IN RE: ANGELIA M. P. (1980)

The trial court declared Angelia P. free from the custody and control of her parents, appellants Ronald and Virginia P., pursuant to Civil Code section 232.¹ By such an order, the court permanently terminated all parental rights and obligations of parents to child, and all rights and obligations of the child to the parents.² Civil law knows no more drastic state action in severing familial relations. Since we deal with a fundamental right of parents to child and child to parent we hold that the state must carry the burden of proof beyond a reasonable doubt. When, as in the case at bench, the child is not in the physical custody of the parents such a burden must be carried to show that (1) it is in the child's best interest to terminate residual parental rights, and (2) it is detrimental to the child to maintain residual parental rights. The burden which the state must carry is manifestly a heavy one. We remand for further proceedings.

The sad family circumstances known to every trial judge who deals in these matters are revealed by the background of this case. Virginia and Ronald P. were married on May 12, 1973. The following year their first child, Angelia, was born. It is Angelia who is the subject of this litigation. When she was three months old Angelia was hospitalized in critical condition as a result of injuries sustained while in her father's care. According to the report of her pediatrician, the infant was “brought into the emergency room moribund from bilateral subdural hematomas.” The attending physician diagnosed battered child syndrome when tests revealed an older fracture in addition to the new skull fracture, as well as other injuries which did not appear to have been sustained in the manner described by Ronald.

While Angelia was still hospitalized, a dependency petition was filed on her behalf pursuant to section 600 3 of the Welfare and Institutions Code on the basis that “said minor's home is an unfit place for her by reason of neglect and cruelty.” When Angelia was finally released from the hospital, three months later, she went directly to a foster home. Since her placement in the foster home Angelia has required close medical supervision as a result of the injuries inflicted on her by Ronald. She has a shunt permanently implanted in her brain to drain off excess fluids and is on medication to control grand mal seizures. Her progress has been good considering the extent of her brain damage.

During the first eight months that Angelia was in foster care Ronald and Virginia visited her. On almost all of those occasions Ronald was intoxicated, sometimes to the point that he was not allowed to continue the visit. On one occasion he threatened the foster parents, indicating that he had a gun.

A second child, Lisa, was born in August 1975. Lisa is well cared for and continues to reside with Virginia.

Ronald was convicted of felony child abuse pursuant to Penal Code section 273a, subdivision (1).⁴ At the time of the instant hearing he was still imprisoned but anticipated a parole date in January 1979. Ronald has not communicated in any way with Angelia since his imprisonment, although Virginia has kept him informed of the child's progress.⁵

A few days after Ronald was imprisoned the court ordered that an amended dependency petition be filed nunc pro tunc alleging that, “the minor is in need of proper and effective parental care and control and has no parent capable of providing such care and control in that said minor has special medical needs, and that the father of said minor is under commitment to the California Adult Authority for the period prescribed by law, and the mother of said minor has a two-month-old child in the home and is fully employed and as a result is unable to care for those special medical needs of the minor.” Two months later there was a dispositional hearing wherein the juvenile court decided that Angelia could begin visiting Virginia in her home as soon as a crib was obtained. When Virginia obtained a crib, Angelia did begin visiting in Virginia's home. Visits at the foster home also continued.

The following year, in July 1976, at the routine review, Virginia requested a contested hearing for the purpose of having Angelia returned to her custody. The result of the hearing was an order by the court in September that the minor should be left in the custody of the foster parents, but that visitation be increased towards the goal of eventual reunification of the family. From then until March 1977, a period of six months, Virginia was involved in a program to return the child. Finally, in March 1977, at the request of the Department of Social Services, the court ordered Angelia returned to the physical custody of her mother with the understanding that she would remain in foster care for a few more weeks while Virginia terminated employment and made the necessary preparations.

Within a few days of the court order Virginia visited Ronald in prison and they discussed the plan for Angelia's return. They decided that Virginia should not resume custody of Angelia at that time because of the financial hardship which they perceived would be involved. They decided upon an alternative arrangement whereby Angelia's return was to be postponed for at least two-and-a-half years. This was the approximate time it would take for Ronald to be paroled, find employment and readjust to family life and for Virginia to terminate her employment so that she could care for Angelia as the child was gradually reintroduced to Ronald.

