Cynthia D. v. Superior Court, S025807

Citation19 Cal.Rptr.2d 698,5 Cal.4th 242,851 P.2d 1307
Decision Date01 June 1993
Docket NumberNo. S025807,S025807
Parties, 851 P.2d 1307 CYNTHIA D., Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent; SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.
CourtUnited States State Supreme Court (California)

Thor O. Emblem and Tracy L. Emblem, San Marcos, as amici curiae on behalf of petitioner.

Lloyd M. Harmon, County Counsel, Susan Strom, Chief Deputy County Counsel, and Gary C. Seiser, Deputy County Counsel, for respondent.

No appearance for real party in interest.

Gary Plavnick, Deputy County Counsel, San Diego, for minor.

PANELLI, Justice.

This is one of several cases we have taken to resolve recurring issues involving juvenile dependency proceedings pursuant to Welfare and Institutions Code section 300 et seq. 1 The sole issue raised in the petition for review in this case is a due process challenge to the statutory provisions that allow termination of parental rights based on a lesser standard of proof than clear and convincing evidence. The Court of Appeal found the provisions to be constitutional. We affirm.


Only a skeletal statement of facts is necessary since the question presented is legal rather than factual in nature. A dependency petition was filed in April 1989 on behalf of Sarah D. (minor) by the San Diego County Department of Social Services (DSS) alleging that Cynthia D. (mother) was unable to protect minor from molestation and nonaccidental injury and that mother used narcotics and/or dangerous drugs. (§ 300, subd. (b).) Juvenile court jurisdiction was found, and minor was declared a dependent of the juvenile court in June 1989. Minor Following several review hearings, an 18-month review hearing was held on May 29, 1991. At that time, based on a preponderance of the evidence, the court found that return of minor to mother's custody would create a substantial risk of detriment to minor, that reasonable reunification services had been provided mother, and that the matter should be set for a selection and implementation hearing under section 366.26 to determine whether the permanent plan for minor should be long-term foster care, guardianship, or adoption.

[851 P.2d 1308] was initially placed in the home of a relative, but a supplemental petition was filed when the relative became unable to care for minor. The court found the allegation in the supplemental petition true by clear and convincing evidence, and minor was placed with a foster family, with whom she still resides. The foster parents have been approved to adopt minor in the event she becomes eligible for adoption.

A few days before the date set for the section 366.26 hearing, mother filed a petition for writ of mandate/prohibition seeking to have the Court of Appeal order the trial court to vacate its order setting the section 366.26 hearing and to prohibit it from taking any further action to terminate mother's parental rights. Mother claimed that the statutory provisions violated due process because they allowed findings of detriment to be made by a preponderance of the evidence rather than by clear and convincing evidence. The Court of Appeal denied relief, and we granted review.

1. Historical Review.

A review of the history and purpose of the legislation is helpful in understanding the issue presented. In 1979, following several years of hearings and studies, the United States Congress proposed a major revision of the funding of child welfare services. (See 1980 U.S.Code Cong. & Admin.News, at p. 1448.) The legislation was ultimately enacted as the Adoption Assistance and Child Welfare Act of 1980, Public Law No. 96-272. (See 42 U.S.C. § 670 et seq.) It was designed to "lessen the emphasis on foster care placement and to encourage greater efforts to find permanent homes for children either by making it possible for them to return to their families or by placing them in adoptive homes." (1980 U.S.Code Cong. & Admin.News, at p. 1450.) Public Law No. 96-272 required states, as a condition of federal funding, to enact legislation that mandated active efforts to keep children in their homes if possible, to reunify families if removal proved necessary, and to select permanent plans, including adoption, in a timely fashion if the families could not be reunified. (See 42 U.S.C. §§ 671(a)(14), 672, 675.)

In 1982, the Legislature passed Senate Bill No. 14 to bring California into compliance with Public Law No. 96-272. (Stats. 1982, ch. 978, p. 3525.) It established a more structured framework for the protection of abused, neglected and abandoned children as dependents of the juvenile court and for services to their families. Among other things, the legislation established a clear and convincing standard for removal of children from their parents (§ 361), reviews every six months (§§ 364, 366), reunification services (former § 361, subd. (e); now § 361.5), and permanency planning hearings for children who could not be returned to a parent within 12 to 18 months (§ 366.25). At the permanency planning hearing the juvenile court could select one of three possible permanent plans: adoption, guardianship, or long-term foster care. If adoption were selected, a separate proceeding in the superior court had to be filed pursuant to Civil Code section 232 to implement the plan.

