In Re Rose G.
Ron Bain, under appointment by the Court of Appeal, Daniel M. Luevano, Rosalyn M. Chapman, Philip L. Goar, W. Kenneth Rice and Dorothy T. Lang for Objectors and Appellants.
John H. Larson, County Counsel, and Paul T. Hanson, Deputy County Counsel, for Petitioner and Respondent.
OPINION
JEFFERSON (Bernard), J.
Petitioner, County of Los Angeles Department of Adoptions, brought this action pursuant to
Angelica G. was born February 1, 1969, to Miriam C. and Rafael G. The parents’ life together constituted a stormy relationship punctuated with outbursts of physical violence. Angelica C. had two older brothers, Rafael, Jr., and Raymond. Miriam C. was receiving financial assistance from the Department of Social Services of Los Angeles County (hereinafter, DPSS) for the three children, but she had demonstrated an inability properly to manage the funds so given to such an extent that she had been placed on “mismanagement” status, which allowed the
While these children were so placed, Miriam C., again pregnant by Rafael G., gave birth to another daughter, Rose G. on September 5, 1970. Miriam continued to receive financial assistаnce from the DPSS. In November 1970, DPSS worker Arlene Shayer became aware that Miriam C. and Rafael G., with their daughter, Rose G., were living temporarily in an automobile parked near one of the DPSS offices. The police were called, and removed Rose G. from the custody of her parents; she, too, was declared a dependent child of the juvenile court, and ordered suitably placed when she was approximately two months old. At the time of hearing in this matter, all of the children remained in foster care, and had had their dependency status renewed on an annual basis.
Prior to the placement of Rose G., social worker Shayer and Miriam C. were on amicable terms, but their relationship deterioratеd thereafter. Miriam C. demanded the return of her children; Shayer responded that Miriam C. must make an effort to organize her own life better, so that the children could be returned. Miriam C. no longer received financial assistance as a mother with dependent children, but did receive approximately $115 per month in the form of general relief. The monthly grant included a very small sum for transportation. The older children, the boys, had been placed in San Gabriel; Angelica was placed in Norwalk, and Rose G. in Carson. Miriam C. lived in downtown Los Angeles; she did not drive. Her only dependable source of transportation to the various homes in which her children were placed was by bus. She did request, and receive, at least once, sрecial funds for transportation. But in 1971, no more funds were available to the DPSS for this purpose. It was testified to at the hearing that the children were not placed nearer to the downtown area because foster homes in the area were few in number.
During the early part of Angelica‘s placement, Miriam C. called Angelica‘s foster mother on onе occasion to find out how Angelica was. Other than that, Miriam C. never, prior to the filing of the petition, visited Angelica, nor did she telephone again, write, or send gifts. Miriam C. did visit Rose once in the summer of 1971, shortly before the child was a year old, but was upset because Rose did not recognize her. Social worker Shayer discussed this development with Miriam C., pointing out that the only solution was regular visits with Rose. Miriam C. did not visit Rose again, prior to the filing of the petition.
During the period between 1970 and 1972, while the children were in placement, Miriam C. moved frequently, staying in the downtown area. One effort was made by her to find housing suitable for her and the children, an effort assisted by a community worker under DPSS supervision. Often Miriam C.‘s monthly general relief checks werе held at her DPSS area office, because her whereabouts were unknown. For a time she used an alias because she was trying to avoid contact with Rafael G. No home visits were made by DPSS workers Shayer and Dinnerstein, who were responsible for her case.
Miriam C. would, however, visit the area office, and it was stipulated at trial that she demanded the return of her children once every six months. She also demanded that they be placed together and that they be placed closer to the downtown area. Many of her demands concerning the children were made while she was so emotional, and were framed in such abusive terms, that her DPSS workers, particularly Shayer, found it impossible to have a meaningful discussiоn of the issues. The DPSS knew that Miriam C. had a history of mental difficulty, having been institutionalized for that reason in New York when she was 13 years of age. While the testimony is not completely clear on this point, it was apparently made known to Miriam C. that counseling services were available through DPSS, but no specific referral for such services was ever made.
