IN RE: ANITA G. (1992)

OPINION

Ana G., a temporary conservatee, appeals the judgment terminating her parental rights to her daughter, Anita.  (Welf. & Inst.Code, § 366.26.) ¹  On appeal and by her writ petition,² she claims the court erred by conducting the termination hearing without the presence of her public guardian, resulting in a denial of her right to the effective assistance of counsel.   She further claims she was denied due process because section 366.26 unconstitutionally bases the termination of parental rights on findings made by a mere preponderance of the evidence, rather than by clear and convincing evidence.   We find the failure to appoint a guardian was error but was harmless.   We agree, however, that the severance of the parent-child relationship on less than clear and convincing evidence is constitutionally insufficient and reverse.³

Anita G. was born in September 1988, “jittery, but with a normal urine screen.”   She was placed into protective custody after hospital authorities learned that her mother, Ana, had a history of cocaine and marijuana use during her pregnancy;  had been hospitalized for seizures related to cocaine use in June and had tested positive for cocaine on August 28;  was unemployed, had no permanent residence, no baby supplies and no plans to care for the baby after discharge;  had expressed a desire to abort the pregnancy as late as the eighth month;  and had undergone repeated beatings by the father.

A dependency petition was filed on September 27, and Anita was released to her aunt with instructions that she monitor all visits with the parents.   A few days later, the father took Anita from the aunt at gunpoint.   Anita was taken back into protective custody on January 24, 1989 after a neighbor reported suspected physical abuse by Ana.   In the meantime, the father had been killed in a gunfight at a local bar.

In March 1989, the jurisdictional hearing was held.   The court found the amended allegations of the petition true by a preponderance of the evidence and declared Anita a dependent of the juvenile court under section 300, subdivisions (a) and (g).⁴  The court also made the dispositional finding by clear and convincing evidence that Anita came under section 361, subdivision (b), in that she could not be returned home without a substantial danger to her physical health.   The service plan adopted by the court required Ana to undergo a psychological evaluation, complete a parenting class, participate in a substance abuse program, and provide evidence of support and housing.

The social services report filed at the six-month review hearing in September revealed that Anita had been placed in a foster home.   Ana's visits had been sporadic and evidenced her inability to relate to Anita.   Ana's attendance at her classes was initially satisfactory, but by the time of the hearing she had failed to attend for a month and was dropped from the program.   She had been given bus passes for transportation and referrals to several shelters.   The court evaluation and guidance unit recommended Ana have an additional intellectual and neuropsychological evaluation after an examination for corrective eyeglasses.   The court found, by a preponderance of the evidence, that reasonable services had been offered to Ana and amended the service plan to require her to undergo an eye examination and further psychological testing.   It also found that returning Anita to Ana would create a substantial risk of detriment to the child's physical or emotional well-being (§ 366.21, subd. (e)) and continued her foster placement.

In January 1991, by stipulation, the 12– and 18–month reviews were held together.   The foster mother testified she had been caring for Anita since March 1989 and was interested in adopting her.   During 1989, Ana visited Anita approximately 11 times;  she canceled at least 6 scheduled visits and failed to show up for one.   In 1990, Ana visited Anita 14 times, and 3 of these occurred in November.   The visits took place at Braden Court in Santa Ana for one hour and were monitored by the foster mother.   She described Ana's behavior during the visits as quiet;  Ana occasionally asked about the minor's development, but did not play or initiate contact with the child.   The foster mother testified Anita would often wander away from Ana during the visits and she would direct the child back.   Anita went to Ana with some prompting and was not distressed by the visits, but by the end of the hour Anita started coming to the foster mother more often and appeared ready to go home.

Anne Fox, the assigned social worker who took over Anita's case in May 1990, testified she was present at some of the visits.   Although she had talked to Ana about appropriate interactions with Anita and modeled play activities for her, Ana's behavior during the visits was “passive, nonassertive[;]  ․ [she] didn't interact with the child appropriately, [and she] did not initiate interactions.”   Fox was inclined to increase the visits but did not because Ana would periodically disappear and fail to follow through on scheduled visits.

Since Fox was assigned Ana's case, Ana had lived at various times with family, friends, at two different shelters, and on the streets.   From time to time, Fox was unable to locate Ana, and a report filed by the previous case worker indicated these disappearances were part of a continuing pattern.   Ana had no “legal and consistent means of support.”

