IN RE: DAVID F. (1992)

OPINION

A father attacks the judgment terminating his parental rights, challenging the adequacy of the reunification plan.   He also argues the critical detriment finding was made only on a preponderance of the evidence rather than under the constitutionally required clear and convincing standard.   We reverse on both grounds.

I

David F. was born March 9, 1990, with a positive drug screen and immediately taken into protective custody.   He has never lived with his parents.   David was initially placed with an adult half-sister, his father's daughter.   He was soon moved to the home of foster parents, however;  and they desire to adopt him.

Robert F., the natural father, has a long history of drug abuse and crime.   But prenatal drug use by David's mother was the sole impetus for the dependency petition.¹  An amended petition somewhat inconsistently alleged, “The minor's father should have known of the minor's mother's illegal drug usage and failed to protect minor from same.   Father states mother was participating in a methadone program and thus did not suspect her of using any other substances.” ²  Robert pleaded nolo contendere to the amended petition.

Pursuant to the preliminary service plan adopted at the dispositional hearing, Robert regularly visited his son for the first months of the out-of-home placement.   But he was arrested for burglary on September 23, 1990, weeks before the six-month review, and incarcerated in the Orange County jail.   He was soon sentenced to 18 months and sent to Mule Creek State Prison in Ione.   His targeted release date was June 1991.

In the meantime, an updated reunification plan had been drafted for the six-month review hearing.   It was prepared before Robert's arrest, however, and was not modified to reflect his incarceration.   The juvenile court adopted the plan nonetheless.   Other than to call for Robert's participation in drug treatment and twelve-step programs, the plan was essentially unworkable for an individual incarcerated in a far-off corner of the state.

The 12–month review was held in May 1991.   Although Robert was slated for release from prison the following month, the case worker recommended termination of reunification efforts, arguing there was no likelihood he would be able to assume custody within the next six months.   At that hearing, the court determined on a preponderance of the evidence that it would be detrimental to return David to his father.   The judge also concluded reunification services had been reasonable and terminated them.

Robert was released from custody as scheduled in June.   He moved into a halfway house, obtained employment, and became involved in several counseling programs.   The selection and implementation hearing was held on October 31, 1991.   Robert was still in the residential program and not in a position to assume custody of David.   The court, after determining by clear and convincing evidence that the minor was adoptable, terminated Robert's parental rights.

II

A

Robert raises three issues concerning reunification services.   They are properly before us in this post-termination appeal.  (In re Cody L. (1992) 7 Cal.App.4th 1831, 9 Cal.Rptr.2d 882;  In re Siebrina B. (1992) 7 Cal.App.4th 1842, 9 Cal.Rptr.2d 889.)   Two are easily resolved, and we consider them in the margin.³

Robert's real dissatisfaction is with the reunification plan itself.   He aptly notes, the “service plan was written before [he] was incarcerated [although adopted after] and was almost completely irrelevant to the situation as it stood at that time.”   It certainly was.

 We recognize the difficulties faced by SSA when attempting to coordinate a reunification plan for a state prison inmate whose sentence is at odds with the 18–month–and–out statutory scheme for reunification.   But attempt it must.   The Legislature has explicitly mandated reunification services for incarcerated parents “unless the court determines those services would be detrimental to the minor.”  (Welf. & Inst.Code, § 361.5, subd. (e)(1).) ⁴  No such determination was made here.   Accordingly, when the court ordered a reunification plan for this father and son, it was required to be a reasonable one.   This plan was not.   The finding that reasonable reunification services were offered is, accordingly, not supported by substantial evidence.

B

It appears to us that SSA's lack of enthusiasm for reunification here may stem from Robert's most recent burglary.   But the amended dependency petition did not accuse him of harming the child;  to the contrary, it acknowledged he denied awareness of the prenatal drug abuse by the minor's mother, merely alleging he should have known.   Yes, Robert has a long drug abuse and criminal history.   But loss of one's children should not be an automatic consequence of a felony conviction, and the record before us contains unrebutted current evidence of successful progress toward rehabilitation.

