IN RE: MARILYN M. (1987)

Kristine D. appeals from a judgment declaring her daughter, Marilyn M., free from her custody and control.  (Civ.Code, § 232.) ¹  She contends the evidence was insufficient to support the trial court's determination that she neglected Marilyn.  (§ 232, subd. (a)(2).)   We agree and, accordingly, reverse the judgment.

FACTS

In June 1978, Marin County Child Protection Services made its first contact with appellant's family.   At that time, appellant was living with Steven M. and their infant son, Mickey M.   For the next two years, social worker Robert Clark made regular visits to the family, and obtained for them such community services as public health nursing, day care and transportation.

In June 1980, appellant, Steven and Mickey moved into a room at the San Anselmo Hotel in Marin County.   The room had no kitchen facilities, and the only bathroom was communal.   During their third week at the hotel, appellant gave birth to Marilyn M.   Although the facts are not entirely clear, it appears that Marilyn's father is Royal S., a San Rafael resident.

On July 1, 1980, the manager of the San Anselmo Hotel evicted appellant, Steven, and the two children.   Appellant paid the manager $50 to permit her and the children to remain until July 4.   Appellant testified that during the one or two weeks Marilyn spent at the hotel appellant took her to see a pediatrician at Drake Medical-Dental Health, and purchased diaper rash medicine and formula ordered by the doctor.

After departing the hotel, appellant and her children rented a room in an apartment in Fairfax occupied by a couple named O'Kelly.   Steven was at this time camping under a bridge in San Anselmo.   Appellant planned to remain at the O'Kellys' for at least a month, but had to leave after two weeks because the apartment manager objected to the living arrangement.

At this point, in mid-July, appellant, Mickey and Marilyn were “out on the street.”   Appellant and Marilyn spent one night back at the San Anselmo Hotel, where a man let them stay in his room.   Meanwhile, Steven had taken Mickey to the psychiatric crisis unit at Marin General Hospital, from which he phoned social worker Clark, explained that he had “split up” with appellant, and expressed a desire to place Mickey in foster care.   Clark and a probation officer went to the hospital, met with Steven and that same day placed Mickey in the temporary foster care of Cynthia Curtin.

After placing Mickey, Clark and the probation officer went to the O'Kelly apartment in search of appellant and Marilyn.   Not finding them there, Clark notified the San Anselmo police to contact him if they located appellant.   Appellant and Marilyn were found by the police the next day and taken to the police station, where Clark met with them.   Clark observed that Marilyn, who was wrapped in a blanket and lying with her eyes closed in appellant's arms, had a runny nose, “yellow” on her eyes, and pink skin, but appeared healthy in terms of nourishment.   When Marilyn awakened and cried, appellant put a bottle in her mouth but did not pay much attention to her.   Appellant told Clark that she had been living on the street and only had six or seven dollars;  Steven M. had used the AFDC money appellant received to buy marijuana.   Appellant had no idea where she would live or how she would feed the baby when the six or seven dollars ran out.

Clark took Marilyn into custody and placed her in the foster home at which Mickey had been placed.   Upon receiving Marilyn, foster mother Curtin observed that the baby's skin was bright red, hot and dry.   Marilyn was feverish and unclean, had an eye infection, a “terrible” diaper rash and diarrhea, and was spitting up mucus.   At the hearing from which this appeal stems, which commenced on February 6, 1984, more than three and one-half years after the events here described took place, appellant testified that she did not notice whether Marilyn's skin was particularly sensitive, but thought Marilyn had a diaper rash.   Appellant also testified that just before she and Marilyn were picked up by the police, she had taken Marilyn to a pediatrician where the baby was weighed and given a polio shot.

Marilyn was found to be allergic to the formula she was receiving.   This allergy manifested itself in vomiting, mucus in her stools, rashes and cold symptoms.   Curtin made many trips with Marilyn to the doctor during the first month she provided foster care and five formulas were tried before a tolerable one was found, a meat-based formula which had to be specially ordered.   Marilyn also experienced continual problems with sensitive skin;  she had to be dried under a light each time she was changed.   The baby had recurrent ear and eye infections which may have stemmed from a high susceptibility to colds.   These infections required treatment with antibiotics and preventive medications, and were expected to continue until she was five or six years old.

