In Re Heather B.
SPARKS, Acting P.J.
In this case we consider and reject the claim that a father‘s constitutional rights were violated by the termination of his parental
I
LEGISLATIVE SCHEME
Before turning to the father‘s contentions, we first recount the legislative scheme for reform which governs these proceedings. In the Statutes of 1986, chapter 1122, the Legislature directed the Senate Select Committee on Children and Youth to convene a task force for the purpose, among other things, of making recommendations for changes in our child dependency laws. The task force‘s proposals for changes in juvenile court law were represented in several measures, particularly Senate Bill No. 243 (Presley), which was enacted as chapter 1485 of the Statutes of 1987. That measure substantially revised the substantive and procedural provisions of our juvenile court law with respect to children, such as Heather, who were first adjudged to be dependent children after January 1, 1989. The changes wrought by that measure fall into three broad categories: (1) providing more explicit and restrictive bases for juvenile court intervention; (2) requiring clearly focused protective and/or reunification services; and (3) providing permanency planning at the earliest stage for those children who cannot live safely with their families. (See Sen. Select Com. on Children and Youth Rep. on Child Abuse Reporting Laws, Juvenile Court Dependency Statutes and Child Welfare Services (1987-1988 Reg. Sess.) p. ii [hereafter Sen. Select Com. Rep.].)
The first category of reform measures was necessary because, in the view of the task force, the existing statutory bases for court intervention were too broad and vague. (Sen. Select Com. Rep., supra, at pp. 3-4.) The task force noted that there is variation in the background, training and experience of those who administer the child dependency system and that concepts of abuse and neglect involve value judgments about what constitutes effective parenting. (Ibid.) With vague jurisdictional provisions these factors result in
The second category of reforms reiterates and emphasizes the goal of preservation of the family as the first priority in child dependency situations. The task force stated that a major legislative priority should be to develop the means to ensure the availability of public and private services to alleviate family crises which threaten the well-being of children, to prevent the breakup of families, and to reunify families when children must be removed for their safety. (Sen. Select Com. Rep., supra, p.v.)
With respect to the first and second categories of reform measures the Legislature expressed its intent in the penultimate paragraph of section 300, which provides in part: “It is the intent of the Legislature in enacting this section to provide maximum protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to protect children who are at risk of that harm. This protection includes provision of a full array of social and health services to help the child and family and to prevent reabuse of children. That protection shall focus on the preservation of the family whenever possible. Nothing in this section is intended to disrupt the family unnecessarily or to intrude inappropriately into family life, to prohibit the use of reasonable methods of parental discipline, or to prescribe a particular method of parenting. Further, nothing in this section is intended to limit the offering of voluntary services to those families in need of assistance but who do not come within the descriptions of this section....”
The third category of reforms represents a legislative policy determination that reunification services should be “time-limited” in favor of permanency planning at the earliest appropriate time. (Sen. Select Com. Rep., supra, p. ii.) The task force sought to eliminate situations in which adoptable children are required to “wait months and often years for the opportunity to be placed with an appropriate adoptive family.” (Id. at p. 10.)
The procedures governing children who first entered the juvenile dependency system after January 1, 1989, can be illustrated with particular reference to Heather‘s circumstances.1 A county social worker may take a child into temporary custody if the social worker has reasonable cause to believe the child is in immediate need of medical care, is in immediate
In this case Heather was referred to the Department of Social Services of Shasta County (DSS) by police officers after her parents were arrested on drug charges.2 Police officers noted that Heather and her sisters were present when their mother was arrested in a motel room and that hypodermic needles and razor blades were within easy reach of the children. DSS took the children into custody and juvenile court proceedings were commenced on January 31, 1989. Heather was then two years old.
