Mark K., In re

• Decision Date: 15 August 1984
• Citation: 205 Cal.Rptr. 393,159 Cal.App.3d 94
• Court: California Court of Appeals Court of Appeals
• Parties: In re MARK K., a Person Coming Under the Juvenile Court Law. DEPARTMENT OF SOCIAL SERVICES, Petitioner and Respondent, v. HAROLD K., Objector and Appellant. Civ. F002248.

Page 393

205 Cal.Rptr. 393

159 Cal.App.3d 94

In re MARK K., a Person Coming Under the Juvenile Court Law.

DEPARTMENT OF SOCIAL SERVICES, Petitioner and Respondent, v. HAROLD K., Objector and Appellant.

Civ. F002248.

Court of Appeal, Fifth District, California.

Aug. 15, 1984.

Hearing Denied Oct. 19, 1984.

[159 Cal.App.3d 98] Quin Denvir, former State Public Defender, and Frank O. Bell, Jr., State Public Defender, Christine Zilius, Deputy State Public Defender, Sacramento, for objector and appellant.

David J. Beauvais, Fresno, for the minor.

[159 Cal.App.3d 99] Floyd R.B. Viau, County Counsel, and Vincent J. McGraw, Deputy County Counsel, Fresno, for petitioner and respondent.

OPINION

WOOLPERT, Associate Justice.

Is the traditional summary judgment procedure available to avoid the necessity of a trial in a special proceeding brought to declare a child free from the custody of his natural father? We hold it is not.

In April of 1982, Fresno County, through its Department of Social Services, filed a petition to free Mark K., a minor, from the custody of his natural father, Harold K. The petition was filed on the grounds set forth in Civil Code section 232, subdivision (a)(5) (parent previously judicially declared mentally ill) and subdivision (a)(6) (parent found to be mentally disabled). ¹ Numerous allegations were contained in the petition, and a number of exhibits were attached.

A guardian ad litem was appointed for the father, and the Fresno County Public Defender's Office was appointed to represent him. A guardian ad litem was also appointed for the child.

Notice of the hearing was provided to the father and arrangements were made for his transportation from Atascadero State Hospital to Fresno for psychiatric examination. Orders were made requesting certification by the Director of Atascadero State Hospital that the father was developmentally disabled and not capable of supporting or controlling the child. In addition, an order was made appointing psychiatrists to examine the father. A hearing was held and trial date set.

In January 1983, the county filed a motion for summary judgment. Supporting declarations were also filed. Points and authorities in support of the motion were filed by the county and by the attorney for the child. Points and authorities opposing the motion were filed by the father. Notably, no counter declarations were filed.

The motion for summary judgment was granted in February, 1983. This appeal followed.

SUMMARY JUDGMENT FACTS

All parties agree that the facts are as set forth in the declarations and matters for judicial notice which accompanied the summary judgment motion. We highlight them. The father had a long history of mental problems. He was twice married, both times to women who likewise suffered from mental illness. The second marriage resulted in the birth of the minor in the present case.

Shortly after the minor's birth the parents' home was visited by a Fresno County public health nurse. Based upon observations of the parents and child, the nurse referred the child for a child protective services investigation. After an extensive investigation the father was permitted to retain custody. This lasted for only a short time.

After a visit by a social worker to the home, an examination by a psychiatrist with the mental health department, and a recommendation by an officer of the Fresno Police Department, it was determined the minor should be removed from his father's care and placed in protective custody.

Meanwhile, the mother was determined to be suffering from a long-term psychiatric problem which required hospitalization. It was again determined that the father was incapable of caring for the child. A case plan was developed which included placing the child in a foster home and allowing visitation rights by the parents. Adoption was anticipated should the parents continue their inability to cope. The child was unsuccessfully placed with a relative. In March 1981, the child was adjudged a dependent of the court, ordered removed from the physical custody of its parents, and placed in a licensed foster home.

In August an information filed by the Fresno County District Attorney's office alleged, in two counts, that the father had violated Penal Code sections 211 (robbery) and 245, subdivision (a) (assault with a deadly weapon or force likely to produce great bodily injury). Although convicted on both counts, he was found to be not guilty by reason of insanity. He was then committed to Atascadero State Hospital for a period of approximately seven years.

Early in 1982 the parental rights of the natural mother of the child were terminated in an uncontested proceeding. The present action to terminate the father's parental rights was then commenced. After the petition was filed the father requested a jury trial in the criminal case on the question of whether he continued to be a danger to others. After failing to convince the jury of his present sanity, he was returned to the hospital.

SUMMARY JUDGMENT WAS AN IMPROPER REMEDY.

