BIRD, C. J. I respectfully dissent.
In the realm of human relationships few are more fundamental than that between father and son. Today, this court is upholding the legitimacy of a proceeding in which this unique relationship was irrevocably severed despite the fact that the trial court failed to appoint counsel for the son, failed to ascertain his wishes, and based its decision on grounds that have subsequently been held to be insufficient by the Legislature. I cannot sanction such a result.
The termination of parental custody and control is a drastic measure which results in (1) severing all legal relationships between parent and child; (2) appointing a legal guardian in place of the parent; (3) placing the child for adoption; (4) cutting off all communication and contact between parent and child; and (5) imposing a binding, unmodifiable order on both parent and child. Despite these irrevocable consequences, the majority conclude that the error committed in the trial proceeding was harmless. I simply cannot join such reasoning.
I
The facts of this case are unusual. The father, appellant, has maintained strong relationships with at least three of his sons,1 and had actively attempted to reunite his family prior to his arrest in August 1974 for bank robbery. At the trial proceeding, his three older sons testified and indicated their strong desire to maintain the family unit to the extent this was possible. There was conflicting testimony regarding the extent of [358]contact between appellant and his son, Richard. The three sons and the father testified to several visits at which Richard was present. While he was incarcerated, appellant had also regularly corresponded with Richard.
Richard was not present at the hearing. Moreover, two months before the hearing he was apparently moved from the foster home where he had resided since 1969. His brothers were unable to contact him. It further appeared from remarks by the court that the Los Angeles County Department of Adoptions had prevented appellant from seeing Richard after his arrest in August 1974. Appellant’s attorney was not able to interview Richard prior to the hearing.
The Los Angeles County Department of Adoptions, who petitioned pursuant to Civil Code section 232 et seq. to terminate appellant’s parental rights, presented as evidence only the minor’s birth certificate, the judgment of appellant’s conviction and sentence, and a five-page probation report. The preparer of the probation report had not interviewed either Richard or his father, but apparently compiled the report from the files of various county agencies and the federal Bureau of Prisons. The report contained no social study, no psychological evaluation of Richard, nor any prognosis for his development under alternate dispositions. (Compare In re Marcos S. (1977) 73 Cal.App.3d 768, 775 [140 Cal.Rptr. 912].) It contained a short summary of the minor’s history and his parents’ contacts with him, and it concluded, “The minor has made a good adjustment in his present foster home where he has responded to the security, love and warmth of the foster parents.” As of the date of the hearing, however, he had apparently been removed from that home. There was conflicting evidence whether the foster parents wished to adopt Richard or whether termination would result in a change of placement. The record is otherwise devoid of any psychological data on Richard, of any evidence of his feelings about his father, or his possible preferences regarding his future. Richard was two weeks short of eight years old at the time of the hearing.
Several months before the hearing, appellant petitioned the court for appointment of an attorney for himself and for his son. The court’s minute order of May 21, 1975, ordered counsel appointed for appellant, but no reference was made to counsel for the minor.
Although the court found that appellant had not intended to abandon Richard (Civ. Code, § 232, subd. (a)(1)), it held that the term to which [359]appellant had been sentenced would render it improbable that he could establish a meaningful parental relationship with Richard. (Civ. Code, § 232, subd. (a)(4).) This appeal followed. During the pendency of this appeal, the Legislature deleted as a ground for termination of parental rights the length of a parent’s confinement. (Civ. Code, § 232, subd. (a)(4).)
II
Civil Code section 232 et seq. provide a procedure for removing a minor child from the custody and control of the natural parents, thereby freeing the child for adoption. As the majority point out, a section 232 proceeding is in large part accusatory in nature, directed at establishing that the natural parent is, for one of the reasons enumerated in that statute, incapable of caring for the child. Because of the “drastic remedy” of complete severance of the parent-child bond (In re T. M. R. (1974) 41 Cal.App.3d 694, 703 [116 Cal.Rptr. 292]), the Legislature has provided procedural safeguards in section 232 proceedings, including the right to appointed counsel for indigent parents. (Civ. Code, § 237.5.)
The thrust of section 232 proceedings, however, is to provide for the welfare of the child, not to punish the parents. (Civ. Code, § 232.5.) Thus, Civil Code section 237.5 also provides for court-appointed counsel for the minor. The Court of Appeal in In re Dunlap (1976) 62 Cal.App.3d 428, 438 [133 Cal.Rptr. 310], concluded that the statutory scheme providing for termination of parental rights, when viewed as a whole, indicated a legislative intent that counsel be appointed for the minor unless the circumstances indicate that the child’s interests would be otherwise protected. Noting that in the adversary setting of a section 232 proceeding it is often difficult for the interests of a child to be clearly and impartially articulated, the court stated: “The Legislature’s recognition of the rights of personality of the child as the touchstone of proceedings to free him from parental custody and control is evidenced by its mandate in Civil Code section 232.5 that the statutory scheme ‘be liberally construed to serve and protect the interests and welfare of the child.’ The Legislature’s recognition of the importance of the proceedings to the child is shown by its enactment of Civil Code section 238 providing that the results of the action are conclusively binding upon the child. The Legislature’s recognition of the significance of counsel to the protection of the child is disclosed by the reference in Civil Code section 237.5 to the child’s ‘right’ to counsel.