Suddenly the progress towards family reunification was drastically reversed. In the following week Virginia informed her social worker, Mr. Haase, of the change in plans. Mr. Haase gave Virginia almost a month to change her mind and warned her and her attorney that her actions might result in the filing of a section 232 petition. In June 1977 the court ordered that Angelia continue as a dependent child of the court and remain in foster placement. Visitation was set on a once-a-month basis in the foster home. In October 1977 Angelia was referred for adoptive planning by the Yolo County Welfare Department.

In May 1978, approximately three years after Angelia was placed in foster care, the California State Department of Health filed the petition to terminate the parental rights of Virginia and Ronald. The court ruled that: (1) Angelia had been cruelly treated or neglected by both of her parents (Civil Code, s 232, subd. (a)(2)); (2) Angelia's father, Ronald, had been convicted of a felony, the facts of which crime prove the unfitness of Ronald to have the future custody and control of the child (Civil Code, s 232, subd. (a)(4)); and (3) Angelia had been in foster care for over three consecutive years. Return to her parents would be detrimental because they have failed and are likely to fail in the future to (a) provide a home for her; (b) provide for her care and control; (c) maintain an adequate parental relationship with her; and (d) maintain continuous contact with her (Civil Code, s 232, subd. (a)(7)). The court concluded that it was in Angelia's best interest to free her from parental custody and control and that it would be detrimental to Angelia to place her in the custody of her parents now or in the future.⁶

“The proceedings to declare a child free from parental control . . . contemplate the conclusion of . . . custody problems and not only termination of all parental control but the severance of the relationship between the child and its parent or parents.” (In re Zimmerman (1962) 206 Cal.App.2d 835, 843, 24 Cal.Rptr. 329, 334.)

The trial court failed to note the distinction between custody and termination of all parental rights. Such a distinction, though not clearly enunciated by statute or decisional law, is crucial.

I

Distinction Between Custody and Termination

There is a custody continuum which may be defined by the degree of state interference in the parent-child relationship. At one end of the continuum, parent and child enjoy a legal, custodial and affectional relationship to the fullest extent in which there is little state interference into the private family realm. However, under circumstances of family crisis the state may step in as parens patriae and substitute to some degree its authority for that of the parents. State interference can take many forms; California has at least eight separate proceedings dealing with child custody. (See Bodenheimer, The Multiplicity of Child Custody Proceedings Problems of California Law (23 Stan.L.Rev. 702).) The California Supreme Court in the seminal case of In re B. G. (1974) 11 Cal.3d 679, 114 Cal.Rptr. 444, 523 P.2d 244, held that section 4600 of the Family Law Act governs any of these proceedings along the custody continuum. Other cases have specifically applied the B. G. holding to proceedings under section 232. (In re Carmaleta B. (1978) 21 Cal.3d 482, 146 Cal.Rptr. 623, 579 P.2d 514, see also In re T. M. R., supra, 41 Cal.App.3d 694, 116 Cal.Rptr. 292.)

The custody issue deals with the question of where and with whom a child should be placed when the family unit has been disrupted. Termination of the parent-child relationship, unlike a determination of custody alone, represents the farthest extreme in the custody continuum. The state seeks both to permanently deprive the parent of custody and to completely sever every other aspect of the relationship. The title of Civil Code section 232 dealing with termination is “Freedom from Parental Custody and Control.” This terminology, used throughout, gives the misleading impression that custody is the major issue to be decided under this section. In fact, it is not; custody is governed by section 4600. On the other hand, the distinguishing feature of section 232 is its permanently binding effect on the entire parent-child relationship. A decision to terminate under section 232 forever cuts off the relationship of a child to its parents as well as to its siblings and grandparents. Parental consent is then unnecessary to adoption of the child by third persons.

We turn to the initial issue the trial court must face: will the award of custody to a parent be detrimental to the child? The child must be returned to the parents if no detriment can be shown. If detriment can be shown, however, only the custody issue is determined. The issue of permanent termination of rights is left in abeyance. If the parents cannot be deprived of temporary custody under section 4600, it follows that they cannot be deprived of custody permanently pursuant to section 232(a).

Appellants argue (1) the section 232 petition was filed prematurely, and (2) the record does not show that it would be detrimental to return Angelia to the custody of her parents. We reject both arguments.

First, the petition was not premature. Appellants base their argument on the premise that Angelia would not be returned home immediately but would remain in foster care until after Ronald's release from prison and eventual rehabilitation. Counsel for appellants suggest that the court could order the parents to attend appropriate counseling sessions and that “if either parent failed to comply with the reasonable demands of the court within a reasonable amount of time, there was always the potential resumption of 232 proceedings. Also if the gradual reintroduction of Angelia proved to be an unworkable solution, the court could then again consider 232 proceedings.”

