IN RE: NATHANIEL P. et al. (1989)

I

Statement of the Case

Appellant David P. appeals from a judgment of the San Francisco Juvenile Court terminating his parental rights under Civil Code section 232, subdivision (a)(7).   We hold the determination of an issue in a dependency proceeding brought under Welfare and Institutions Code section 300 ¹ cannot be used to invoke the doctrine of collateral estoppel to bar relitigation of that issue in a subsequent proceeding between the same parties to terminate parental rights under Civil Code section 232.   We reach this conclusion because the petitioner's burden of proof is higher in the termination proceeding.   Accordingly, we reverse the judgment.

II

Statement of Facts

On December 10, 1986, a verified petition for freedom from parental custody and control was filed in the San Francisco Superior Court on behalf of Nathaniel and Jennifer P., the minor children of appellant David P.   The petition contained two causes of action;  the first cause of action was under Civil Code section 232, subdivision (a)(1) and the second cause of action was under Civil Code section 232, subdivision (a)(7) ² .  The matter was tried on March 12, 1987, and the second cause of the petition action was sustained.   An order declaring the minors free from parental custody and control was filed on April 1, 1987.   This appeal followed.

The original petition filed by the Department of Social Services (the “Department”) alleged the minors were in need of proper and effective parental care and supervision under the provisions of section 300, subdivision (a).   This petition was sustained on July 2, 1984.

On October 18, 1984, following a contested dispositional hearing, the court committed Nathaniel and Jennifer to the care and custody of the Department for out-of-home placement and supervision in a therapeutic setting.   The father was given the following conditions for reunification with his children:  participate in individual therapy for a period to be determined by the treatment provider and the social worker;  successfully complete a parenting education program;  maintain regular visitation and involvement with the children;  and maintain regular contact and cooperation with the social worker to develop and complete the service plan.

On October 10, 1985, the Department filed an amended petition under section 300, subdivision (d).   This petition accused the father of physically and sexually abusing his children.   Among the facts offered in support of this amended petition were the following:  that about September 30, 1984 [sic],³ both children told their foster parents, Sheila Koren and Ilaine Levine, that David P. sexually abused Jennifer;  about October 1, 1985, both children reported sexual abuse to a Department staff member;  Jennifer's therapist reported that Jennifer displays behavior indicative of sexual victimization;  on October 7, 1985, Nathaniel reported sexual abuse to Jennifer and himself by his father;  Nathaniel and the children's mother reported instances of physical abuse;  and David P. has a criminal history having been charged previously with oral copulation and sexual assault to a minor which resulted in a plea bargain and a plea of guilty of battery.

On October 18, 1985, the children's therapist, Janice DeCovnick, Ph.D., recommended to the social worker that the children's visits with their father be discontinued.   The court ordered the father's visits with his children terminated.   On January 24, 1986, the subsequent petition under section 300, subdivision (d) was sustained, the court finding it true that Jennifer had been sexually molested by her father, that Jennifer displayed to her therapist behavior which indicated she had been sexually molested and that the father had physically abused both children.

On April 16, 1986, the court denied the father's motion for renewed visitation rights and for evaluation of the foster home.   The court granted his motion for appointment of a psychologist to assist him in preparing his defense to the petition to terminate his parental rights and also appointed a child psychologist to examine the children.

Because Nathaniel and Jennifer could not yet be reunited with their father, on May 20, 1986, the case came on for a contested permanency planning hearing under section 366.25.   Following the hearing, the court found resumption of visits by the father would be of questionable benefit to the children and that adoption would be in the best interests of the children.

At the trial to terminate parental rights, the minors' social worker testified to their history.   Nathaniel and Jennifer were first taken into protective custody in June 1984.   Nathaniel was then five years of age and Jennifer was three.   They had been cared for by their father since September 1983.   The children were found by San Francisco Police Officers alone on a traffic island at Army and Valencia Streets at about 8 p.m. on June 17, 1984.   They told the officers they were on their way to visit their baby-sitter.   They were taken to a shelter where they made statements that they had been left alone by their father.   They also said their father hit and physically abused them.

From August 1984 through October 1984, the children received therapy at the Child and Adolescent Sexual Abuse Resource Center in San Francisco General Hospital where they were referred because of suspected sexual abuse.   The center's therapist confirmed that the children had been physically abused and possibly sexually abused.   She concluded they were in need of long term psychotherapy.