By the time of the hearing, Ana had not completed her service plan.   She had re-enrolled in the perinatal program in July 1990 after almost a year's absence and had completed several portions of the program but not a parenting class.   Her drug tests were negative, but she frequently failed to show up for scheduled tests.

The court found, “[R]easonable services have been offered or provided to the mother, but ․ it would be detrimental to the minor to return her at this time.⁵  The mother does not have a residence or at this time a source of income for the support of minor, nor has she completed the previously ordered service plan.   Although I'll state for the record that she's making substantial compliance with that plan now.”   The court further indicated continued contact with Ana would be in Anita's best interests and ordered visitation increased to four unmonitored hours per week.   The court ordered a hearing under section 366.26, explaining to Ana that the hearing would be set “at the latest date the law provides” to give Ana time to complete the service plan, and it set the date for a focussed assessment on the “bonding” of mother and child “sometime in April after [Ana] had an opportunity to have more visits with the child.”

On the date set for the section 366.26 hearing, Ana filed a notice of motion under section 388, apparently seeking to have Anita placed with her based on her completion of the service plan.⁶  The section 366.26 hearing was continued to be heard concurrently with the section 388 motion, but shortly before the hearing Ana was hospitalized for a “psychotic episode,” exhibiting “bizarre behavior” and requiring close monitoring and force feeding.   Accordingly, on June 12 Ana's counsel withdrew the section 388 motion and requested a continuance of the section 366.26 hearing.   It was continued to July 2.

On July 2, Ana's counsel again moved for a continuance because she had been placed under a temporary conservatorship and there was a pending petition to appoint a permanent conservator under the Lanterman–Petris–Short Act (§ 5000–5401).   He stated, “[T]here is no public guardian here on behalf of [Ana] under the temporary conservatorship.   In addition, I do not know her mental state;  and she is going to have to be a witness today in this [section] 366.26 hearing.  [¶] I'm requesting a continuance to have the [Lanterman–Petris–Short Act] conservatorship heard on Friday and to continue this until Monday.   Then I would have the opportunity to bring in a guardian to act on her behalf.”   The court denied the continuance “considering the nature of this proceeding.”

At the section 366.26 hearing Don Rand, the birth parent social worker, testified that Ana had been visiting with Anita once a week for four hours at a time at the home of Ana's cousins, where Ana was living.   Her visits had been consistent from January through May, 1991.   Rand stated Ana's perinatal counselor reported she had been making progress in the program and had been attending consistently.

Dr. Veronica Benitez, a licensed clinical psychologist, conducted focused assessments of the relationships between Anita and Ana and between Anita and her foster mother.   All parties stipulated to her expertise in the area of attachment and bonding.   She testified she observed no parental relationship between Ana and Anita.   Although the two seemed familiar, there was no spontaneous interaction between them and no affection, which Benitez stated she would have expected after the four months of increased visitation.   Benitez contrasted the relationship she observed between the foster mother and Anita as relaxed, comfortable, supportive and happy.   Benitez saw no value to Anita in continuing the relationship with Ana in the absence of placement with her.

The court found Anita was likely to be adopted, it was in her best interest to terminate Ana's parental rights, and that it would be detrimental to Anita to be returned to Ana and to have continued family reunification services.

I

Ana first contends the court erred in denying the requested continuance of the section 366.26 hearing and proceeding without a public guardian to represent her interests.   She claims this denied her the effective assistance of counsel because he had no one with whom to communicate about a defense to the termination hearing.⁷  We agree the court erred in failing to appoint a guardian ad litem;  however, we find the error harmless.

 Code of Civil Procedure section 372 provides, “When ․ a person for whom a conservator has been appointed is a party, such person shall appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court in which the action or proceeding is pending․   A guardian ad litem may be appointed in any case when it is deemed by the court ․ expedient ․ notwithstanding that such person may have a guardian or conservator of the estate․”   If the trial court knows of the litigant's incompetence, it has an obligation to appoint a guardian ad litem sua sponte.  (See Jeffrey S. II v. Jeffrey S. (1977) 76 Cal.App.3d 65, 70, 142 Cal.Rptr. 625.)

