Opinion
REGAN, J. In this proceeding by the Butte County Department of Social Welfare to have six minor children declared free from parental custody and control pursuant to Civil Code section 232, subdivisions (a)(2) and (a)(7), the trial court granted the petitions (which have been consolidated for trial) and appointed the Children’s Home Society of California as being guardian under the provisions of section 239 of the Civil Code. The natural mother (Ora) appeals.
The parties stipulated that the six children are the children of Ora D. and Joseph D; that the birthdate of the oldest of these minors is December 23, 1967, and of the youngest April 6, 1974; that the five oldest had been dependent children of the juvenile court since March 15, 1973, their parents having been deprived of their custody since that date; that the youngest had been a dependent child of the juvenile court and his parents deprived of his custody since July 11, 1974; and that all of the children, with the exception of the youngest, had been cared for in one or more foster homes under the supervision of the juvenile court for more than two consecutive years. This allowed the five eldest to be considered under Civil Code section 232, subdivision (a)(7), while the youngest fell under subdivision (a)(2).
The factual issues as to the five older children were: (1) whether their return to their parents would be detrimental to them; and (2) whether the parents had failed during the period of the foster care and were likely to fail in the future to provide care and control for the five, and to maintain an adequate parental relationship with them. (See Civ. Code, § 232, subd. (a)(7).)
[894]. The record is replete with testimony by social workers and other professionals as to the history of work with the parents going back over 10 years,- and that although public funds and assistance were made available to them, the: food, clothing and sanitary conditions, as well as lack of medical and dental care, afforded to the children by the parents were a source of constant concern.1 Moreover, a psychologist’s testimony was to the effect that because, of factors of mental retardation, psychotic thinking and probable brain damage, Ora would not likely be able to manage the care and supervision of the children or to maintain an adequate parental relationship. The psychologist’s prognosis as to Ora was that she would not improve in this regard with or without treatment. Also, the record of visitations of theparents to the children while in foster care was poor.2
, Subdivision (a)(7), as it read in 1975 at the time of the hearing, applied to children who have been in foster homes for two or more years; it allowed a freeing from parental custody where the court found beyond a [895]reasonable doubt that return to the parents would be detrimental and that the parents had failed for such period, or were likely to fail in the future, to provide a home, care, control and maintain an adequate parental relationship. With respect to the sixth and youngest child (who was about 14 months of age when the petition was filed), the allegation was a simple allegation of “neglect” by the parents and that the child is a dependent child of the juvenile court not in parental custody; this ground for a court decree permanently freeing a child from custody and control of its parents is provided for in Civil Code section 232, subdivision (a)(2).3
Ora contends the preponderance of the evidence standard of proof4 applicable to Civil Code section 232, subdivision (a)(2), is “inappropriate” and that proof beyond a reasonable doubt should be required, or at least “clear and convincing evidence.” Ora also contends the application of a preponderance of the evidence test to Civil Code section 232, subdivision (a)(2), while a more stringent standard (proof beyond a reasonable doubt) is required under Civil Code section 232, subdivision (a)(7), is a violation of equal protection of the laws and thus unconstitutional.
We consider the constitutional question first. There are two standards of review applied by the courts in equal protection questions. The first or conventional standard requires only that differential treatment of classes of individuals has some “reasonable basis” or bears “ ‘some rational relationship to conceivable legitimate state purpose.’ ” (Schwalbe v. Jones (1976) 16 Cal.3d 514, 517-518 [128 Cal.Rptr. 321, 546 P.2d 1033]; Dandridge v. Williams (1970) 397 U.S. 471, 485 [25 L.Ed.2d 491, 501, 90 S.Ct. 1153].) A second test or standard has been developed by the courts to be applied to a classification drawn along lines which rendered it “suspect” in constitutional terms or which touched a “fundamental interest.” These are generally matters such as race, sex or “rights explicitly or implicitly guaranteed by the constitution.” (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 17-18 [112 Cal.Rptr. 786, 520 P.2d 10].) In such case strict scrutiny is required and the state bears a burden of establishing that it has a “compelling interest” which justified the law and that the classification is necessary to further that purpose or interest. (San Antonio School District v. Rodriguez (1973) 411 U.S. 1, 33 [36 L.Ed.2d 16, 43, 93 S.Ct. 1278]; D’Amico v. Board of Medical [896]Examiners, supra, 11 Cal.3d at p. 17; Sail’er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 16 [95 Cal.Rptr. 329, 485 P.2d 529, 46 A.L.R.3d 351].)