On August 7, 1980, Marilyn was declared a dependent child of the juvenile court.   Visitation was arranged for appellant and Steven;  between August and November 1980, they attended six of eight scheduled visits.   All of the visits took place outside the foster home, some at the Marin County Social Services Department.   Curtin observed that Marilyn usually returned from these visits dressed in clothing which was “inappropriate,” too tight, short, small and hot for the weather, so that Marilyn would sometimes run a low fever until the clothing was removed.   The clothing was in disrepair and dirty.   Marilyn sometimes returned from the visits in a “distressed” state, crying more than she normally did, being “fussy,” and “having a harder time keeping her food down.”

By October 1980, social worker Clark had developed a case plan for appellant and her family calling for the establishment of a “track record” in housing, preschool for Mickey, parenting classes for both appellant and Steven, and public health nursing.   The plan, which was developed with the awareness that appellant and Steven planned to move to Sonoma County, included placing Marilyn in a possible adoption home, with a family that would either keep her until she was returned to her natural parents or adopt her if she was freed for adoption.

Three weeks after a dispositional hearing in October 1980, appellant and Steven moved to Santa Rosa in Sonoma County.   After inspecting the Santa Rosa apartment, Clark recommended to the court that it would be safe for Mickey and would meet his basic needs;  shortly thereafter, Mickey was returned to his parents.

In November 1980, Marilyn was placed in her current pre-adoptive foster home in Marin.   At the time of the hearing below, the foster family consisted of a mother, a father, an adopted sister one year younger than Marilyn, an adopted brother two years younger than Marilyn, and twin children of the father from a previous marriage who visited weekends and summers.

On December 4, 1980, Marilyn's case was transferred to Sonoma County, although her placement remained in Marin.   Marilyn remained under Marin County “courtesy supervision,” and Sonoma County provided services for the family.   The case plan for reunification with Marilyn required the family to maintain stable housing, receive marriage and money management counseling, and enroll Mickey in day care or nursery school.   A Sonoma County juvenile court order in January 1981 similarly required regular day care enrollment for Mickey, counseling for appellant and Steven in conjunction with the day care program, and money management.   Appellant was aware she was required to have housing and food, budget her money and take parenting classes.   She testified that she satisfied the last requirement by taking two classes at Santa Rosa Junior College, “Stages of Child Development” and “Early Childhood Development,” without receiving credit, and denied having been told to attend parenting classes or counseling at the Social Services Department.   She had two counseling visits with a psychologist at Sonoma Outreach, but stopped these when she began the courses at the junior college.   Appellant did not take money management classes.   She understood the requirement in this regard to mean that she had to be more frugal and careful with her finances, and find a less expensive place to live.   She understood the social workers' directives regarding housing to mean that she and Steven needed to rent their own place rather than stay in someone else's where they were subject to sudden eviction.

On October 8, 1981, Gary Allingham, a Sonoma County social worker, commenced supervision of appellant's family's case.   By this time appellant, Steven and Mickey had moved to Guerneville.   Allingham described the residence as consisting of a bathroom and two small rooms, one containing a kitchen.   He felt it was not suitable for Marilyn's return because it was too small and contained no furnishings for a young child.   He observed that the residence was generally clean but the food supply varied from sparse to plentiful.   Mickey was sometimes clean and properly clothed and other times dirty.   Communication between appellant and Steven regarding Marilyn was very “dysfunctional,” usually ending in an argument, which prevented rational conversation and caused Allingham to leave in despair.   Mickey generally appeared subdued when Allingham visited, which the social worker attributed to the fact that his visits were characterized by arguments concerning the court orders.

Between January 1981 and June 1982 appellant periodically visited Marilyn at the Marin County Civic Center.   Sonoma County scheduled the visits and supplied transportation for appellant, Steven and Mickey once a month;  the Marin County Social Services Department provided transportation for Marilyn to the Civic Center.   Appellant was told she could visit more frequently if she could provide her own transportation.   On one occasion appellant requested an additional visit, which was canceled because Marilyn was sick.   Neither Steven nor Royal S. ever visited Marilyn during this period.