When a child is taken into custody and a dependency petition is filed, the court must hold a prompt detention hearing. (
Juvenile court proceedings are bifurcated, as they were under prior law. Under this procedure the jurisdictional hearing addresses the question whether the child is described by section 300, and the question whether the child should be adjudged a dependent child is not determined until the dispositional hearing. (
The bases for jurisdiction under section 300 are more narrowly defined than under prior law with the legislative expectation that intervention will be avoided except where it is actually necessary. (See Sen. Select Com. Rep., supra, pp. 3-4.) In this case the petition alleged that Heather came within section 300, subdivision (b), which provides in relevant part: “The minor has suffered, or there is a substantial risk that the minor will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the minor, or the willful or negligent failure of the minor‘s parent or guardian to adequately supervise or protect the minor from the conduct of the custodian with whom the minor has been left, or by the willful or negligent failure of the parent or guardian to provide the minor with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the minor due to the parent‘s or guardian‘s mental illness, developmental disability, or substance abuse.... The minor shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the minor from risk of suffering serious physical harm or illness.” This reflects a legislative determination that to justify intervention the risk of harm must be substantial and the threatened harm must be of a serious nature. (Sen. Select Com. Rep., supra, p. 5.)
The factual allegations in support of the petition on Heather‘s behalf included charges that the mother had tested positive for methamphetamine at the time of the birth of her youngest child, Nathan, for whom a dependency proceeding had previously been commenced; the father had admitted that in the past he had a drug abuse problem; and a few days before the petition was filed both parents had been arrested on drug charges. At the jurisdictional hearing both parents admitted the allegations of the petition.
If the jurisdictional allegations of a petition are sustained then at the dispositional phase the court may order that services be provided to keep the
In this case, the court adjudged Heather to be a dependent child and ordered that she be removed from parental custody under section 361, subdivision (b)(1), which provides in relevant part: “There is a substantial danger to the physical health of the minor or would be if the minor was returned home, and there are no reasonable means by which the minor‘s physical health can be protected without removing the minor from the minor‘s parents’ or guardians’ physical custody....” The court ordered that Heather be placed in a licensed foster home.
If a child is removed from parental custody then the court must order reunification services unless it finds clear and convincing evidence of certain factors which would make such services inappropriate. (
The status of every dependent child in foster care must be reviewed periodically but not less than once every six months. (
When a report and recommendation for Heather‘s six-month review hearing was prepared in August 1989, it appeared that the mother‘s whereabouts were unknown and the father had not contacted the social worker since June. Although visitation had been scheduled on a weekly basis, the father had visited only twice, once in April and once in June. Contrary to the requirements of his reunification plan, the father had not completed a parenting class, had not become involved in the county substance abuse program, had
At the 12-month review hearing the court must order the return of the minor to parental custody unless it finds, by a preponderance of the evidence, that a return to parental custody would create a substantial risk or detriment to the child‘s physical or emotional well-being. (
In January 1990 Heather‘s social worker prepared a status report and recommendation for the 12-month review which was scheduled for February 1990. The report recommended that reunification services be terminated and that a hearing be scheduled pursuant to section 366.26. The social worker explained: “[The parents] have not availed themselves of any of the services offered. The parents have not visited with the minors since June, 1989. The parents have not had psychological evaluations as they have not maintained a stable address so that they could be referred for a scheduled appointment. They have not participated in counseling. They have not attended parenting classes. They did not follow through with Substance Abuse treatment services.... They have not maintained a stable living situation. They have been incarcerated several times. They have not kept in touch with the social worker or notified me of any changes in address. They have not been employed. In brief, there has been no change or progress made by either parent.”