 Here, the court was informed that Ana had been placed under a temporary conservatorship and a permanent appointment was pending;  this was sufficient to require the appointment of a guardian ad litem.   The failure to appoint, however, is a “mere irregularity [and] the judgment will not be set aside unless a different result would have been probable had the error not occurred.  [Citations.]”  (In re Lisa M. (1986) 177 Cal.App.3d 915, 920, fn. 4, 225 Cal.Rptr. 7.)

Ana contends she was unable to communicate with her counsel or assist in her own defense and a guardian would have been able to do that on her behalf.   Her asserted defense to termination was that until her mental breakdown she had complied with the service plan and had previously filed a section 388 motion to regain custody of Anita.   But these matters were not relevant to the issues before the court at the section 366.26 hearing.

Once a child is removed from parental custody, a reunification service plan is adopted to attempt to alleviate the problems which resulted in dependency.  (§ 361.5.)   Periodic review hearings are held every six months for up to 18 months to assess the progress towards reunification.  (§ 366.21, 366.22.)   At each of these hearings, the court must return the child to the parent unless it finds that return to the parent would create a substantial risk of detriment to the child.   If the child is not returned by the 18–month hearing, a hearing under section 366.26 is scheduled to formulate a permanent plan for the child.

Section 366.26 provides that the court shall terminate parental rights only if it determines it is likely that the child will be adopted.   If it so finds, the previous findings that the child could not be returned to the parent together with the adoptability finding form the basis for termination of parental rights “unless the court finds that termination would be detrimental to the minor [because] ․ (A) The parents ․ have maintained regular visitation and contact with the minor and the minor would benefit from continuing the relationship.” ⁸  (§ 366.26, subd. (c)(1).)

Thus, at the section 366.26 hearing in the case before us, the court was concerned only with whether Anita was adoptable and whether she would benefit from continuing a relationship with Ana.   Ana's eleventh hour compliance with the service plan was simply irrelevant.⁹

II

 Ana next contends she was denied due process because section 366.26 unconstitutionally authorized the trial court to terminate her parental rights based on findings made by a preponderance of the evidence.   We agree.

Section 366.26 provides 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 subdivision (b) of Section 361.5 that reunification services shall not be offered, or the findings pursuant to subdivision (e) of Section 366.21 that the whereabouts of a 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, or pursuant to Section 366.21 or Section 366.22 that a minor cannot or should not be returned to his or her parent or guardian, shall then constitute a sufficient basis for termination of parental rights․”  (§ 366.26, subd. (c)(1).)

While the findings referred to under section 361.5, subdivision (b) and section 366.21, subdivision (e) must be made by clear and convincing evidence, the findings under section 366.21 or 366.22 that the “return of the child [to the parent] would create a substantial risk of detriment to the physical or emotional well-being of the minor” need be made only by a preponderance of the evidence.  (§ 366.21, subd. (f) and 366.22, subd. (a).)  Thus, in a case such as Ana's, the trial court is directed to terminate parental rights at the section 366.26 hearing if it finds by clear and convincing evidence that the child is adoptable and if it has previously found by a preponderance of the evidence that the return of the child to the parent would be detrimental.   Unlike a different panel of this court in the recently filed case of In re Cristella C. (1992) 6 Cal.App.4th 1363, 8 Cal.Rptr.2d 342 (Sills, P.J., author, Moore, J., concurring, Crosby, J., dissenting), we find this lesser burden of proof constitutionally insufficient.  (Accord, In re Reylene A. (1992) 7 Cal.App.4th 1822, 10 Cal.Rptr.2d 121.   Contra, In re Heather Nadine B. (1992) 9 Cal.App.4th 535, 11 Cal.Rptr.2d 891.) ¹⁰

 The right to parent one's own children has long been recognized as a fundamental right, to be disrupted “only in extreme cases of persons acting in a fashion incompatible with parenthood” (In re Carmaleta B. (1978) 21 Cal.3d 482, 489, 146 Cal.Rptr. 623, 579 P.2d 514) and in accordance with due process protection (In re Angelia P. (1981) 28 Cal.3d 908, 917, 171 Cal.Rptr. 637, 623 P.2d 198).   In Angelia P., the California Supreme Court held termination of parental rights under Civil Code section 232 must be based on clear and convincing evidence because that test appropriately balances the rights of the parents against the best interests of the child.  “ ‘The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding is to “instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.”  [Citation.]   The standard serves to 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.)