Appellants' argument fails to recognize that the hearing in this case took place nearly four years after the child had been removed from her parents' custody and had spent virtually her entire life in foster care. There comes a time in the life of a child when a decision must be made as to a permanent plan for her custody. We cannot find anything in the facts of this case to suggest that this issue was brought prematurely to the court's attention.

Second, there was substantial evidence for the trial court to conclude that it would be detrimental to return Angelia to the custody of her parents. Ronald had abused Angelia more than once in the first three months of her life and this abuse had left her with irremedial brain damage. The foster parents had experienced Ronald's violent behavior and were apprehensive about the possibility of Angelia ever returning to his custody. Ronald's history of assaultive behavior includes an earlier conviction for child abuse.

By contrast there is no evidence of any cruelty on Virginia's part. The evidence discloses, however, that Virginia was unable to protect Angelia from Ronald's abuse. When Angelia was brought to the hospital the injury was three days to two weeks old and X-rays revealed a previous skull fracture. Virginia's inability to stand up to Ronald was repeatedly borne out in the probation report and the testimony of the probation officer and the social worker.⁷ Virginia's failure to appreciate the necessity of protecting the child from her abusive father justified the trial court's conclusion that Angelia would not be safe in her custody. (See In re Carmaleta B., supra, 21 Cal.3d 482, 146 Cal.Rptr. 623, 579 P.2d 514.)

We hold that there was substantial evidence to support the trial court's holding that an award of custody to either Ronald or Virginia would be detrimental to Angelia and that an award of custody to a nonparent was essential to avoid harm to the child.

II

Permanent Termination of Parent-Child Relationship

Having determined that it is essential for Angelia's safety that she not be in her parents' custody, the court terminated all residual parental rights. It is this portion of the ruling which concerns us.

Personal autonomy in family matters has been recognized as a fundamental right protected by the Constitution in innumerable federal and state court opinions. (Meyer v. Nebraska (1922) 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042; Griswold v. Connecticut (1965) 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510; Alsager v. District Court of Polk County, Iowa (S.D.Iowa (1975) 406 F.Supp. 10.) It is beyond peradventure that freedom of personal choice in matters of family life is one of the liberties protected by the Due Process Clause. (Cleveland Board of Education v. La Fleur (1974) 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52.) Even the parental rights of an unmarried father may not be severed without compliance with constitutionally mandated procedural due process. (Stanley v. Illinois (1972) 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551.) California decisional law overwhelmingly recognizes that “(p)arenting 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., supra, 21 Cal.3d at p. 489, 146 Cal.Rptr. at p. 627, 579 P.2d at p. 518. See also In re Raya (1967) 255 Cal.App.2d 260, 63 Cal.Rptr. 252.) The courts of appeal have often noted that involuntary termination of the parent-child relationship is “a drastic remedy which should be resorted to only in extreme cases of neglect or abandonment.” (In re T. M. R., supra, 41 Cal.App.3d 694, 703, 116 Cal.Rptr. 292, 298; see also In re Terry D. (1978) 83 Cal.App.3d 890, 902-903, 148 Cal.Rptr. 221, quoted with approval in In re Carmaleta B., supra, 21 Cal.3d at p. 489, 146 Cal.Rptr. 623, 579 P.2d 514.) Because of the dearness of the rights involved in a 232 proceeding the trial court is required to conduct a least detrimental alternative analysis (In re Carmaleta B., supra; In re Susan M. (1975) 53 Cal.App.3d 300, 125 Cal.Rptr. 707); indigent parents have a right to counsel on appeal (In re Jacqueline H. (1978) 21 Cal.3d 170, 145 Cal.Rptr. 548, 577 P.2d 683); and the minor has a right to appointed counsel “at the commencement of proceedings absent an immediate showing upon which the court can exercise its discretion against making an appointment.” (In re Richard E. (1978) 21 Cal.3d 349, 355, 146 Cal.Rptr. 604, 608, 579 P.2d 495, 499, see also In re Dunlap (1976) 62 Cal.App.3d 428, 133 Cal.Rptr. 310.) The courts of appeal have often noted that involuntary termination of the parent-child relationship is “a drastic remedy which should be resorted to only in extreme cases of neglect or abandonment.” (In re T. M. R., supra, 41 Cal.App.3d at p. 703, 116 Cal.Rptr. at p. 298; In re Terry D. (1978) 83 Cal.App.3d 890 at pp. 902-903, 148 Cal.Rptr. 221, quoted with approval in In re Carmaleta B., 21 Cal.3d at p. 489, 146 Cal.Rptr. 673, 579 P.2d 514.)