[360]“Liberal construction of Civil Code section 232 et seq. to serve and protect the interests and welfare of the child requires that the burden of persuasion with respect to the trial court’s determination to appoint or deny the child independent counsel be placed upon justifying the decision to deny counsel. Unless the burden is allocated in that fashion, there may well be no one involved, except in an adversary position, in the proceedings to assert the right of a child too young to assert it for himself If the right is not asserted, the child’s right of personality, recognized as the primary consideration of the process, may be determined without the protection of counsel uninfluenced by his advocate’s duty to another party.” (Id., at p. 439, italics added.)
The majority opinion correctly analyzes Dunlap as holding that “appointment of counsel is nevertheless required in the absence of an affirmative showing the minor’s interests would otherwise be protected.” (Maj. opn., ante, at p. 354.) The majority then conclude that it was error under these circumstances not to appoint counsel for Richard. (Maj. opn., ante, at p. 355.) However, it goes on to hold that failure to appoint counsel for Richard is not reversible per se. The majority conclude that no prejudicial error occurred in this case because (1) appellant was afforded a full opportunity to persuade the trial court that continuation of his parental rights was in Richard’s best interest, and (2) there was nothing further that independent counsel could have done to protect Richard’s interests.
However, the fact that appellant was given the opportunity to present his case does not address the fact that Richard’s interests were not protected. Thp majority ignore the careful analysis in Dunlap of both the legislative intent behind section 237.5 and the practical difficulties in ascertaining a child’s separate interests.[2] The Dunlap court recognized the importance of the proceedings to the child, and the danger in relying on the adversary process to ascertain a child’s separate interests. To protect the child, the court placed the burden of proof “upon [the one] justifying the decision to deny counsel.” (In re Dunlap, supra, 62 Cal.App.3d 428, 439.) Thus, the Dunlap court implicitly recognized that it cannot be presumed that adverse parties in a custody proceeding will fully and adequately advise the court regarding the minor’s best interests.3
[361]Further, the majority have ignored the state of the record in this case. The trial court was impressed with the quality of testimony from Richard’s three older brothers, the regard they had for their father and their interest in keeping the family together. The court was troubled by the prospect of separating the family. Yet the court had no evidence regarding Richard’s attachment to his brothers or father when it made its decision. Absent any psychological information regarding Richard, the trial court was forced to speculate that “maybe Richard is not as strong as his brothers.” In this highly unusual case, this court can only speculate as to what counsel for Richard might have contributed. At the minimum, appointed counsel could have interviewed Richard and ascertained his feelings toward his brothers and his father and discussed his future. This information could have been conveyed to the court. Finally, counsel could have supplemented the sketchy probation report.* [4]
It is possible that Richard had not formed any strong attachment to his father. However, it is also possible that he or his appointed counsel might have presented testimony favorable to maintaining his relationship to his father. The failure to appoint counsel is presumptively error, as the majority recognize. On the basis of this record, how can this court speculate and conclude that failure to appoint counsel was not prejudicial to Richard or to his father?
III
The failure to appoint counsel for Richard was compounded by the failure to comply with Civil Code section 4600. This court held in In re B. G. (1974) 11 Cal.3d 679, 696 [114 Cal.Rptr. 444, 523 P.2d 244], that Civil Code section 4600 applies in any proceeding in which child custody is an issue. That section states, “If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to his wishes in making an award of custody or modification thereof.” (Italics added.) That section further requires that an award of custody to a nonparent may only be made following a finding that “an award of custody to a parent would be detrimental to the [362]child and the award to a nonparent is required to serve the best interests of the child.”
Section 4600 has been held applicable in section 232 proceedings (In re T. M. R., supra, 41 Cal.App.3d 694, 704; see In re Rose G. (1976) 57 Cal.App.3d 406, 417 [129 Cal.Rptr. 736]), and the majority appear to hold it is applicable here. (Maj. opn., ante, at pp. 356-357.) Indeed, the trial judge in the instant case was aware of its applicability. Section 4600 does not require that the wishes of a child of tender years be automatically adopted. What it does require is that in a decision as important as permanent custody, the personality of the individual child be taken into account with his wishes ascertained if possible. (See generally, Wald, State Intervention on Behalf of “Neglected” Children: Standards for Removal of Children from Their Homes, Monitoring the Status of Children in Foster Care, and Termination of Parental Rights (1976) 28 Stan.L.Rev. 623, 696-697.) This evidence may then be accorded “due weight” along with the other evidence adduced at the hearing. In the present case, nothing in the record indicates that anyone ever attempted to interviéw Richard prior to the proceedings to ascertain his wishes in this matter.
