In re Mark K.
- Reporters:
- ,
- Before:
- Woolpert, Franson, Martin
Is the traditional summary judgment procedure available to avoid the necessity of a trial in a special proceeding brought to declare a child free from the custody of his natural father? We hold it is not.
In April of 1982, Fresno County, through its Department of Social Services, filed a petition to free Mark K., a minor, from the custody of his natural father, Harold K. The petition was filed on the grounds set forth in
A guardian ad litem was appointed for the father, and the Fresno County Public Defender‘s Office was appointed to represent him. A guardian ad litem was also appointed for the child.
Notice of the hearing was provided to the father and arrangements were made for his transportation from Atascadero State Hospital to Fresno for psychiatric examination. Orders were made requesting certification by the Director of Atascadero State Hospital that the father was developmentally disabled and not capable of supporting or controlling the child. In addition, an order was made appointing psychiatrists to examine the father. A hearing was held and trial date set.
In January 1983, the county filed a motion for summary judgment. Supporting declarations were also filed. Points and authorities in support of the motion were filed by the county and by the attorney for the child. Points and authorities opposing the motion were filed by the father. Notably, no counter declarations were filed.
The motion for summary judgment was granted in February, 1983. This appeal followed.
SUMMARY JUDGMENT FACTS
All parties agree that the facts are as set forth in the declarations and matters for judicial notice which accompanied the summary judgment motion.
Shortly after the minor‘s birth the parents’ home was visited by a Fresno County public health nurse. Based upon observations of the parents and child, the nurse referred the child for a child protective services investigation. After an extensive investigation the father was permitted to retain custody. This lasted for only a short time.
After a visit by a social worker to the home, an examination by a psychiatrist with the mental health department, and a recommendation by an officer of the Fresno Police Department, it was determined the minor should be removed from his father‘s care and placed in protective custody.
Meanwhile, the mother was determined to be suffering from a long-term psychiatric problem which required hospitalization. It was again determined that the father was incapable of caring for the child. A case plan was developed which included placing the child in a foster home and allowing visitation rights by the parents. Adoption was anticipated should the parents continue their inability to cope. The child was unsuccessfully placed with a relative. In March 1981, the child was adjudged a dependent of the court, ordered removed from the physical custody of its parents, and placed in a licensed foster home.
In August an information filed by the Fresno County District Attorney‘s office alleged, in two counts, that the father had violated
Early in 1982 the parental rights of the natural mother of the child were terminated in an uncontested proceeding. The present action to terminate the father‘s parental rights was then commenced. After the petition was filed the father requested a jury trial in the criminal case on the question of whether he continued to be a danger to others. After failing to convince the jury of his present sanity, he was returned to the hospital.
SUMMARY JUDGMENT WAS AN IMPROPER REMEDY
The father concedes that “[a]ny party may move for summary judgment in any action or proceeding....” (
(1) Supporting this argument is the fact that a termination proceeding requires a higher standard of proof than does the usual civil action. The standard of proof in such a proceeding is clear and convincing evidence. (In re Angelia P. (1981) 28 Cal.3d 908, 918 [171 Cal. Rptr. 637, 623 P.2d 198]; see also
(2) Parental rights are fundamental in nature and guaranteed constitutionally. Their importance has been discussed in numerous cases. (In re Carmaleta B. (1978) 21 Cal.3d 482, 489 [146 Cal. Rptr. 623, 579 P.2d 514]; see also In re Angelia P., supra, 28 Cal.3d at p. 916, stating that although fundamental, “parental rights are not absolute” and must be balanced with competing state interests.)
We cannot reach a firm conclusion by simply comparing the importance of various personal rights. However, there may still be some place for this thought: “It never could have been, or in justice ought to have been, the intention of those who framed our Practice Act and rules thereunder that the decision of such a serious question as this should be flung off on a motion for summary judgment. Whatever the final judgment may be, the defendants were entitled to have the issue deliberately tried, and their right to be heard in the usual manner of a trial protected.” (Gravenhorst v. Zimmerman (1923) 236 N.Y. 22, 38-39 [139 N.E. 766, 772, 27 A.L.R. 1465].) (3) Nevertheless, questions of “`constitutional fact\‘” may be determined on a summary judgment motion under appropriate circumstances. (D‘Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 14 [112 Cal. Rptr. 786, 520 P.2d 10].)
We have recently examined the code classifications of “actions” and “special proceedings” and the sometimes confusing relationship of the type of litigation to the kind of remedies and relief available to the litigants. (Agricultural Labor Relations Bd. v. Superior Court (1983) 149 Cal. App.3d 709 [196 Cal. Rptr. 920].) Generally, “actions” are governed by part 2 of the Code of Civil Procedure. “Special proceedings” are found in part 3 and in other codes. Part 3 special proceedings occasionally contain no practice provisions and instead incorporate part 2 procedures, in whole or in part. Absent such a reference to part 2, in most instances it may be assumed that part 2 procedures are inapplicable to special proceedings.