Heather‘s 12-month review was ultimately continued until June 1990, more than 15 months after the original dispositional hearing. At that time the court found that a return of Heather to parental custody would create a substantial risk of detriment to her physical and/or emotional well-being, there was no reasonable probability that she could be returned to parental custody within six months, and that reasonable reunification services were
A hearing under section 366.26 is intended to provide a permanent plan for children who cannot be returned to parental custody. Adoption, if possible, is the preferred plan for such children. (Sen. Select Com. Rep., supra, at p. 11.) For children who are adoptable, the Legislature sought to eliminate the duplicative and time-consuming requirement that a county child protective agency obtain authorization from the court and then file a separate proceeding under Civil Code section 232 in order to terminate parental rights. (Sen. Select Com. Rep., supra, p. 10.) Section 366.26 now provides the exclusive procedures for the termination of parental rights in the context of a dependent child proceeding. (
Section 366.26 not only provides the exclusive procedures for a termination of parental rights over dependent children, it also limits the circumstances under which a termination of parental rights may be accomplished. In a superior court action pursuant to
Under section 366.26, the likelihood of adoption is the pivotal question. Subdivision (c) of that section provides that the court shall terminate parental rights if it finds clear and convincing evidence that it is likely the child will be adopted, unless it finds circumstances that would render termination detrimental to the child.7 If the court finds a likelihood of adoption and does not find circumstances that would make termination detrimental, then “the findings pursuant to subdivision (b) of Section 361.5 that reunification services shall not be offered, or the findings pursuant to subdivision (e) of Section 366.21 that the whereabouts of a parent have been unknown for six months or that the parent has failed to visit or has failed to visit or contact the child for six months or that the parent has been convicted of a felony indicating parental unfitness, or pursuant to Section 366.21 or Section 366.22 that a minor cannot or should not be returned to his or her parent or guardian, shall then constitute a sufficient basis for termination of parental rights....” (
In its findings the court identified adoption as the appropriate goal for Heather and concluded that she had a probability of being adopted. However, the court found the evidence of Heather‘s likelihood of adoption to be less than clear and convincing. It declined to order immediate termination of parental rights and instead selected an alternate procedure under section 366.26, subdivision (c)(3). That procedure gave DSS 60 days to identify an appropriate adoptive family for Heather, after which another hearing would be held. (
At the subsequent hearing the adoption social worker testified that DSS had received seven home studies and several telephone inquiries from families interested in adopting Heather. DSS had identified one particular family for consideration and Heather had visited that family on six occasions. The family had experience with a child with Heather‘s disabilities and had the opportunity to observe Heather personally. They were desirous of proceeding with an adoption of Heather and were “most anxious” to have the process move forward. The court found by clear and convincing evidence that Heather would be adopted. It ordered a termination of parental rights so that adoption could proceed.
II
STANDARD OF PROOF
In juvenile court proceedings for dependent children, the Legislature has specified that clear and convincing evidence is the standard of proof to be applied to most of the findings which must be made. These include the initial decision to remove a child from parental custody (
Although a hearing under section 366.26 does not incorporate a preponderance of the evidence standard, section 366.26 does provide that the findings at the hearing which resulted in an order for a hearing under section 366.26 shall constitute a sufficient basis for termination of parental rights if there is clear and convincing evidence that the child is likely to be adopted. When the decision to order a hearing under section 366.26 is made at the initial dispositional hearing or at the six-month review hearing, on the basis that reunification services are not warranted, the findings which support the decision must be made by clear and convincing evidence. (
Heather‘s father asserts that since the determination at the review hearing can lead to a termination of parental rights under section 366.26 without further inquiry into parental fitness, the use of a preponderance of the evidence standard at the review hearing is constitutionally prohibited.9
(1a) In view of the circumstances of Heather‘s case, there are three aspects to her father‘s constitutional argument: (1) Is it constitutional for the Legislature to specify a preponderance of the evidence standard for the determination whether a return to parental custody would create a substantial risk to the child? (2) (2a) Is it within the Legislature‘s prerogative to order the termination of parental rights with respect to an adoptable dependent child based upon the fact that the child was not returned to parental
(1b) Since the father‘s contention is inferentially grounded on both the federal and state Constitutions, we begin our analysis with the leading federal case. In Santosky v. Kramer, supra, 455 U.S. 745 [71 L.Ed.2d 599], the United States Supreme Court considered New York‘s procedures for the termination of parental rights upon a determination that a child was “permanently neglected.” Under New York law a child could be removed from parental custody upon a finding of neglect and the parental relationship could be severed upon a finding of permanent neglect. Permanent neglect would be shown by evidence that the child had been in state custody for a year or more, the state had made diligent efforts to encourage and strengthen the parental relationship, but the parents failed substantially and continuously or repeatedly to maintain contact with the child or to plan for his or her future although physically and financially able to do so. (Id. at p. 748 [71 L.Ed.2d at p. 603].) These findings were to be proven by “`a fair preponderance of the evidence.\‘” (Ibid.)