Jocelyn Bell, a Marin County social worker, supervised the visits between appellant and Marilyn.   Bell observed that appellant would talk continually to no one in particular about how the child belonged to her because it had her mother's name, pace back and forth and fail to acknowledge Marilyn when the child talked.²  When Marilyn was six to 14 months old, appellant would not hold the child during feeding, but instead tried to feed her while she was either in a baby seat or lying on a table.   Marilyn once fell off the table during such a feeding;  Bell interceded and caught the child.   Appellant would feed Marilyn solid food with the baby facing away from her, so that appellant could not tell how much food Marilyn had in her mouth until the baby choked.   On the first visit appellant removed a ring from her finger and placed it in Marilyn's mouth;  on another occasion appellant took a half-inch doll's shoe and put it in the child's mouth.   In both instances, Bell removed the objects.

Bell testified that appellant brought clothing for the baby which was always too small and often foul smelling and soiled.   Appellant put multiple layers of clothing on Marilyn regardless of the weather.   She also put oils and powders on the baby, one time applying a one-quarter inch thick layer of white skin cream to Marilyn's trunk and then shaking powder over the cream.   Marilyn was submissive and passive during the visits, but fussed and resisted more as she got older.   Toward the end of this period of visitation, Bell was troubled by Marilyn's uncharacteristic passivity on the way to and from her visits with appellant.   Bell did testify, however, that appellant became better able to focus on Marilyn and more aware of her needs as the child grew older;  that on a number of occasions the clothes appellant brought appeared either new, newly constructed, or not soiled;  and that appellant always demonstrated much love and concern for the child.

Because of concern over Marilyn's reactions to the visits with appellant, the Marin Department of Social Services arranged for psychological evaluations of the child.   Dr. Henry Massie, who saw Marilyn on two occasions in June and July 1982, found Marilyn to be without any psychological illness and within the normal range for social, cognitive and language development, although her cognitive and language development were somewhat slowed and she showed a slightly increased level of anxiety and “oppositionalism.”   He attributed these latter conditions to Marilyn's early life traumas of separation and to impairment of her original bonding with appellant.   Although the problems were slight and Massie did not recommend treatment, he nonetheless recommended discontinuing visits by appellant because of the risk of continued anxiety and interference with the child's development.

On the basis of this and another psychologist's report, social worker Annette Blanchard recommended to the Sonoma Department of Social Services that visitation between appellant and Marilyn be discontinued.   This recommendation was followed, and the visitation terminated in June 1982.

From August 1983 until the time of the hearing appellant had dual residences in San Rafael in Marin County and Guerneville in Sonoma County and a somewhat transitory lifestyle.   In San Rafael she lived with Royal S. in a house owned by the latter's mother, leaving Mickey with Steven in Guerneville.   Appellant testified that she would live with Royal until Mickey began to miss her, at which point Steven and Mickey would take the bus to San Rafael and tell appellant to return to Guerneville with them.   There, she would shop for meals, clean house, and help raise Mickey.   Appellant usually spent every other week in each county.

Appellant stated that if Marilyn were returned to her, she would obtain a place of her own in Marin County but continue commuting to Guerneville.   She planned to take Marilyn with her when she went to Guerneville unless she could leave the baby with Royal S., but also testified that she would enroll Marilyn in preschool and that the visits to Guerneville would not interfere with this.   Appellant admitted Steven once struck her and gave her black eyes, but said she had to stay with him because they had joint custody of Mickey and Steven would not let her take the boy.   She felt that her visits to San Rafael did not harm Mickey because at age six he was old enough not to need a mother around all the time.   Appellant apparently believed Marilyn had been removed from her custody because she was on welfare, and that her visits with Marilyn were terminated because the Department of Social Services decided it was too much trouble to arrange transportation for the visits and appellant was “overdoing it” by visiting once a month.

On January 21, 1984, prior to the hearing, Dr. Massie conducted a third psychological evaluation of Marilyn.   He found the child to be developing well, with less apparent indications of timidity and shyness than in his evaluations a year and a half earlier.   Dr. Massie testified that Marilyn was firmly psychologically attached to her foster mother, and that the foster mother was responsive and mature in handling the child.   Marilyn regarded the foster family as her only family.   Dr. Massie felt that to remove Marilyn from her foster family would be “psychologically devastating,” emotionally akin to the death of her parents and likely to impair her capacity for developing a sense of security in future placements or relationships.   Dr. Massie found Marilyn to be an adoptable child because she was able to form an emotional attachment to her foster family.   He had never met or conversed with appellant.

