In re ANGELIA P., a Minor.
S.F. No. 24184
Supreme Court of California
Feb. 11, 1981
28 Cal.3d 908
DEPARTMENT OF SOCIAL SERVICES, Petitioner and Respondent, v. RONALD P. et al., Objectors and Appellants.
Joan E. Martin and Quin Denvir, State Public Defender, under appointments by the Court of Appeal, Antonia D. Radillo, Deputy State Public Defender, and Clyde Blackmon for Objectors and Appellants.
George Deukmejian, Attorney General, Thomas E. Warriner, Assistant Attorney General, and Floyd D. Shimomura, Deputy Attorney General, for Petitioner and Respondent.
Peter C. Carton, Robert H. Mnookin, Neal Snyder, Michael S. Wald, John Sullivan Kenny, County Counsel (Shasta), David R. Frank, Karen Keating Jahr and Daniel N. Frink, Deputy County Counsel, as Amici Curiae on behalf of Petitioner and Respondent.
OPINION
RICHARDSON, J.--What degree of proof should be required in proceedings brought under
Angelia was born on September 30, 1974. On January 8, 1975, she was brought to a hospital emergency room. A medical report described her on admission as “moribund from bilateral subdural hematomas as a result of child abuse.” She was suffering from a skull fracture which was diagnosed as having occurred three days to two weeks before her visit to the emergency room, and she was found to have had another, older skull fracture. As a result of irremediable brain damage caused by her injuries, Angelia required and continues to require special medical
On November 1, 1975, Mr. P., Angelia‘s father, was incarcerated for a term of one to ten years following his conviction under
Mrs. P. is employed and resides with a younger daughter, born in August 1975. She was described by a supervising social worker as passive and dominated by her husband. Mrs. P. has regularly exchanged visits with Angelia. In 1977, at her request, a program was planned for the eventual return of Angelia to her mother‘s full-time custody. As the culmination of this program, the court ordered return of the child. However, in the following week after visiting her husband in prison Mrs. P. requested for the first time that the child not be returned for reasons that she described as economic. Although warned that she risked the possibility of proceedings to terminate the parental relationship, Mrs. P. persisted in her refusal to accept Angelia‘s immediate return.
In May 1978, the Department of Social Services (Department) filed in the Yolo County Superior Court a petition under
The trial court found that Angelia should be declared free from the custody and control of her parents because (1) Mr. P. had been convicted of a felony proving his unfitness to have future custody and control over Angelia (
I. BURDEN OF PROOF IN SECTION 232 PROCEEDINGS
Appellants, contending that due process requires proof beyond a reasonable doubt in
It is undeniable that grave consequences flow from the permanent severance of the parent-child relationship. These include important financial results attending the extinction of the parent‘s duty to support and the mutual right to inherit. Additionally, the very essence of the
We have recently acknowledged that “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; In re B. G. (1974) 11 Cal.3d 679, 688-689.) Nonetheless, parental rights are not absolute and we must seek a consistent and reasonable approach to the varying rights involved when the state, by intervention, disturbs natural familial relationships. To that end we examine the nature of the affected rights.
Historically, the parental right or preference doctrine originated with the concept that a parent‘s right “in his child was akin to that of a property owner in his chattel” (In re B. G., supra, 11 Cal.3d at p. 694), from which it followed that the parent‘s interests in custody were of primary consideration. (See Comment, Alternatives to “Parental Right” in Child Custody Disputes Involving Third Parties (1963) 73 Yale L.J. 151, 155, hereinafter Yale Comment.) This principle survives, albeit in modified form, based on “the assumption that a natural parent will most adequately fulfill his child‘s needs.” (Yale Comment, at p. 155.)
More recently the primacy of another consideration has evolved in the reasoning of courts, legislatures and commentators which have focused on the child‘s well-being, seeking to ascertain the “best interest” of and the “least detrimental alternative to the child.” Our Legislature‘s concern is manifest in its direction that the statutes concerning the termination of parental rights “shall be liberally construed to serve and protect the interests and welfare of the child.” (
In theory, the evolving “parental preference” and “child‘s best interests” standards do not necessarily conflict. As one commentator has noted, “In general, children‘s needs are best met by helping parents
The foregoing doctrinal expressions underscore the fundamental nature of the parents’ custodial rights, but also qualify these rights recognizing that they do not exist in a vacuum wholly devoid of legitimate competing interests. In rejecting the argument that “proof beyond a reasonable doubt” is required when the state terminates a natural family relationship, one federal court has concisely identified these interests as follows: “the liberty and privacy interest afforded to the parents, the interest of the state, as parens patriae, in protecting children from harm, and finally, the often silent interest of the child.” (Sims v. State Dept. of Public Welfare, etc. (S.D.Tex. 1977) 438 F.Supp. 1179, 1191 [three-judge court].) In In re Carmaleta B., we recently noted that
Acknowledging the fundamental nature of the respective rights involved and that due process protection must surround their assertion and termination, what evidentiary burden will meet constitutional requirements?
