[564]BRAUER, J., Concurring. I join in the decision and the opinion of the court. I write separately, however, to draw the attention of higher authority, legislative and judicial, to serious problems which I believe to be unique to this area.
First, the factual context. This court sees what strikes me as a disproportionately large number of Civil Code section 232 (herein 232) cases. The appeals have one thing in common: their total lack of substance. It is true that colorable technical grounds are occasionally raised: advice to a parent of possible consequences was perfunctory, reunification services offered could have been more elaborate, and so on. When I refer to lack of substance, I speak of the merits. Here the issue has never been close. In every instance, the best interest of the child compelled the severance of parental ties. In no case in which independent counsel was appointed for the child did his investigation lead him to support the parents’ cause. Micah S. is typical, and I use that word advisedly. Who but a sadist could possibly contemplate the return of this child to these parents? And that conclusion is not altered by the fact that for once the parents are more unfortunate than blameworthy.
The reason why only strong cases have reached this court is not hard to postulate. Child Protective Services, like other government programs, is overtaxed; as a result, the authorities can take note only of the most flagrant situations. While my experience is obviously not sufficiently extensive to permit of sweeping generalizations, the consistency of the records coming across my desk has been striking, and has doubtless flavored this analysis.
Second, the law is aware of the severity of the parents’ possible loss1 and zealously guards their rights. Not only does the statute accord parents the full panoply of procedural safeguards such as notice, advice of rights, continuances, periodic review and so on,2 but more importantly, counsel is provided at public expense both in the termination proceedings and in the juvenile dependency actions under Welfare and Institutions Code section 300 (herein 300) which usually precede them, and both at the trial court level and on appeal.3 In almost all cases, reunification attempts are mandated for a year and sometimes 18 months.4 While initiation of 232 proceedings need not await the finality of 300 orders,5 as a practical matter, the authorities frequently defer commencement of a termination action until [565]the dependency order has been affirmed on appeal. As in other areas where counsel is furnished at public expense, every petition, however meritorious, is vigorously challenged. “Cherchez l’avocat” is the battle cry of every appellate lawyer today.6 As a consequence, no stone is left unturned, if only in pursuit of counsel’s endeavor to protect his rear. And, of course, all contested judgments and appealable orders are in fact appealed.
All this takes time. A great deal of time. As of this writing, Michah S. has been in foster care for more than four years, that is, since the second month of his existence. The passage of five or more years from initial removal of the child from its home to ultimate resolution and repose is by no means unusual.
Third. All of the enumerated rights are vouchsafed the parents because the highest court in the land has determined that state intervention to terminate the relationship between parent and child invokes the Due Process Clause of the Fourteenth Amendment.7 The potential deprivation has been analogized to criminal prosecutions, civil commitment, juvenile delinquency adjudications, deportation and denaturalization.8 But while all of these proceedings are comparable in the magnitude of the individual’s exposure to loss, the analogy is not totally apt. There is one fundamental difference. In a criminal trial, in mental incompetency determinations, in deportation cases and similar situations, the person facing sanctions is confronted by the state. The danger posed by his remaining at large is diffused among the population as a whole; if any specific individual has been particularly damaged or is menaced, he has his parallel remedies by money claim or injunction. The commonwealth can countenance granting the person confronted by the government all possible safeguards against erroneous disposition. It had better. The Constitution says so.
But in 232 cases, every right afforded the parents, every reunification service ordered, every continuance, and especially every appeal taken is purchased at the expense of the person who is in law and morality the primary object of judicial solicitude, namely the child. That, in a nutshell, is the frightful dilemma. And it is no longer open to question that the child’s best interest must be paramount. Section 232, subdivision (b) categorically states [566]that “[a]t all termination proceedings, the court shall ... act in the best interests of the child.” In case the point was missed, it is repeated in section 232.5. The Legislature’s awareness of the harmful effect of delay is patent. Section 232.3, subdivision (a) states: “It is the public policy of this State that judicial proceedings to declare a child free from parental custody and control shall be fully determined as expeditiously as possible.” The section goes on to place specific restrictions on the grant of continuances. And in Welfare and Institutions Code section 352, the lawmakers were even more emphatic: “ ... no continuance shall be granted that is contrary to the interest of the minor. In considering the minor’s interests, the court shall give substantial weight to a minor’s need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.”
