BIRD, C. J., Concurring and Dissenting. I dissent from section II of the majority opinion for I am particularly disturbed by the holding that the mother-daughter relationship must be terminated. As a result of this decision Laura and Tammy will permanently lose the right to see their natural mother even though there is evidence that their relationship has been a close and loving one. This relationship should not be permanently severed without some showing of adoptability.
Even a cursory glance through the statutory scheme (Civ. Code, § 232 et seq.) reveals a clear legislative intent that parental rights are not to be terminated unless there is at least some realistic possibility that the child or children will be adopted thereafter. In the present case, no evidence was presented to the trial court suggesting that either Laura or Tammy was adoptable. Indeed, the scant testimony relevant to the issue indicated they were not.
[841]There was, however, undisputed evidence of a long, caring, and nonabusive—albeit deficient—relationship between the girls and their natural mother, Della. Thus, when the superior court terminated the fundamental mother-daughter relationship, there was neither a reasonable prospect of replacing so basic a bond with anything comparable nor any evidence that continuing the relationship would be detrimental to the girls.
The majority’s response to this is to ignore virtually all of the relevant statutes. Incredibly, they apparently believe there is no authority for the proposition that termination of parental rights should not occur in the absence of evidence of adoptability. (Maj. opn., ante, at p. 838.)
In this manner, the majority relegates these girls to continuing the status quo—foster home placement—except that the state has now excluded from their lives the natural mother whom they love and who loves them. This result not only undermines the black-letter intent of the Legislature, but is illogical as well.
I.
The facts recited in the majority opinion regarding Laura, Tammy, and their mother Della tell less than the frill story. Della met Larry F. in early 1970. Thereafter a relationship began which lasted for about six years. In 1973, the couple had their first child (Laura) and, in 1975, their second (Tammy).
Della and Larry’s relationship was not a happy one. The couple separated a number of times. Larry frequently drank to excess, used drugs, and on at least two occasions stole his disabled daughter’s Social Security check to support his habits. Although there is no evidence in the record that Larry physically abused Laura or Tammy, he was violent toward Della. During the years from 1974 through 1976, Larry was convicted six times for driving under the influence of alcohol.
The family had several contacts with the county welfare department. Although Della had no marketable job skills, had barely reached the 10th grade in school, possessed only a “very basic” ability to read and write, and appeared to be “somewhat clumsy” in performing mundane tasks of feeding, the department offered her no education, counselling, or training. Instead, they focused on Larry. As one social worker testified, “The department policy at that time was to focus on the man if he was an employable person in the home.”
In September of 1976, Larry and Della separated again. Della had no income and no suitable place to live so Laura and Tammy remained with Larry. However, Larry unexpectedly appeared one day and returned the girls to Della. [842]At the time, Della was staying with a cousin. According to her social worker, Della had “ no money, no way to keep them, no place to live, and [Larry] knew this when he dropped the children off with her.” Larry again took Laura’s Social Security check.
Della made temporary arrangements for the girls to stay with friends. The social worker found Della to be distressed over these arrangements “but she had no alternatives.”1 The social worker brought up the possibility of foster care and a formal dependency action. (Former Welf. & Inst. Code, § 600, subd. (a), repealed by Stats. 1976, ch. 1068, § 20, p. 4782. See now Welf. & Inst. Code, § 300, subd. (a).) Della agreed.
Accordingly, a section 600 petition was filed with the juvenile court. It alleged that Della “has separated from the [minors’] father and has no home or finances with which to provide for the [minors].” The social worker noted that there was no allegation against Della of neglect, abuse, or molestation.2
In October of 1976, the section 600 petition was sustained, and Tammy and Laura were declared to be dependent children of the court. By early 1977, both girls had been placed in foster homes where they were living at the time the hearings were held on the petition to terminate Della’s parental rights.3
During the first two and one-half years following the dependency hearing, there were, according to Della’s social worker, “periods when [Della] moved frequently to the point she really didn’t have a residence, and . . . other periods when she stayed in the same place for quite some period of time.” Although Della repeatedly attempted to have her children returned to her by the court, her visits with them were erratic. She had no jobs skills, but did obtain employment on three or four occasions as a maid or live-in housekeeper. None of these jobs lasted more than three months. Della did not seek job training.
