislaus County Department of Social Services (DSS) filed a dependency petition pursuant to section 300, subdivisions (b) and (g), based on the courthouse incident and the father's in-custody status.   The parents pled no contest to the allegations of the petition.

At a May 1989 disposition hearing, the juvenile court removed the minor from the custody of her parents, based on a finding the infant's health was in substantial danger.

Reunification services were ordered for both parents.   Thereafter, the parents received a variety of services for approximately 18 months.   In addition to parenting classes, the parents were afforded substance abuse counseling and, in the mother's case, services with the Valley Mountain Regional Center.   The mother qualified for regional center services based on her mild mental retardation classification.   Michael V.'s intelligence quotient was “just above the regional center eligibility level.”

Meanwhile, the parents had a second child, Anthony.   In September 1990, when Anthony was approximately nine months old, Kim S. called her social worker and asked him to come and take the baby because she could no longer provide care for him.   As it was, the child was ill and required immediate medical attention.   Up to this point, it appeared the mother and father had improved their parenting skills and were “getting along fairly well.”   The social worker had even recommended a trial visit between Cassandra and her parents.   However, the September 1990 incident so concerned the social worker that he believed it would be impossible for the parents to care for both children.   The social worker therefore recommended that the juvenile court terminate reunification efforts and designate adoption as the permanent plan for Cassandra.

At the conclusion of a status review hearing (§ 366.22) in December 1990, the juvenile court found:  (1) reunification had not been effected despite 18 months of reasonable services and the best of intentions on the parents' part;  and (2) there was no substantial likelihood Cassandra would be returned to her parents.   In addition, the court found Cassandra would be exposed to a substantial risk of detriment if she were returned to the custody of her parents.   Accordingly, the court entered an order scheduling a permanency planning hearing under section 366.26.

At the section 366.26 hearing, the court found it “extremely likely—almost a certainty—that [Cassandra], in fact, will be adopted.”   The court noted the foster parents, with whom the child had been living for 18 months, were extremely dedicated to her and willing to make the commitment to adopt.   Therefore, the court found it in the child's best interest to terminate the rights of her natural parents.

DISCUSSION

The parents contend the order terminating their rights was erroneously entered.   This order was in part based upon the court's earlier finding, made at the December 1990 review hearing, that returning Cassandra to her parents' custody would expose her to a substantial risk of detriment.  (§ 366.26, subd. (c)(1);  § 366.22, subd. (a).)  According to the parents, the record does not support this determination nor does it establish that the juvenile court, in arriving at the finding of detriment, applied the standard of proof—clear and convincing evidence—mandated by the Constitution of the United States.   Consequently, they argue the subsequent order severing their parental ties to Cassandra had a legally inadequate foundation.

 Before we assess the merits we must resolve an important procedural issue raised by DSS.   The department maintains the findings made by the juvenile court at the December 1990 status hearing may not be reviewed by appeal from either the order directing a permanency planning hearing or the subsequent order terminating parenthood.

This court has held that subdivision (k) of section 366.26 ² prohibits a parent from challenging the evidentiary basis of a juvenile court's findings concerning detriment and the adequacy of reunification services by way of appeal from a referral order made at an 18–month review hearing.  (In re Amber U. (1992) 3 Cal.App.4th 871, 880–881, 4 Cal.Rptr.2d 726.)   In addition, section 366.26, subdivision (k) may preclude the parents from attacking the evidentiary insufficiency of the findings made at a review hearing by appeal from the subsequent termination order.   This provision could be read to reflect a legislative intent to permit an aggrieved parent to challenge the factual findings underlying a section 366.26 referral order only by means of a petition for writ of mandate presented before the date set for the permanency planning hearing.   Such a rule would seem to be consistent with the legislative purpose of creating a scheme sensitive to both the goal of reunification, where feasible, and the recognition of the importance of providing stable permanent homes for minor children whose parents are unable to care for them.   Thus, allowing review of such findings on appeal from the later termination order might promote unacceptable delay in the ultimate resolution of dependency proceedings, in violation of the strong public policy against protracted litigation in child custody cases.  (See In re Rebecca H. (1991) 227 Cal.App.3d 825, 836–837, 278 Cal.Rptr. 185, and In re Catherine S. (1991) 230 Cal.App.3d 1253, 1256–1257, 281 Cal.Rptr. 746.)   The issue is pending before the California Supreme Court.  (In re Matthew C. (S025565) review granted April 23, 1992.)