In Santosky, by a five-to-four decision, the high court found that the New York procedure did not comport with due process requirements. The court noted that the function of a standard of proof is to instruct the factfinder concerning the degree of confidence he or she should have in the correctness of factual conclusions for a particular type of adjudication. (455 U.S. at pp. 754-755 [71 L.Ed.2d at pp. 607-608].) This reflects the weight of the private and public interests affected as well as a societal judgment about how the risk of error should be distributed between the parties. (Ibid.) In a civil dispute over monetary damages the preponderance of the evidence standard reflects society‘s minimal concern with the outcome and a conclusion that the parties should bear the risk of error in roughly equal fashion. (Ibid.) Parental rights, on the other hand, are a fundamental liberty interest and the standard of proof required in an action to terminate such rights requires a balancing of the private interests affected, the risk of error created by the state‘s chosen procedure, and the countervailing governmental interest supporting the procedure. (Id. at pp. 753-754 [71 L.Ed.2d at pp. 606-607].)
On the first factor, the private interests affected, the court noted that parental rights are fundamental and that the state sought not merely to infringe, but to end those interests. (Santosky v. Kramer, supra, 455 U.S. at pp. 758-759 [71 L.Ed.2d at p. 610].) The child and his or her foster parents are “deeply interested” in the outcome, “[b]ut at the factfinding stage of the
Concerning the second factor, the risk of error in the chosen procedure, the court held that a New York permanent neglect proceeding is an adversary contest between the state and a child‘s natural parents, and that in such circumstances the relevant question is whether a preponderance of the evidence standard fairly allocates the risk of an erroneous factfinding between these two parties. (Santosky v. Kramer, supra, 455 U.S. at p. 761 [71 L.Ed.2d at p. 612].) The court found that several aspects of the New York procedure combined to magnify the risk of an erroneous determination, including imprecise substantive standards which left determinations unusually open to subjective standards; the fact that the court possessed unusual discretion to underweigh probative evidence favoring the parent; the state‘s greater ability to assemble its case; the fact that the state had the power to shape the historical events that formed the basis for termination; and the lack of any “double jeopardy” defense against repeated state termination efforts. (Id. at pp. 762-764 [71 L.Ed.2d at pp. 612-613].) The court concluded that increasing the burden of proof is one way to impress the factfinder with the importance of the decision and thereby reduce the chances of an erroneous determination. (Ibid.)
With respect to this second factor the high court addressed the conclusion of the New York courts that the preponderance standard properly allocated the risk of error between the parents and the child. The court found this view to be fundamentally mistaken. (Santosky v. Kramer, supra, 455 U.S. at p. 765 [71 L.Ed.2d at p. 614].) That theory assumed that termination would invariably benefit the child, which the court found to be a hazardous assumption at best in view of the lack of assurance that termination would result in adoption and evidence that after termination many New York children entered the limbo of long-term foster placement. (Id. at p. 765, especially fn. 15 [71 L.Ed.2d at p. 614].) In any event, under New York‘s procedure the consequence of an erroneous determination for the child was the preservation
On the third factor, the governmental interest supporting the procedure, the court identified the state‘s interests as the parens patriae interest in preserving and promoting the welfare of the child and a fiscal and administrative interest in reducing the cost and burden of such proceedings. (Santosky v. Kramer, supra, 455 U.S. at pp. 766-767 [71 L.Ed.2d at p. 615].) Where there is still reason to believe that a positive, nurturing parent-child relationship exists, the parens patriae interest favors preservation rather than termination of parental bonds. Moreover, the court concluded, an elevated standard of proof would not unduly burden New York‘s fact finders. (Ibid.)
