Terry D., In re

• Decision Date: 16 August 1978
• Citation: 148 Cal.Rptr. 221,83 Cal.App.3d 890
• Court: California Court of Appeals Court of Appeals
• Parties: In re TERRY D. et al., minors, for freedom from parental custody and control. BUTTE COUNTY DEPARTMENT OF SOCIAL WELFARE, Plaintiff and Respondent. v. ORA D., Defendant and Appellant. Civ. 16071.

Page 221

148 Cal.Rptr. 221

83 Cal.App.3d 890

In re TERRY D. et al., minors, for freedom from parental custody and control.

BUTTE COUNTY DEPARTMENT OF SOCIAL WELFARE, Plaintiff and Respondent. v. ORA D., Defendant and Appellant.

Civ. 16071.

Court of Appeal, Third District, California.

Aug. 16, 1978.

Frank L. Willis, Sr., Chico, Don Bennett, Sacramento, for defendant and appellant.

Jerome E. Warren, Public Defender, Oroville, for the minors.

Daniel V. Blackstock, Butte County Counsel, James R. Griffith, Deputy County Counsel, Chico, for plaintiff and respondent.

Ora Mae Devlin, in pro per.

REGAN, Associate Justice.

In this proceeding by the Butte County Department of Social Welfare to have six minor children declared free from parental custody and control pursuant to Civil Code section 232, subdivisions (a)(2) and (a)(7), the trial court granted the petitions (which have been consolidated for trial) and appointed the Children's Home Society of California as being guardian under the provisions of section 239 of the Civil Code. The natural mother (Ora) appeals.

The parties stipulated that the six children are the children of Ora D. and Joseph D.; that the birthdate of the oldest of these minors is December 23, 1967, and of the youngest April 6, 1974; that the five oldest had been dependent children of the juvenile court since March 15, 1973, their parents having been deprived of their custody since that date; that the youngest had been a dependent child of the juvenile court and his parents deprived of his custody since July 11, 1974; and that all of the children, with the exception of the youngest, had been cared for in one or more foster homes under the supervision of the juvenile court for more than two consecutive years. This allowed the five eldest to be considered under Civil Code section 232, subdivision (a)(7), while the youngest fell under subdivision (a)(2).

The factual issues as to the five older children were: (1) whether their return to their parents would be detrimental to them; and (2) whether the parents had failed during the period of the foster care, and were likely to fail in the future, to provide care and control for the five, and to maintain an adequate parental relationship with them. (See Civ.Code, § 232, subd. (a) (7).)

The record is replete with testimony by social workers and other professionals as to the history of work with the parents going back over ten years, and that although public funds and assistance were made available to them, the food, clothing and sanitary conditions, as well as lack of medical and dental care, afforded to the children by the parents were a source of constant concern. ¹ Moreover, a psychologist's testimony was to the effect that because of factors of mental retardation, psychotic thinking and probable brain damage, Ora would not likely be able to manage the care and supervision of the children or to maintain an adequate parental relationship. The psychologist's prognosis as to Ora was that she would not improve in this regard with or without treatment. Also, the record of visitations of the parents to the children while in foster care was poor. ²

Subdivision (a)(7), as it read in 1975 at the time of the hearing, applied to children who have been in foster homes for two or more years; it allowed a freeing from parental custody where the court found Beyond a reasonable doubt that return to the parents would be detrimental and that the parents had failed for such period, or were likely to fail in the future, to provide a home, care, control and maintain an adequate parental relationship. With respect to the sixth and youngest child (who was about 14 months of age when the petition was filed), the allegation was a simple allegation of "neglect" by the parents and that the child is a dependent child of the juvenile court not in parental custody; this ground for a court decree permanently freeing a child from custody and control of its parents is provided for in Civil Code section 232, subdivision (a)(2). ³

Ora contends the preponderance of the evidence standard of proof ⁴ applicable to Civil Code section 232, subdivision (a)(2), is "inappropriate" and that proof beyond a reasonable doubt should be required, or at least "clear and convincing evidence." Ora also contends the application of a preponderance of the evidence test to Civil Code section 232, subdivision (a) (2), while a more stringent standard (proof beyond a reasonable doubt) is required under Civil Code section 232, subdivision (a)(7), is a violation of equal protection of the laws and thus unconstitutional.