The children left the emergency shelter for placement in a foster home.   The children proved difficult to handle and were soon moved to a second foster home.   The Department of Social Services then attempted to place the children in its “Fost/Opt” program in August 1984.   This program serves children whose reunification with a parent might not be likely.   After pre-placement visits among the potential Fost/Opt parents and the children, the prospective parents refused the children on the grounds the children were extremely disturbed and Jennifer shrank from the father figure in the home.

The children were then recommended for therapeutic placement.   The Department had no such home available which could take both children.   Sheila Koren and Ilaine Levine then came forward and expressed an interest in the children.   They had been foster parents previously with Alternative Family Services and were active with Foster Parents United.   The children were placed in this home on November 21, 1984.   Although the home was classified as a regular foster home, the home functioned as a therapeutic home in that Sheila Koren had some background in human services and had worked with clients so that she possibly could have been declared a therapeutic parent.

Janice DeCovnick, Ph.D., a licensed clinical psychologist, also testified at the termination hearing.   She first evaluated Nathaniel and Jennifer in July 1985 and since then has provided weekly therapy to both children.   Between July and October 1985, the children alternated visits with their parents, one week with their mother and the next with their father.   The children regressed shortly before and after these visits, their behavior becoming very chaotic and out of control.

The first report of sexual abuse by the father came to the therapist from the foster parents.   The therapist, however, did not believe the children had been “coached” by the foster parents to make this report because the report was consistent with the symptoms the children exhibited and the manner of the children's play during therapy sessions.   Also, “coached” stories usually do not remain consistent.

The therapist was not surprised when, questioning Nathaniel, he reported he and his sister had been sexually abused.   Jennifer had seemed preoccupied with sexual matter during her sessions with the therapist.   Nathaniel had exhibited signs of physical abuse but it was less clear to the therapist whether he had been sexually abused.   After Nathaniel spoke about sexual abuse by his father, the children told the therapist they did not want to see their father again, that they were angry with him and very frightened he would retaliate.

After the visits with their father were stopped, the children's behavior calmed down.   Nathaniel expressed his relief but Jennifer did not.   After the sexual abuse was revealed by Nathaniel, Jennifer began to regress in her behavior.   She became enuretic and encropretic.   The therapist believed Jennifer's behavior resulted from the fact she was not yet ready to reveal the sexual abuse.

The therapist gave her opinion that parental rights should be terminated.   She based her opinion on the fact the children told her they hated their father and they had become quite attached to their foster parents.   In her opinion, it would be psychologically devastating to return the children to their father where they would expect all kinds of retaliation and punishment.   She also based her opinion on the fact the children reported to her that they were molested by their father.

Michele Rutherford, the children's social worker, testified to the reunification efforts made by the Department and the father's performance of the conditions of reunification.   The father remained in contact with the social worker.   He participated in individual therapy but he was not successfully engaging in the therapy and was resistant to the therapeutic process.   He attended therapy at the Center for Special Problems as a condition of his probation after his plea bargain to the charge of battery.   He was originally assigned to an incest group but when he objected, he was allowed to attend individual therapy.   He attended this therapy until May 15, 1985, when his probation expired.   He attended 14 visits with his children but missed nine.   The social worker believed the father did not successfully complete parenting classes, although he attended two courses.   The social worker supervised the father's visits with his children and observed that he repeatedly showed an inability to respond to the children's needs.   During these visits, the children's behavior was chaotic and they misbehaved.   The father was unable to deal appropriately with this behavior, insisting that his children were normal and did not have any problems.   The father signed a first service agreement consenting to perform the conditions for reunification.   He refused to sign a second such agreement because he objected to attending more therapy.   The social worker also expressed the opinion that reunification of the father with the children would not be in the best interests of the children.   This opinion was based upon her observation of his visits with the children and upon her work with the father.

The children's mother testified she approved of the plan to have the foster mothers adopt the children.   She agreed to relinquish her rights provided the father's rights were terminated.   The children's parents had separated in February 1983, reconciled in May of 1983 and separated finally in September 1983.

David P. testified he was employed full-time but that his present wife could care for the children if reunification were allowed.   He was again in therapy with Dr. Joyce Sutton.   He felt he had made all the scheduled visits with his children that he could make.