Dr. Richard Martin, a specialist in child and adult psychiatry and neurology, performed an independent evaluation of Marilyn on January 5 and 14, 1984, having been given no history or background regarding the child.   He described Marilyn as “positively flourishing,” and “a delightful little girl with a great capacity for enjoyment.” Her intellectual abilities and achievement were appropriate for her age.   Marilyn regarded her foster family as her loved ones, and gave no indication that there were other important people in her life.   Dr. Martin testified that Marilyn's emotional bonds were to her foster family.   He found Marilyn to be an adoptable child, whose best interests would be served in being adopted by her foster family.   He testified it would be “devastating” to remove Marilyn from the foster family as she would never be able to form a relationship of such quality.

Annette Blanchard, a Marin County social worker, testified that Marilyn interacted with her foster family as a very secure and well loved child.   Blanchard felt it would be extremely detrimental physically and emotionally to remove Marilyn from the foster family.   She testified that children she worked with reflected stress in their physical health when moved and that Marilyn was particularly at risk because she had a low tolerance for such change.

Jocelyn Bell, the Marin County social worker who supervised Marilyn's visits with appellant, testified that she did not feel appellant had the capacity to fill Marilyn's needs.

DISCUSSION

Respondent sought to free Marilyn from appellant's custody and control on the basis that appellant had neglected or cruelly treated the child (§ 232, subd. (a)(2)) and had failed and was likely to fail in the future to maintain an adequate parental relationship with her. (§ 232, subd. (a)(7).) ³ The court's order, however, rested solely upon section 232, subdivision (a)(2).   The court found that Marilyn was a dependent child of the juvenile court and that her parents had been deprived of her custody for more than one year prior to the filing of the petition;  that Marilyn had been neglected by her mother in that she was not adequately fed or clothed and the mother allowed her to be placed in a situation in which she became seriously ill;  that it would be detrimental to Marilyn's best interests to return her now or in the future to the custody of her mother;  and that Marilyn was an adoptable child.

 “Parenting is a fundamental right, and accordingly, is disturbed 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.)   Findings under any subdivision of section 232 must be made on the basis of clear and convincing evidence, evidence which is “ ‘ “so clear as to leave no substantial doubt;”  “sufficiently strong to command the unhesitating assent of every reasonable mind.” ’ ”  (In re Angelia P. (1981) 28 Cal.3d 908, 919, 171 Cal.Rptr. 637, 623 P.2d 198;  quoting Sheehan v. Sullivan (1899) 126 Cal. 189, 193, 58 P. 543.)   In addition to the specific requirements of the relevant provisions of section 232, the trial court must find that an award of custody to the parent would be detrimental to the child, that placement away from the parent “ ‘․ is essential to avert harm to the child․’ ”  (In re Carmaleta, supra, 21 Cal.3d at pp. 489, 495–496, 146 Cal.Rptr. 623, 579 P.2d 514, quoting In re B.G. (1974) 11 Cal.3d 679, 699, 114 Cal.Rptr. 444, 523 P.2d 244;  In re Angelia P., supra, 28 Cal.3d at p. 925, 171 Cal.Rptr. 637, 623 P.2d 198.) ⁴