Our current child dependency procedures are significantly different from the New York scheme which was at issue in Santosky. In most aspects our Legislature has specified a clear and convincing evidence standard of proof for the various findings to be made but has reserved a preponderance of the evidence standard of proof with respect to one question, namely whether a child who has been removed from parental custody may be returned home safely. As to this question the Legislature has sought to avoid reliance upon subjective standards and unusual judicial discretion by narrowing the question to one of substantial risk of serious physical or emotional harm. (
Under our current statutory scheme a parent does not bear a burden of proof on the issue of return of a child to parental custody. In fact, it is presumed that the child should be returned to parental custody and the child must be returned to parental custody unless the county agency establishes that a return to parental custody would create a substantial risk or detriment to the physical or emotional well-being of the child. (
The decision in In re Angelia P. (1981) 28 Cal.3d 908 [171 Cal. Rptr. 637, 623 P.2d 198], on which the father principally relies, is not to the contrary. In that case the court considered the contention that proof beyond a reasonable doubt rather than the legislatively prescribed clear and convincing evidence standard should be required for termination of parental rights under
As we have noted, in our current statutory scheme the Legislature has attempted to balance these interrelated and sometimes conflicting interests
Moreover, in In re Angelia P., the court recognized that this is an appropriate area for legislative policymaking: “The several statutory changes in the standard represent a clear legislative assertion of a right to establish such a test. There is authority for the Legislature‘s exercise thereof because `Here we are in the arena of policy, but not properly judicial policy.... [T]hese are social problems which the Legislature has attempted to deal with over the years as it deems best, attempting to balance the interest of the children with that of the parents.\‘” (28 Cal.3d at p. 922, quoting In re Terry D. (1978) 83 Cal. App.3d 890, 897 [148 Cal. Rptr. 221].) Obviously the Legislature is not free to impose whatever standard of proof it chooses without regard to minimum due process requirements. (4) Nevertheless, the question is addressed to the Legislature in the first instance and courts must defer to legislative policy unless it is in clear violation of the Constitution. (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 544-545 [63 Cal. Rptr. 21, 432 P.2d 717]; Lockard v. City of Los Angeles (1949) 33 Cal.2d 453, 460-461 [202 P.2d 38, 7 A.L.R.2d 990].) We do not perceive a clear constitutional violation in this instance and we do not believe that the decision in In re Angelia P. dictates a contrary result.
(2b) This brings us to the second aspect of the father‘s appellate contention, which is substantive in nature. The decisions in Santosky and In re Angelia P. were concerned with the standard of proof to be applied in a proceeding to terminate parental rights and did not address the substantive question of the minimum factual showing which is constitutionally required. However, in Santosky v. Kramer, supra, 455 U.S. at page 760, in footnote 10, [71 L.Ed.2d at p. 611], the federal high court did recognize that there are substantive due process limitations upon the power of a state to terminate a parental relationship, citing the decision in Quilloin v. Walcott (1978) 434 U.S. 246, 255 [54 L.Ed.2d 511, 520, 98 S.Ct. 549], in which the court said: “We have little doubt that the Due Process Clause would be offended `[i]f a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children‘s best interest.\‘” (Quoting Smith v. Organization of Foster Families (1977) 431 U.S. 816, 862-863 [53 L.Ed.2d 14, 46-47] (conc. opn. of Stewart, J.). See also Stanley v. Illinois (1972) 405 U.S. 645, 651 [31 L.Ed.2d 551, 558, 92 S.Ct. 1208] [holding that an unmarried father who had “sired and raised” his children was entitled to a hearing and some showing of parental unfitness before the children could be taken from his custody].)
(5) While it is now settled that a state cannot terminate a parental relationship based solely upon the “best interests” of the child without some showing of parental unfitness,12 the federal high court has not specifically defined what “some showing” of parental unfitness entails. The terms which the states have utilized to describe parental unfitness are linguistically variable and include parents who have failed, refused or neglected to provide proper or necessary care; children who are neglected, deprived, or abused; children who are in need of supervision; or parents who have failed to maintain contact with the child or to plan for his or her future. (See 43 C.J.S., Infants, § 39, pp. 155-156.) A proceeding to terminate parental rights is not intended to punish a parent but parental conduct is a factor; likewise, the best interest of the child is not determinative but is an important consideration. (Id. at § 40, pp. 157-160.)