The
As of the time of this appeal, Angelica G. and Rose G., now respectively seven and five years of age, are living together in a prospective adoptive home in Long Beach. They have had no meaningful contact during their childhood to date with their natural parents, although sustained and capable legal efforts to secure their return to their natural parents have been made since October 1972.
The natural parents first contend on this appeal that reversal of the trial court‘s judgment is required because the trial court refused, as requested by the parents, to make findings of fact and conclusions of law.
(1) We agree that findings of fact and conclusions of law are required in proceedings such as this if findings are requested by a party to the proceedings. We reach our conclusion not only on due process constitutional grounds, but on the basis of recent decisional law of the California Supreme Court, which has emphasized that basic fairness, as well as adequate appellate review, requires findings at the trial (or administrative) level. (See, e.g., Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal. 3d 506 [113 Cal. Rptr. 836, 522 P.2d 12] (zoning); In re Sturm (1974) 11 Cal. 3d 258 [113 Cal. Rptr. 361, 521 P.2d 97] (denial of parole must be supported by a written definitive statement of reasons).) Recent decisions of the Courts of Appeal have also reflected recognition of the necessity of findings in cases involving the custody of children (In re J.T. (1974) 40 Cal. App. 3d 633 [115 Cal. Rptr. 553]; In re Susan Lynn M. (1975) 53 Cal. App. 3d 300 [125 Cal. Rptr. 707]), although nowhere have we found an express holding requiring general findings of fact and conclusions of law in
In such proceedings, it does not seem unreasonable to require that findings of fact and conclusions of law be prepared showing that the elements are present to bring the minors within the ambit of
(3) In the present case, one crucial factual finding would have been a determination of the presence — or absence — of the intent, on the part of the natural parents, to abandon the minors. The implied finding supporting the judgment of termination is that they did intend to abandon the minors when they failed to communicate with them for more than six months.
We deem it insufficient that the finding of intent to abandon may be implied from the judgment (cf. Guardianship of Marino (1973) 30 Cal. App. 3d 952 [106 Cal. Rptr. 655]) or that we may exercise the power held by appellate courts to supply a missing finding if it is supported by evidence in the trial record. (
We note that the trial court did not make what has come to be known as a “B.G.” or “4600” finding, required in all custodial proceedings since 1974, after this judgment was entered, as set forth in In re B.G. (1974) 11 Cal. 3d 679 [114 Cal. Rptr. 444, 523 P.2d 244]. In that case a custodial decision of the juvenile court adverse to the mother of the minors was reversed because of the failure of the juvenile court expressly to find that an award of custody to her would, in the language of
In In re T.M.R. (1974) 41 Cal. App. 3d 694 [116 Cal. Rptr. 292], the Court of Appeal applied the detriment-finding requirement prospectively when it reversed, for other reasons, a
However, we do not reverse the judgment below for lack of findings of fact and conclusions of law since the trend in the law we have discussed developed after this judgment was entered. Nothing in In re B.G., or in other decisional law decided since, suggests that that case must be applied retroactively, and no court, as far as we know, has expressly ruled that general findings are constitutionally mandated in custody proceedings. When this judgment was entered, the law, which the trial court judge reviewed before his decision (and was briefed by the parties to this appeal) was to the contrary; it had been declared anew in a recent appellate court opinion written in 1973, In re Helen J., supra, and it governed the outcome of this proceeding in the trial court. Our holding that findings of fact and conclusions of law are required in
The natural parents next attack the presumption contained in
(5) We have not been directed to, nor have we found, any definitive expression of the legislative intent involved in the 1965 amendment to
(6) Neal does not tell us whether the presumption created by
We find no legislative intent specifically expressed in shortening the abandonment time from one year to six months. However, we consider that the presumptive fact of an “intent to abandon” constitutes a logical inference to be drawn from the basic facts of the presumption — a six-month period without provision for support by, or without communication from, such parent. A logical-inference presumption tends to
(7) Considering the importance of the opposing interests in such hearings, that of the government (as parens patriae) or other interested person on the one hand, and the natural parents on the other, it would appear appropriate for the burden of proof to remain with the petitioner in
(8) We find no due process problem implicit in the operation of the
Even if we assume that the interests of parents are substantially similar in importance to the rights of a criminal defendant, we still reach the result that the
(9) The natural parents next argue that before initiating proceedings to declare a minor free from the custody of its parents, a county welfare department such as DPSS, must first make available to the parents federally mandated case work services4 designed to reunite the family unit at the earliest possible time. The parents assert that if such services have not been made available, a judicial termination of the parent-child relationship constitutes a violation of the due process clause of the United States Constitution. The same argument has been made in two other recent cases, In re Jeannie Q. (1973) 32 Cal. App. 3d 288 [107 Cal. Rptr. 646], and In re Susan Lynn M. (1975) 53 Cal. App. 3d 300 [125 Cal. Rptr. 707].