We reaffirm In re Amber U.   However, we are unwilling to say in this case that the parents gave up the right to question the constitutionality of the termination order based upon the earlier finding of detriment by failing to timely file a writ petition after the juvenile court found detriment and ordered a section 366.26 hearing.   Essential to the parents' contention is the assertion California's new statutory scheme for the termination of parental rights is fatally flawed to the extent the crucial finding of detriment may be based upon the minimum “preponderance of the evidence” standard.   This claim raises important federal constitutional issues which have not yet been passed upon by our State Supreme Court.   The fact that a state court may legitimately refuse to hear “tardily raised constitutional challenges” does not mean the state court is obliged as a matter of federal law to refrain from reaching the federal constitutional question.  (See Orr v. Orr (1979) 440 U.S. 268, 275, fn. 4, 99 S.Ct. 1102, 1109, fn. 4, 59 L.Ed.2d 306.)

 We now turn to the substantive issue raised by the parents.   Due process requires that the findings which support a termination of parental rights must be made on the basis of clear and convincing evidence.   (Santosky v. Kramer (1982) 455 U.S. 745, 768–770, 102 S.Ct. 1388, 1402–1403, 71 L.Ed.2d 599;  In re Angelia P. (1981) 28 Cal.3d 908, 919, 171 Cal.Rptr. 637, 623 P.2d 198.)   Under California's statutory scheme relating to post January 1, 1989, dependency proceedings, the termination of parental rights is authorized when the juvenile court makes:  (1) a finding at the permanency planning hearing that the child is adoptable;  and (2) any one of five additional findings listed in subdivision (c)(1) of section 366.26,³ each of which is made prior to the permanency planning hearing.  (§ 366.26, subd. (c)(1).)

The Legislature has expressly provided that the finding concerning the likelihood of adoption must be made by clear and convincing evidence.  (§ 366.26, subd. (c)(1).)   It has established the same requirement for most of the findings upon which a termination order may be based.⁴  However, there is no such direction in the two statutes which necessitate a finding of detriment if the court does not return the minor to parental or guardian custody at the 12– or 18–month review hearing (§ 366.21, subd. (f);  § 366.22, subd. (a)).   In fact, both of these provisions expressly prescribe the lesser standard of a preponderance of the evidence.   The question whether these statutes satisfy, or can be interpreted to satisfy, due process is now before the California Supreme Court.  (Cynthia D. v. Superior Court (S025807) review granted Apr. 23, 1992;  In re Daniela M. (S025571) review granted Apr. 23, 1992.)

 There should be no doubt about the applicable federal constitutional principle.   The state may not sever completely and irrevocably the rights of parents in their natural child unless the justification for such action is proved by the state by at least clear and convincing evidence.  (Santosky v. Kramer, supra, 455 U.S. at p. 747–748, 102 S.Ct. at p. 1391.)   Moreover, it seems evident that this justification, however it may be articulated by a particular state statute, cannot be based solely upon a consideration of the best interests of the child.  (Santosky, at p. 760, fn. 10, 102 S.Ct. at p. 1398, fn. 10;  see also Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849–851, 4 Cal.Rptr.2d 615, 823 P.2d 1216.)   Instead, termination must rest upon a judicial adjudication that the parents are “unfit to raise their own children.” ⁵  (Santosky, 455 U.S. 745, 760, 102 S.Ct. 1388, 1398.)   Until such a determination is made, the child and his or her parents are not adversaries, and “share a vital interest in preventing erroneous termination of their natural relationship.”  (Id., at p. 760, 102 S.Ct. at p. 1398.)   Thus, the constitutional measure of clear and convincing evidence must be employed at the point in the proceeding when the critical factual determination of parental unfitness is made.  (Id. at pp. 768–769, 102 S.Ct. at pp. 1402–1403.)