Appellants, in turn, urge adoption of the “proof beyond a reasonable doubt” requirement which traditionally has been reserved for those cases where the unsuccessful litigant is subject to confinement or custody. “The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence-that bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration of our criminal law.’ Coffin v. United States [156 U.S. 432 (1895)] at 453.” (In re Winship, supra, 397 U.S. at p. 363.)
In criminal proceedings, where the conflicting interests involve an individual‘s freedom and the state‘s enforcement of its criminal laws, courts have traditionally been particularly sensitive to the citizen‘s liberty. Again in Justice Harlan‘s words, “we do not view the social disutility of convicting an innocent man as equivalent to the disutility of acquitting someone who is guilty.... [¶] [I]t is far worse to convict an innocent man than to let a guilty man go free.” (In re Winship, supra, at p. 372, Harlan, J. conc.) Moreover, we have not refused to extend the “beyond reasonable doubt” test to those noncriminal situations in which a personal freedom similarly collides with the state‘s interest in confinement for the protection of both the public and the individual. (See, e.g., Conservatorship of Roulet (1979) 23 Cal.3d 219.) Such a liberty interest is not herein presented.
We conclude that findings under any subdivision of
“Clear and convincing” evidence requires a finding of high probability. This standard is not new. We described such a test, 80 years ago, as requiring that the evidence be “‘so clear as to leave no substantial doubt‘; ‘sufficiently strong to command the unhesitating assent of every reasonable mind.‘” (Sheehan v. Sullivan (1899) 126 Cal. 189, 193.) It retains validity today. (In re Terry D., supra, 83 Cal.App.3d at p. 899.)
The Alaska Supreme Court, in Matter of C.L.T. (Alaska 1979) 597 P.2d 518, rejected a constitutional challenge to the analogous Alaskan statutory scheme in a persuasive example of the decisions of sister states. Concluding that clear and convincing proof was the appropriate standard, the Alaskan court noted that “This evidentiary standard balances the competing interests involved in a proceeding brought to terminate parental rights, one of which is the right of a child to an adequate home. Appellant all but ignores this interest. When a petition is brought to terminate an individual‘s parental rights based upon alleged child abuse, the child‘s interests do not necessarily coincide with the parent‘s interest in continuation of the family unit. While appellant‘s standard would give the parent even greater due process protection, it would simultaneously decrease the ability of the state to protect the rights of the child.” (P. 526, fns. omitted; see also, In Interest of Atwood (1978) 2 Kan.App.2d 680; In Interest of Massey (1976) 35 Ill.App.3d 518; In re Sego (1973) 82 Wn.2d 736; Alsager v. District Court of Polk City, Iowa (S.D.Iowa 1975) 406 F.Supp. 10, 25; Sims v. State Dept. of Public Welfare, etc., supra, 438 F.Supp. at p. 1194, and the cases cited in 59 Am.Jur.2d, Parent and Child, § 27, pp. 112-113, and 67A C.J.S., § 37, p. 274; cf., Matter of Five Minor Children (Del. 1979) 407 A.2d 198 [preponderance of the evidence standard applies in termination proceedings].)
Similarly, Stanford N. Katz, author of a Model Act to Free Children for Permanent Placement under a grant from the Department of Health, Education and Welfare, proposed a clear and convincing standard, noting that “Since the overriding consideration in termination proceedings is the welfare of the child, the fault or guilt of the parents is not a central focus. Thus, the standard of beyond a reasonable doubt
In only one instance have we found the application of proof beyond a reasonable doubt in a parental rights setting. In the
Initially, our own Legislature provided that the standard of proof in proceedings brought under
Use of the “clear and convincing evidence” standard of proof fairly protects the interests represented in proceedings brought under any subdivision of
II. EXCLUSION OF EVIDENCE REGARDING APPELLANTS’ OTHER CHILD
The appellants assert that the trial court erred in excluding testimony concerning Mrs. P.‘s kindly treatment of appellants’ younger daughter, Lisa. After hearing preliminary testimony proffered by appellants regarding Lisa‘s general well-being in the care of her mother, the court ruled that further evidence regarding Lisa was irrelevant. Appellants argue that the evidence should have been admitted as “relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (
It is true that “an order to free a child from parental custody and control must rest on present circumstances as well as past acts although such prior acts are evidence which may be considered by the court in deciding whether there is sufficient showing to justify the order.” (In re Carmaleta B., supra, 21 Cal.3d, at p. 493.) However, a trial court has wide discretion in determining the relevancy of the evidence. (Larson v. Solbakken (1963) 221 Cal.App.2d 410, 420.) No issue regarding appellants’ treatment of Lisa had been raised by any pleading in the case, nor did the Department assert that Mrs. P. had physically abused Angelia directly.