(2c) Under our current statutory scheme the Legislature has attempted to narrow the circumstances which may result in the removal of a child from parental custody in order to avoid interference with parental custody except
Under this statutory scheme the Legislature has determined that when (1) a child‘s home has been shown by clear and convincing evidence to be an unfit place for the child to live, and (2) the county agency has shown by clear and convincing evidence that since that determination reasonable reunification services were provided, but (3) as a result of the determination at the 12-month review hearing, or the 18-month review hearing if the matter is continued, the child will not be returned to parental custody and reunification services will be terminated, then the child‘s interest in a permanent and secure home warrants termination of parental rights if there is clear and convincing evidence that the child is likely to be adopted, unless factors exist which would make that option detrimental to the child. The wisdom of this legislative determination is not at issue in assessing its constitutionality; rather, we must uphold the Legislature‘s decision unless it is arbitrary and unreasonable. (Hale v. Morgan (1978) 22 Cal.3d 388, 398-399 [149 Cal. Rptr. 375, 584 P.2d 512].)
We do not find this scheme to be so arbitrary and unreasonable as to be beyond the Legislature‘s prerogative. To be sure, this scheme places a burden of action upon the parents of a dependent child, since the parents must work to remove obstacles to the child‘s return to parental custody within the 12 to 18 months allowed. But decisions of the United States and California Supreme Courts indicate that the state can properly expect and require prompt and reasonable parental efforts. In Quilloin v. Walcott, supra, 434 U.S. at page 255 [54 L.Ed.2d at page 520], a natural father‘s inaction,
The United States and California Supreme Courts have also indicated that a child‘s prospect of obtaining a secure and permanent home through adoption may be a significant consideration. A major flaw in the New York scheme considered in Santosky was the lack of assurance that a child freed from parental control would be adopted. (455 U.S. at p. 765, fn. 15 [71 L.Ed.2d at p. 614].) And in Quilloin v. Walcott, supra, 434 U.S. at page 255 [54 L.Ed.2d at page 520], and Lehr v. Robertson, supra, 463 U.S. at page 265 [77 L.Ed.2d at page 629], the pending adoption of the children involved was an important consideration.14 In In re Laura F., supra, 33 Cal.3d at page 838, the California Supreme Court held that under our old procedures the mere possibility of adoption was a factor of significance in terminating parental rights.
We cannot conclude that the Legislature acted unreasonably and arbitrarily in determining that reunification services should be time-limited in favor of adoption for those children who cannot be returned to parental custody in a reasonable time but can obtain a secure and permanent home through adoption. Our law has long recognized the importance of a stable and secure home in the lives of children. (See
(3b) This brings us to the final aspect of the constitutional argument, whether the procedural and substantive aspects of our of juvenile court law operate together to deny due process of law in the termination of parental rights. We conclude that they do not. In Santosky v. Kramer, supra, 455 U.S. at page 760 [71 L.Ed.2d at page 611], the court said: “At the factfinding, the State cannot presume that a child and his parents are adversaries. After the State has established parental unfitness at that initial proceeding, the court may assume at the dispositional stage that the interests of the child and the natural parents do diverge.” (Italics in original.)
Under our law the decision to terminate parental rights is part of the dispositional stage of juvenile court proceedings. As we have noted, the decision made at the initial dispositional hearing to remove the child from parental custody must be made by clear and convincing evidence. Thus, before the proceedings can reach a section 366.26 hearing, parental unfitness necessarily would have been established by clear and convincing evidence. (
III
PRESUMPTION OF PARENTAL UNFITNESS
On the question of the return of a child to parental custody at a 12-month review hearing, section 366.21, subdivision (f), provides: “The failure of the
A presumption may be conclusive or rebuttable. (
A rebuttable presumption may affect the burden of proof or may affect the burden of producing evidence. (
A presumption affecting the burden of producing evidence requires the ultimate fact to be found from proof of the predicate facts in the absence of other evidence. If contrary evidence is introduced then the presumption has no further effect and the matter must be determined on the evidence presented. (
The decisions relied upon by the father are inapposite. In Stanley v. Illinois, supra, 405 U.S. 645 [31 L.Ed.2d 551], the state conclusively presumed that an unmarried father was unfit to have custody of his children and thus upon the mother‘s death took custody from him without permitting a hearing on parental fitness. The court concluded that the father was entitled to a hearing. (Id. at pp. 657-658 [31 L.Ed.2d at p. 562].) In Bell v. Burson (1971) 402 U.S. 535 [29 L.Ed.2d 90, 91 S.Ct. 1586], the state suspended the driver‘s license of a person involved in an accident who failed to post security for potential damages. The court held that since under the state‘s
The constitutional flaw in each of these situations was in the use of a conclusive presumption based upon predicate facts which did not necessarily establish the ultimate fact. In contrast, the presumption in section 366.21, subdivision (f), is not conclusive, does not shift the burden of proof to a parent, and upon the introduction of any contrary evidence has no further effect in the action. (
IV
SUFFICIENCY OF THE EVIDENCE
(9a) The father finally contends that the evidence at the 12-month review hearing was insufficient to support either the finding that reasonable reunification services were offered or the decision to deny visitation pending the hearing under section 366.26.