In placing the child’s welfare at the top of the hierarchy of values and in recognizing the danger of procrastination, the Legislature is on firm ground. The treatise which has gained recognition as the most authoritative in this field is Goldstein, et al., Beyond the Best Interests of the Child,9 and its sequelae, Before the Best Interests of the Child10 and In the Best Interests of the Child.11 The basic thesis of the authors, whose standing in law and psychiatry is preeminent, can be summarized quickly: The child’s interests take precedence over the rights, needs and wishes of biological parents. The state should not lightly intrude into the relationship between parent and child. But once neglect, abandonment or abuse has dictated removal, the separation of a child from a parent has devastating emotional consequences so as to make imperative an early new bonding with a person or persons who fulfill a child’s psychological needs for stability, interaction, companionship, interplay and mutuality. Foster placement, being temporary, does not do the trick because it warns the adults against any deep emotional involvement with the child. Even adoptive parents may hesitate to make a full commitment to the child as long as the placement is not irrevocable. The absence of a psychological parent must reflect the child’s, not the adult’s, sense of time. Perhaps the most poignant as well as most frequently quoted passage is: “Three months may not be a long time for an adult decisionmaker. For a young child it may be forever.” On the basis of their investigations and professional judgment the authors conclude that the “. . . maximum intervals beyond which it would be unreasonable to [567]presume that a child’s residual ties with his absent parents are more significant than those that have developed between him and his longtime caretakers [are]: (a) 12 months for a child up to the age of 3 years at the time of placement; (b) 24 months for a child from the age of 3 years at the time of placement.”12 Poor Micah S.!
Fourth. What is to be done? As is so frequently the case, diagnosis does not guarantee a cure. Even if the parents’ rights had not been held to arise out of the Constitution itself, one would be loath to tamper with them; after all, there is always the theoretical possibility of a malignant public official sundering a nurturing relationship for reasons best known to him. More generally, history warns against leaving crucial rights in the gift of officials. At any rate, that is the theory of our Constitution.
But it is clear that in the balancing process which inheres in any Due Process analysis, the pendulum must swing farther away from preoccupation with parents’ rights and towards the protection of the waifs. It cannot be doubted that the Legislature’s well-meaning pronouncements in favor of the child’s best interests and speedy adjudication13 have been palliatives at best. The one statutory change which may be expected to have an impact is Welfare and Institutions Code section 361.5 authorizing the juvenile court to omit reunification services under stated circumstances. I would favor an amendment broadening the dispensation where the court can make specific findings of probable futility of such services and detriment to the child. But that is not enough. Delay, an enormous quantum of delay, is built into any system providing free counsel;14 and the problem was significantly exacerbated when “incompetence of trial counsel” became the most fashionable ploy of appellate lawyers. I have no doubt that the most serious bottleneck [568]is the appeal, and that the plight of children in limbo cannot be ameliorated unless means are found to discourage the taking of appeals.15 The reform I suggest is admittedly extreme; namely, that our Supreme Court in its role of supervising the conduct of lawyers promulgate a canon that appeals from orders terminating parental rights must be taken only when good grounds exist for the conclusion that the decision of the trial court, on the merits, is contrary to the best interest of the child. So radical a departure from the prevailing policy of encouraging appeals16 can be justified only by recognition that 232 proceedings are indeed sui generis, different in kind rather than degree from all other controversies, that delay far beyond what the professional authorities consider acceptable is the rule rather than the exception in this field, that delay, by interfering with a new bonding, results in devastating psychological harm to children, that the Due Process rights of parents clash with children’s rights of at least equal dignity, and that something must be done to afford these small human beings some chance for growth and a glimmer of future happiness.
The petition of appellant Gloria S. for review by the Supreme Court was denied May 4, 1988.
In re Jacqueline H. (1978) 21 Cal.3d 170, 176 [145 Cal.Rptr. 548, 577 P.2d 683].