In evaluating the effect of a parent's incarceration on the decision to sever his or her rights, “the welfare of the child is not the sole determining factor;  the [statutory scheme] requires clear and convincing proof of the parent's unfitness to have the future custody and control of the child.   This requires evidence such as expert opinion based on a personal examination of the parent, an evaluation of the parent's criminal history or conduct while in prison or other facts from which a rational inference may be drawn that the parent will be unable to properly care for the child in the future.  [¶] Second, prison incarceration does not ipso facto show a parent's unfitness․   The [SSA] must prove by clear and convincing evidence that the parent has not or cannot be rehabilitated during incarceration so that when he or she is released from prison the parent would be unable to properly care for the child.   Again, this requires solid, credible evidence and not mere speculation.”  (In re Terry E. (1986) 180 Cal.App.3d 932, 953, 225 Cal.Rptr. 803.)

In Terry E. the Social Services Agency sought to terminate a mother's parental rights under Civil Code section 232, subdivision (a)(4).⁵  There is no direct parallel in the revised statutory scheme, which includes somewhat different criteria.   But under the new provisions, the unfitness finding, which has become part of the detriment issue, must still be based on current facts and prognoses, not past history.

In re Rodrigo S. (1990) 225 Cal.App.3d 1179, 276 Cal.Rptr. 183, although dealing with a termination under Civil Code section 232, is instructive on the detriment question:  “A finding of detriment to the child must be based on present circumstances rather than on the family situation which existed at the time the child was initially removed from parental custody.  [Citations.]”  (Id. at p. 1186, 276 Cal.Rptr. 183.)   The Rodrigo S. court added the judicially decreed removal of a child from parental custody, even with “evidence that the child is psychologically fragile,” is not enough to justify termination of parental rights where there is no “evidence that the boy cannot return to his father without suffering psychological or emotional harm other than that inherent in any move from one home to another.  [¶] Absent such evidence the only support for the detriment finding is the loss of a highly successful foster care placement.   While we in no way minimize the impact such a loss will be for [the child], we cannot say that such evidence standing alone is sufficient to support a finding of detriment.”  (Id. at p. 1187, 276 Cal.Rptr. 183.)   We agree.

It is simply not fair to dependent children, their parents, or the preadoptive foster families for SSA to fashion an irrelevant service plan and then a year or 18 months later argue the lack of parental contact and logistical impossibility of compliance with the plan during incarceration make it detrimental to do anything but terminate parental rights.   When a parent faces a year or more of incarceration, hard choices need to be made at the dispositional hearing or six-month review.

III

 As we have said, nothing in the record justifies an assumption that Robert is not currently able to appropriately parent his child.⁶  There is the possibility, however, that reunification or another suitable arrangement involving a continuing relationship cannot be accomplished.   In that case, SSA will undoubtedly again seek to sever Robert's parental rights.   But the termination judgment we reverse today was based on two findings: ⁷  (1) David's adoptability and (2) the conclusion under Welfare and Institutions Code section 366.21, subdivision (f) that a return to his father would “create a substantial risk or detriment to the physical or emotional well-being of the minor.” ⁸  The latter finding was made at the 12–month review on a preponderance of the evidence standard.

The United States and California Supreme Courts have unequivocally held that parental rights cannot be terminated on less than clear and convincing evidence.  (Santosky v. Kramer (1983) 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599;  In re Angelia P. (1981) 28 Cal.3d 908, 171 Cal.Rptr. 637, 623 P.2d 198.)  In re Cheryl E. (1984) 161 Cal.App.3d 587, 207 Cal.Rptr. 728 succinctly explains what this means:  “[T]he fundamental liberty interest of the natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the state.  (Santosky v. Kramer [supra] 455 U.S. 745, 753 [102 S.Ct. 1388, 1394].)  Parental rights have not been abrogated to the extent that the child's best interests are the only consideration in severing legal bonds between parent and child.   The right of an individual to raise his or her own child free from unwarranted state intrusion remains a fundamental right.  (In re Carmaleta B. (1978) 21 Cal.3d 482, 489, [146 Cal.Rptr. 623, 579 P.2d 514];  Adoption of D.S.C. (1979) 93 Cal.App.3d 14, 23–24, [155 Cal.Rptr. 406].)  ․ [I]n determining whether the legal status between child and natural parents should be severed, the right of the parents is not always to be subordinated to the best interests of the child.”  (In re Cheryl E., supra, 161 Cal.App.3d at p. 606, 207 Cal.Rptr. 728.)