These revisions still fell short of the desired goal. As Justice Brauer observed in a concurring opinion in In re Micah S. (1988) 198 Cal.App.3d 557, 564, 243 Cal.Rptr. 756, there were still lengthy delays, especially when adoption was selected as the permanent plan. Months, or even years, might pass before the separate termination proceeding would be completed in superior court: "The passage of five or more years from initial removal of the child The Legislature, acknowledging the problem, established a task force to review and coordinate child abuse reporting statutes, child welfare services, and dependency court proceedings. (Stats. 1986, ch. 1122, p. 3972.) The task force was comprised of a broad-based group of experts appointed by the Senate Select Committee on Children and Youth. Based on the work and recommendations of the task force, the Legislature passed Senate Bill No. 243 in 1987 (Stats.1987, ch. 1485, p. 5598) as a comprehensive revision of laws affecting children. (Sen. Select Com. on Children & Youth, SB 1195 Task Force Rep. on Child Abuse Reporting Laws, Juvenile Court Dependency Statutes, and Child Welfare Services (Jan. 1988), p. i [hereafter Task Force Report].)

[851 P.2d 1309] from its home to ultimate resolution and repose [was] by no means unusual." (Id. at p. 565, 243 Cal.Rptr. 756 (conc. opn. of Brauer, J.).)

Senate Bill No. 243 substantially changed the procedure for permanently severing parental rights in cases where the child is a dependent of the court. It eliminated the need to file a separate Civil Code section 232 proceeding and brought termination of parental rights for dependent children within the dependency process through a selection and implementation hearing pursuant to section 366.26. The task force reasoned that by eliminating the need for a separate action, "minors who are adoptable will no longer have to wait months and often years for the opportunity to be placed with an appropriate family on a permanent basis." (Task Force Report, supra, p. 10.) 2

2. Current System.

The juvenile dependency system, as modified by Senate Bill No. 243, begins with section 300, which lists specific situations that will bring a child within the jurisdiction of the juvenile court for dependency proceedings. The former broad language of section 300 was made much more specific in an attempt to "ensure more uniform application of the law throughout the state and to ensure that court intervention does not occur in situations the Legislature would deem inappropriate." (Task Force Report, supra, p. 3.)

A peace officer, probation officer, or social worker, who has reason to believe that a child falls within the definitions set forth in section 300 and is in immediate danger as a result thereof, may remove the child from the home. (§§ 305, 306.) 3 A petition to have such a child declared a dependent child must be filed within 48 hours excluding nonjudicial days. (§ 313; Cal.Rules of Court, rule 1440(a).) A "detention hearing" must be held by the juvenile court no later than the next judicial day. (§ 315; Cal.Rules of Court, rule 1440(d).) The parents are entitled to court-appointed counsel to represent them throughout the proceedings if they cannot afford counsel. (§ 317.) 4 At the detention hearing the department of social services bears the burden of making a prima facie showing that the minor comes within section 300 and that there is a need for detention under specified conditions. (§ 319.) The court must make findings regarding whether reasonable efforts were made "to prevent or eliminate the need for removal of the minor from his or her home" and, if the minor is to be detained, must order services "to be provided as soon as possible to reunify the minor and his or her family if appropriate." (§ 319.)

The court must set a hearing on the dependency petition within 15 days of the detention order when the minor is detained. (§ 334; Cal.Rules of Court, rule 1447(b).) This is commonly referred to as a jurisdictional When the court has found jurisdiction under section 300, it then must conduct a disposition hearing. (§ 358; Cal.Rules of Court, rules 1451, 1455.) If the court declares the child to be a dependent child of the juvenile court, it then considers whether the child may remain with the parents or whether the child must be removed from the parents pursuant to section 361, subdivision (b). At the dispositional hearing, the standard of proof for removal from a custodial parent is clear and convincing evidence. (§ 361, subd. (b); ...

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