We must, therefore, rigorously scrutinize government attempts to terminate this most basic of all human relationships and require a compelling threshold of harm as the prerequisite to permanent termination. (See Alsager, supra, 406 F.Supp. at p. 15.) We recognize that absolutist theories are never suitable where the issue is one so complex and indeterminate as the future of a child and its parents. The issues raised by a section 232 proceeding are unique in that they bring before the court the conflicting demands of the parents, the child, the state, and often the de facto parents. Each of these parties presents to the court its claim for recognition which represent overlapping rights and responsibilities. In addition to weighing the evidence of past events, the court is faced with the nearly impossible task of predicting the impact of future contingencies.

What, then, is the trial court to do? The trial court must find that the consequences in harm to the child in allowing the parent-child relationship to continue are more severe than the consequences of termination. In reaching its decision, the court must consider the totality of circumstances surrounding the parent-child relationship.

Those interrelated circumstances to be considered include the following: (1) best interest of the child; (2) detriment to the child; (3) least detrimental alternative; and (4) parental unfitness. We discuss each briefly. First, section 232 must be construed liberally to promote the welfare of the child.⁸ In light of the decision that custody of the child is to be vested in a third party, the court must then determine whether termination of all residual parental rights will actually promote the child's welfare. We observe that although the trial court's jurisdiction of a child will not extend beyond the time that the child reaches the age of majority, the love and closeness between a parent and child may last a lifetime. In the case of handicapped child such as Angelia, it is particularly important to bear in mind this larger perspective. Second, section 4600 considers a finding of detriment essential before a child can be placed with a nonparent. Since termination is drastic and final, the detriment standard should apply here as well. Thus, the trial court must determine whether the evidence clearly establishes beyond a reasonable doubt that it is detrimental to the child to maintain a legal relationship (aside from custody) with either her father or her mother. Third, the state must show that termination is necessary to justify its compelling interest in protecting the child. The court must examine the evidence and ascertain whether it is essential to Angelia's safety that all parental rights be terminated when the child is in the custody of another. In view of the fact that residual parental rights encompass a right to visitation, the court should determine whether preservation of these rights in either parent poses a substantial threat of harm to Angelia or whether there is a less drastic remedy which can protect her. (See In re D. L. C. (1976) 54 Cal.App.3d 840, 126 Cal.Rptr. 863; In re Rose Lynn G. (1976) 57 Cal.App.3d 406, 129 Cal.Rptr. 338.) The record contains no evidence that Virginia's continued visitations with Angelia in the foster home poses any threat of harm to the child. Fourth, parental unfitness must be found. The custody-termination distinction is particularly critical on the issue of parental unfitness. Section 4600 focuses on detriment to the child and does not require that parents be found unfit. (See In re B. G., supra, for legislative history of s 4600 regarding parental unfitness.) By contrast, section 232 proceedings are largely “accusatory in nature” and “directed to challenges against the parent not against the child.” (In re Richard E. (1978) 21 Cal.3d 349, 354, 146 Cal.Rptr. 604, 607, 579 P.2d 495, 498.)

California law encourages the relaxation of boundaries between proceedings which affect a child's future welfare. (In re Lisa R. (1975) 13 Cal.3d 636, 119 Cal.Rptr. 475, 532 P.2d 123; see also Bodenheimer, New Trends and Requirements in Adoption Law and Proposals for Legislative Change (1975) 49 So.Cal.L.Rev. No. 1.) The Family Law Act, section 4600, allows the court “during the pendency of the proceeding, or at any time thereafter (to) make such order for the custody of . . . (the) child as may seem necessary or proper.” This approach to custody is manifestly the best insurance that the child's interest as well as parental rights will be served by the legal process. The juvenile court should exercise its power to gather before it all interested parties and agencies. The absence of testimony from the de facto parents, perhaps crucial, made it almost impossible for the trial court to render its judgment based on the totality of the circumstances.

Having discussed the evidence which the trial court must weigh before terminating residual parental rights, we turn to the question of what standard of proof shall be applied. Since a section 232 proceeding involves the fundamental rights of child and parent, due process requires that the state meet the highest burden of proof, that of beyond a reasonable doubt.