Because of the clear constitutional mandate, the majority of this panel adheres to the view that each necessary precondition to the termination of parental rights must be based on clear and convincing evidence.  (See fn. 8, ante.)   Accordingly, the current statutory provisions permitting severance when the detriment finding is made on the lesser preponderance standard are unconstitutional.  (In re Anita G. (1992) 12 Cal.Rptr.2d 265;  In re Reylene A. (1992) 7 Cal.App.4th 1822, 10 Cal.Rptr.2d 121;  In re Cristella C. (1992) 6 Cal.App.4th 1363, 8 Cal.Rptr.2d 342 [dis. opn. of Crosby, J.].)  We disagree with the majority in Cristella C. and the more recently filed In re Heather Nadine B. (1992) 9 Cal.App.4th 535, 11 Cal.Rptr.2d 891.

The detriment finding previously made in this case was constitutionally flawed and provides an independent basis for reversal.  (Santosky v. Kramer, supra, 455 U.S. 745, 102 S.Ct. 1388;  In re Angelia P., supra, 28 Cal.3d 908, 171 Cal.Rptr. 637, 623 P.2d 198.)   It may not be used to support a future termination of the father's parental rights.

An appropriate service plan has not been in place since the six-month review hearing;  consequently, the judgment is reversed with directions to proceed anew from the time of the erroneous ruling at that hearing.

I concur in the result.  Welfare and Institutions Code section 361.5, subdivision (e)(1) states in relevant part:  “If a parent ․ is incarcerated ․ the court shall order reasonable services unless the court determines those services would be detrimental to the minor.”  (Italics added.)   The statute then enumerates several kinds of reunification services the court may order (phone calls, transportation or visitation) and provides that an incarcerated parent may be required to attend counseling, parenting classes or vocational training programs.   Here, there was no attempt to comply with this statute at all.   That is enough to require reversal.

For obvious reasons I dissent from the dicta about the appropriate standard of evidence on the narrow question of whether, after a child has already been removed from a parent because of clear and convincing evidence of danger, the child may be returned to the parent.  In re Heather Nadine B. (1992) 9 Cal.App.4th 535, 11 Cal.Rptr.2d 891 focuses on this problem, and demonstrates why a preponderance standard represents an equitable allocation of the risks of an erroneous decision.  (See In re Heather Nadine B., supra, 9 Cal.App.4th at p. 535, 11 Cal.Rptr.2d 891.)   Today's decision makes no attempt to grapple with, much less refute, that demonstration.

FOOTNOTES

1.   The minor's mother has not appealed from the termination of her parental rights.

2.   We wonder how the Social Services Agency could ever have proved the gist of these allegations and why Robert would not have resisted them.

3.   The father first challenges the statutory 18–month deadline for reunification services on the basis that it is arbitrary and a violation of due process.   The issue is legally irrelevant in this case, however, because reunification services were terminated at the 12–month review.   In any event, this court has already rejected the boilerplate argument raised here.  (In re Cody L., supra, 7 Cal.App.4th at p. 1840, 9 Cal.Rptr.2d 882.)   Next, Robert complains that the 12–month review was held 11 months after the dispositional hearing and he did not receive a full 12 months of reunification services.   But no statutory provision guarantees him a minimum of 12 months of services.  Welfare and Institutions Code section 361.5, subdivision (a) merely states that reunification services shall be provided “within a maximum time period not to exceed 12 months.”   Moreover, his argument overlooks the significant fact that the 12–month hearing was held on May 8, 1991, when David was 15 months old and had been in out-of-home placements his entire life.