Beginning in the early spring of 1979, however, Della’s situation improved considerably. Her visits with Laura and Tammy became both frequent and [843]regular. With her mother’s help, she rented an apartment where she lived through the termination proceedings. She worked for much of the time as a babysitter or housekeeper. In the fall, she married a man she had been seeing for several years, Ricardo B.4
In late My of 1979, a petition was filed in the superior court to terminate Della’s parental rights pursuant to subdivision (a)(7) of Civil Code section 232.5 Hearings on the petition were held in November. Those hearings produced considerable evidence of an abiding love between the children and their mother, Della. As the deputy attorney general conceded in her argument to the trial court, “Your Honor, I don’t think there’s anyone in this courtroom who doesn’t believe that Della . . . loves her children, and that her children love her.” The trial court agreed.6
No evidence was introduced at the hearing to show that Della’s relationship with Laura and Tammy was detrimental to the girls. There was testimony from a psychologist, who opined that returning the girls to Della’s custody “would more than likely be detrimental than not [sz'c].” In his view, this would occur because the girls would suffer from “separation anxiety” if removed from their current foster homes and returned to the custody of their mother. He admitted, however, that separation anxiety can be expected whenever a long-term foster placement is changed. He was not asked, nor did he testify, as to whether maintaining the mother-daughter relationship would be detrimental to the girls.
[844]n.
The proceedings authorized by section 232 are one part of a comprehensive scheme by which the state asserts its strong interest in the welfare of children. As was noted in In re B. G. (1974) 11 Cal.3d 679, 696 [114 Cal.Rptr. 444, 523 P.2d 244], “California has at least eight separate proceedings in which [child] custody questions can be litigated. ” The primary focus of this scheme is the welfare and best interests of the child. (See, e.g., §§ 227; 232.6; 4600, subd. (b).)
The termination of parental rights contemplated by section 232 is the ultimate contingency in the overall plan. It represents the total and irrevocable severance of the bond between parent and child. (§§ 232.6, 238.) As the United States Supreme Court has recently emphasized, “Few forms of state action are both so severe and so irreversible. ” (Santosky v. Kramer (1982) 455 U.S. 745, 759 [71 L.Ed.2d 599, 610, 102 S.Ct. 1388].) The child’s emotional relationships with his or her natural parents and siblings are cut off. Any right to parental support or to an inheritance from biological family members is extinguished. The natural parents, in turn, are “denie[d] . . . physical custody, as well as the rights ever to visit, communicate with, or regain custody of the child. ” (Id., at p. 749 [71 L.Ed.2d at p. 603], fn. omitted.)
These are fundamental liberty interests which are at stake. (Id., at p. 753 and fn. 7 [71 L.Ed.2d at p. 606].) They are “ranked among the most basic of civil rights . ...” (In re B. G., supra, 11 Cal.3d at p. 688.) Moreover, the “fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life.” (Santosky v. Kramer, supra, 455 U.S. at p. 753 [71 L.Ed.2d at p. 606].)
Consequently, the parent-child relationship may be terminated under section 232 “ ‘only in extreme cases of persons acting in a fashion incompatible with parenthood.’” (In re Angelia P. (1981) 28 Cal.3d 908, 916 [171 Cal.Rptr. 637, 623 P.2d 198], quoting In re Carmaleta B. (1978) 21 Cal.3d 482, 489 [146 Cal.Rptr. 623, 579 P.2d 514].) Termination may not occur in the absence of a compelling state interest,7 and substantial evidence must support a finding that “severing the parental relationship [is] the least detrimental alternative for the children.”8
[845]Other provisions of statutory law permit a child to be taken from the custody of a deficient parent without extinguishing the parent-child relationship or terminating all parental rights. (See especially Welf. & Inst. Code, § 300 et seq.) Thus, resort to termination proceedings is both unnecessary and inappropriate unless, inter alia, the state intends—and is reasonably likely—to provide the child with a satisfactory long-term replacement for the otherwise permanent parental relationship that is being terminated. In short, a termination of the fundamental parent-child relationship is normally appropriate only when adoption is realistically contemplated.9
Case law, legislative history, and black letter statutory language all confirm this obvious conclusion. The courts of this state have long recognized that the “purpose of [a section 232 action] is to facilitate adoption of the minor child.” (In re Marriage of O’Connell (1978) 80 Cal.App.3d 849, 854 [146 Cal.Rptr. 26].10 Indeed, the statutory provisions regarding the termination of parental rights were originally transferred from the Juvenile Court Law to the Civil Code for precisely this reason: “What is contemplated by court action under [the statutory predecessor to section 232] is not continuing guidance and supervision by a governmental agency, but freeing the child for adoption by a private person. This is essentially an adoption problem and, therefore, should be handled by the civil court handling adoptions. ” (Governor’s Special Study Com. on Juvenile Justice (1960) pt. I, p. 23. See also In re Jacqueline H. (1978) 21 Cal.3d 170, 174, fn. 1 [145 Cal.Rptr. 548, 577 P.2d 683].)