 The juvenile court in this case resolved the question of parental fitness when it found at the 18–month review hearing that Cassandra would be subject to a substantial risk of detriment if she were returned to the custody of her parents (§ 366.22, subd. (a)).   It was to this issue which facts bearing upon the prospective ability of Cassandra's parents to raise her were relevant;  it was to this issue which the clear and convincing standard of proof applied.  (Santosky, 455 U.S. at pp. 760 and 768–769, 102 S.Ct. at pp. 1398 and 1402–1403.)

We realize some may argue otherwise.   In the very recent case of In re Heather Nadine B. (1992) 9 Cal.App.4th 535, 11 Cal.Rptr.2d 891 an appellate panel found no constitutional fault with a detriment finding based on a preponderance of the evidence.   The Heather Nadine B. court instead relied upon the initial order, made pursuant to clear and convincing evidence, for removal of the minor from a parent's custody (§ 361, subd. (b)).  We cannot adopt this analysis.   A finding which supports the removal of a minor from parental custody may be viewed as a judicial evaluation of the parent's competence at the time the dependency action is commenced.   However, under California's statutory scheme, this initial decision is not the turning point in the relationship between parent and child.   The pivotal factfinding battle over parental fitness is fought after the reunification period elapses, not before it commences.⁶  (In re Reylene A. (1992) 7 Cal.App.4th 1822, 1828–1829, 10 Cal.Rptr.2d 121.)

The primary purpose of the California dependency laws is to preserve and, if possible, reunify the family when removal of the minor was found necessary at the outset of the proceedings.  (§ 202, subd. (a);  § 300, subd. (j).) ⁷  Reunification is the centerpiece of the statutory plan;  services must be offered except in limited, clearly defined circumstances.  (§ 361.5, subd. (a).)  The Legislature has recognized that not all instances of parental inadequacy are irremedial;  with help tailored to fit his or her particular need, a parent may respond positively and succeed in alleviating the conditions that prompted the state to intervene in the first place.   Thus, section 366.26, subdivision (c)(1) does not authorize termination based in any part upon the finding which supported the original removal.   Instead, it authorizes termination based upon, in addition to the finding of adoptability, a finding of detriment which may be made only if the parent has been afforded a reasonable opportunity, when feasible, to cure the problems which led to the dependency.   Without such a finding, the child must be returned to parental custody.  (§ 366.21, subd. (f) & § 366.22, subd. (a).)  Consequently, resolution of the detriment question under section 366.21, subdivision (f) or under section 366.22, subdivision (a) constitutes an ultimate, watershed determination of parental fitness.  Santosky requires that it be decided by application of the clear and convincing standard of proof if a positive finding of detriment is to be subsequently relied upon to terminate parental status.  (Santosky, 455 U.S. at pp. 760 and 768–769, 102 S.Ct. at pp. 1398 and 1402–1403;  Reylene A., supra, 7 Cal.App.4th at p. 1827, 10 Cal.Rptr.2d 121.)

Similarly, the finding that Cassandra was adoptable (§ 366.26, subd. (c)(1)) did not involve any consideration of parental fitness.   Whether a child is adoptable entails an assessment of the child's potential with respect to persons other than his or her natural parents.  (See §§ 366.21, subd. (i) and 366.22, subd. (b).)  It may be appropriate and even constitutionally required that the issue of adoptability be decided on the basis of clear and convincing evidence.   Nevertheless, the fact that section 366.26, subdivision (c)(1) expressly provides for such an enhanced quantum of proof with respect to this finding does not satisfy Santosky.   For this reason, whether the California termination statutes satisfy federal due process standards cannot be evaluated by application of Santosky's risk allocation rationale solely to the question of adoptability.  (See, e.g., In re Cristella C. (1992) 6 Cal.App.4th 1363, 8 Cal.Rptr.2d 342.)