4.   A panel of the Court of Appeal of the Fifth District recently held a finding on clear and convincing evidence that a dependent child is adoptable coupled solely with the denial of reunification services under Welfare and Institutions Code section 361.5, subdivision (e) (as opposed to subdivision (b)) will not support the termination of parental rights under section 366.26, subdivision (c)(1).  (In re DeLonnie S. (1992) 9 Cal.App.4th 1109, 12 Cal.Rptr.2d 43.)   We agree the Legislature appears to have created a legal cul-de-sac for some children of incarcerated parents and join our colleagues in urging immediate remedial legislation.

5.   Civil Code section 232, subdivision (a)(4) authorizes termination of parental rights if a “parent or parents are convicted of a felony, if the facts of the crime of which the parent or parents were convicted are of a nature so as to prove the unfitness of the parent or parents to have the future custody and control of the child.”

6.   Although we must reverse the judgment terminating his parental rights, it is unlikely David will be immediately returned to Robert's custody.   The court is more apt to fashion a guardianship or other arrangement with the initial goal of reunification.   If this is the case, we urge the juvenile court in the first instance to permit meaningful contact between father and son, something significantly more conducive to reunification than a sterile, hour-long, monitored visit in an impersonal, one-way mirrored SSA office once a month, a common local practice, it appears, when the agency has its heart set on adoption over reunification.

7.   Every termination of parental rights is based on at least two findings.   One is always the likelihood of adoption.   Per Welfare and Institutions Code section 366.26, subdivision (c)(1), that finding must be made on clear and convincing evidence at the selection and implementation hearing.The second finding is made at some point before the selection and implementation hearing.   It is one of the following:  (1) a determination at the dispositional hearing, supported by clear and convincing evidence, that no reunification services will be provided (Welf. & Inst.Code, §§ 361.5, subd. (b);  366.26, subd. (c)(1));  (2) a determination at the six-month review, supported by clear and convincing evidence, that (a) the parents' whereabouts are unknown, (b) there has been a failure to contact the child for six months, or (c) the parent was convicted of a felony indicating parental unfitness (Welf. & Inst.Code, §§ 366.21, subd. (e);  366.26, subd. (c)(1));  or (3) a determination at the 12– or 18–month review “that return of the child would create a substantial risk or detriment to the physical or emotional well-being of the minor” (Welf. & Inst.Code, §§ 366.21, subd. (f);  366.22, subd. (a)).   Per sections 366.21, subdivision (f) and 366.22, subdivision (a), this latter finding need only be made on a preponderance of the evidence.A third finding is necessary if reunification services are ordered for the full 18 months.   In those cases, a hearing to terminate parental rights cannot even be scheduled “unless there is clear and convincing evidence that reasonable services have been provided or offered to the parents.”  (Welf. & Inst.Code, § 366.21, subd. (g)(1).)   We have carefully perused the applicable statutes and cannot find a comparable prerequisite for cases where reunification services are terminated at the 12–month review.We cannot discern any rational basis for mandating the finding at 18 months and not at 12.   Moreover, the discrepancy has the potential for significant mischief:  What findings are necessary in those cases where the 12–month review has been continued and is not conducted until the child has been in an out-of-home placement for 18 months?   This is just another example of a glitch in the statutory scheme that cries out for correction.

8.   We note that the first sentence of subdivision (e) of section 366.21 is identical to the first sentence in subdivision (f) except for two words:  Subdivision (e) refers to “the review hearing held six months after the initial dispositional hearing,” while subdivision (f) references “the review hearing held 12 months after the initial dispositional hearing.”   Subdivision (e) compels return of a dependent minor to a parent or guardian 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.”   Subdivision (f) inexplicably changes the criterion and mandates return unless “by a preponderance of the evidence [the court] finds that the return of the child would create a substantial risk or detriment to the physical or emotional well-being of the minor.”   Surely the “or” was supposed to be an “of,” or was it?   This, too, appears to need fixing.

CROSBY, Associate Justice.

WALLIN, J., concurs.