The United States Supreme Court has similarly held that clear and convincing evidence is the constitutionally required standard of proof for termination of parental rights.   In Santosky v. Kramer (1982) 455 U.S. 745, 748, 102 S.Ct. 1388, 1392, 71 L.Ed.2d 599 the court invalidated a New York law allowing the termination of parental rights under a preponderance of the evidence standard.   Finding the child's interest was in avoiding an erroneous termination, the court reasoned that the preponderance standard was inappropriate because the possibility of either an erroneous termination or an erroneous failure to terminate was too nearly equal.   It held the standard of clear and convincing evidence would maximize the accuracy of terminations and minimize the risks of unnecessary destruction of the family and an uneasy status quo in foster home placements for the child.

In re Cristella C., supra, 6 Cal.App.4th 1363, 8 Cal.Rptr.2d 342, which upheld the validity of section 366.26 against the same attack made here, distinguished the current statutory scheme from the one in Santosky v. Kramer, supra, 455 U.S. at 748, 102 S.Ct. at 1392 by the requirement that an adoptability finding be made on clear and convincing evidence.  “Instead of a bleak future in foster care limbo on the one hand, and return to a possibly abusive household on the other, the likelihood of adoption effectively realigns the consequences of an erroneous decision in termination proceedings:  The alternatives are now life with a stable family who have already sacrificed for the sake of the child's well-being versus life with (more often than not) a single parent to whom return of the child has been repeatedly shown to be detrimental.”  (In re Cristella C., supra, 6 Cal.App.4th at p. 1370, 8 Cal.Rptr.2d 342.)   The Cristella C. majority pointed out that a parent is afforded a variety of procedural safeguards along the path to termination, which, when coupled with the adoptability requirement, “clearly afford[s] due process of law․”  (Id. at p. 1372, 8 Cal.Rptr.2d 342.)

We are not so convinced.   While we agree with dissenting Justice Crosby that the requirement of adoptability is “an important step to guarantee that minors who have been abused or neglected are not subjected to the vagaries of long-term foster care” (id. at p. 1376, 8 Cal.Rptr.2d 342 (dis. opn. of Crosby, J.)), we also agree that “adoptability must not be permitted to supplant or influence the independent finding concerning parental unfitness.”  (Ibid.)  Shifting the emphasis, however slightly, from parental unfitness to a child's adoptability opens the door for unwarranted value judgments on the part of social workers and could infect a termination proceeding with systemic preference for adoptive families.   Continuing respect for family values and the importance of the family relationship requires adherence to the higher burden of proof.

Neither are we convinced by the newly filed case of In re Heather Nadine B., supra, 91 Cal.App.4th 535, 11 Cal.Rptr.2d 891.¹¹  In that case, the Third District upheld the preponderance of the evidence standard against a constitutional attack because it was used “only on the narrow question whether a child would be subjected to a substantial risk of harm in a return to a home which has already been found to be unfit․”  (Id. at p. 555, 11 Cal.Rptr.2d 891.)   Of course, it is this precise determination, bearing directly on parental unfitness, that is constitutionally required to be made under the higher burden of proof.   And we strongly disagree with the court's suggestion that this question is so narrowly framed that it may be answered under the preponderance of the evidence standard without “reliance upon subjective standards and unusual judicial discretion.”  (Id. at p. 552, 11 Cal.Rptr.2d 891.)   This determination, the crux of the termination procedure, is subjective by its very nature.

In re Angelia P., supra, 28 Cal.3d 908, 171 Cal.Rptr. 637, 623 P.2d 198 and Santosky v. Kramer, supra, 455 U.S. at 748, 102 S.Ct. at 1392, in our view, still represent correct constitutional reasoning:  Before a parent's right to her child can be terminated, her unfitness must be shown by clear and convincing evidence.  (In re Reylene A., supra, 7 Cal.App.4th at p. 1829, 10 Cal.Rptr.2d 121.)   And we find no comfort in the statutory requirement of repeated findings that return of the child would be detrimental;  the sheer number of findings does not change the fact that each was made under an insufficient burden of proof.