We are not dealing with classifications based upon suspect areas such as race, sex or any rights explicitly or implicitly guaranteed by the constitution. We do not believe the strict scrutiny test need be applied; but even if we apply it, for purposes of argument only, it can be said that the state has a compelling interest which justified the statute, and the classification is necessary to further that purpose or interest. The courts have held, with specific respect to Civil Code section 232, that the goal of the section is to promote the welfare of the child; and the state as a parens patriae not only has a “compelling interest” but also has a “duty” to sever parental bonds once a situation contemplated by the statute arises. (In re Eugene W. (1972) 29 Cal.App.3d 623, 629 [105 Cal.Rptr. 736].) Under this concept, a classification made under Civil Code section 232, subdivision (a)(5), relating to mentally ill parents was held valid against a classification challenge, but the court felt it need only apply the reasonable basis rather than the strict scrutiny or compelling state interest standard. (In re Eugene W., supra, 29 Cal.App.3d at pp. 627-628.)
In the present case, the rational basis for distinguishing between situations falling under Civil Code section 232, subdivision (a)(2) and subdivision (a)(7), for purposes of different standards of proof, is the important distinction that the former section involves finding of the simple and single concept of cruel treatment or neglect, while the latter involves findings of detriment to the child by return to his parents plus findings that the parents have failed for two or more years and are likely to fail in the future to (a) provide a home, (b) provide care and control, and (c) maintain an adequate parental relationship. These findings are different in all phases of kind, quality and degree from the simple findings required under subdivision (a)(2). To require a higher standard of proof (beyond a reasonable doubt) for these more serious and complex findings is in our view entirely reasonable and rational and within the orbit of the proper exercise of legislative judgment and wisdom in making a classification within the equal protection clauses of the United States and California Constitutions. (See In re Rose G. (1976) 57 Cal.App.3d 406, 420 [129 Cal.Rptr. 338].)
Moreover, as argued by counsel for the Butte County Department of Social Welfare, the more stringent standard of proof is a protection to the parents, while the most basic purpose of the statute is to protect children, and it could therefore be said that if any denial of equal protection were [897]to be found, the more demanding standard of Civil Code section 232, subdivision (a)(7), should be reduced to the “preponderance” standard so that children who are the subjects of that subdivision are not denied “equal protection” relative to those children who are subjects of proceedings under subdivision (a)(2).
In this connection, we note that any seeming incongruity in the use of a preponderance of the evidence burden of proof in one portion of Civil Code 232 when the proof beyond a reasonable doubt test is used in another portion, may be explained by the fact that this unique section of the statutory law has evolved out of long-established concepts that proceedings under juvenile court laws to free children from the custody of their parents are “special proceedings.” (Moch v. Superior Court (1919) 39 Cal.App. 471, 477 [179 P. 440]; In re Peterson (1943) 56 Cal.App.2d 791,795 [133 P.2d 831].)
We conclude that the legislative distinction or classification, as to standards or burdens of proof between those cases falling within Civil Code section 232, subdivision (a)(2), and those under subdivision (a)(7) is constitutionally sound, whether the classification be in terms of the statute as it read at the time this case was decided, or after the effective date of the 1976 amendment.5
We turn now to Ora’s arguments that, aside from constitutionality, the preponderance of evidence test is an “inappropriate standard of proof’ for termination of child custody under Civil Code section 232, subdivision (a)(2). Here we are in the arena of policy, but not properly judicial policy. The matter is one for the Legislature. Ora refers to treatises, such as State Intervention on Behalf of “Neglected” Children, by Michael S. Wald, 28 Stan. L. Rev. 625, and to court decisions, such as In re T. M. R. (1974) 41 Cal.App.3d 694 [116 Cal.Rptr. 292], which suggest the often traumatic ramifications of removal of a child from custody of its parents. We are aware of these ramifications and the many problems which exist. However, these are social problems which the Legislature has attempted to deal with over the years as it deems best, attempting to balance the interest of the children with that of the parents.
Looking at the matter from a strictly legal standpoint, as is our posture with respect to this issue, we ordinarily would have found no violation of judicial powers and no abuse of judicial discretion in the trial court’s [898]application of the preponderance of the evidence test to the question of parental “neglect,” (as specifically stated in the court’s findings of fact) under Civil Code section 232, subdivision (a)(2). (See In re Rose G., supra, 57 Cal.App.3d at p. 420.)
