Carmaleta B., In re

• Decision Date: 31 May 1978
• Citation: 146 Cal.Rptr. 623,21 Cal.3d 482,579 P.2d 514
• Parties: , 579 P.2d 514 In re CARMALETA B. et al., minors. Homer E. DETRICH, as Director, etc., Petitioner and Respondent, v. CAROLYN B., Objector and Appellant. L.A. 30780.
• Court: California Supreme Court

Page 623

146 Cal.Rptr. 623

21 Cal.3d 482, 579 P.2d 514

In re CARMALETA B. et al., minors.

Homer E. DETRICH, as Director, etc., Petitioner and Respondent, v. CAROLYN B., Objector and Appellant.

L.A. 30780.

Supreme Court of California,In Bank.

May 31, 1978.

As Modified on Denial of Rehearing June 29, 1978.

Appellate Defenders, Inc., under appointment by the Court of Appeal, and Paul Bell, San Diego, for objector and appellant.

Donald L. Clark, County Counsel, and D. Richard Rudolf, Deputy County Counsel, San Diego, for petitioner and respondent.

Ralph B. Jordan, County Counsel (Kern), and Peter C. Carton, Deputy County Counsel, Bakersfield, as amici curiae on behalf of petitioner and respondent.

MANUEL, Justice.

Carolyn B. appeals from a judgment of the trial court declaring her five minor children free from her custody and control under section 232, subdivisions (a) (2) and (a)(6) of the Civil Code. We reverse.

The action was brought against Carolyn B. and her husband on June 23, 1975, by the San Diego County Department of Public Welfare pursuant to Civil Code section 232 for abandonment (Civ.Code, § 232, subd. (a)(1)), cruelty and neglect (Civ.Code, § 232, subd. (a)(2)), conviction of a felony (Civ.Code, § 232, subd. (a)(4)), and inability to properly support or control due to mental illness (Civ.Code, § 232, subd. (a)(6)). The department also sought to be appointed guardian of the minors under Civil Code section 239 ¹ until the children could be placed for adoption.

The record on appeal includes the written report of the juvenile probation officer and the reporter's transcript of the testimony of the deputy probation officer, the dependent child worker, the psychiatrist who interviewed the parents and the minors' mother. No findings were requested by parties and on October 3, 1975, the trial court granted the petition. The court's judgment declared: "IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Carmaleta (B.), Carlotta (B.), Clarence (B.), Clarenton (B.), and Carolyn (B.), . . . should be and are declared free from the custody and control of their mother Carolyn (B.), pursuant to Civil Code section 232, subdivisions (a)(2) and (a)(6), ² and the legal father, Clarence (B.), pursuant to Civil Code section 232, subdivisions (a)(2), (a)(4) and (a)(6), ³ and said persons are hereby deprived of the custody and control of said . . . children."

It is further provided that the department of public welfare was duly appointed guardian of the minors pending their adoption.

THE FACTS

Mr. and Mrs. B. now have five children: Carmeleta, age nine; Carlotta, age eight; Clarence, Jr., age seven; Clarenton, age six; and Carolyn, age three. The minors first came to the attention of the juvenile authorities in July 1970 when staff at Mercy Hospital treated Clarence for a head injury similar to that suffered by his sister Carlotta the year before. A staff doctor notified the juvenile probation department of the circumstances surrounding Clarence's condition, as told to him by Mrs. B.'s sister who visited the child while he was hospitalized. Carlotta suffered physical damage as a result of her injury and Clarence is partially paralyzed and is reported to have no vision in the left eye.

It was not until June 1973, however, that the four older children, Carolyn having not yet been born, were removed from their parents' custody and declared dependent children of the San Diego County Juvenile Court. The probation officer's report states the wardships were ordered ". . . under the provision of then Section 600, subdivision (d) ⁴ of the Welfare and Institutions Code which permitted a child to be declared a dependent child . . . whose home (was) an unfit place for him by reason of neglect, cruelty . . . or physical abuse. . . ." The action was the result of a petition alleging that "the home was unfit because of the depravity and cruelty of the father in that during the period of 1973 (he) subjected or exposed the girls to sexual abuse or damage and that the mother failed to protect the girls . . . and that the father subjected or exposed the boys to physical abuse or damage."

Caseworkers also found that Mr. B. had been convicted of battery under section 242 of the Penal Code in 1970 for whipping a two-year-old boy that his wife was babysitting and that in 1975, he was convicted of an attempt to commit unlawful sexual intercourse with afourteen-year-old girl in violation of Penal Code section 664.

In 1973 dependency proceedings gave custody of the four children to Mrs. B. under the supervision of Mrs. B.'s mother in the mother's home in Washington, D. C. Three months after arriving in Washington, Mrs. B. gave birth to her fifth child Carolyn B. In March of 1974, Mrs. B. began psychiatric consultation at a local hospital and voluntarily underwent a short-term commitment. At this time she and her mother were having serious disagreements over the care of the children, and as a result of their disharmony, the Washington, D. C. juvenile authorities arranged for the four elder children to be returned to California. The children arrived in San Diego in March 1974, and were placed with foster parents on April 5, 1974.