Although the general standard of proof in a civil case is preponderance of the evidence (Evid.Code, s 115) it has been judicially determined that this standard is inappropriate in a section 232 proceeding. (See In re B. G., supra, In re Cynthia K. (1977) 75 Cal.App.3d 81, 141 Cal.Rptr. 875; In re Terry D., supra; see also Alsager, supra.) Thus, the courts currently apply the standard of clear and convincing evidence.⁹

Appellants argue that the clear and convincing standard is constitutionally infirm and urge this court to adopt the standard of beyond a reasonable doubt. To our knowledge this is the first case in which a court has been squarely presented with this issue. This court in In re Terry D., supra, was faced by appellants who objected to the then prevailing preponderance of the evidence standard and asked only that we adopt either beyond a reasonable doubt or clear and convincing. Other cases in which the issue of standard of proof was raised involved appellants who urged adoption of the clear and convincing standard. (In re Heidi T. (1978) 87 Cal.App.3d 864, 151 Cal.Rptr. 263; Alsager, supra.) The fundamental nature of the rights involved compel our conclusion that the clear and convincing standard must yield to the highest burden of proof when the state seeks to sever residual parental rights. We note, by contrast, that in the custody phase of the proceedings discussed above, the clear and convincing standard is adequate. (In re B. G., supra.)

When one of the most fundamental of rights is the subject of a judicial proceeding, criminal or civil, the highest burden of proof must be imposed on the state before it is permitted to act. (Re Winship (1970) 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368.) When a societal judgment is rendered that the parents have failed their most fundamental obligation stigma attaches to the entire family as surely as if a parent is sent to prison. Appellants stand accused of failing their child, Angelia the father by his criminal physical abuse and the mother by her weakness. If Angelia is not adopted, a likely consequence in view of her handicap, her status will be that of a ward of the State of California. Will she not be stigmatized as a child of unworthy parents?

When the child is already in custody of others, the state must prove beyond a reasonable doubt that it is to the best interest of the child to terminate all residual parental rights. Such a determination requires that other less intrusive alternatives be examined and that the court be convinced, beyond a reasonable doubt, that those alternatives are not viable. Further, stability for the child is crucial, whether that be by adoption, guardianship or other court order which will create the stability. (Goldstein, et al., Beyond the Best Interest of the Child (1973).)

The state will manifestly carry a heavy burden. That is as it should be. The trial court will need all the help it can get from the parties. Surely, how well the parents have done with their other children is relevant. The availability of adoptive parents or guardians looms as an important consideration. The legislative and constitutional approach is this: all efforts will be made to keep the family together and to strengthen that family; only if those earnest efforts fail will the child be removed. Once parents lose custody of a child, the State cannot sever the residual parental rights unless it proves beyond a reasonable doubt that such is essential to avert harm to the child. The burden, though heavy, is manageable. We judicially notice that trial courts have applied such a standard, during a time it was legislatively prescribed, seemingly without difficulty. (See In re Terry D., supra; In re D. L. C., supra.) In all too many cases it is a burden of proof that will be easily met. In unclear cases substantive due process requires that the relationship of parent and child be secure.

We reverse and remand.

I concur in the majority conclusion that substantial evidence supports the trial court's holding that an award of custody to either Ronald or Virginia (natural parents) would be detrimental to Angelia and that an award of custody to a nonparent was essential to avoid harm to the child. I rigorously dissent from that portion of the majority opinion that reverses the trial court order which terminates all parental rights.

In support of their conclusion, the majority opinion adopts a fundamental but false and unsupported premise. They postulate that the court must apply the ‘beyond a reasonable doubt’ standard of proof in considering whether it would be detrimental to the child to maintain a legal relationship with either her mother or her father. The majority gratuitously cite in support of that assertion the case of In re D.L.C. (1976) 54 Cal.App.2d 840, 126 Cal.Rptr. 863. At the time of that decision, the Legislature had provided the more stringent reasonable doubt standard limited to section 232, subdivision (a)(7), proceedings. By Stats. 1976, chapter 940, the Legislature substituted the clear and convincing evidence standard for that of reasonable doubt.