However, we are confronted by recent decisions of the California courts and others, which cast serious doubts on the propriety of the preponderance of the evidence test in such matters.
In In re B. G. (1974) 11 Cal.3d 679 [114 Cal.Rptr. 444, 523 P.2d 244], the court was dealing with the question of what showing must be made under Civil Code section 4600 (allowing a court to award custody of a child to a nonparent against the claim of a parent). The court held that section 4600, which does not prescribe a standard or burden of proof, permits an award of custody to a nonparent only upon a “clear showing” that such award is essential to avert harm to the child. (11 Cal.3d at pp. 698-699.) This holding was in reference to language in section 4600 stating that the juvenile court must make a finding that “ ‘an award of custody to a parent would be detrimental to the child.’ ” (11 Cal.3d at p. 698.) The term “clear showing” employed by the court is not precisely the same as stating that there must be clear and convincing evidence rather that a preponderance of the evidence, but when read in the context of the decision, the meaning becomes essentially the same as a practical matter. We see a compelling analogy to the case before us. Here, we are dealing with a statute which, although it does not directly award custody to a nonparent as against the claim of a parent, has the effect of leading to an even more permanent severance of parental ties. Section 232, subdivision (a)(2), is the preliminary adoption proceedings in many instances. The children it is concerned with have already, in previous proceedings, been temporarily removed from the custody of their parents and have been made dependent children of the juvenile court. (See also Welfare and Institutions Code section 300 providing for a judicial determination that a child is a dependent child of the court for various reasons such as parental cruelty or neglect, as specified in Civil Code section 232, subdivision (a)(2).)
As we said in the recent case of In re Christopher B. (1978) 82 Cal.App.3d 608, 616-618 [147 Cal.Rptr. 390], the preponderance of the evidence test must be used at the dependency hearing, and a clear and convincing proof test is required to take custody from the parent.
[899]In Alsager v. District Court of Polk County, Iowa (S.D. Iowa 1975) 406 F.Supp. 10, the court held unconstitutional a parental termination statute which required a mere preponderance of the evidence. The court said maintenance of the integrity of the family unit is a fundamental liberty and privacy interest, protected by the due process clause of the Fourteenth Amendment.
Therefore, we hold a determination under Civil Code section 232, subdivision (a)(2), requires a standard of proof by clear and convincing evidence. (In re B. G., supra, 11 Cal.3d at pp. 698-699; Civ. Code, § 4600.)
Ora contends the evidence does not support the findings when the “clear and convincing standard” of proof is applied. On appeal, the substantial evidence rule applies to the clear and convincing standard of proof the same as in other cases. (See Witkin, Cal. Evidence (2d ed. 1966) Burden of Proof and Presumptions, § 209, pp. 190-191; Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925-926 [101 Cal.Rptr. 568, 496 P.2d 480]; Cecka v. Beckman & Co. (1972) 28 Cal.App.3d 5, 14 [104 Cal.Rptr. 374].) The courts have defined clear and convincing evidence as evidence which is so clear as to leave no substantial doubt and as sufficiently strong to command the unhesitating assent of every reasonable mind. (Sheehan v. Sullivan (1899) 126 Cal. 189, 193 [58 P. 543]; see also Witkin, op. cit., supra, at p. 190.) It has been said that a preponderance calls for probability, while clear and convincing proof demands a high probability. (See McBaine, Burden of Proof: Degrees of Belief (1944) 32 Cal.L.Rev. 242, 260-262; McBaine, Burden of Proof: Presumptions (1954) 2 UCLA L.Rev. 13, 17-18; cf. Evid. Code, §§ 115, 502, recognizing the distinction but not defining the terms.)
Referring to our summary of facts in the light most favorable to the prevailing party (the department) we would be constrained to hold, had the trial court applied the “clear and convincing” standard of proof, that there is substantial evidence to support the findings and the judgment and therefore the determination of the trial judge on conflicting evidence would not be disturbed on appeal. (See Witkin, op. cit., supra, at p. 190.) However, we are not in position to assume that the trial court would make the same findings under Civil Code section 232, subdivision (a)(2), of “neglect” which it made using the preponderance of the evidence test. Accordingly, we must afford the trial court an opportunity to reappraise the evidence with respect to its findings numbers 9 and 10, wherein it found “by a preponderance of the evidence” that Ora and her husband [900](not a party to this appeal) had “neglected” all the children. (See Civ. Code, § 232, subd. (a)(2).) The court possibly would make a contrary finding under the “clear and convincing” standard of proof. We shall remand the matter for this purpose.