David P. sought to testify that he had not physically or sexually abused his children.   Counsel for the Department, objected that he could not go behind the findings already made after hearing on the section 300, subdivision (d) petition.   The same objection was made by counsel for the Department to questions on cross-examination of the social worker about whether someone else had sexually abused the children.   The court sustained the objections on the grounds it could not “go behind another Superior Court judge's findings.”   The court did allow the father to deny, for the record, that he had physically or sexually abused the children with the understanding that those issues had already been decided.

Sheila Koren, one of the foster mothers, testified that when the children were first placed in the foster home, Jennifer was very difficult to handle and Nathaniel was distant and frightened.   She felt that although both are still disturbed, they had come a long way.   She emphasized she wished to adopt the children.

The court sustained the petition making the following findings:  the children had been out of the home for more than one year;  reasonable services were provided or offered to the parents and despite the availability of those services, return of the children to the parents would be detrimental to each child;  and David P. had failed to respond in an appropriate manner to those services and was not likely to meet the requirements within six months or within any reasonable time.

III

Appeal1. Collateral Estoppel

On appeal, the father contends the court erred in ruling that the adjudication that he physically and sexually abused his children, made in the section 300, subdivision (d) proceeding, precluded him from offering contrary evidence on these issues in the present proceeding under Civil Code section 232.   He argues that in a section 300 case, the standard of proof is by a preponderance of the evidence (In re Jennifer V. (1988) 197 Cal.App.3d 1206, 1211, 243 Cal.Rptr. 441;  § 355), while in a proceeding to terminate parental rights under Civil Code section 232, the petitioner must prove its case by clear and convincing evidence.  (In re Angelia P. (1981) 28 Cal.3d 908, 919, 171 Cal.Rptr. 637, 623 P.2d 198;  In re Matthew S. (1988) 201 Cal.App.3d 315, 320, 247 Cal.Rptr. 100.)   Because of these differing standards of proof, appellant asserts, he could not be collaterally estopped from relitigating the issues of abuse of his children.

 Appellant did not raise at trial the argument that differing burdens of proof prevented the application of the doctrine of collateral estoppel.   Respondent does not object that the issue was not raised at trial.   We will decide the issue since it presents a pure question of law.  (Seeley v. Seymour (1987) 190 Cal.App.3d 844, 855–856, 237 Cal.Rptr. 282;  State of California ex rel. Public Works Bd. v. Bragg (1986) 183 Cal.App.3d 1018, 1023, 228 Cal.Rptr. 576.)

Appellant relies on One Lot Emerald Cut Stones v. United States (1972) 409 U.S. 232, 235, 93 S.Ct. 489, 490, 34 L.Ed.2d 438 [acquittal in prior criminal action on same facts does not collaterally estop government in civil forfeiture action because of difference in burden of proof in criminal and civil cases];  In re Coughlin (1976) 16 Cal.3d 52, 58–59, 127 Cal.Rptr. 337, 545 P.2d 249 [by reason of the difference in standards of proof in criminal and other actions, a prior acquittal in a criminal proceeding does not bar consideration of evidence presented at the criminal trial in a probation revocation hearing];  and People ex rel. Gow v. Mitchell Brothers' Santa Ana Theater (1980) 101 Cal.App.3d 296, 306, 161 Cal.Rptr. 562 [judgment pending on appeal that films are not obscene does not collaterally estop the People from seeking to enjoin exhibition of the films].

 The Department responds that the scope of a proceeding under Civil Code section 232 differs from that of a proceeding to make a child a dependent of the court (In re Shannon W. (1977) 69 Cal.App.3d 956, 962, 138 Cal.Rptr. 432) and that at the stage of proceedings concerning parental rights, any errors in earlier juvenile proceedings are moot.  (In re Sarah F. (1987) 191 Cal.App.3d 398, 403, 236 Cal.Rptr. 480.)   The Department also asserts the proper focus of a termination proceeding is the current failure of the parent to adequately comply with efforts at reunification, thus evidence of appellant's past acts was not relevant and the issue of molestation was not determinative of the court's decision in the termination proceeding.   Respondent's arguments miss the mark.