The majority conveniently ignore In re Heidi T. (1978) 87 Cal.App.3d 864, 151 Cal.Rptr. 263, in which the court resolved any question of the proper standard of proof in proceedings such as this. That court acknowledged that the nature of the proceeding presented due process considerations and it had far-reaching consequences. In finding the correct standard of proof to be clear and convincing, the court noted that conclusion found nearly uniform support in several decisions. (See In re Cynthia K. (1977) 75 Cal.App.3d 81, 85-86, 141 Cal.Rptr. 875; In re George G. (1977) 68 Cal.App.3d 146, 165, fn. 14, 137 Cal.Rptr. 201; In re Robert P. (1976) 61 Cal.App.3d 310, 318, 132 Cal.Rptr. 5; Alsager v. District Court of Polk Cty., Iowa (S.D.Iowa 1975) 406 F.Supp. 10; In re Rose G. (1976) 57 Cal.App.3d 406, 420, 129 Cal.Rptr. 338.)

Section 232, subdivision (a)(7), is clear and in its present express form, it provides for the use of the clear and convincing standard of proof in 232, subdivision (a)(7), proceedings. That language defies judicial interpretation.

It must be remembered, however, that the standard of proof discussed is for the guidance of the trial court only. Our review is limited to a determination of whether substantial evidence supports the trial court's conclusion. (Crail v. Blakely (1973) 8 Cal.3d 744, 750, 106 Cal.Rptr. 187, 505 P.2d 1027; Witkin, Cal.Evidence (2d ed. 1966) s 209, pp. 190-191.)

Section 232, subdivision (a)(2), states that an action may be brought to have a person under the age of 18 years declared free from parental custody and control when that person is one “Who has been cruelly treated or neglected by either or both of his parents, if such person has been a dependent child of the juvenile court, and such parent or parents deprived of his custody for the period of one year prior to the filing of a petition praying that he be declared free from the custody and control of such cruel or neglectful parent or parents.”

Section 232, subdivision (a)(7), provides that a minor child may be declared free from parental custody and control when it is one “Who has been cared for in one or more foster homes, under the supervision of the juvenile court, . . . for two or more consecutive years, providing that the court finds by clear and convincing evidence that return of the child to his parent or parents would be detrimental to the child . . ..”

The trial court made the required findings under both subdivisions; as to section 232, subdivision (a)(2), the court found that Angelia had been cruelly treated or neglected by both of her parents, that Angelia's father had been convicted of a felony (felonious child abuse), and the underlying facts of that crime rendered him unfit to have the future custody and control of his child. As to the section 232, subdivision (a)(7), proceeding, the court found that Angelia had been in foster care for over three consecutive years and that her return to her parents would be detrimental as they had failed and were likely to fail in the future, to provide a home for her, adequately provide for her care and control, maintain an adequate parental relationship with her, and maintain continuous contact with her.

The findings made by the trial court are in my opinion in every respect supported by overwhelming evidence.

As I consider the argument presented by the parents and apparently adopted by the majority, that the evidence is insufficient to support the findings of the trial court, I do so having in mind that “The purpose of the statute (Civ.Code, s 232) is to protect children, not to punish a criminal offender. The interest sought to be protected is that of the welfare of a child. Its need to be raised with love, emotional security and physical safety is paramount to any right of a neglectful parent to have the custody and physical proximity of its child.” (Emphasis added; In re Sherman M. (1974) 39 Cal.App.3d 40, 44, 113 Cal.Rptr. 847, 849.)

The trial court concluded that Angelia had been cruelly treated or neglected by both parents. With reference to Virginia, the court found, “Angelia . . . has been neglected by her mother, Virginia . . . . The mother, a very passive person, has repeatedly failed to protect or look after the best interest of the minor child. Among other things, she refuses to acknowledge that her husband ever committed child abuse on Angelia and refused to take Angelia back when the Juvenile Court ordered Angelia's return in 1977.” While it is true the evidence did not disclose any physical cruelty toward Angelia by Virginia, it did focus on the mother's passive nature and her failure to aid the child or protect her from the cruel and inhuman treatment visited upon her by Ronald. She failed to provide a home where the child could live peacefully and grow normally without physical abuse. While such faults are negative, i. e., failure to act, the result for Angelia is just as devastating.

The weakness and instability demonstrated by Virginia toward Angelia was repeatedly borne out in the probation report and by the testimony of the probation officer and the social worker. I review pertinent portions of that testimony, remembering that at age three months, Angelia had been hospitalized with a fractured skull which disclosed evidence of a previous battery or mishap causing an earlier skull fracture which had not been reported to the authorities by the child's mother.

The social worker Haase testified in part as follows: “Q And you initially testified that the problem in the . . . home was that the father was drunk and the passive mother easily dominated by her husband. Do you believe anything has changed over the last three and a half years which would indicate that the problems are solved?