Within a few weeks of the children's arrival, Mrs. B. returned to San Diego with her infant daughter and set up a separate residence away from her husband. On April 30, 1974, a month after her return, the department of public welfare succeeded in having the baby declared a ward of the court and a dependent child pursuant to then section 600, subdivision (a) ⁵ of the Welfare and Institutions Code for "any person under . . . age 18 who . . . has no parent . . . capable of exercising (proper parental) care . . ." apparently on the ground that Mrs. B. was incapable of protecting her from possible abuse by Mr. B. The baby was subsequently placed with the same foster parents as were her brothers and sisters.

Having lost custody of all the children and having no income, Mrs. B., on the advice of a social worker, went to live with her husband while she trained as a nurse's aide. Although she has made a few abortive attempts to move, Mrs. B. continues to reside with her husband.

In June 1975, just one year after the last child was placed in foster care, the department of public welfare pursuant to section 232.9 ⁶ initiated this petition to free the minors from the custody and control of their parents. It is from the ensuing judgment under section 232, subdivisions (a)(2) and (a)(6), herein described, that Mrs. B. appeals.

Parenting is a fundamental right, and accordingly, is disturbed only in extreme cases of persons acting in a fashion incompatible with parenthood. Thus, the court in In re T.M.R. (1974), 41 Cal.App.3d 694, 703, 116 Cal.Rptr. 292, 298, held: "The relationship of . . . natural parent . . . (and) . . . children is a vital human relationship which has far-reaching implications for the growth and development of the child. (See Kay & Phillips, Poverty and the Law of Child Custody (1966) 54 Cal.L.Rev. 717.) Thus, the involuntary termination of that relationship by state action must be viewed as a drastic remedy which should be resorted to only in extreme cases of neglect or abandonment." (Lois R. v. Superior Court (1971) 19 Cal.App.3d 845, 97 Cal.Rptr. 158; In re J.T. (1974) 40 Cal.App.3d 633, 115 Cal.Rptr. 553; In re Raya (1967) 255 Cal.App.2d 260, 265, 63 Cal.Rptr. 252; In re A.J. (1969) 274 Cal.App.2d 199, 202, 78 Cal.Rptr. 880; Stanley v. Illinois (1972) 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551.)

Our decision in In re B.G. (1974) 11 Cal.3d 679, 114 Cal.Rptr. 444, 523 P.2d 244, emphasized the gravity of this right, holding that the doctrine preferring parental custody was not affected by the enactment of section 4600 except to focus "attention not on the unfitness of the parent but the detriment to the child. (See Guardianship of Marino, supra, 30 Cal.App.3d 952, 958, 106 Cal.Rptr. 655)." (11 Cal.3d 698, 114 Cal.Rptr. 457, 523 P.2d 257.) B.G. permits custody to go to nonparents ". . . only upon a clear showing that such award is essential to avert harm to the child." (11 Cal.3d 699, 114 Cal.Rptr. 458, 523 P.2d 258.)

In light of this legislative and judicial policy, we must determine if the trial court's findings under subdivisions (a)(2) and (a)(6) were supported by substantial evidence such that the situation contemplated by the statute arises, and severing the parental relationship becomes the least detrimental alternative for the children. (In re D.L.C. (1976) 54 Cal.App.3d 840, 850, 126 Cal.Rptr. 863; In re Eugene W. (1972) 29 Cal.App.3d 623, 629, 105 Cal.Rptr.

736; Goldstein, et al., Beyond the Best Interest of the Child (1973).)

THE SECTION 232, SUBDIVISION (a)(6) FINDING INABILITY DUE TO MENTAL ILLNESS.

Section 232 (see fn. 3, ante.) provides that "(a)n action may be brought for the purpose of having any person under the age of 18 years declared free from the custody and control of either or both of his parents when such person comes within any of the following descriptions . . . (6) (Person) (w)hose . . . parents are, and will remain incapable of supporting or controlling the child . . . because of mental deficiency or . . . illness."

The court impliedly found that Mrs. B. ". . . (was) and (would) remain incapable of supporting or controlling the (children) in a proper manner because of mental . . . illness" under subdivision (a)(6) of the statute. Mentally ill persons under section 232 have been judicially defined as those persons "(a) (w)ho are of such mental condition that they are in need of supervision, treatment, care, or restraint" or "(b) (w)ho are of such mental condition that they are dangerous to themselves or to the person or property of others . . . ." (In re Baby Boy T. (1970) 9 Cal.App.3d 815, 820, 88 Cal.Rptr. 418, 421; see also In re Eugene W., supra, p. 628, fn. 2, 105 Cal.Rptr. 863.) ⁷ Kern County Welfare Department, as amicus curiae, urges the...