Reylene A. addressed an identical attack on section 366.26 and found the higher burden of proof was constitutionally required.   The Reylene A. court, however, went one step farther and held “the dependency court need only make the additional finding of substantial risk of detriment by clear and convincing evidence at the 366.26 hearing.   In doing so, of course, the trial court may consider the history of the case and antecedent findings.   The new finding, however, must be made as of the time of the permanency planning hearing, i.e., when the parent-child relationship is permanently severed.”   (Id. at p. 1830, 10 Cal.Rptr.2d 121.)   With this we cannot agree.

Notwithstanding the many confusing aspects of the dependency statute, the intent of the Legislature to provide a multistep procedure for termination of parental rights is clear.   The statutory scheme carefully provides that the previous findings of detriment shall be used at the termination hearing and narrowly limits the matters at issue there.   And there is no constitutional prohibition against doing so.   In fact, the New York statute under consideration in Santosky v. Kramer, supra, 455 U.S. at 748, 102 S.Ct. at 1392 was similar in that it provided for a finding of parental unfitness at a factfinding hearing which was then used as the basis for the termination of parental rights at a later proceeding.   While the Supreme Court clearly stated the requirement that the finding of parental unfitness be made by clear and convincing evidence, it found no fault with the timing aspects of the statute.

Thus, we reverse the order terminating Ana's parental rights and remand the matter for a new hearing under section 366.22, directing the trial court to weigh the evidence of substantial risk of detriment under the clear and convincing standard.   Ana's writ petition is denied.

As I write in late September 1992, the state of the case law is this:  In April of this year, our Supreme Court granted review in two cases which raise the problem of the constitutionality of California's statutory scheme allowing the termination of parental rights based on, among other things, a previous finding made by a preponderance of the evidence.  (See In re Reylene A. (1992) 7 Cal.App.4th 1822, 1824, fn. 2, 10 Cal.Rptr.2d 121.)

In May, another panel of this court decided In re Cristella C. (1992) 6 Cal.App.4th 1363, 8 Cal.Rptr.2d 342, upholding the constitutionality of the scheme.  Cristella C. held that the requirement of a finding of adoptability by clear and convincing evidence, together with the other safeguards afforded natural parents, provides due process.  (See 6 Cal.App.4th at p. 1372, 8 Cal.Rptr. 342.)

In July, while a petition for review was pending in Cristella C., Division Six of the Second District arrived at the opposite result in Reylene A.   While Reylene A. did not mention Cristella C. (prudent given the pending petition for review), it rejected the substance of the Cristella C. majority's analysis.  (See In re Reylene A., supra, 7 Cal.App.4th at pp. 1827–1829, 10 Cal.Rptr.2d 121.)   Also in July, a panel of our colleagues in Division One of this District decided In re Arturo A. (1992) 8 Cal.App.4th 229, 10 Cal.Rptr.2d 131, which took note of “the present disagreement among the Courts of Appeal” as set out in Cristella C. and Reylene A., and assumed, without deciding, that the termination statute was constitutional.  (In re Arturo A., supra, 8 Cal.App.4th at p. 236, fn. 3 and p. 236, 10 Cal.Rptr.2d 131.)

In mid-August, after Reylene A. was decided, our Supreme Court denied review of Cristella C. and did not take the opportunity to order that it not be officially published.   On August 21, another panel in Division One of this District ordered the publication of In re Sarah C., 8 Cal.App.4th 964, 11 Cal.Rptr.2d 414, which, in passing, noted the pendency of the constitutional issue before our high court and cited Cristella C. for the proposition that the statutory scheme now in place adequately protects a parent's interests.  (See In re Sarah C., supra, 8 Cal.App.4th at p. 980, fn. 5, and at p. 980, 11 Cal.Rptr.2d 414.)