This uncertain manner of setting forth practice provisions may require legislative clarification. For example, the forcible entry and detainer statutes found in the Code of Civil Procedure, part 3, incorporate the part 2 provisions except as otherwise provided in
(4) As a general proposition, summary judgment motions may be available whenever appropriate to any form of action, not because of incorporation language to be found in the special proceeding sections, but instead by virtue of its own language which expressly states its applicability in “any action or proceeding.” (Taliaferro v. Coakley (1960) 186 Cal. App.2d 258, 260 [9 Cal. Rptr. 529] (mandate); Adoption of Backhaus (1962) 209 Cal. App.2d 13, 20 [25 Cal. Rptr. 581] (adoption).) By dictum, this court in Adoption of Backhaus concluded that the 1953 version of
(5) Adoption and termination proceedings have some similarity; however, the termination procedure has a speedy trial requirement which makes summary judgment procedures inappropriate even if “any action or proceeding” is broadly construed. (
A similar problem arose in a case involving the Elections Code. In Anderson v. County of Santa Barbara (1976) 56 Cal. App.3d 780 [128 Cal. Rptr. 707], the court held that summary judgment was not available in election contests which are special proceedings: “Thus the statutory scheme governing election contests requires that trial commence no later than 45 days from the time that notice of the contest is filed with the county clerk. Nowhere in the time limit is there leeway for the pretrial skirmishing and motion practice that has become commonplace in today‘s traditional lawsuit. In stark contrast,
Termination proceedings likewise are to be heard (set for trial) within 45 days after service of the petition. (
Additional support for the argument the Legislature did not intend termination proceedings to be treated as civil actions under part 2 is found in
Although it appears the trial court was cautious at all times, affording the father the protections of counsel, personal appearance, examination by court-appointed psychiatrists and protracted delays, we conclude that the summary judgment procedure is inappropriate to the statutorily required time periods which have been enacted with consideration for the needs of the parent, the child, and the public. The availability of the motion should not depend upon, or be an excuse for, disregarding these time periods.
THE CONSTITUTIONALITY ISSUE
The father also challenges the constitutionality of
(6) The father claims the statute is vague because it sets no limits as to when the parent was declared mentally ill or how long the parent is likely to so remain. He contrasts
(8a) Next, the father argues that the term “mental illness” as used in
First, all that
Mental illness, as used in an earlier version of
The father urges that this definition may not be used to save
This contention is meritless. The Supreme Court has referred to the definition in a broader sense — as if it applies to the use of the term in
(9) As a matter of statutory interpretation, we presume that the Legislature intended the repeated use of identical words or phrases within a single statute to be consistent in their meaning. (Diachenko v. State (1981) 123 Cal. App.3d 932 [177 Cal. Rptr. 164].) We also assume the Legislature had existing laws in mind when it passed the statute, and that it was aware of existing California decisions. (Estate of McDill (1975) 14 Cal.3d 831, 837-839 [122 Cal. Rptr. 754, 537 P.2d 874].) The phrase appeared in
(10) When a statute is ambiguous, if indeed this one is, its intent may be gathered from other statutes dealing with the same subject matter. (Estate of McDill, supra, at p. 837.) (8b) Hence, contrary to the father‘s contention, in defining mental illness as used in
(11) He further argues that the subdivision is overbroad because it does not require a causal relationship between the parent‘s inability to care for the child and the parent‘s mental illness, as does
The trial court action in this case illustrates the care required of the court in preparing to adjudicate the
Parents coming under both subdivisions receive essentially the same treatment. (13a) For example, each type is entitled to a required finding of detriment, considerations of the best interests of the child, a finding that no alternatives to termination exist, adequate notice and an opportunity to be heard, meaningful confrontation, right to counsel, written findings of fact and conclusions of law upon request, and proof by clear and convincing evidence. (In re B.G., supra, 11 Cal.3d at p. 699;
(12b) This court has found
As in In re David B., we similarly read into
(13b) Procedural due process is not violated. As noted earlier,
(14) The father argues that, due to the different language and requirements of
(15a) It is also argued that
However, as noted in In re Franklin (1972) 7 Cal.3d 126, 137 [101 Cal. Rptr. 553, 496 P.2d 465], the defendant has already demonstrated his dangerous capacity. He elected to defend on the basis of his insanity. He urged the fact of his insanity. Under
(15b) Irrespective of when the termination proceeding is brought and which burden of proof keeps the father in confinement, we find no constitutional weakness in this procedure which relies on proof of a preliminary fact, i.e., a prior adjudication of insanity. Once the preliminary fact of a prior adjudication of insanity has been established, all other findings in the termination proceeding are made by use of the standard of clear and convincing evidence.
The judgment is reversed.
Franson, Acting P.J., and Martin, J., concurred.
Appellant‘s petition for a hearing by the Supreme Court was denied October 19, 1984.