The language of the statutes themselves makes this point with unmistakable clarity. Thus, section 232.6 specifically states that the “purpose of this chapter” in providing for the termination of parental rights is “to serve the welfare and best interests of a child by providing the stability and security of an adoptive home when those conditions are otherwise missing from his or her life.” (Italics added.)11_
[846]The essential role of adoptability was recently underscored by the enactment of Welfare and Institutions Code section 366.25. (Sen. Bill No. 14, ante, fft. 5, Stats. 1982, ch. 978, § 27.) This section deals with the disposition by the juvenile court of children—like Laura, Tammy, and virtually all children on whose behalf proceedings are brought under subdivision (a)(7)—who have been determined to be dependent children of the court (Welf. & Inst. Code, § 300).
The pertinent provisions of the new law apply when a dependent child cannot be returned home and there is no “substantial probability” of such a return within six months. (Welf. & Inst. Code, § 366.25 [hereafter, § 366.25], subd. (d).) Under these circumstances, the juvenile court shall order the initiation of section 232 proceedings if “the minor is adoptable.” (§ 366.25, subd. (d)(1).) If, however, “the court finds that the minor is not adoptable,” it orders the initiation of legal guardianship proceedings. (Id., subd. (d)(2).) Or, if there is no suitable adult available to become legal guardian, then some other plan is worked out for placement “in a home environment that can reasonably be expected to be stable and permanent.” (Id., subd. (d)(3).)
Thus, a section 300 finding only entitles the juvenile court to order section 232 proceedings if the minor is adoptable. Even as to adoptable dependent children, however, the Legislature has specified three situations in which termination proceedings are inappropriate.12 In addition, the statutory scheme indicates that termination of parental rights is not appropriate if the outlook for the dependent child is for something other than adoption, i.e., legal guardianship or long-term foster care. Thus, adoptability has once again been revealed to be of critical concern to the Legislature in the area of termination of parental rights.
No evidence was presented to the superior court in the present case suggesting that Laura or Tammy was adoptable. Rather, the limited testimony touching upon this issue indicated they were not.13 Thus, the superior court’s [847]order terminating Della’s parental rights placed the girls in the position of having neither a parent nor the realistic prospect of ever gaining one.
Moreover, there was no evidence that allowing the mother-daughter relationship to continue would be detrimental to either of the girls. Quite the contrary, both girls had had a long and loving—if deficient—relationship with their natural mother. “[T]he importance to a child of continuity of parental relationships” cannot be underestimated. (See Adoption of Michelle T., supra, 44 Cal.App.3d at p. 706.) No purpose is served by permanently severing parental rights under these circumstances. Where, as in the present case, the natural parent has not abused the child, an inadequate parent is clearly preferable to no parent at all and is more consistent with the legislative scheme.14
It is, of course, correct that the primary purpose of the overall statutory plan regarding children is to promote the best interests and welfare of the child. But the role of termination proceedings within the larger context has been plainly stated by the Legislature. It is not to remove the child from the custody of deficient parents, nor is it to punish parents for their inadequacies. Rather, the explicit “purpose” of termination proceedings is to serve the child’s interests “by providing the stability and security of an adoptive home ....”(§ 232.6.) If “the stability and security of an adoptive home” are not reasonably likely to be achieved, and if no harm to the child flows from maintaining the existing parent-child relationship, then no purpose is served by permanently severing that basic relationship.
Nevertheless, a majority of this court apparently believe there is no authority for the proposition that termination of parental rights should not occur in the absence of evidence of adoptability. (Maj. opn., ante, at p. 838.) That belief is curious for it can be maintained only by ignoring the legislative history and virtually all of the relevant statutes. Unmentioned in the majority opinion are (1) the fact that proceedings to terminate parental rights were transferred from the juvenile court to “the civil court handling adoptions” because the matter “is essentially an adoption problem;”15 (2) the Legislature’s declaration upon enacting section 232.9 that its aim was to enable children in foster homes to “be placed in adoptive homes;”16 and (3) the fact that the juvenile court may order the initiation of termination proceedings only if it determines that “the minor is adoptable.”17 The majority opinion does mention—but then ignores—section [848232].6, which declares the purpose of termination proceedings to be to provide minors with “the stability and security of an adoptive home.”
