Laura F., In re

• Decision Date: 19 May 1983
• Docket Number: S.F. 24344
• Citation: 662 P.2d 922,191 Cal.Rptr. 464,33 Cal.3d 826
• Court: California Supreme Court
• Parties: , 662 P.2d 922 In re LAURA F. et al., Minors. DEPARTMENT OF SOCIAL SERVICES, Petitioner and Respondent, v. DELLA H., Objector and Appellant.

Page 464

191 Cal.Rptr. 464

33 Cal.3d 826, 662 P.2d 922

In re LAURA F. et al., Minors.

DEPARTMENT OF SOCIAL SERVICES, Petitioner and Respondent, v. DELLA H., Objector and Appellant.

S.F. 24344.

Supreme Court of California,

In Bank.

May 19, 1983.

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Christine Zilius, Deputy State Public Defender, for objector and appellant.

Robert Burns, San Francisco, as amicus curiae for objector and appellant.

George Deukmejian, Atty. Gen., Thomas E. Warriner, Asst. Atty. Gen., and Margaret A. Rodda, Deputy Atty. Gen., for petitioner and respondent.

John H. Larson, County Counsel, and Sterling R. Honea, Deputy County Counsel, Los Angeles, as amici curiae for petitioner and respondent.

KAUS, Justice.

Della H. appeals from an order of the Superior Court of Yuba County dated January 8, 1980, declaring her three children, Stacy H., Laura F., and Tammy F.--born, respectively, in 1968, 1973 and 1975--free from her custody and control under Civil Code section 232, subdivision (a)(7). ¹ The children were originally removed from Della's care in 1976 after a series of investigations for neglect. Following dependency proceedings (Welf. & Inst.Code, § 300, subd. (a)), Stacy was placed with his paternal aunt and uncle; his younger stepsisters were placed in separate foster homes with nonrelatives. On July 25, 1979, the state After five days of hearing, with testimony from social workers, foster parents, a psychologist, Della, and Stacy's father and uncle, the superior court entered one judgment freeing the three children from Della's control. Pursuant to section 239, the Director of the Department of Social Services was appointed guardian and the children were referred to the California Adoptive Service for placement. Della's separate appeals have been consolidated. ³

initiated two proceedings under section 232, subdivision (a)(7) ² to terminate parental rights, one involving Stacy, the other, Laura and Tammy.

The appeal raises five issues: (1) whether "foster home" within the meaning of section 232, subdivision (a)(7) includes care in the home of a relative; (2) whether the evidence was sufficient to support the judgment; (3) whether the county offered Della adequate help to regain her children; (4) whether the court employed the proper standard of proof; and (5) whether the court erred in failing to appoint counsel for the children.

I

DEFINITION OF "FOSTER HOME"

Della contends that the proceedings as to Stacy did not meet the threshold requirement under subdivision (a)(7)--that he have spent two years in "one or more foster homes." The issue is whether Stacy's placement with his aunt and uncle constitutes care in a "foster home."

Della relies on In re Antonio F. (1978) 78 Cal.App.3d 440, 144 Cal.Rptr. 466, the first case to define "foster home" as "care other than in the home of a parent or relative." In Antonio F. the court considered a termination order under subdivision (a)(7) against a mother who, fearing deportation, left her children with their aunt for five years. In her absence the children were adjudged wards of the court and placed with the aunt. The mother received no notice of the dependency proceedings and continued to support and correspond with the children. The Court of Appeal reversed on three grounds: (1) the state's efforts to notify the mother of the dependency hearings were inadequate; (2) no evidence supported the finding that she was unable to provide an adequate home for her children; and (3) the children, placed with a relative, had not been in foster care within the meaning of subdivision (a)(7).

