In Re Sonia G.
Ralph B. Jordan, County Counsel, and Evelyn Keller, Deputy County Counsel, for Petitioner and Appellant.
Susan Sutherland, under appointment by the Court of Appeal, for Objector and Appellant.
Peter C. Carton, under appointment by the Court of Appeal, for Minors.
[Opinion certified for partial publication.1]
OPINION
MARTIN, J.
In February 1981, the Kern County Superior Court, after hearing, adjudged minors D.R. (hereinafter D.) and her halfsister Sonia G. to be dependent children. In May 1981, Stanley R. was found guilty of orally copulating D. and Sonia in violation of
Stanley R. appeals from the findings under
STATEMENT OF FACTS
D., born August 7, 1975, is the daughter of Diane R. and Stanley R. She was seven years old at the time of the contested hearing.
Sonia, born August 27, 1973, is the daughter of Diane R. and her former husband (now deceased). Sonia was nine years old at the time of the contested hearing. These minors were taken into custody by the Department on January 8, 1981, after they reported they were the victims of sexual abuse by Stanley R. They were ages five and seven respectively at the time they were taken into custody.
Stanley R. saw both children during the contested jurisdictional hearings in juvenile court on February 3, 1981. He again saw his children at his preliminary hearing on the criminal charges on February 18, 1981. He also saw them at his criminal trial on April 30, 1981.
The Department received a letter from Stanley R. dated February 1, 1982, postmarked February 3, 1982, addressed to the “Welfare Department.” In this letter he requested information so that he could write to D. and expressed a desire to “keep in tuch [sic]” with D. and to see her again. (Ibid.) In a subsequent letter dated February 11, 1982, postmarked February 16, 1982, addressed to Fred B. Logan, Stanley R. again asked for D.‘s address, indicated the Department had refused to provide him with her address, indicated that his son and daughter would provide a home for her during his imprisonment at the end of which time he indicated a desire to keep his child and a lack of consent as to her proposed adoption.
On July 16, 1982, the Department filed a petition to declare D. and Sonia free from parental custody and control. The hearing was held on November 2, 1982.
On December 21, 1982, the court signed the judgment and order declaring the children free from the parental custody and control of Stanley R.
DISCUSSION
I*
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III
The Department sought a severance of the parental relationship on the basis of
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“(4) Whose parent or parents are convicted of a felony, if the facts of the crime of which the parent or parents were convicted are of a nature so as to prove the unfitness of the parent or parents to have the future custody and control of the child.”
(1a) The trial court declined to sever the relationship on the basis of
“In California, as in other jurisdictions, ‘the word “conviction” has been used with varying meanings.‘” (Helena Rubenstein Internat. v. Younger (1977) 71 Cal. App. 3d 406, 415 [139 Cal. Rptr. 473].) “[T]he term ‘conviction’ has historically had, and continues to have, at least two accepted meanings: (1) the jury verdict, and (2) the judgment following the verdict.” (Id., at p. 413.) The court in Helena Rubenstein concluded: “... [T]he terms ‘convicted’ and ‘conviction’ have not had a fixed single meaning in California law. In the context the statutes or constitutional provisions imposing civil penalties or disabilities, they have never been construed to mean the verdict of guilt.” (Id., at p. 418.)
It is interesting to note that the United States Code defines “convicted” as follows: “‘Conviction’ and ‘convicted’ mean the final judgment on a verdict or finding of guilty, a plea of guilty, or a plea of nolo contendere, and do not include a final judgment which has been expunged by pardon, reversed, set aside or otherwise rendered nugatory.” (
Thus, although a judgment of guilt is entered, if an appeal is pending, the appeal suspends the effect of the judgment. (2) “A judgment is not final if there still remains some legal means of setting it aside.... Certain means to that end have been made available to the accused. The traditional method was by appeal.” (Stephens v. Toomey (1959) 51 Cal. 2d 864, 869 [338 P.2d 182].)5
The Department argues that the provisions of
(3) However, the involuntary termination of the parent-child relationship by state action must be viewed as a drastic remedy which should be resorted to only in extreme cases. (In re Cynthia K. (1977) 75 Cal. App. 3d 81, 84 [141 Cal. Rptr. 875].) Thus, in light of the serious consequences flowing from a permanent severance of a parental relationship (In re Jacqueline H. (1978) 21 Cal. 3d 170, 175 [145 Cal. Rptr. 548, 577 P.2d 683]) and the strong policy considerations favoring parental custody over that of nonparents, in In re Heidi T. (1978) 87 Cal. App. 3d 864, 870 [151 Cal. Rptr. 263], the court held that the appropriate standard to be applied in
If the term “conviction” were to mean a mere finding of guilt, regardless of the outcome of an appeal, a child could be declared free from parental control, adopted, and then later claimed by the natural parent again after a ruling of reversal on said parent‘s criminal appeal. For instance, if a reviewing court determined that there had been insufficient evidence presented at a criminal prosecution and reversed the conviction on that ground, the defendant in that case could not be retried. (Burks v. United States (1978) 437 U.S. 1, 16-18 [57 L. Ed. 2d 1, 12-14, 98 S. Ct. 2141]; People v. Bonner (1979) 97 Cal. App. 3d 573, 574-575 [158 Cal. Rptr. 821].)
We recognize the disadvantage of awaiting an affirmance on appeal before initiating a
(1b) We therefore conclude that the term “convicted” as used in
The judgment is affirmed.
Woolpert, Acting P.J., and Hamlin, J., concurred.