A. Neglect

 Civil Code section 232, subdivision (a)(2), provides that a child may be declared free from parental custody and control if the child has been cruelly treated or neglected by either or both of his or her parents, and has been a dependent child of the juvenile court under any subdivision of section 300 of the Welfare and Institutions Code, removed from the parents' custody, for one year prior to the filing of the petition.   In order to terminate the relationship of natural parent and child under this section, however, there must be a showing of extreme neglect.  (In re Carmaleta B., supra, 21 Cal.3d at p. 489, 146 Cal.Rptr. 623, 579 P.2d 514;  In re T.M.R. (1974) 41 Cal.App.3d 694, 703, 116 Cal.Rptr. 292;  In re Jack H. (1980) 106 Cal.App.3d 257, 266–267, 165 Cal.Rptr. 646.)  “Neither financial inability to provide necessities nor a less than ideal home environment are of themselves coextensive with the culpable neglect necessary to sever all familial ties.”   (In re Jack H., supra, 106 Cal.App.3d at p. 266, 165 Cal.Rptr. 646.)   The parent-child relationship may not be permanently severed on the basis of “mere neglect.”  (Id., at p. 267, 165 Cal.Rptr. 646.)   Accordingly, cases which have upheld orders terminating parental relationships on this basis have involved extreme and demonstrable neglect.  (See In re Angelia P., supra, 28 Cal.3d at pp. 914, 924, 171 Cal.Rptr. 637, 623 P.2d 198 [mother failed to protect child from and intended to reunite with father who was incarcerated for wilful cruelty to the child];  In re Joseph E. (1981) 124 Cal.App.3d 653, 662, 177 Cal.Rptr. 546 [severe neglect of two children resulting in malnutrition and possible brain damage to one, and hospitalization for severe dehydration and secondary gastroentritis for the other];  In re Carmaleta B., supra, 21 Cal.3d at pp. 487, 494–495, 146 Cal.Rptr. 623, 579 P.2d 514 [mother failed to see need to protect children from father, a convicted sex offender who inflicted head injuries upon the children resulting in physical damage to one and partial paralysis with total loss of left eye vision in the other];  In re D.L.C. (1976) 54 Cal.App.3d 840, 844, 846, 126 Cal.Rptr. 863 [mother permitted eight-month old child to be subjected to extreme physical abuse, resulting in fractures of all four limbs];  In re Susan M. (1975) 53 Cal.App.3d 300, 310, 125 Cal.Rptr. 707 [filthy and unsanitary home conditions;  baby fed unwholesome and unsanitary food in dirty bottles and suffered serious weight and height deficiencies, severe dehydration and malnutrition].)

In the present case, the trial court's finding of neglect was expressly based on Marilyn's condition when she was removed from appellant's custody in July of 1980, and the fact that appellant allowed such condition to occur.   According to the evidence at trial, Marilyn at that time appeared healthy in terms of nourishment but suffered from a severe diaper rash, had mucus in her eyes and a runny nose, and was feverish and unclean.   These symptoms appeared to result from allergies and sensitivities which were brought under control only with repeated visits to a pediatrician and continuous special care by the foster parent.   While there is no exact line of demarcation between mere neglect and the neglect which is sufficient under section 232, subdivision (a)(2), the evidence in this case does not appear to present the degree of neglect required by the case law.

 We need not determine whether the evidence is in fact sufficient to support a finding of neglect within the meaning of section 232, subdivision (a)(2), however, as another factor compels us to reverse the trial court's judgment in this regard.   The trial court's finding of neglect was based entirely on events which occurred in the brief period of three and a half weeks during which appellant had custody of her child, more than three and a half years prior to the time of the hearing.   At that time, appellant had no place to live and no apparent plans for how to find one.   No evidence demonstrated whether appellant would have been able to care for Marilyn's physical needs after this initial period of crisis had passed and the child's condition stabilized, nor was any evidence presented of neglect during the period of foster care.   On the contrary, appellant clearly attempted to interact with and care for her child during the time she was allowed visitation, whatever her abilities to do so.   While past acts are relevant considerations, “an order to free a child from parental custody and control must rest on present circumstances․”  (In re Carmaleta B., supra, 21 Cal.3d at p. 493, 146 Cal.Rptr. 623, 579 P.2d 514;  In re Terry E. (1986) 180 Cal.App.3d 932, 949, 225 Cal.Rptr. 803;  In re Susan M., supra, 53 Cal.App.3d 300, 313, 125 Cal.Rptr. 707).   Even if conditions amounting to neglect existed at the time the child was removed from parental custody, the parent is still entitled to a determination whether such conditions persist at the time of the section 232 hearing (In re Carmaleta B., supra, 21 Cal.3d at pp. 493–494, 146 Cal.Rptr. 623, 579 P.2d 514;  In re Terry E., supra, 180 Cal.App.3d at pp. 949–950, 225 Cal.Rptr. 803;  In re Susan M., supra, 53 Cal.App.3d at p. 313, 125 Cal.Rptr. 707.) ⁵

 By the time this termination action was commenced, the events which occurred during appellant's brief period of custody were virtually irrelevant to her present ability to care for her child, as compared with evidence of her conduct during the years in which Marilyn was in foster care. Respondent did not file the petition until August 1983, which was more than two years after expiration of the one-year period of dependency prescribed by subdivision (a)(2) of section 232, and more than one year after appellant's right to visit Marilyn was terminated.   Such delay, which is unexplained in the record, is unconscionable because it insures the staleness of the most relevant evidence:  the parent's treatment of the child during the period of custody.   An order based on such stale evidence cannot be upheld.