Antonio F. spawned a definition of foster care that was both unnecessary to the decision and wrong. The Antonio F. court found what it felt was the relevant definition in a statute dealing with the administration of the Aid to Families With Dependent Children--Foster Care Program (AFDC-FC), section 11251 of the Welfare and Institutions Code. The definition of "foster care" employed in section 11251 reflected a funding scheme in which dependent children placed with relatives received less aid than those placed with nonrelatives. Under the federal program (§ 408(a)(1), (2), Social Security Act), children placed in foster homes--AFDC-FC recipients--were allowed greater monthly payments than those available under the basic AFDC programs. Although the federal statute did not exclude homes of relatives from the definition of foster homes, that is how California interpreted it. The idea behind that interpretation[662 P.2d 925] --that neglected children placed with relatives need fewer services--was discredited in Miller v. Youakim (1979) 440 U.S. 125, 99 S.Ct. 957, 59 L.Ed.2d 194. Disapproving an Illinois statute similar to California's, the Supreme Court found that there was no intent in the federal statutes to preclude children placed in the homes of relatives from AFDC-FC funds: "[T]o differentiate among children who are equally neglected and abused" because of the status of their court-appointed substitute parent is "unreasonable." (Miller, supra, at p. 145, 99 S.Ct. at p. 969.) After Miller, the Welfare and Institutions Code was amended. Section 11400, replacing section 11251, now Acceptance of the narrow definition of foster care articulated in Antonio F., and followed in at least one later case, ⁴ can have sad consequences, as this case illustrates. Stacy, who was placed with relatives, has hope of an immediate adoption. At the hearing, his uncle stated that he and his wife planned to adopt him as soon as he was eligible. An interpretation of "foster care" as set forth in Antonio F. will preclude adoption of Stacy unless he spends one more year in the foster care of nonrelatives. Such a result would surely not be consonant with the purpose of the statute, as stated in section 232.6, to "serve the welfare and best interests of a child by providing the stability and security of an adoptive home when those conditions are missing from his or her life." ⁵

provides: "... (C) 'Foster care' means the 24-hour out-of-home care provided to children whose own families are unable or unwilling to care for them, and who are in need of temporary or long-term substitute parenting."

Insofar as Antonio F. narrowly defines foster care and relies on former Welfare and Institutions Code section 11251, it is disapproved. The trial court correctly found that the three children met the threshold requirement of two years placement in a "foster home."

II SUFFICIENCY OF EVIDENCE

Della contends that the judgment must be reversed for insufficiency of evidence to support the findings of the trial court on the remaining provisos of subdivision (a)(7): that the return of the child to the parent would be detrimental to the child and that, during the years of foster home care, the parent failed, and is likely to fail in the future, to provide an adequate home for the child or to maintain an adequate parental relationship with the child. Our review of the record convinces us that there is ample evidence to support the requisite findings as to each of the children.

On October 13, 1976, when it became apparent that Della was providing less than minimal care for the children, they were taken from her custody and placed under foster care. The children were declared wards of the juvenile court under subdivision (a) of former section 600 (now § 300) of the Welfare and Institutions Code which provides for wardship of a child whose parents are either incapable or unwilling to exercise effective parental care or control. ⁶ If the parents' incapacity or unwillingness to provide care or control continues for an extended period of time and there is no indication that they can or will rehabilitate themselves, they become subject to the potential termination of parental rights as provided in subdivision (a)(7) of section 232. In 1979, at the time of the termination proceedings in this case, subdivision (a)(7) provided a waiting period of two years during which time the offending parent might rehabilitate himself as a parent and regain full custody and control of the child. Albeit in dicta, we pointed out in In re Carmaleta B. (1978) 21 Cal.3d 482, 146 Cal.Rptr. 623 The means by which the balancing of interests of which we spoke in Carmaleta B. is achieved is, of course, foster care. Legislative recognition that foster care is at best only a temporary solution and that the ultimate best interest of the child calls for stability and permanence was restated in 1980 in section 396 (Welf. & Inst.Code) as follows: "It is the policy of the Legislature that foster care should be a temporary method of care for the children of this state, that children have a right to a normal home life, that reunification with the natural parent or parents or another alternate permanent living situation such as adoption or guardianship are more suitable to a child's well-being than is foster care, and that this state has a responsibility to attempt to ensure that children are given the chance to have a happy and healthy life, and that, to the extent possible, the current practice of moving children receiving foster care services from one foster home to another until they reach the age of majority should be discontinued." At that time, the Legislature amended subdivision (a)(7) to decrease from two years to one year the time permitted the incapable or unwilling parents to rehabilitate themselves for resumption of parental responsibilities. ⁷

579 P.2d 514, that subdivision (a)(7) differed in some respects from the other subdivisions of section 232: "The section, accordingly, balances the interest of the child in secure and sufficient parenting with the conjoined interests of both parent and child in preserving the familial bond. The subdivision has the added advantage of permitting the parents a longer period, two years, in which to rehabilitate themselves to a position whereby th...