Evidence regarding Lisa therefore was of doubtful relevance. It was undisputed that Lisa received adequate care during the period when Mr. P., who had actively abused Angelia, was absent from the home. The primary question presented at the hearing was whether
III. FAILURE TO CONSIDER ALTERNATE CARE
Appellants argue that the trial court failed to consider alternate care plans for Angelia before terminating the parent-child relationship. Specifically, they contend that the court should have considered the possibility of maintaining the status quo until Mr. P. could obtain counseling and reestablish himself following his release from prison.
In In re David B. (1979) 91 Cal.App.3d 184, 198, the court noted that “It is well recognized that before the parental relationship may be permanently severed, the trial court should consider the availability of less severe alternatives designed to keep the family intact.” However, when such services have not been offered, “the decision as to whether the services should be ordered and the proceeding delayed until the results are evaluated lies within the sound discretion of the superior court.” (In re Susan M. (1975) 53 Cal.App.3d 300, 311.) Both the foregoing general principle and its important qualification are sound.
In In re Carmaleta B., supra, we emphasized that
Here the trial court properly considered alternatives and was fully free to decide that termination was appropriate. Angelia had been in foster care for almost four years, yet her parents, after having rejected an earlier return, requested an even further delay until some uncertain future date when, if all went well, Angelia could be returned to them. Such uncertainty conflicts with the intent of
IV. SUFFICIENCY OF THE EVIDENCE
Appellants argue insufficiency of the evidence. We apply, with appropriate modifications, our holding in People v. Johnson (1980) 26 Cal.3d 557, 578, made in accordance with Jackson v. Virginia (1979) 443 U.S. 307: “the [appellate] court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find [that termination of parental rights is appropriate based on clear and convincing evidence].” (See In re Marcos S. (1977) 73 Cal.App.3d 768, 781, quoting Garrett v. Duncan (1959) 176 Cal.App.2d 296, 298-299, and cases cited therein.)
The record demonstrates that substantial evidence supports the trial court‘s action under several provisions of
Child abuse includes more than a parent‘s physical abuse. In a given case, as here, the term may involve a failure to protect the child from harm caused by others.
The trial court correctly applied
As we have noted, “Past conduct is relevant on the issue of future fitness, although it is of course not controlling.” (In re Terry D., supra, 83 Cal.App.3d at p. 900.) Under the circumstances of this case, the trial court could conclude that the dominance of Mr. P. and Mrs. P.‘s failure to protect Angelia from Mr. P., and the consequences flowing therefrom fully justify the order of termination.
It is significant that Mr. P. has not challenged the trial court‘s ruling under
Finally, substantial evidence also supported the finding as required by In re Carmaleta B., supra, 21 Cal.3d at pages 495-496, that return of Angelia to her parents would be detrimental to her interests, pursuant to the more general provisions of
V. INTRODUCTION OF MR. P.‘S PROBATION REPORT
Early in the proceedings, Department‘s attorney requested the court to take judicial notice of the 1975 superior court proceedings in which Mr. P. had been convicted of child abuse on Angelia. Thereafter, at the close of the evidence, in response to an inquiry from the court, the clerk stated that the record, except for the probation report, was available, and that the probation report which was not in the file was being
Appellants now contend that the court‘s consideration of the report was erroneous because it was hearsay, that appellants were denied an opportunity to object, and alternatively that the failure to object demonstrated that their appointed counsel provided ineffective assistance. We are unpersuaded.
In arguing that they had no chance to object, appellants ignore the opportunity afforded to them when the court recessed to consider the report and also at the point when Department‘s attorney first requested the court to take judicial notice of the criminal proceedings.