Relying on two recent United States Supreme Court cases, Weinberger v. Wiesenfeld (1975) 420 U.S. 636 [43 L. Ed. 2d 514, 95 S. Ct. 1225], and Stanley v. Illinois, supra, the Susan Lynn M. court observed that “[a] judgment freeing a child from the custody and control of its parents results in the total severance of the natural ties between the parents and the child and amounts to the taking of ‘a liberty’ under the due process clause of the United States Constitution. [Citations.]” (Susan Lynn M., supra, 53 Cal. App. 3d 300, at p. 310.) We agree that procedural due process must be satisfied to sustain a judgment freeing a minor from parental custody and control under
We are fully cognizant of the fact that prevailing governmental policy, as reflected in legislatiоn and in administrative regulations at all levels of government — state, federal and county — is to employ supportive, rehabilitative procedures to reunite and strengthen families whenever and wherever possible. As was stated in In re Susan Lynn M., “the possibility
In re Jeannie Q. discusses the impact of rehabilitative efforts at length, the court concluding, however, that it was not mandatory to offer such services in all cases prior to removal of children from the custody of their parents. The court stated that “the extent to which child protective services will or will not benefit a given family must in our view be decided on a case by case basis.” (In re Jeannie Q., supra, 32 Cal. App. 3d 288, at p. 298.) The court was reviewing a situation where young children had been found to be suffering from extreme malnutrition, and commented that “[t]hese children might well have suffered further severe malnutrition if the social worker had been required to teach Mrs. Q. to cook before starting juvenile court proceedings.” (Id., at p. 299.) The requirement, according to the Jeannie Q. court, was for “serious and continuing evaluation” of whether a given family‘s circumstances require such services, although the court also points out that ”
In the case at bench, we likewise reject the contention that protective servicеs are mandated in every case by constitutional due process requirements.
The natural parents herein argue that the record supports the conclusion that the DPSS failed totally to follow the general policy favoring rehabilitative efforts as set forth in its own directive. Evidence was introduced with respect to the kinds of supportive services available
Petitioner-respondent contends that the record is supportive of a conclusion that the DPSS did the very best it could with a difficult, hostile mother, and met the “good social work” standard. Hеre, it appears that some effort was made to provide services to Miriam C., although nothing approaching what might be termed “intensive” effort was undertaken. This situation arose, at least in part, because of Miriam C.‘s combative stance with DPSS worker Shayer after Rose was removed in 1970. This hostility prevented any meaningful discussion of available alternatives, and made resolution of the problems necessitating the original placement of the children impossible.