Initially we point out that although the two proceedings differ in scope, this is not determinative of whether collateral estoppel applies.   Differences in the proceedings may bar the application of res judicata.  “The doctrine of res judicata gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy.”  (7 Witkin, Cal. Procedure (3d ed. 1985) Judgment, § 188, pp. 621–622;  italics in original.)   However, “A second action between the same parties on a different cause of action is not precluded by a former judgment․  But the first judgment ‘operates as an estoppel or conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action.’ ”  (Op. cit. supra, § 253, p. 691, emphasis in original;  Lockwood v. Superior Court (1984) 160 Cal.App.3d 667, 672, 206 Cal.Rptr. 785.)   Collateral estoppel is sometimes aptly referred to as issue preclusion.   In Lockwood, division five of this court held that where a juvenile court found no child abuse by the parents in a dependency proceeding, the doctrine of collateral estoppel applied to bar prosecution on a criminal charge of felony child abuse based on the same evidence.  (Id. at p. 672, 206 Cal.Rptr. 785.)

The Department fails to address appellant's argument that the differing standards of proof bar the application of collateral estoppel.   We find appellant's argument persuasive.   In People v. Sims (1982) 32 Cal.3d 468, 485, 186 Cal.Rptr. 77, 651 P.2d 321, the Court recognized the doctrine of collateral estoppel may not apply where two proceedings have differing burdens of proof.   In Sims, the situation presented was the opposite of that presented here.   The County had failed to prove its allegations by a preponderance of the evidence in the first civil proceeding.   The court held collateral estoppel applied to bar the People from prosecuting the same issue in a criminal proceeding.   Also, we observe that section 28, subdivision (4) of the Restatement Second of Judgments states the collateral estoppel doctrine does not preclude relitigation of the issue where “the adversary has a significantly heavier burden than he had in the first action.”  (Emphasis added.)

Several cases have discussed whether the doctrine of collateral estoppel precludes a parent from denying the truth of findings of the dependency proceeding.   All but one of these cases, however, were decided before our Supreme Court determined in In re Angelia, supra, 28 Cal.3d at p. 913, 171 Cal.Rptr. 637, 623 P.2d 198, that the clear and convincing evidence standard applies to all proceedings brought under Civil Code section 232 subdivision (a), not just proceedings under subdivision (a)(7).⁴  In one of the pre-Angelia cases, In re Carmaleta B. (1978) 21 Cal.3d 482, 493–494, 146 Cal.Rptr. 623, 579 P.2d 514, the court stated the principles of collateral estoppel “may” preclude the parent from denying the truth of the findings of the dependency proceeding that she failed to protect the children from abuse by their father.   However, the case also held that inquiry into the issue of cruelty or neglect in the termination proceeding was not foreclosed by the order making the children a dependent of the juvenile court.   The Court did not discuss the applicable burdens of proof but relied on two cases which held that the court, in a termination proceeding, was doing more than just finalizing the dependency determination.  (In re Morrow (1970) 9 Cal.App.3d 39, 54, 88 Cal.Rptr. 142;  In re Williams (1955) 133 Cal.App.2d 515, 518, 284 P.2d 510.)

In In re Terry E. (1986) 180 Cal.App.3d 932, 949–950, 225 Cal.Rptr. 803, the case decided after Angelia, the court relied on the language contained in In re Carmaleta B., supra, 21 Cal.3d at page 493, 146 Cal.Rptr. 623, 579 P.2d 514, stating that the parent “may be precluded by reasons of collateral estoppel from denying the truth of the findings of the dependency proceeding that she was incapable of exercising care or control over her children.”   The Terry E. court held the parent was entitled to have the circumstances leading to the dependency order reviewed in the light of subsequent events.   The case, however, fails to discuss either burden of proof or the 1983 amendment to section 232 making all proceedings under the section subject to the clear and convincing evidence standard.