“A No.

“Q Can you explain your answer?

“A Yes, in the simply on the basis of cause and effect that if there is nothing to change whatever has as the cause of the condition or the events or style, if there is nothing that you can look at and say, ‘This is what caused it and there has been something to change that cause,’ then I would believe that the situation is still the dynamics are still the same.

“Q So, do you consider (it) important with regard to (Ronald) that he refuses to acknowledge guilt or wrongdoing in either of his child abuse convictions?

“A Yes.

“Q Do you consider significant that while he acknowledges a drinking problem he has failed to take advantage of treatment in prison?

“A Yes.

“Q Would you consider it relevant or important that though he professes love for Angelia that he does not send gifts or letters?

“A Yes.

“Q Would you consider it important also that (Ronald) advises (Virginia) to reject the child?

“A Yes.

“Q With regard to (Virginia), do you consider it important and relevant to your expressed opinion that she still refuses to believe that (Ronald) did anything wrong?

“A Yes.

“Q Does she still seem to be dominated by (Ronald)?

“A Yes.”

Probation Officer Low stated in his report as follows: “Regarding the present offense, and her husband's past battery conviction in 1966, (Virginia) does not believe that the father is guilty of any intentional wrongdoing toward the children. She trusts her husband, and, recognizing his past difficulty with alcohol, believes he will refrain from further involvement with intoxicants.”

Virginia testified in response to questions by the court as follows: “Q To restate the judge's question: How can you rationalize living with someone who has been convicted of injuring Angelia?

“A Well, even though I wasn't there, . . . that I was working then this incident happened, I believe that he didn't do it. . . .

“THE COURT: Is it your opinion that someone (strolled) into the house and committed this while he was asleep or

“THE WITNESS: No.

“THE COURT: that there were other persons who could have committed it?

“THE WITNESS: No, not to my knowledge.

“THE COURT: And who do you think, if he didn't do it, did what was done?

“THE WITNESS: It was an accident.”

She also stated that she believes Ronald's conviction of battery upon his son by a prior marriage was wrong, and that injury was also accidental, not intentional.

The foregoing brief recitation of evidence alone constitutes overwhelming evidence in support of the trial court's findings of fact, conclusions of law and judgment that an award of custody to the parents would be detrimental to the child. (Civ.Code, s 4600.)

I also conclude under the circumstances available alternative dispositions were meager at best. However, the trial court did consider them and found them not suited for the protection and well-being of Angelia.

Ronald presented an alternative plan by which he would return home from prison, undergo therapy for his alcohol problem, and over a six-month period slowly reintroduce Angelia into the home. In rejecting that plan the trial court weighed all considerations and noted that prior efforts to reunite Angelia with her mother were thwarted by Virginia's refusal to accept the child upon the order of Ronald while he was in prison. The court also found the likelihood of future child abuse great if the child were placed with her parents, resulting in potential additional injuries.

Finally, the trial court explored the possibility of reuniting the mother and the child without the father.

In that connection the following colloquy took place: “THE COURT: Well, if you knew that the Court had to make a decision on whether your husband returned to your family site and that, with this record that he has, the Court cannot condone another possibility of any recurrence of what had occurred, would it be your opinion you still would have (Ronald) as your husband and live with you after the his return from prison?

“THE WITNESS: That's correct.”

The trial court obviously explored the meager alternatives available under the circumstances before terminating the parental rights.

I have carefully compared the factual exposition and legal analysis of the majority opinion with that of the record. They are more than dissimilar. In my view the reversal ordered is not predicated upon the evidence in the record, the language of the statute, or existing decisional authority, but rather is imposed because of a personal philosophy gratuitously expounded by the majority relating to total termination of parental rights. The Legislature which represents the will of the people of this state has provided for and required in certain instances that parental rights be terminated. In this instance the trial court painstakingly and correctly carried out the legislative mandate as a result of the clear and convincing proof presented of detriment to the child should she be returned to her parents.

I would affirm the judgment.