B. Failure to maintain an adequate parental relationship

Respondent's petition also alleged that Marilyn came within the provisions of section 232, subdivision (a)(7).   This section provides that a child may be freed from parental custody and control if the child has been in out-of-home placement for a one year period and the court finds that return to the parent or parents would be detrimental to the child and that the parent or parents have failed during such period, and are likely to fail in the future to maintain an adequate parental relationship with the child, including providing a home and care and control for the child.  (See fn. 3, ante.)

Subdivision (a)(7) of section 232 balances the interests of the child in secure and sufficient parenting with the interests of the parent and child in preserving the familial bond by providing for a period of foster care and rehabilitation to enable the parents to properly handle parental responsibilities.  (In re Laura F. (1983) 33 Cal.3d 826, 832–833, 191 Cal.Rptr. 464, 662 P.2d 922, quoting In re Carmaleta B., supra, 21 Cal.3d at p. 491, 146 Cal.Rptr. 623, 579 P.2d 514.)   This provision “focuses on the parent's failures during the period of foster care and the likelihood of failure in the future․”  (In re Laura F., supra, 33 Cal.3d at p. 833, 191 Cal.Rptr. 464, 662 P.2d 922, italics in original.)   It is thus particularly well suited to the present case, since appellant's relationship with Marilyn was almost entirely during the period the child was receiving foster care.   Appellant's conduct during the time she had custody of Marilyn is relevant to the section 232, subdivision (a)(7) inquiry, as “a measure of a parent's future potential is undoubtedly revealed in the parent's past behavior with the child.”  (In re Laura F., supra, 33 Cal.3d at p. 833, 191 Cal.Rptr. 464, 662 P.2d 922;  In re Angelia P., supra, 28 Cal.3d at p. 925, 171 Cal.Rptr. 637, 623 P.2d 198), and the past relationship may be the only indication of the quality of parenting at a time when the parent was solely responsible for the child.  (In re Laura F., supra, 33 Cal.3d at p. 833, 191 Cal.Rptr. 464, 662 P.2d 922.)   Unlike section 232, subdivision (a)(2), however, section 232, subdivision (a)(7), requires this past conduct to be viewed within the context of the subsequent period of foster care, as a factor bearing on appellant's continuing and future capacity as a parent rather than as the determinative factor upon which termination of the parental relationship is based.   Thus, the brevity of the period of appellant's custody of Marilyn can be appropriately considered under section 232, subdivision (a)(7), with primary emphasis being placed on the more relevant subsequent events.

Evidence was presented at the hearing which bore directly on the section 232, subdivision (a)(7), issue.   Social worker Bell described appellant's behavior during visitation with Marilyn which tended to show that appellant was not responsive to the child's needs, and testified that she did not believe appellant had the capacity to meet Marilyn's needs.   Social worker Allingham described appellant's residence in Guerneville as inadequate for a young child and testified that the food supply in the Guerneville residence was erratic and Mickey's hygiene inconsistent.   Appellant's description of her transitory lifestyle also raised questions about her parenting capacity.⁶  On the other hand, Bell testified that appellant's interaction with Marilyn improved as the child grew older.   Appellant stated that she would move into a place of her own if she was awarded custody, would enroll Marilyn in preschool, and would not allow her commuting to interfere with such schooling.   All these factors have direct bearing on appellant's present abilities to parent Marilyn, and likely abilities for the future.

 The trial court's tentative decision found clear and convincing evidence that appellant had failed and was likely to fail in the future to maintain an adequate relationship with Marilyn, albeit without precisely specifying the factors relied upon.   This conclusion, however, is not included in the final judgment which, as has been indicated, was based solely on section 232, subdivision (a)(2).   The tentative decision is not binding:  it may be changed before judgment is entered (Cal. Rules of Court, rule 232(a)), and may not be used to contradict or modify the judgment.   (Taormino v. Denny (1970) 1 Cal.3d 679, 684, 83 Cal.Rptr. 359, 463 P.2d 711;  Morris v. Thogmartin (1973) 29 Cal.App.3d 922, 930, 105 Cal.Rptr. 919.)   As in Oldis v. La Societe Francaise (1955) 130 Cal.App.2d 461, 279 P.2d 184, further consideration during the intervening period between issuance of the tentative decision and the judgment “well may have convinced the judge he should revise his appraisal of the evidence.”  (Id., at p. 472, 279 P.2d 184.)   The absence in the judgment of any reference to section 232, subdivision (a)(7), renders it highly improper to assume termination was ordered in reliance upon that provision.   Accordingly, we do not pass upon the sufficiency of the evidence to support a finding under subdivision (a)(7).