Furthermore, the record does not support the Department's assertion that the issue of molestation was not determinative of the court's decision.   The court's findings do not refer to any sexual abuse by the father.   It may be, however, there is no such finding because the court had already ruled the sexual abuse was established.   We cannot ascertain whether the court relied on the molestation in finding that it would be detrimental to the children to return them to the father.   It is settled that an order terminating parental rights must rest on present circumstances as well as past acts.  (In re Carmaleta B., supra, 21 Cal.3d at p. 493, 146 Cal.Rptr. 623, 579 P.2d 514;  In re Matthew S., supra, 201 Cal.App.3d at p. 322, 247 Cal.Rptr. 100.)  “In a case such as this where fundamental rights are affected by the exercise of discretion by the trial court, we recognize that such discretion can only be truly exercised if there is no misconception by the trial court as to the legal basis for its action.   Thus, where, as here, some of the grounds for the trial court's action have been determined on appeal to be ․ unsupported, the matter should be remanded for the trial court's redetermination of the ultimate issue on the proper grounds.”  (In re Carmaleta B., supra, 21 Cal.3d at p. 496, 146 Cal.Rptr. 623, 579 P.2d 514).

We hold it was error for the court to conclude that collateral estoppel barred the father from producing evidence he had not sexually or physically abused his children since the Department previously had prevailed on that issue only under the lesser standard of preponderance of the evidence.   The father is entitled in the termination proceeding to have the issue redetermined under the standard of clear and convincing evidence.

2. Hearsay Statements of the Children

 Our conclusion makes it unnecessary for us to address appellant's argument there was not substantial evidence to support the judgment.   Because the matter will be retried, however, we speak briefly to appellant's argument that it was error to admit testimony by the children's psychologist concerning out-of-court statements made by the children to her.   The therapist testified:  “Nathan has repeatedly stated that he hates his father and never wants to see him again.   Jenny has also stated that she hates her father, is very, very, very angry with him and only wants to see him one more time in court.   And when asked why she wants to see him in court, she has said various things, such as, ‘So I can punch him.   So I can punch him in the face.   So I can kill him.’   And as of Monday, she said, ‘And tell the Judge I want Daddy David to go to jail.’ ”   In ruling on appellant's hearsay objection, the court stated:  “My understanding of 232 is that the wishes of the children are the relevant factor.   They should be considered.   Clearly, they don't have any legal standing to decide things like jail, but I think how the children feel about this is very relevant, and I will allow that in for that reason.” ⁵

Civil Code section 232, subdivision (b) provides that the court shall consider the wishes of the children.   This subdivision sets forth the manner in which this testimony of the children may be taken.   Where there was no assertion the therapist relied on the children's statements in forming her expert opinion, the hearsay objection of appellant should have been sustained.

The judgment is reversed and the matter remanded to the trial court for retrial.

FOOTNOTES

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

2.   At the time of the juvenile court termination proceedings, subdivision (a)(7) of Civil Code section 232 allowed the court to terminate parental rights where the juvenile “․ has been in out-of-home placement under the supervision of the juvenile court, the county welfare department, or other public or private licensed child-placing agency for a one-year period, if the court finds that return of the child to the child's parent or parents would be detrimental to the child and that the parent or parents have failed during that period, and are likely to fail in the future, to maintain an adequate parental relationship with the child, which includes providing both a home and care and control for the child.”   (Stats. 1986, ch. 1122, § 1.)

3.   The date most probably is a typographical error and should have been 1985 since the children were still at the emergency shelter in September 1984.

4.   The standard of proof in proceedings brought under Civil Code section 232, subdivision (a)(7) was initially set by the Legislature as proof beyond a reasonable doubt.   Subdivision (a)(7) was amended in 1976 to substitute “by clear and convincing evidence” for “beyond reasonable doubt.”   In 1977 it was amended again to change the burden back to “beyond reasonable doubt.”   An urgency measure was enacted in 1978 again amending the section to provide for a “clear and convincing evidence” standard.   At the time of the instant termination proceeding, subdivision (c) of Civil Code section 232 read:  “A finding pursuant to this section shall be supported by clear and convincing evidence.”  (Stats. 1978, ch. 429, § 23;  ch. 1269 §§ 1–3;  Stats. 1986, ch. 1122, § 1;  In re Angelia P., supra, 28 Cal.3d at p. 921, 171 Cal.Rptr. 637, 623 P.2d 198.)

5.   Respondent's reply to this argument is not responsive.   Respondent's assertion that the statements were admitted as a basis for the therapist's opinion, refers to a different portion of the transcript where the court did allow the therapist to testify to the children's attitude toward their father as demonstrated by their behavior rather than statements made to the therapist.

BENSON, Associate Justice.

SMITH, Acting P.J., and PETERSON, J., concurs.