Detrich v. Richard E.

California Court of Appeal Sep 19, 1978 No. Civ. 16876Published

Before: Brown (Gerald)

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Holding. The court held that the clear and convincing evidence standard is constitutional for proceedings to terminate parental rights and that there is no right to a jury trial in such statutory special proceedings. The court further affirmed the judgment declaring the children free from the father's custody based on substantial evidence of his inability to provide care.

Issues

Whether the clear and convincing evidence standard in Civil Code section 232, subdivision (a)(7) is constitutional.
Whether there is a right to a jury trial in a proceeding to declare a child free from parental custody and control.
Whether there was sufficient evidence to support the trial court's findings under Civil Code section 232, subdivision (a)(7).

Disposition. affirmed

Quotations verified verbatim against the opinion

“There are no constitutional barriers to using the burden of clear and convincing evidence in determining whether the children shall be free of their father’s control.”

“Because it did not exist at common law and there is no statute providing for a jury trial, E. was not entitled to one”

“This is substantial evidence to support the court’s findings under section 232, subdivision (a)(7), that E. has not and is unlikely to provide a home and care for the boys”

[634]

Opinion

BROWN (Gerald), P. J.

Richard E. appeals the judgment declaring his children David, born November 18, 1966, and Daniel, bom October 22, 1968, free from his custody and control under Civil Code section 232, subdivision (a)(7).

The boys were declared dependent children of the juvenile court on July 12, 1974, and have been in foster home placement since July 19, 1974. At the time of the present hearing the father was in county jail, having threatened the boys’ foster mother with a toy pistol. Before that incident he had been convicted at various times of possessing narcotics, committing lewd and lascivious acts on a minor under the age of 14, and robbery. Medical records show E. had been hospitalized with: “schizophrenic reaction—acute undifferentiated,” in connection with indecent acts committed upon a child; and with personality disorder, anti-social personality and chronic alcoholism.

Neither boy wished to live with his father and each described life with him as one of abuse and neglect. There was expert opinion that E. could not give the children proper parental guidance and care, he was unable to stay out of trouble and, at age 43, would not change.

At the time of the trial, Civil Code section 232, subdivision (a)(7),

required a showing by clear and convincing evidence that a parent was

[635]

unable to care for the child. The statute preceding it had required proof beyond a reasonable doubt. E. concedes the section with the lesser burden is the one which governs here. However, he suggests this lesser standard is unconstitutional because the parent loses his right to custody of the child for life. However, the burden of beyond a reasonable doubt is required only in those instances where there is a deprivation of liberty and a moral stigma attaches (see

Detrich v. Richard E.

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