In mid-September, a panel of the Third Appellate District issued In re Heather Nadine B., 9 Cal.App.4th 535, 11 Cal.Rptr.2d 891, which, like Cristella C., upheld the constitutionality of the California scheme.   Like Cristella C., Heather Nadine B. distinguished the case relied on by today's majority, Santosky v. Kremer (1982) 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599, and emphasized that, unlike the New York scheme at issue in Santosky, California's statutes assure that dependent children are not left to languish in foster-care limbo if parental rights are terminated.¹

Heather Nadine B. also emphasized the reasonableness of the preponderance standard on the “narrow question” of whether a return to a parent's home “would create a substantial risk to the child's personal safety.”  (9 Cal.App.4th at p. 554, 11 Cal.Rptr.2d 891.)   Justice Sparks pointed out that once a child has been removed, the “ ‘most important source of evidence—the parent's actual treatment of the child—is no longer available.’ ”  (In re Heather Nadine B., supra, 9 Cal.App.4th at p. 553, 11 Cal.Rptr.2d 891, quoting In re Audrey D. (1979) 100 Cal.App.3d 34, 44–45, 160 Cal.Rptr. 802.)   In the absence of proof to the contrary, the parental disorder that prompted the removal of the child in the first place is, in the natural order of human events, likely to remain.  (Ibid.)  Given the potential for permanent injury to the child, the California scheme actually bends over backwards to afford parents due process by, despite the foregoing, presuming the child should be returned, and making the state prove otherwise.   The child's interest in personal safety and the state's interest in protecting the child from personal harm make the preponderance standard on the question of return an eminently equitable societal judgment “about how the risk of error should be distributed between the parties.”  (In re Heather Nadine B., supra, 9 Cal.App.4th at p. 550, 11 Cal.Rptr.2d 891.)

The latest development is a request for depublication of Reylene A.  The case is now number S028776 on the Supreme Court docket.

Under the foregoing circumstances, if there ever was a valid reason to vacate a submission order to allow more time for the consideration of an opinion, this is it.   In all probability, we will soon have a clear signal from the Supreme Court as to the shape of the law pending its ultimate determination.

If Reylene A. is depublished, and either Cristella C. or Heather Nadine B. is left standing, the signal will be unmistakable that, at least as an interim matter, the California statutory scheme is constitutional.  (See People v. Dee (1990) 222 Cal.App.3d 760, 763, 272 Cal.Rptr. 208 [depublication of two cases while contrary opinion left standing held to send “obvious” message].)

On the other hand, if Reylene A. is left standing and both Cristella C. and Heather Nadine B. are depublished, the signal will be clear that, as an interim matter, the scheme is not constitutional.

And if neither occur (i.e., all the cases are depublished or Reylene A. remains along with either Cristella C. or Heather Nadine B. or both) then the only “fathomable” message will be that, for the time being, our high court wants each appellate panel to decide the issue as it sees fit.  (Cf. People v. Dee, supra, 222 Cal.App.3d at p. 763, 272 Cal.Rptr. 208;  Eisenberg, Horvitz & Wiener, Cal. Practice Guide Civil Appeals and Writs (1992) [¶] 11:180.1, p. 11–37 [high court “wants future courts to be able to ‘write on a clean slate’ ” as reason for depublication].)

Given any of these three possible events, it makes more sense to vacate and resubmit this case to see what the Supreme Court does with Reylene A. than to add to the present appellate cacophony.   By deciding the case now (before the Supreme Court acts on Reylene A.), we unnecessarily require the parties—both of whom are paid with tax dollars—to take further (and incrementally costly) steps to protect their positions pending the Supreme Court's action.

I am aware that rule 979(e) of the California Rules of Court states that depublication shall not be deemed an expression of the Supreme Court's opinion on the correctness of the result of the appellate court's opinion.²  But rule 979(e) cannot be taken in isolation when the Supreme Court allows contrary opinions to remain officially published.

If one case is depublished, and a contrary case is left standing as the only citable precedent, then the California Supreme Court has effectively shaped the law regardless of any inference that might be drawn from the fact of depublication alone.   The superior courts of this state must follow the decisions of “every division of the District Courts of Appeal.”  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)   Thus when the only remaining decisions of the appellate courts point in one direction, the trial courts of this state must go in that direction, quite independent of the operation of rule 979(e).  (Cf. People v. Dee, supra, 222 Cal.App.3d at p. 765, 272 Cal.Rptr. 208 [finding the remaining case “persuasive in its own right”].)

And while appellate courts are free to disagree with each other, and therefore would not be bound by the “remaining” precedents, the fact that an opinion had survived a petition for review or a depublication request should not go unnoticed.  (See In re Eli F. (1989) 212 Cal.App.3d 228, 235, 260 Cal.Rptr. 453.)   A decent respect for the orders of the Supreme Court under such circumstances requires, at the very least, that the disagreeing appellate court bears a heavier-than-usual burden of showing why it should depart from surviving precedent.   If a panel of our appellate courts should think twice before they disagree with another appellate decision, they should think even longer when the decision has been left standing while contrary precedent has been depublished.