We consider the constitutional question first. There are two standards of review applied by the courts in equal protection questions. The first or conventional standard requires only that differential treatment of classes of individuals has some "reasonable basis" or bears " 'some rational relationship to conceivable legitimate state purpose.' " (Schwalbe v. Jones (1976) 16 Cal.3d 514, 517-518, 128 Cal.Rptr. 321, 323, 546 P.2d 1033, 1035; Dandridge v. Williams (1970) 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491, 501.) A second test or standard has been developed by the courts to be applied to a classification drawn along lines which rendered it "suspect" in constitutional terms or which touched a "fundamental interest." These are generally matters such as race, sex or " 'rights explicitly or implicitly guaranteed by the constitution'." (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 17-18, 112 Cal.Rptr. 786, 789, 520 P.2d 10, 22.) In such case strict scrutiny is required and the state bears a burden of establishing that it has a "compelling interest" which justified the law and that the classification is necessary to further that purpose or interest. (San Antonio School District v. Rodriguez (1973) 411 U.S. 1, 33, 36 L.Ed.2d 16, 43; D'Amico v. Board of Medical Examiners, Supra, 11 Cal.3d at p. 17, 112 Cal.Rptr. 786, 520 P.2d 10; Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 16, 95 Cal.Rptr. 329, 485 P.2d 529.)

We are not dealing with classifications based upon suspect areas such as race, sex or any rights explicitly or implicitly guaranteed by the constitution. We do not believe the strict scrutiny test need be applied; but even if we apply it, for purposes of argument only, it can be said that the state has a compelling interest which justified the statute, and the classification is necessary to further that purpose or interest. The courts have held, with specific respect to Civil Code section 232, that the goal of the section is to promote the welfare of the child; and the state as a Parens patriae not only has a "compelling interest" but also has a "duty" to sever parental bonds once a situation contemplated by the statute arises. (In re Eugene W. (1972) 29 Cal.App.3d 623, 629, 105 Cal.Rptr. 736.) Under this concept, a classification made under Civil Code section 232, subdivision (a)(5), relating to mentally ill parents was held valid against a classification challenge, but the court felt it need only apply the reasonable basis rather than the strict scrutiny or compelling state interest standard. (In re Eugene W., supra, 29 Cal.App.3d at pp. 627-628, 105 Cal.Rptr. 736.)

In the present case, the rational basis for distinguishing between situations falling under Civil Code section 232, subdivision (a)(2) and subdivision (a) (7), for purposes of different standards of proof, is the important distinction that the former section involves finding of the simple and single concept of cruel treatment or neglect, while the latter involves findings of Detriment to the child by return to his parents Plus findings that the parents have failed for two or more years and are Likely to fail in the future to (a) provide a home, (b) provide care and control, and (c) maintain an adequate parental relationship. These findings are different in all phases of kind, quality and degree from the simple findings required under subdivision (a)(2). To require a higher standard of proof (beyond a reasonable doubt) for these more serious and complex findings is in our view entirely reasonable and rational and within the orbit of the proper exercise of legislative judgment and wisdom in making a classification within the equal protection clauses of the United States and California Constitutions. (See In re Rose G. (1976) 57 Cal.App.3d 406, 420, 129 Cal.Rptr. 338.)

Moreover, as argued by counsel for the Butte County Department of Social Welfare, the more stringent standard of proof is a protection to the parents, while the most basic purpose of the statute is to protect children, and it could therefore be said that If any denial of equal protection were to be found, the more demanding standard of Civil Code section 232, subdivision (a) (7), should be reduced to the "preponderance" standard so that children who are the subjects of that subdivision are not denied "equal protection" relative to those children who are subjects of proceedings under subdivision (a)(2).

In this connection, we note that any seeming incongruity in the use of a preponderance of the evidence burden of proof in one portion of Civil Code 232 when the proof beyond a reasonable doubt test is used in another portion, may be explained by the fact that this unique section of the statutory law has evolved out of long-established concepts that proceedings under juvenile court laws to free children from the custody of their parents are "special proceedings." (Moch v. Superior Court (1919) 39 Cal.App. 471, 477, 179 P. 440; In re Peterson (1943) 56 Cal.App.2d 791, 795, 133 P.2d 831.)

We conclude that the legislative distinction or classification, as to standards or burdens of proof between those cases falling within Civil Code section 232, subdivision (a)(2), and those under subdivision (a)(7) is constitutionally sound, whether the classification be in terms of the statute as it read at the time this case was decided, or...