Next, assuming arguendo that the report was hearsay, counsel‘s failure to object did not indicate inadequate representation even under the standards urged by appellants. Mr. P.‘s criminal history was part of the probation officer‘s report prepared under
Appellants had such an opportunity to cross-examine the probation officer who prepared the report and to produce any controverting evidence. They did not refute the evidence thus presented. The information contained in the probation report was therefore cumulative of similar information presented in the
The failure of counsel to object did not reflect any lack of competence, because, faced with his adversary‘s request for the court to take judicial notice, counsel could well have concluded that it was better to permit admission of the report rather than to risk presentation of in-court testimony from other witnesses whose adverse testimony may
VI. CONCLUSION
We conclude that the trial court was correct in terminating the parental rights of appellants. Although, understandably, it did not expressly articulate its use of the appropriate standard of proof, it properly applied a test of clear and convincing evidence.
We find no merit in appellants’ other contentions.
The judgment is affirmed.
Tobriner, J., Mosk, J., and Clark, J., concurred.
BIRD, C. J., Concurring and Dissenting. I respectfully dissent from the majority opinion insofar as it sanctions the irrevocable termination of this mother-daughter relationship which the record indicates and the state‘s attorney conceded was a loving and caring one. Further, a finding that the mother was “too passive” in her relationship with her husband and the use of this finding to justify severance of the parent-child relationship raises some serious questions in a pluralistic society where the relationship between husband and wife may vary according to cultural background. Is there now to be a judicially determined norm?
It is also disturbing that this court would allow the fact that Angelia‘s mother worked outside the home to be used as evidence favoring termination. These holdings raise some questions as to (1) whether there are to be any real limits placed on the state when it seeks to sever a parent-child relationship, and (2) whether our system lacks sensitivity to the problems of poor working women.
It is important to remember that this court is sanctioning the termination of any contact between this mother and daughter for the rest of their lives. This is not a question involving who should have the custody of this child. This parent will lose all rights to visitation and to attempt to regain custody at some future time. (See In re Jacqueline H. (1978) 21 Cal.3d 170, 175-176;
The granting of a petition for severance of parental rights under
In order to sever the parent-child relationship under
The Legislature in 1965 enacted
stantial evidence such that the situation contemplated by the statute arises, and severing the parental relationship becomes the least detrimental alternative for the children. [Citations.]” (21 Cal.3d at p. 489, italics added.)3
The requirement of a finding that termination is in the best interest of the child, or the more precise formulation articulated in In re Carmaleta B., supra, that it is the least detrimental alternative available, is also compelled by principles of substantive due process. “Substantive due process prohibits governmental interference with a person‘s fundamental right to life, liberty or property by unreasonable or arbitrary [state action].” (In re David B. (1979) 91 Cal.App.3d 184, 192-193 citing 13 Cal.Jur.3d, Constitutional Law, § 364, pp. 676-677 and other sources.)
A parent‘s interest in the care, custody and companionship of a child is a fundamental liberty, among our most basic civil rights. (Stanley v. Illinois (1972) 405 U.S. 645, 651; In re Carmaleta B., supra, 21 Cal.3d at p. 489; In re B. G. (1974) 11 Cal.3d 679, 688.) Therefore, only a compelling state interest may justify the deprivation of this most fundamental right. (See Roe v. Wade (1973) 410 U.S. 113, 155.) The state interest asserted in termination actions is the prevention of harm to the child. (In re David B., supra, 91 Cal.App.3d at p. 196.) These relevant constitutional principles were considered in the recent case of In re David B., supra. The court concluded that, even if a statutory ground for termination under
In the instant case, the trial court had two alternatives available after it made the finding of detriment to the child if she were immediately released to her mother‘s custody. The petition of the state to terminate the mother‘s relationship with the child could have been denied. This would have permitted the noncustody relationship to continue while the child remained in foster home placement. Alternatively, the legal relationship could have been terminated and the child placed in the custody of the state. A review of the evidence shows conclusively that the state failed to carry its burden of showing by clear and convincing evidence6 that immediate termination of the noncustody parent-child relationship was the less detrimental alternative.
In reviewing the record on this issue, one is struck by the lack of evidence. For instance, although Angelia had the benefit of conscientious and caring foster parents after her removal from her parents’ custody, there was no evidence offered as to whether the foster parents desired to adopt Angelia. The only evidence regarding Angelia‘s future, if termination were granted, was that the California Adoption Service would try to seek adoptive placement. No evidence was offered regarding the possibility or probability that adoption would occur.7
On the other hand, substantial evidence of Mrs. P.‘s close, loving, and regular relationship with Angelia was presented. Mrs. P. visited Angelia regularly in the foster home. So positive was the relationship that the foster parents encouraged Mrs. P. to resume custody as they felt Mrs. P. could adequately care for Angelia, although they were apprehensive about Mr. P.‘s return. The trial judge specifically stated that: “[t]here appears to be no impediment of any kind in this normal love which this mother has for this child....” The Attorney General stated at oral argument that it was undisputed that there was a bond of affection between mother and child.