(10) Initially, we note that these contentions may not be made in an appeal from an order terminating parental rights under section 366.26. Subdivision (k) of that section provides: “An order by the court directing that a hearing pursuant to this section be held is not an appealable order, but may be the subject of review by extraordinary writ.” In In re Rebecca H. (1991) 227 Cal. App.3d 825, at pages 835 through 837 [278 Cal. Rptr. 185], the court concluded that an order denying reunification services and scheduling a hearing under section 366.26 can be reviewed only by a timely petition for an extraordinary writ and not by means of an appeal. In In re Taya C. (1991) 2 Cal. App.4th 1, at pages 6 through 9 [2 Cal. Rptr.2d 810], the court upheld this procedure against due process and equal protection arguments. Pursuant to these decisions Heather‘s father cannot now obtain appellate review of the reunification findings made at the earlier review
In any event, we find the evidence sufficient. (11) Appellate review of the sufficiency of the evidence employs the substantial evidence test by which we review the record in a light most favorable to the judgment and must uphold the trial court‘s findings unless it can be said that no rational factfinder could reach the same conclusion. (People v. Johnson (1980) 26 Cal.3d 557, 576-577 [162 Cal. Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255].)
(9b) At the time of the continued 12-month review hearing Heather had been removed from her father‘s custody for nearly 17 months. During that time the father had done virtually nothing to regain custody of Heather. He was supposed to maintain weekly visitation, but had visited only twice and had not visited at all for nearly a year. He failed to maintain regular contact with the social worker or to keep her informed of his whereabouts. He did not participate in any parenting classes, substance abuse or substance testing programs. He did not undergo a psychological examination as required. The social worker testified that the father was referred to these services but failed to participate. On questioning by the father she denied that participation in a substance abuse program was made a condition of visitation, but she did say that she urged him to participate in such a program when he called her about visitation.
The father testified that on eight or nine occasions he inquired about visitation but was told he would have to go through a substance abuse program first. He attempted to go to the county substance abuse program but could not pay for it and after the court authorized payment they would not take him back. The social worker failed to refer him to another program. With respect to the other requirements in the reunification plan, such as parenting classes, the father concluded that he did not need the services.
The father‘s testimony created a conflict in the evidence with respect to some of the facts asserted by DSS. However, those conflicts were resolved against the father by the trial court and cannot serve as a basis for reversal on appeal. (People v. Johnson, supra, 26 Cal.3d at pp. 576-577.) Moreover, taken at face value the father‘s testimony shows only that he made some
DISPOSITION
The order of the juvenile court is affirmed.
Davis, J., and Scotland, J., concurred.
Notes
This issue is now pending before the Supreme Court in Cynthia D. v. Superior Court (1992) 3 Cal. App.4th 913 [4 Cal. Rptr.2d 909], review granted April 23, 1992 (S025807), and In re Daniela M. (1992) 3 Cal. App.4th 226 [4 Cal. Rptr.2d 290], review granted April 23, 1992 (S025571).
After the filing of his brief, counsel for the father requested that we consider the recently filed opinion in In re Reylene A. [*](Cal. App.), a case not yet final. There, the court held that section 366.26 violates the federal due process guaranty by allowing for the permanent severance of a parent-child relationship by reference to an order made on a preponderance of the evidence standard. For the reasons stated in the body of our opinion, we respectfully disagree and therefore decline to follow In re Reylene A.
[*] Reporter‘s Note: Opinion (GO11009) deleted upon direction of Supreme Court by order dated October 29, 1992.