(10) We consider that evidence as to the availability of supportive services to the parents, the extent, if any, the DPSS employed the available rehabilitative services, and the reasons for lack of any services being offered, or thе lack of more intensive efforts, is relevant evidence in a
The parents next attack the sufficiency of the evidence to support the trial court‘s judgment, asserting especially that intent on the part of the parents to abandon the minor girls was not established. We disagree. We set forth our disagreement in light of the presumption that is created by
(11) The evidence is undisputed that, at the time this petition was filed, neither of the natural parents had communicated, even on a “token” basis, with the two minors for more than six months. The basic facts of the presumption having been established, the presumed fact of an intent by the parents to abandon their two minor daughters was compelled in the absence of evidence, introduced by such parents as the opponents of the presumption, sufficient to sustain a finding of the
(12) The parents point out on this аppeal that the evidence is without contradiction that Miriam C. often demanded the return of the children; it is argued that because Miriam C. never, in her mind, reconciled herself to the loss of her daughters, she never had the requisite statutory intent to abandon them. This evidence as to the nonexistence of the presumed fact of an intent to abandon we deem sufficient to support a finding of the nonexistence of the presumed fact. Hence, the presumption disappeared with the introduction of such evidence, and the trial court was required to determine the existence or nonexistence of the presumed fact (1) without regard to the presumption; (2) with no change in the allocation of the burden of proof with respect to the presumed fact; and (3) by weighing the evidence as to the existence of the basic facts of the presumption and any appropriate inferences arising from these facts against the evidence as to the nonexistence of the presumed fact, and resolve the conflict. (
We consider that, in light of the principles set forth above, the evidence was ample to sustain the trial court‘s judgment. The evidence establishes that from 1970 to 1972, at the time these proceedings commenced, Miriam C. and Rafael G. were so involved with personal problems of their own (not the least of which was the dynamics of their interrelationship) that thеy had nothing left to give to their children, who were passing through crucial, formative years; it was left to other more responsible persons to provide these children with all the things that children need, including good physical and emotional care. Intent to abandon, as in other areas, may be found on the basis of an objective measurement of conduct, as opposed to stated desire. Demanding the return of children was not a substitute for displaying the kind of emotional control and capabilities to care for the children that might have resulted in their return. The fact is that Miriam C. failed to communicate with her daughters in any meaningful way for a period far longer than six months, at an important time in their lives, regardless of her рrivate concern. It was what was communicated to the children that matters. The father of the children has been even less responsible than the mother with respect to meaningful contact; being incarcerated does not, in and of itself, provide a legal defense to abandonment of children. It was possible to ascertain the children‘s whereabouts and at least show
Also, an important element that a trial court must consider, when making a decision about children, is the impact of the passage of time. Childhood is short; many basic attitudes and capacities are develoрed in the very early years. Ties are formed to the adults present in the child‘s life, and can only be broken by inviting emotional disaster. As was stated in In re Sherman M. (1974) 39 Cal. App. 3d 40, 44-45 [113 Cal. Rptr. 847], “the issue is best presented not by the question ‘Who has the right to custody of the child?’ but by the question ‘What will promote and protect the best interests of the child?‘” Implicit in answering such question is an assessment of the child‘s situation as of the time of trial. In the instant case, the trial court had to choose between competing basic interests, that of the parents and of the children; the interests may or may not coincide. Here the determination was made to free the children for adoption, and that determination is supported by implied findings that there existed an intent by the parents to abandon thеir minor daughters, that it was in the best interests and welfare of such minors that their custody be taken from the parents, and that it would be detrimental to such minors if they were returned to the parents. The judgment is supported by substantial evidence.
(13) The natural parents also make an attack upon an evidentiary ruling of the trial court. They contend that the trial court erred in admitting in evidence a “make-sheet,” which was attached to the probation officer‘s report and which showed various arrests of Miriam C. The trial court properly ruled that the probation report was admissible as an exception to the hearsay rule5 and also admitted the attachment. The trial judge remarked that he would disregard evidence concerning arrests, but allowed petitioner to elicit from Miriam C. that she had sustained a conviction of burglary. The natural parents contend that the “make-sheet” should have been excluded as prejudicial and inflammatory to the mother‘s case.
Evidence of a parent‘s conviction of a crime would appear to have some relevancy in determining the best interests of children of such parent, while evidence of arrests would appear, at best, to have little or no relevancy. Of course, when a party (even in a civil case) testifies, еvidence of a felony conviction may be used to impeach that testimony. (
The judgment appealed from is affirmed.
Kingsley, Acting P.J., and Dunn, J., concurred.
Appellants’ petitions for a hearing by the Supreme Court were denied July 1, 1976.