For the foregoing reasons we are compelled to reverse the judgment.   Because all the evidence received at trial purporting to warrant parental termination under section 232, subdivision (a)(2), is impermissibly stale, and because there can be no more recent evidence of neglect or cruel treatment, as appellant has not enjoyed custody of Marilyn since 1980, nor been able to visit her since 1982, the case may not be retried under subdivision (a)(2).

FOOTNOTES

1.   All statutory references will be to the Civil Code unless otherwise specified.

2.   Appellant testified that she named her baby after her own mother, Marilyn, because she thought this would cause her parents to allow her and the baby to stay with them for awhile, but that this idea had not worked.   In a letter to the court, after trial (entitled “Appeal for Habeas Corpus Relief”), appellant stressed that the fact that the baby was named after appellant's mother meant that the baby had to be returned to appellant.

3.   The petition alleged these same grounds as to both Steven M. and Royal S., and further alleged that Marilyn had been abandoned by her parents.  (§ 232, subd. (a)(1).)   It was later conceded that the evidence did not support a finding that appellant intended to abandon the child.   The court found that the fathers had abandoned Marilyn and freed Marilyn from their custody and control on this basis, and neither father has appealed.Section 232, subdivisions (a)(2) and (a)(7), the provisions relevant to this appeal, provide in pertinent part as follows:“(a) An action may be brought for the purpose of having any child under the age of 18 years declared free from the custody and control of either or both of his or her parents when the child comes within any of the following descriptions:“․“(2) Who has been neglected or cruelly treated by either or both parents, if the child has been a dependent child of the juvenile court under any subdivision of Section 300 of the Welfare and Institutions Code and the parent or parents have been deprived of the child's custody for one year prior to the filing of a petition pursuant to this section.   Physical custody by the parent or parents for insubstantial periods of time shall not serve to interrupt the running of the one-year period.“․“(7) Who 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․“The court shall make a determination that reasonable services have been provided or offered to the parents which were designed to aid the parents to overcome the problems which led to the deprivation or continued loss of custody and that despite the availability of these services, return of the child to the parents would be detrimental to the child.   The probation officer or social worker currently assigned to the case of the child shall appear at the termination proceedings.“If the minor has been adjudged to be a dependent child of the court pursuant to Section 300 of the Welfare and Institutions Code, the court shall review and consider the contents of the juvenile court file in determining if the services were reasonable under the circumstances.“Trial placement of the child in the physical custody of the parent or visitation of the child with the parent during the one-year period, when the trial placement or visitation does not result in permanent placement of the child with the parent, shall not serve to interrupt the running of the one-year period.”

4.   The finding of detriment is required by Civil Code section 4600, subdivision (c), which has been held to apply to section 232 cases.  (In re Carmaleta B., supra, 21 Cal.3d at pp. 495–496, 146 Cal.Rptr. 623, 579 P.2d 514;  In re B.G., supra, 11 Cal.3d 679, 695–696, 114 Cal.Rptr. 444, 523 P.2d 244.)  Section 4600, subdivision (c) provides in pertinent part:  “Before the court makes any order awarding custody to a person or persons other than a parent, without the consent of the parents, it shall make a finding that an award of custody to a parent would be detrimental to the child and the award to the nonparent is required to serve the best interests of the child.”

5.   The dependency proceedings by which Marilyn was removed from appellant's custody were initiated not on the basis of neglect but on the basis that Marilyn was “destitute, ․ not provided with the necessities of life, or ․ not provided with a home or suitable place of abode․”  (Welf. & Inst. Code, § 300, subd. (b).)

6.   Appellant failed to appear on the date scheduled for this hearing, February 6.   The proceedings were continued until Tuesday, February 7 and, as appellant was again absent, commenced without her.   Appellant appeared and testified Thursday, February 9.

KLINE, Presiding Justice.

SMITH and BENSON, JJ., concur.