This court need not determine at what age a minor’s wishes must be ascertained. But if there is no information at all in the record regarding the personality or possible preferences of a child of nearly eight years, the court has failed to comply with section 4600. Further, without this information, it was impossible for the trial court to ascertain whether termination was necessarily in Richard's best interests or whether it could prove detrimental to him. In view of the testimony of his brothers, such evidence would have been critical.
Furthermore, in a proceeding to terminate parental rights, section 4600 requires a finding that custody in a parent would be detrimental to the child and custody in a nonparent would be necessary to further the child’s best interests. (In re T. M. R., supra, 41 Cal.App.3d 694, 703-704.) This court in In re B. G., supra, 11 Cal.3d 679, 698-699, stated: “[W]e conclude that section 4600 permits the . .. court to award custody to a nonparent against the claim of a parent only upon a clear showing that such award is essential to avert harm to the child. A finding that such an award will promote the ‘best interests’ or the ‘welfare’ of the child will not suffice.” In the present case the trial judge failed to make the required finding.
The majority deem this omission corrected by the court’s statement and subsequent order. (Maj. opn., ante, at p. 356.) The order was prepared by [363]counsel for the county department of adoptions. It does not contain specific findings based on the evidence in this case, but merely recites the language of section 4600. As the court noted in In re Rose G., supra, 57 Cal.App.3d 406, 416, basic fairness, as well as adequate appellate review, requires written findings at trial. (See also In re John H., ante, pp. 18, 34-36 [145 Cal.Rptr. 357, 577 P.2d 177], dis. opn., by Bird, C. J.) In custody proceedings involving minor children, it is inappropriate for an appellate court to imply a missing finding even if supported by evidence in the trial record. (In re Rose G., supra, 57 Cal.App.3d 406, 417.)
IV
Finally, it should be noted that the trial court specifically found in appellant’s favor on the issue of abandonment. The court based its adverse finding solely on the length of appellant’s prison term and the fact that it would preclude the establishment of a normal parental relationship. The trial judge stated, “The only thing that the court has got to consider is whether there is any reasonable probability that he will be released at some time soon enough to embark on a meaningful parental position in respect to Richard . .. .” (Italics added.) No evidence was received regarding the circumstances of the crime except appellant’s statement that he took part in a bank robbery to obtain money to move his family to Florida. The court did not attempt to ascertain the probable length of appellant’s prison term.5 (Cf. In re T. M. R., supra, 41 Cal.App.3d 694, 701-702.)
During the pendency of this appeal, the Legislature expressly deleted the length of a parent’s confinement as a ground for termination of parental rights. (Stats. 1976, ch. 940, § 2, p. 2152.)
This court has held that repeal of a criminal statute without a saving clause requires abatement of pending proceedings against one charged under the former statute. (People v. Rossi (1976) 18 Cal.3d 295, 304 [134 Cal.Rptr. 64, 555 P.2d 1313].) Whether the statute at issue here is sufficiently analogous to a criminal statute to require similar treatment need not be decided, since the issue was neither raised nor argued by the [364]parties. In view of the other errors in this case, however, this court should hesitate to uphold an order terminating parental rights based solely on a ground which the Legislature no longer deems sufficient. I would reverse.
Tobriner, J., and Newman, J., concurred.
Appellant’s petition for a rehearing was denied June 29, 1978.- Bird, C. J., and Tobriner, J. were of the opinion that the petition should be granted.
Only Richard’s status was at issue in the hearing. The county department of adoptions did not seek to free the three older sons from their father’s custody and control.
Respondent stated at oral argument that it is the duty of the probation officer to conduct an investigation and articulate the interests of the child. (Civ. Code, § 233.) This case illustrates the inadequacy of that argument. (See also In re Dunlap, supra, 62 Cal.App.3d 428, 440, fn. 3.)
The problem may be especially difficult where, as here, the child is not present in court. Civil Code section 234 states that the child must be present if over the age of 12. If [361]under 12, however, the child is to be present only “upon order of the court after necessity being shown.” The record does not show that anyone requested Richard’s presence in court.
On the desirability of appointing counsel for children in adoption-related proceedings and the role such counsel might play, see Bodenheimer, New Trends and Requirements in Adoption Law and Proposals for Legislative Change (1975) 49 So.Cal.L.Rev. 10, 98-102, and sources cited therein.
Appellant stated that he had been sentenced under 18 United States Code section 4208(a)(2) (now § 4205(b)(2)). If so, he would be eligible for parole at any time at the discretion of the federal Parole Commission. Because he had not yet been permanently located within the prison system, no case worker was available to testify on this point.