FOOTNOTES

1.  Unless otherwise specified, all references are to the Civil Code.

2.  Civil Code section 232 provides in pertinent part:“(a) An action may be brought for the purpose of having any person under the age of 18 years declared free from the custody and control of either or both of his parents when such persons comes within any of the following descriptions:“(2) Who has been cruelly treated or neglected by either or both of his parents, if such person has been a dependent child of the juvenile court, and such parent or parents deprived of his custody for the period of one year prior to the filing of a petition praying that he be declared free from the custody and control of such cruel or neglectful parent or parents.“(4) Whose parent or parents are convicted of a felony, if the facts of the crime of which such parent or parents were convicted are of such nature as to prove the unfitness of such parent or parents to have the future custody and control of the child.“(7) Who has been cared for in one or more foster homes under the supervision of the juvenile court, the county welfare department or other public or private licensed child-placing agency for two or more consecutive years, providing that the court finds by clear and convincing evidence that return of the child to his 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 do the following:“(i) Provide a home for the child;“(ii) Provide care and control for the child; and“(iii) Maintain an adequate parental relationship with the child.“Physical custody of the child by the parent or parents for insubstantial periods of time during the required two-year period will not serve to interrupt the running of such period.”

FN3. Section 600 of the Welfare and Institutions Code (now renumbered s 300) then provided in pertinent part:“Any person under the age of 18 years who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge such person to be a dependent child of the court.“(a) Who is in need of proper and effective parental care or control and has no parent or guardian, or has no parent or guardian willing to exercise or capable of exercising such care or control, or has no parent or guardian actually exercising such care or control.“(d) Whose home is an unfit place for him by reason of neglect, cruelty, depravity, or physical abuse of either of his parents, or of his guardian or other person in whose custody or care he is.”.  FN3. Section 600 of the Welfare and Institutions Code (now renumbered s 300) then provided in pertinent part:“Any person under the age of 18 years who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge such person to be a dependent child of the court.“(a) Who is in need of proper and effective parental care or control and has no parent or guardian, or has no parent or guardian willing to exercise or capable of exercising such care or control, or has no parent or guardian actually exercising such care or control.“(d) Whose home is an unfit place for him by reason of neglect, cruelty, depravity, or physical abuse of either of his parents, or of his guardian or other person in whose custody or care he is.”

4.  Penal Code section 273a, subdivision (1) provides:“Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of such child to be injured, or willfully causes or permits such child to be placed in such situation that its person or health is endangered, is punishable by imprisonment in the county jail not exceeding 1 year, or in the state prison for not less than 1 year nor more than 10 years.”

5.  Even the imprisoned parent of a very young child can communicate with that child by sending gifts, cards, pictures or letters to be read aloud to the child by someone else. (See In re T.M.R. (1974) 41 Cal.App.3d 694, 116 Cal.Rptr. 292.)

6.  The record on appeal includes the mandatory social report prepared and introduced into evidence pursuant to sections 232 and 233 of the Civil Code. Section 233 reads in pertinent part:“Upon the filing of such petition, the clerk of the court shall, in accordance with the direction of the court, immediately notify the juvenile probation officer, or the county department designated by the board of supervisors to administer the public social services program, who shall immediately investigate the circumstances of said minor person and the circumstances which are alleged to bring said minor person within any of the provisions of Section 232. The juvenile probation officer or the county department shall render to the court a written report of the investigation with a recommendation to the court of the proper disposition to be made in the action in the best interests of said minor person. The court shall receive such report in evidence and shall read and consider the contents thereof in rendering its judgment”.

7.  Virginia's own testimony indicates that she did not appreciate the risk to Angelia posed by Ronald. In response to questions by the court she testified as follows:“Q. To restate the judge's question how can you rationalize living with someone who has been convicted of injuring Angelia?“A. Well, even though I wasn't there, that I was working when this incident happened, I believe that he didn't do it. He wasn't drinking at the time; and we had that agreement that while I was working, that he was gonna take care of her while I was working and he wasn't drinking.“THE COURT: And who do you think, if he didn't do it, did what was done?“THE WITNESS: It was an accident.“THE COURT: Well, if you knew that the Court had to make a decision on whether your husband returned to your family site and that, with this record that he has, the Court cannot condone another possibility of any recurrence of what had occurred, would it be your opinion you still would have Mr. P. as your husband and live with you after the his return from prison?“THE WITNESS: That's correct.”

8.  Civil Code section 232.5 reads: “The provisions of this chapter shall be liberally construed to serve and protect the interests and welfare of the child.”

9.  The status of Civil Code section 232, subdivision (a)(7) differs from the other 232 subsections in that it expressly states the applicable standard of proof. Section 232, subdivision (a)(7) has had a checkered history in that since 1976 the standard of proof has been changed from beyond a reasonable doubt to clear and convincing, back to beyond a reasonable doubt, then once again to its present standard clear and convincing.

REYNOSO, Associate Justice.

BLEASE, J., concurs.