The father concedes that "[a]ny party may move for summary judgment in any action or proceeding ...." (Code Civ.Proc., § 437c, subd. (a), emphasis added.) He argues, however, that "any action or proceeding" means any regular civil action, and that proceedings to terminate parental rights are actually quasi-criminal, not regular civil actions. The father relies upon the following language from In re Christina L. (1981) 118 Cal.App.3d 737, 745, 173 Cal.Rptr. 722:

" '[T]he very essence of the proceeding is the complete and final legal termination of a relationship which is biological in nature and most personal in form. [Citations.]['] (In re Angelia P. (1981) 28 Cal.3d 908, 916 [171 Cal.Rptr. 637, 623 P.2d 198].) The court-ordered severance of parental ties in effect punishes the parents for their inadequacy."

Supporting this argument is the fact that a termination proceeding requires a higher standard of proof than does the usual civil action. The standard of proof in such a proceeding is clear and convincing evidence. (In re Angelia P. (1981) 28 Cal.3d 908, 918, 171 Cal.Rptr. 637, 623 P.2d 198; see also Civ.Code, § 232, subd. (c).) A similar standard was imposed by the United States Supreme Court. (Santosky v. Kramer (1982) 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599.) However, the particularly sensitive subject of an individual's right to personal freedom is not present in termination proceedings. (In re Angelia P., supra, 28 Cal.3d at p. 918, 171 Cal.Rptr. 637, 623 P.2d 198.) The county seizes upon this distinction to argue that summary judgment is appropriate.

Parental rights are fundamental in nature and guaranteed constitutionally. Their importance has been discussed in numerous cases. (In re Carmaleta B. (1978) 21 Cal.3d 482, 489, 146 Cal.Rptr. 623, 579 P.2d 514; see also In re Angelia P., supra, 28 Cal.3d at p. 916, 171 Cal.Rptr. 637, 623 P.2d 198, stating that although fundamental, "parental rights are not absolute" and must be balanced with competing state interests.)

We cannot reach a firm conclusion by simply comparing the importance of various personal rights. However, there may still be some place for this thought:

"It never could have been, or in justice ought to have been, the intention of those who framed our Practice Act and rules thereunder that the decision of such a serious question as this should be flung off on a motion for summary judgment. Whatever the final judgment may be, the defendants were entitled to have the issue deliberately tried, and their right to be heard in the usual manner of a trial protected." (Gravenhorst v. Zimmerman (1923) 236 N.Y. 22, 38, 139 N.E. 766, 772.)

Nevertheless, questions of " 'constitutional fact' " may be determined on a summary judgment motion under appropriate circumstances. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 14, 112 Cal.Rptr. 786, 520 P.2d 10.)

Termination proceedings have long been classified as "special proceedings." (Moch v. Superior Court (1919) 39 Cal.App.2d 471, 477, 179 P. 440.) The proceedings have been viewed as so grave that findings of fact and conclusions of law have been deemed mandatory, as a matter of due process, if requested by any party to the proceeding. (In re Rose G. (1976) 57 Cal.App.3d 406, 416-418, 129 Cal.Rptr. 338; compare opinions in In re Terry D. (1978) 83 Cal.App.3d 890, 148 Cal.Rptr. 221; see also discussion in Guardianship of Baby Boy M. (1977) 66 Cal.App.3d 254, 262-264, 135 Cal.Rptr. 866.)

We have recently examined the code classifications of "actions" and "special proceedings" and the sometimes confusing relationship of the type of litigation to the kind of remedies and relief available to the litigants. (Agricultural Labor Relations Bd. v. Superior Court (1983) 149 Cal.App.3d 709, 196 Cal.Rptr. 920.) Generally, "actions" are governed by part 2 of the Code of Civil Procedure. "Special proceedings" are found in part 3 and in other codes. Part 3 special proceedings occasionally contain no practice provisions and instead incorporate part 2 procedures, in whole or in part. Absent such a reference to part 2, in most instances it may be assumed that part 2 procedures are inapplicable to special proceedings.

This uncertain manner of setting forth practice provisions may require legislative clarification. For example, the forcible entry and detainer statutes found in the Code of Civil Procedure, part 3, incorporate the part 2 provisions except as otherwise provided in sections 1159-1179a (part 3). Section 1170.7 specifically permits a modified summary judgment procedure which shortens the time sequence, but otherwise adopts the usual motion procedure. Later, subdivision (n) was added to Code of Civil Procedure section 437c to avoid an apparent conflict in the sections.

As a general proposition, summary judgment motions may be available whenever appropriate to any form of action, not because of incorporation language to...