On the merits, the reasons for upholding the constitutionality of California's termination and adoption statutes have been set forth in Cristella C. and Heather Nadine B.   The latter presents the most complete analysis to date.   I will let the reader who compares today's majority opinion and Reylene A. with Cristella C. and Heather Nadine B. decide which side is more persuasive.   The judgment should be affirmed.

FOOTNOTES

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

2.   Appellant's motion to consolidate the appeal and writ petition was granted.

3.   We have reviewed Ana's other claims and find them without merit.*   *   *   *   *   *

4.   Section 300, subdivision (a) describes a minor who has suffered serious physical harm inflicted nonaccidentally by the parent.   Subdivision (g) describes a minor who has been left without any provision for support.

5.   The court did not articulate its standard of proof;  accordingly, we must presume it applied the preponderance of the evidence standard as required by sections 366.21, subdivision (f) and 366.22, subdivision (a).

6.   Section 388 allows any interested person to petition for modification of a previous order based on changed circumstances or new evidence.

7.   Ana's petition for “Writ of Mandate/Prohibition or Other Appropriate Writ” (which we treat as a writ of habeas corpus) was filed to support this contention.   By the writ petition, Ana seeks to introduce additional evidence in the form of declarations from herself and her trial counsel supporting assertions made on the record in the appeal that (1) she was incoherent when the continuance was requested;  (2) she had made substantial progress towards the completion of her service plan;  and (3) the withdrawn motion under section 388 was to effect a change of Anita's placement from foster care to Ana.   This additional evidence is unnecessary to our analysis.   The issue was adequately presented by the appellate record and accordingly we deny writ relief.

8.   Other statutorily described circumstances of detriment are not relevant here.

9.   Section 388 provides a vehicle whereby a previous order can be modified due to change in circumstances.   Ana had filed a motion under that section and may or may not have made a sufficient showing to modify the previous detriment finding, thus influencing the inexorable progression of the statutory scheme.  (See In re Sean E. (1992) 3 Cal.App.4th 1594, 5 Cal.Rptr.2d 193.)   Such a modification, however, requires a strong showing.   The record here reveals only a notice of motion and lacks any facts to support Ana's assertion that she was about to regain custody of Anita.

10.   The dissent argues we should delay the filing of this opinion until the Supreme Court acts on a depublication request for Reylene A.  But even if the Supreme Court grants that request, the question will remain unresolved, for we are expressly directed by the court rules not to draw the inference the dissent suggests.  “An order of the Supreme Court directing depublication of an opinion in the Official Reports shall not be deemed an expression of opinion of the Supreme Court of the correctness of the result reached by the decision or of any of the law set forth in the opinion.”  (Cal. Rules of Court, rule 979(e).)This child has already waited while we have held this case through resubmission for more than six months in an attempt to resolve this issue.   Other cases raising the same issue are also before this court.   To avoid the harm of further delay and to be certain juvenile courts know they must apply the constitutionally required clear and convincing standard, we are filing this decision today.

11.   Strangely, the Heather Nadine B. court did not refer to In re Cristella C. in its opinion.

1.   “Our current child dependency procedures are significantly different from the New York scheme which was at issue in Santosky.”   (In re Heather Nadine B., supra, 9 Cal.App.4th at p. 552, 11 Cal.Rptr.2d 891.)“Our statutory scheme makes family reunification the first priority but if that fails then the child's interest in a permanent and secure home free of the limbo of long-term foster care is elevated to primary significance.”   (In re Heather Nadine B., supra, 9 Cal.App.4th at p. 559, 11 Cal.Rptr.2d 891.)Heather Nadine B. did not mention Cristella C.   The reason is relatively obvious:  most of the research for and drafting of Heather Nadine B. probably took place while the petition for review was still pending in Cristella C.

2.   I am also aware that People v. Dee, supra, 222 Cal.App.3d 760, 272 Cal.Rptr. 208, addressed the significance of depublication orders predating rule 979(e).

WALLIN, Associate Justice.

SONENSHINE, J., concurs.