One result of today’s decision is that, without even a whisper of justification, this court has effectively purged from the law of this state a valid, clearly expressed, logical, and consistent theme of the Legislature. On perhaps a more mundane level, two young girls have been cut off from their natural mother by the state, which has offered them no prospect of replacing what was lost. From any viewpoint, today’s decision is harsh in the extreme, and I cannot subscribe to it.
III.
Two other aspects of this case trouble me profoundly. Both relate to a warning sounded recently by the United States Supreme Court in Santosky v. Kramer, supra, 455 U.S. 745. That court observed that termination proceedings similar to those authorized by subdivision (a)(7) of section 232 “employ imprecise substantive standards that leave determinations unusually open to the subjective values of the judge.” (Id., at p. 762 [71 L.Ed.2d at p. 612].) Noting that “the [trial] court possesses unusual discretion to under-weigh probative facts that might favor the parent,” the high court observed that “[b]ecause parents subject to termination proceedings are often poor, uneducated, or members of minority groups, such proceedings are often vulnerable to judgments based on cultural or class bias.” (Id., at pp. 762-763 [71 L.Ed.2d at pp. 612-613], citation and fn. omitted.)
Support for these observations can, unfortunately, be found in the present case. Initially, while it is settled that an order to free a child from parental custody and control “must rest on present circumstances as well as past acts . . .,”18 the trial court discounted Della’s current situation and singled out her marriage to Ricardo B. It reasoned that because the husband “is a migrant laborer and follows the crops,” the marriage “does not enhance the aspects of stabilizing home and environment.” (Maj. opn., ante, at p. 836.) This reasoning is questionable. Certainly, there is nothing in the record to justify the conclusion which the trial court drew from Ricardo’s employment. Rather, the court’s statement seems to represent an erroneous “judgment[] based on cultural or class bias”19 about a worthy class of people, who in fact are perfectly capable of raising healthy children with much to contribute to the lives of us all.
A second echo to the Supreme Court’s warnings can be found in that portion of today’s majority opinion which discusses the dependency proceedings at [849]which Della lost custody of Tammy and Laura in the first place. (See cone, and dis. opn., ante, at p. 842.) It is the majority’s claim that those proceedings demonstrate an “incapacity or unwillingness” to be an effective parent and thus support the view that Della’s was “an extreme case of deficient parenting.” (Maj. opn., ante, at p. 837.)
In fact, however, the dependency proceedings were based on allegations that Della “has separated from the [minors’] father and has no home or finances with which to provide for the [minors].” The social worker who drew up the dependency petition specifically testified at the termination proceedings now under review that there was no allegation against Della of neglect, abuse, or molestation. In short, the dependency petition was sustained because Della was poor, recently separated, and had no place to live.
I do not criticize the local authorities for their response to what was thought to be a temporary, emergency situation. However, I question the majority’s belief that these circumstances alone demonstrate an “incapacity or unwillingness” to be an effective parent. And if this alleged “incapacity or unwillingness” is in turn deemed to be evidence of “an extreme case of deficient parenting” so as to justify termination of all parental rights under subdivision (a)(7),20 then it will indeed be the poor, the uneducated, and the minorities who are disproportionately subjected to proceedings to deprive them of their children.
I respectfully but vigorously dissent.
Broussard, J., and Reynoso, J., concurred.
As the majority opinion notes, the family with whom Della left Tammy had previously been referred to the authorities for child neglect. However, neither Della nor her social worker was aware of that fact at the time Tammy lived there, and that family’s case was no longer “active.” There is no indication that Tammy was harmed or neglected in any way.
Simply put, the dependency petition was sustained because Della was poor and recently separated. The majority opinion calls this a “compelling reason” for removing the girls from their mother’s custody, demonstrating “incapacity or unwillingness” to be an effective parent. (Maj. opn., ante, at p. 837.)
Prior to arriving at these foster homes, Laura and Tammy had been tried in two other foster care placements which did not work out. When they arived at what became their long-term foster homes, both girls were far behind in their development. Laura had an extended belly, which was the result of improper nutrition. This was discovered by a doctor. The foster mother testified she herself had not noticed it.
Della’s change in status was noted by the foster parents of Laura and Tammy, as well as by court officers. Interestingly, Della’s mother, who had called the welfare department on several occasions prior to the 1976 dependency hearings to report inadequate child care by Della and Larry, now supported Della in her attempt to keep her children.
