Heather B., In re

• Decision Date: 14 September 1992
• Docket Number: No. C010299,C010299
• Citation: 11 Cal.Rptr.2d 891,9 Cal.App.4th 535
• Court: California Court of Appeals Court of Appeals
• Parties: In re HEATHER B., a Person Coming Under the Juvenile Court Law. SHASTA COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. JAY B., Defendant and Appellant.

Page 891

11 Cal.Rptr.2d 891

9 Cal.App.4th 535

In re HEATHER B., a Person Coming Under the Juvenile Court Law.

SHASTA COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. JAY B., Defendant and Appellant.

No. C010299.

Court of Appeal, Third District, California.

Sept. 14, 1992.

Rehearing Denied Oct. 8, 1992.

Review Denied Nov. 24, 1992.

[9 Cal.App.4th 539] John C. Lyman, Redding, for defendant and appellant.

Karen Keating Jahr, County Counsel, and Michael A. Ralston, Asst. County Counsel, for plaintiff and respondent.

SPARKS, Acting Presiding Justice.

In this case we consider and reject the claim that a father's constitutional rights were violated by the termination of his parental rights under an improper burden of proof. Jay B., the natural father of the minor child Heather B., appeals from an order of the juvenile court terminating his parental rights and placing his daughter for adoption pursuant to Welfare and Institutions Code section 366.26 [unless otherwise indicated all further section references are to this code]. The father contends: (1) section 366.26 violates principles of due process by permitting the termination of parental rights to be based upon less than clear and convincing evidence; (2) section 366.21 creates an impermissible presumption that a return to parental custody would be detrimental to a dependent child; and (3) the evidence is insufficient. We reject these contentions and shall affirm the order of the juvenile court.

I LEGISLATIVE SCHEME

Before turning to the father's contentions, we first recount the legislative scheme for reform which governs these proceedings. In the Statutes of 1986, chapter 1122, the Legislature directed the Senate Select Committee on Children and Youth to convene a task force for the purpose, among other things, of making recommendations for changes in our child dependency laws. The task force's proposals for changes in juvenile court law were represented in several measures, particularly Senate Bill 243 (Presley), which was enacted as Chapter 1485 of the Statutes of 1987. That measure substantially revised the substantive and procedural provisions of our juvenile court law with respect to children, such as Heather, who were first adjudged to be dependent children after January 1, 1989. The changes wrought by that measure fall into three broad categories: (1) providing more explicit and restrictive bases for juvenile court intervention; (2) requiring clearly focused protective and/or reunification services; and (3) providing permanency planning at the earliest stage for those children who cannot live safely with their families. (See Sen. Select Com. on Children and Youth Rep. on Child Abuse Reporting Laws, Juvenile Court Dependency Statutes and Child Welfare Services (1987-1988 Reg.Sess.) p. ii [hereafter Sen.Select Com.Rep.].)

The first category of reform measures was necessary because, in the view of the task force, the existing statutory bases for court intervention were too broad and vague. (Sen.Select Com.Rep., supra, at pp. 3-4.) The task force noted that there is variation in the background, training and experience of those who administer the child dependency system and that concepts of abuse and neglect involve value judgments about what constitutes effective parenting. (Ibid.) With vague jurisdictional provisions these factors result in inconsistent practices and inappropriate juvenile court intervention in some cases. (Ibid.)

The second category of reforms reiterates and emphasizes the goal of preservation of the family as the first priority in child dependency situations. The task force stated that a major legislative priority should be to develop the means to ensure the availability of public and private services to alleviate family crises which threaten the well-being of children, to prevent the breakup of families, and to reunify families when children must be removed for their safety. (Sen.Select Com.Rep., supra, p. v.)