On this record, I cannot agree that there is substantial evidence that termination of any relationship between Angelia and Mrs. P. is in the best interests of this child. Angelia‘s present situation is one in which
The alternative presented by the state is ephemeral at best. This case is similar at least in this respect to the situation confronted by the Court of Appeal in Adoption of Michelle T. (1975) 44 Cal.App.3d 699. There, the court stated: “...the alternative presented is commitment of the child to the Department [State Department of Health] in order that ‘adoptive or other suitable plans’ may be arranged. While we recognize the difficulty the Department would have in submitting more definite plans, we conclude that the alternative presented places the court in a difficult position.” (Id. at p. 707.) The Court of Appeal was rightly concerned in Michelle T. that denial of the foster parents’ petition for adoption in that case in favor of granting the state‘s petition for commitment of the child to the Department‘s care would “set her adrift in a sea of bureaucratic uncertainty. In such a situation, T. may bounce from one foster home to another before final placement sometime hence.” (Id., at p. 708.)
In the instant case, there was no evidence of prospects for the adoption of Angelia, who is still disabled from the injuries she suffered as an infant. There were no indications from the current foster parents of any desire to adopt Angelia. While there is much evidence that extended foster home care may be harmful to a child,9 the harm is predicated on the child‘s need for permanence and stability, and on the necessity for an emotional bond between the developing child and a responsible adult. In the instant case, the only evidence of any emotional bond on the part of Angelia is to her natural mother.10 Had substantial evidence been presented that continuation of the present relationship was harmful, the least detrimental alternative test would have been satisfied. No such evidence was presented.
Also, I respectfully dissent from that portion of the majority opinion which upholds the trial court ruling disallowing any evidence of Mrs.
Mrs. P.‘s parenting capabilities with respect to the child that is in her custody bear a reasonable relation to the disputed issue of whether she is capable of providing the physical and emotional necessities which Angelia requires. Certainly, any evidence of failure to provide Lisa with a home, care and control would be highly probative evidence of her likely future failure to provide the same to Angelia, and would be admissible. Why the converse is not true is left unexplained by the majority.
Proof that a child, who has remained in parental custody, has received adequate parenting is the strongest type of rehabilitative evidence that a parent can present. To permit a trial court in its discretion to ignore such evidence is to limit those parents who seek to disprove unfitness allegations to proof of good intentions only. Evidence of their good actions as demonstrated in interaction with their other children, who are at home, is excluded. While the proferred evidence was not conclusive, and its effect may have been blunted by other evidence, its tendency to prove Mrs. P.‘s future ability to provide a home, care and control for Angelia is clear.
The majority seek to exclude the evidence by defining the only disputed issue in this case as “whether section 232 applied to appellants’ treatment of Angelia.” (Maj. opn. at p. 922.) The allegations of section 232, subdivision (a)(7), as the majority later recognize (maj. opn. at p. 925), require findings of past and the probability of future failure to provide an adequate home, care and custody. Therefore, issues other than the past treatment of Angelia were before the trial court. It is on these issues of the future capability of Mrs. P. to provide Angelia with an adequate parental relationship that the evidence of Mrs. P.‘s good
Based on this inadequate record, I would reverse the termination of the child-parent relationship between Angelia and her mother.
Newman, J., concurred.
Notes
A section 4600 finding of detriment has been required in termination proceedings. (In re Carmaleta B. (1978) 21 Cal.3d 482, 496 and cases cited.)
All references will be to the Civil Code unless otherwise indicated.
Of the children in foster care who have had been relinquished for adoption (either through consent of the parents or termination of parental rights pursuant to
“A child may also be harmed by termination if she cannot be placed permanently following termination.” (Id. at p. 673.)
“Thus, termination may leave a child truly in limbo.” (Id., at p. 674.)
“The Court of Appeal seemed [in its opinion in this case], however, to be concerned that terminations might occur without a guaranteed adoption. This is certainly a relevant factor for trial courts to consider in deciding whether, in any given case, granting termination is in the child‘s best interest. If there is little or no chance of providing the child with a permanent home, termination may be inappropriate. Amici believe that trial courts ought to determine the likelihood that the child will be adopted or otherwise permanently placed before deciding whether to terminate parental rights.
“However, the prior availability of an adoptive home is not a prerequisite for a 232 proceeding.” (Brief of amici Alameda County Social Services Agency et al., at pp. 23-24.)