 In this case, the trial court did not identify the evidentiary standard it utilized to arrive at the finding of detriment.   Where uncertainty exists about the appropriate standard of proof to be employed in a particular instance, the appellate court will not presume the trial court applied the correct one.  (People v. Jimenez (1978) 21 Cal.3d 595, 609, 147 Cal.Rptr. 172, 580 P.2d 672;  See also Ross v. Superior Court (1977) 19 Cal.3d 899, 914–915, 141 Cal.Rptr. 133, 569 P.2d 727;  In re Bernadette C. (1982) 127 Cal.App.3d 618, 625, 179 Cal.Rptr. 688.)   Such uncertainty exists here.

Although clear and convincing evidence was selected some time ago by both the United States Supreme Court (Santosky v. Kramer, supra, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599) and the California Supreme Court (In re Angelia P., supra, 28 Cal.3d 908, 919, 171 Cal.Rptr. 637, 623 P.2d 198) as the standard to be applied to the question of parental unfitness, sections 366.21, subdivision (f) and 366.22, subdivision (a) each provide that the lesser “preponderance” measure will be used to make the detriment finding.   Further, the legislative scheme terminating parental rights in post–1989 dependencies is relatively new and has only recently been subject to appellate scrutiny.   The uncertainty about whether these statutes comport with constitutional mandates is amply demonstrated by the inconsistent intermediate appellate decisions on the topic and the pendency of the issue before the State Supreme Court.

Under these circumstances, we will not presume the juvenile court applied the constitutionally correct standard of clear and convincing evidence in connection with its decision on the issue of detriment made at the December 1990 status hearing.   In addition, the record suggests the juvenile court most likely employed the incorrect standard in making the detriment finding.   Specifically, the social worker recommended the court make such finding by a “preponderance of the evidence.”   There is no record this recommendation was challenged or questioned in the juvenile court.

There is no need to consider any other issue raised on this appeal.

DISPOSITION

The orders (judgments) terminating the parental rights of Michael V. and Kim S. are reversed.   The juvenile court's finding of a substantial risk of detriment under section 366.22, subdivision (a) is vacated.   On remand, the court shall conduct a new status review hearing pursuant to the terms of section 366.22.   At such hearing, the standard of proof applicable to any determination by the juvenile court of substantial risk of detriment shall be clear and convincing evidence.   In addition, at such hearing the juvenile court may receive and consider evidence which reflects facts and events that have occurred subsequent to the entry of the termination order as well as evidence previously admitted.

FOOTNOTES

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.   Section 366.26, subdivision (k) provides:“An order by the court directing that a hearing pursuant to this section be held is not an appealable order, but may be the subject of review by extraordinary writ.”

3.   Those five findings are:  reunification services shall not be provided (§ 361.5, subd. (b));  the whereabouts of a parent have been unknown for six months (§ 366.21, subd. (e));  the parent has failed to visit or contact the child (§ 366.21, subd. (e));  the parent has been convicted of a felony indicating parental unfitness (§ 366.21, subd. (e));  or the minor cannot or should not be returned to his or her parent or guardian because to do so would create a substantial risk of detriment to the physical or emotional well-being of the minor (§ 366.21, subd. (f);  § 366.22, subd. (a)).

4.   The findings referred to in § 361.5, subdivision (b) and § 366.21, subdivision (e) must be based upon clear and convincing evidence.

5.   In Santosky, 455 U.S. at p. 745, 748–749, 102 S.Ct. at p. 1388, 1391–1392, parental unfitness under New York law was confirmed by a finding that the minor had been “permanently neglected” by his or her parents.

6.   This apparently was also the case under the New York statutes involved in Santosky.   At one point in the Supreme Court's opinion, it notes that the “intensity of the State's efforts to reunite the family” is a relevant issue in the determination of permanent neglect.  (Santosky, 455 U.S. at p. 762, 102 S.Ct. at p. 1399.)

7.   These statutory aims are consistent with Santosky 's conclusion that the parens patriae interest favors preservation rather than termination of parental bonds when there is reason to believe a positive, nurturing parent-child relationship may be possible.  (Santosky, 455 U.S. at p. 766–767, 102 S.Ct. at p. 1401–1402.)

DIBIASO, Associate Justice.

BEST, P.J., and VARTABEDIAN, J., concur.