Ora contends the trial court erred in considering evidence of parental conduct before the five older children were placed in foster home care, as well as during the time they were in foster care, on the issues under Civil Code section 232, subdivision (a)(7), of whether return to the parents would be detrimental to the five children and whether the parents are likely to fail in the future to provide a home, care and control, and to maintain an adequate parental relationship. There is no problem of standard of proof beyond a reasonable doubt as provided in section 232, subdivision (a)(7). However, Ora argues that evidence on such issues should be limited to the period of time the children were in the foster home. These contentions and arguments are meritless.
The gist of Ora’s argument is that Civil Code section 232, subdivision (a)(7), centers around the two-year foster home period as a condition precedent to the operation of the other provisions. The result of these arguments is a conclusion that the statutory language “have failed during such period [to provide a home and the like], and are likely to fail in the future,” precludes the court from admitting and considering evidence of parental conduct before the children were placed in a foster home. Ora insists that the subdivision as a whole “centers around the two-year foster home period.”
We disagree. Her arguments overlook or ignore the very significant statutory language in subdivision (a)(7) requiring the court to find that the parents have failed during the foster home period and “are likely to fail in the future . . . .” Past conduct is relevant on the issue of future fitness, although it is of course not controlling. (See In re Cardenas (1961) 194 Cal.App.2d 849, 855 [15 Cal.Rptr. 238]; cf. In re T. M. R., supra, 41 Cal.App.3d at pp. 701-703.) The statute is so written that the likely future conduct of the parents is not, and should not, be established only through occurrences during the foster care period. It tortures the language of the statute to say it is impossible under its language for a court to consider, as one factor, evidence of how parents related to and provided for their children in the past in determining how they might relate to and provide for them in the future.
[901]The judgment is reversed and the matter is remanded to the superior court for the single purpose of reconsideration of findings numbers 9 and 10 in light of this opinion, applying the standard of clear and convincing evidence to the facts as developed in the previous hearings.
Puglia, P. J., concurred.
The children were naked part of the time, and á dentist testified that dental neglect of some-of the children was so bad it was “a form of child abuse.”
Civil Code section 232, subdivisions (a)(2) and (a)(7) read as follows at the time of the hearings:
“(a) An action may be brought for the purpose of having any person under the age of 18 years declared free from the custody and control of either or both of his parents when such person comes with in. any of the following descriptions:
“(2) Who has been cruelly treated or neglected by either of both of his parents, if such person has been a dependent child of the juvenile court, and such parent or parents deprived.-of his custody, for the period of one year prior to the filing of a petition praying that he be declared free from the custody and control of such cruel or neglectful parent or parents.
<t ‘ ' .
“(7) - Who has been cared for in one or more foster homes under the supervision of the juvenile court, the county welfare department or other public or private licensed. child-placing agency for two or more consecutive years, providing that the court finds beyond' reasonable" doubt that return of the child to his parent or parents would be detrimental to-the child and that the parent or parents have failed during such period, and are likely to fail in theiuture, to
“(i) Provide a home for said child;
“(ii)' Provide Cáré and control for the child;
“(iii) Maintain an adequate parental relationship with- the child.
“Physical custody of the child by the parent or parents for insubstantial periods of time during the required two:year period will not serve to interrupt the running of such périod.”"
At the-1976 session of the Legislature, the requirement of a finding “beyond reasonable doubt" in subdivision (a)(7) was changed by amendments (effective Jan, 1, 1977) to a requirement of finding “by clear and convincing evidence." (Stats. 1976, ch. 653; Stats. 1976, ch. 940.) At the 1977 session the changes in standard of proof were taken out and proof beyond-a reasonable doubt is again required. (Stats. 1977, ch. 1252, operative July 1, 1978.)
See footnote 2 for text of Civil Code section 232, subdivisions (a)(2) and (a)(7).
See Evidence Code section 115, providing for such a standard of proof whenever a different standard is not provided by law.
See footnote 2, ante.