See e.g., Welfare and Institutions Code sections 307, subdivision (b), 352, 353, 364; Civil Code sections 232.3, 235.
Welfare and Institutions Code sections 317, 349, 395; California Rules of Court, rule 1377(i)(3); Civil Code sections 237.5, 237.7.
Welfare and Institutions Code section 361.5.
Welfare and Institutions Code section 395.
Ineffective assistance of counsel is recognized as a ground for reversal in both 232 and 300 proceedings. (In re Cristina H. (1986) 182 Cal.App.3d 47, 50 [227 Cal.Rptr. 41]; In re Christina P. (1985) 175 Cal.App.3d 115, 129 [220 Cal.Rptr. 525]; In re R. S. (1985) 167 Cal.App.3d 946, 968-969 [213 Cal.Rptr. 690]; contra, In re Ammanda G. (1986) 186 Cal.App.3d 1075 as to 300 cases [231 Cal.Rptr. 372].
Santosky v. Kramer (1982) 455 U.S. 745, 753 [71 L.Ed.2d 599, 102 S.Ct. 1388]. The dissenting justices did not disagree on this point. (Id., at p. 774 [71 L.Ed.2d at p. 620].)
Santosky; supra, at p. 762, 756, 759 [71 L.Ed.2d at pp. 612, 608, 610] and cases there cited which place such matters under the aegis of the due process clause.
The Free Press (2d ed. 1979). The book has been relied on by the California Supreme Court in Burchard v. Garay (1986) 42 Cal.3d 531, 538 [229 Cal.Rptr. 800, 724 P.2d 486]; Michelle W. v. Ronald W. (1985) 39 Cal.3d 354, 363 [216 Cal.Rptr. 748, 703 P.2d 88]; Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 795 [218 Cal.Rptr. 39, 705 P.2d 362]; In re Angelia P. (1981) 28 Cal.3d 908, 917 [171 Cal.Rptr. 637, 623 P.2d 198] as well as by innumerable courts throughout the country.
The Free Press (1979).
The Free Press (1986).
Beyond the Best Interests of the Child, passim, especially at pages 7 to 8, 98, 24, 22, 40-43; Before the Best Interests of the Child, page 46.
Another highly influential investigator who has arrived at basically the same conclusions is Professor Wald of Stanford Law School. (Wald, State Intervention on Behalf of “Neglected ” Children (1976) 28 Stan.L.Rev. 623.)
Some courts have not received the message. See e.g., In re Venita L. (1987) 191 Cal.App.3d 1229 [236 Cal.Rptr. 859], There the court by fiat and in the absence of statutory mandate imposed a requirement of express finding in a Welfare and Institutions Code section 362 proceeding that return of the child would create a substantial risk of detriment to her. This in the face of Michael U. v. Jamie B., supra, 39 Cal.3d 787, 793 where the Supreme Court found no need for express findings in the analogous Civil Code section 4600 proceedings. The Venita court concluded that section 4600 is less specific than section 366.2, a conclusion that is not apparent to me from reading the two statutes. The case was remanded not for new findings but a full new hearing and, presumably, appeal. Venita L. had been in foster care almost since birth, for three and a half years prior to the appellate ruling with a husband and wife who wished to adopt her, with whom she had bonded and who, according to the expert evidence, were her psychological parents.
I state the problem as fact, but I do not question the desirability indeed, necessity, of furnishing such counsel at public expense.
I do not believe that assigning first priority to 300 and 232 appeals (Welf. & Inst. Code, § 395, whose wording has been in the books since 1915 (l) and Code Civ. Proc., § 45) has had a significant effect. No antidote has yet been devised to counsel’s request for continuances to file briefs and reporters’ similar motions with regard to transcripts. Nor am I sanguine as to the impact of Assembly Bill No. 703, 1987-1988 Regular Session, which, if enacted, will require the appellate courts “to take all reasonable steps” to assure that any 232 appeals are finally determined within 250 days of filing.
If the Supreme Court may promulgate such a policy, see In re Marriage of Flaherty (1982) 31 Cal.3d 637, 648-650 [183 Cal.Rptr. 508, 646 P.2d 179], it doubtless has power to define its boundaries.