All statutory references hereafter are to the Civil Code unless expressly provided otherwise. At the time of the court proceedings in the present case, section 232 provided in pertinent part:
“(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 within any of the following descriptions:
“(7) Who has been cared for in one or more foster homes under the supervision of the juvenile court... for two or more consecutive years, providing that the court finds by clear and convincing evidence 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 the future, to do the following:
“(i) Provide a home for the child;
“(ii) Provide care and control for the child; and
“(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 period.” Recently, the Legislature reduced the two-year foster care period to one year and added new paragraphs at the end of subdivision (a)(7). (Sen. Bill No. 14 (1981-1982 Reg. Sess.) Stats. 1982, ch. 978, § 1, approved by Gov., Sept. 12, 1982, filed with Sect, of State, Sept. 13, 1982, eff. immediately as urgency measure.) Other minor or irrelevant modifications to these provisions of section 232 have been made as well. (See ibid.-, Stats. 1979, ch. 245, § 1, p. 534.)
“All the children expressed love for their natural mother and the evidence shows that Della loves her children.”
In re David B. (1979) 91 Cal.App.3d 184, 192 [154 Cal.Rptr. 63].
In re Carmaleta B., supra, 21 Cal.3d at page 489. Accord, In re Angelia P., supra, 28 Cal.3d at page 923; In re David B., supra, 91 Cal.App.3d at page 198. See Adoption of Michelle T. (1975) 44 Cal.App.3d 699, 707-709 [117 Cal.Rptr. 856, 84 A.L.R.3d 654].
The Legislature has made abundantly clear that foster care is not a satisfactory long-term solution. “It is the policy of the Legislature that foster care should be a temporary method of care for the children of this state, that children have a right to a normal home life, that reunification with the natural parent or parents or another alternate permanent living situation such as adoption or guardianship are more suitable to a child’s well-being than is foster care, and that this state has a responsibility to attempt to ensure that children are given the chance to have a happy and healthy life, and that, to the extent possible, the current practice of moving children receiving foster care services from one foster home to another until they reach the age of majority should be discontinued.” (Welf. & Inst. Code, § 396.)
See also, e.g., In re David B., supra, 91 Cal.App.3d at page 196; In re Shannon W. (1977) 69 Cal.App.3d 956, 962 [138 Cal.Rptr. 432]; In re Eugene W. (1972) 29 Cal.App.3d 623, 629 [105 Cal.Rptr. 736].
“The Legislature [also] stated the purpose behind section 232 proceedings when it added section 232.9 to the Civil Code. ‘It is the intention of the Legislature in enacting this act to extend adoption services for the benefit of children residing in foster homes at public expense by facilitating legal actions required for adoption so that these children may be placed in adoptive homes where they will have the benefits of stability and security. ’ ” (In re David B., supra, 91 Cal.App.3d at p. 195, quoting Stats. 1970, ch. 583, § 1, p. 1160.)
One such situation occurs when the “parents or guardians have maintained regular visitation and contact with the minor and the minor would benefit from continuing this relationship.” (§ 366.25, subd. (d)(1)(A).) Further, section 232 proceedings are not authorized when the “minor 12 years of age or older objects to termination of parental rights. ” (Id., subd. (d)(1)(B).) And finally section 232 proceedings are not authorized if “exceptional circumstances” prevent the minor’s foster parents from adopting the minor and the removal of the minor from the home of the foster parents would be “seriously detrimental” to the minor. (Id., subd. (d)(1)(C).)
The psychologist testifying on behalf of the Department of Social Services stated that Tammy would need “super parents” and that there are “not too many super parents around.” As to Laura, who is physically handicapped, he testified there would be a problem locating a family “able to deal effectively with those very specific and difficult special needs, developmentally.” This testimony totally undermines the majority’s claim that the trial judge made an “implied [] finding” of adoptability. (Maj. opn., ante, at p. 838.) Not only did the trial court fail to consider the point, but there was absolutely no evidence upon which an “implied finding” of adoptability could have been based.
It is not the purpose of termination proceedings or of our child custody laws in general to punish parents for their shortcomings. (See, e.g., In re Paula P. (1981) 123 Cal.App.3d 734, 744 [176 Cal.Rptr. 708]; In re Marriage of Stoker (1977) 65 Cal.App.3d 878, 881-882 [135 Cal.Rptr. 616]; Ashwell v. Ashwell (1955) 135 Cal.App.2d 211, 217 [286 P.2d 983].)
See ante, at page 845.
See ante, at page 845, footnote 11.
See ante, at page 846.
In re Carmaleta B., supra, 21 Cal.3d at page 493.
Santosky v. Kramer, supra, 455 U.S. at page 763 [71 L.Ed.2d at p. 613].
See ante, at page 837.
I would note that amicus curiae advises us that subdivision (a)(7) is the provision most frequently employed to “free children from their [natural] parents.”