With respect to the first and second categories of reform measures the Legislature expressed its intent in the penultimate paragraph of section 300, which provides in part: "It is the intent of the Legislature in enacting this section to provide maximum protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to protect children who are at risk of that harm. This protection includes provision of a full array of social and health services to help the child and family and to prevent reabuse of children. That protection shall focus on the preservation of the family whenever possible. Nothing in this section is intended to disrupt the family unnecessarily or to intrude inappropriately into family life, to prohibit the use of reasonable methods of parental discipline, or to prescribe a particular method of parenting. Further, nothing in this section is intended to limit the offering of voluntary services to those families in need of assistance but who do not come within the descriptions of this section...."

The third category of reforms represents a legislative policy determination that reunification services should be "time-limited" in favor of permanency planning at the earliest appropriate time. (Sen.Select Com.Rep., supra, p. ii.) The task force sought to eliminate situations in which adoptable children are required to "wait months and often years for the opportunity to be placed with an appropriate adoptive family." (Id. at p. 10.)

The procedures governing children who first entered the juvenile dependency system after January 1, 1989, can be illustrated with particular reference to Heather's circumstances. ¹ A county social worker may take a child into temporary custody if the social worker has reasonable cause to believe the child is in immediate need of medical care, is in immediate danger of physical or sexual abuse, or there is an immediate threat to the child's health or safety. (§ 306(b).) Before taking a child into temporary custody a social worker is required to consider whether there are any reasonable services which will eliminate the need to interfere with parental custody, and to use those services if they are available. (Ibid.) When a child is taken into temporary custody the probation officer must investigate the case and must attempt to maintain the child with his or her family through the provision of services unless certain specified conditions exist. (§§ 309, 328.)

In this case Heather was referred to the Department of Social Services of Shasta County (DSS) by police officers after her parents were arrested on drug charges. ²

Police officers noted that Heather and her sisters were present when their mother was arrested in a motel room and that hypodermic needles and razor blades were within easy reach of the children. DSS took the children into custody and juvenile court proceedings were commenced on January 31, 1989. Heather was then two years old.

When a child is taken into custody and a dependency petition is filed, the court must hold a prompt detention hearing. (§ 311.) The court is required to release the child from custody unless a prima facie showing has been made that the child comes within section 300 and it appears that: (1) there is a substantial danger to the physical health of the child or the child is suffering severe emotional damage and the child cannot be protected without removing him or her from parental custody; (2) the parent is likely to flee the jurisdiction of the court; (3) the child has left a previous placement; or (4) the child is unwilling to return home if the child was physically or sexually abused by a person residing in the home. (§ 319.) The court is required to consider whether reasonable efforts were made to prevent or eliminate the need for removal from parental custody and whether services are available which would prevent the need for further detention. (Ibid.) If the child is detained the court must order that reunification services be provided as soon as possible if appropriate. (Ibid.)

At the time of Heather's detention hearing both of her parents were incarcerated. She was detained and placed in the home of her maternal grandmother.

Juvenile court proceedings are bifurcated, as they were under prior law. Under this procedure the jurisdictional hearing addresses the question whether the child is described by section 300, and the question whether the child should be adjudged a dependent child is not determined until the dispositional hearing. (§§ 355, 360; see In re La Shonda B. (1979) 95 Cal.App.3d 593, 599, 157 Cal.Rptr. 280.) At the jurisdictional hearing proof by a preponderance of evidence legally admissible in the trial of civil cases must be adduced to sustain the allegations of the petition. (§ 355.)

The bases for jurisdiction under section 300 are more narrowly defined than under prior law with the legislative expectation that intervention will be avoided except where it is actually necessary. (See Sen.Select Com.Rep., supra, pp. 3-4.) In this case the petition alleged that Heather came within section 300, subdivision (b), which provides in relevant part: "The minor has suffered, or there is a substantial risk that the minor will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the minor, or the willful or negligent failure of the minor's parent or guardian to adequately supervise or protect the minor from the conduct of the custodian with whom the minor has been left, or by the willful or negligent failure of the parent or guardian to provide the minor with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the minor due to the parent's or guardian's mental illness, developmental disability, or substance abuse.... The minor shall continue to be a dependent child...