KARLTON, J.* I concur in sections I, II and IV of the majority opinion and that portion of section III-A which recognizes the availability of a motion akin to a demurrer to test the sufficiency of the petition (ante, p. 175). As to the balance of the opinion, I must respectfully dissent.
As the majority recognizes, both the statute and due process require that the petition allege facts. (Welf. & Inst. Code, § 387; In re J. T. (1974) 40 Cal.App.3d 633, 639 [115 Cal.Rptr. 553].) As a practical matter, the petition’s allegations provide no meaningful notice of what facts the mother was required to meet at trial. The charging allegations of the petition are an incongruous melange of factual allegations, conclusionaiy descriptions, opinion and pejorative comment. Thus, the petition does not assert that the mother prevented contact between the placement social worker and the minors (a fact), but rather “meaningful contact” (at best an evaluation of undisclosed facts); in like manner, the petition does not assert that the mother did not obtain mental health counseling for the minors (a fact), but only that she did not obtain “appropriate” mental health counseling (an opinion or pejorative comment); the petition does not allege an unstable environment (perhaps a fact) but an “unstable and inadequate” environment (how the environment could be “unstable” and “adequate” is not suggested); the petition does not assert that the mother failed to cooperate with school officials (a fact) but failed to “adequately” cooperate with school officials (an opinion). 1
[182]The need for specific factual allegations derives initially from due process considerations. (See In re Ruffalo (1968) 390 U.S. 544 [20 L.Ed.2d 117, 88 S.Ct. 1222]; Cannon v. Commission on Judicial Qualifications (1975) 14 Cal.3d 678, 696 [122 Cal.Rptr. 778, 537 P.2d 898].) Moreover, specificity derives from recognition that “the statutory criterion of improper and ineffective parental care denotes a fairly extreme case. A dominant parental right to custody of the child pervades our law. . . . Thus before [the law], authorizes the drastic step of judicial intervention, some threshold level of deficiency is demanded. Although a home environment may appear deficient when measured by dominant socioeconomic standards, interposition by the powerful arm of the public authorities may lead to worse alternatives. . . .” (In re Raya (1967) 255 Cal.App.2d 260, 265 [63 Cal.Rptr. 252].)
Nor is the need for specificity an abstract issue of legal niceties as suggested by the majority. A review of the evidence characterized as “substantial” by the majority and used to sustain the trial court’s determination cannot be fairly read to be within the charging allegations of the petition. One example will suffice: The petition alleges that the mother failed “to provide appropriate mental health counseling for the minors.” The majority notes that the social worker “advised” the mother to take the children to the children’s Mental Health Services; instead she “took the children to two private psychiatrists.” Why or how the mother’s decision relates to the charge is unspecified by the petition (or for that matter the findings or the majority opinion).
The constitutionally deficient pleadings as in this case led, inevitably, to deficient findings. Here, as in In re J. T, supra, “[t]he deficiency in failing to give notice to appellant of the specific factual allegations upon which the deprivation of custody was predicated is further demonstrated by the ‘findings’ made by the court.” (40 Cal.App.3d at p. 640.) The majority acknowledges that the findings do not comply with the requirements of rule 1392(d)(1)(a) but asserts such noncompliance results in no prejudice to the mother. I cannot agree.
The rule requires specific factual findings on the matters alleged in the petition. Since the trial court failed to comply with the rule this court “cures” the deficiency by implying the findings. The purpose of factual findings is to make appellate review meaningful (Topanga Assn, for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 513-514 [113 Cal.Rptr. 836, 522 P.2d 12]). As the majority opinion’s section on substantial evidence demonstrates, in the absence of such findings the reviewing court is set upon a sea of pure speculation.
[183]With a generosity of spirit towards the pleader, regretfully absent in its examination of the mother’s plight, the majority acknowledges that “the petition is no model of pleading.” The court in In re J. T, supra, 40 Cal.App.3d 633, held that where adequate notice is given by the pleadings, findings standards may be relaxed; however, where conclusionary allegations form the basis of the petition, the code clearly directs that “Such findings, as in the case of civil trials, should state ultimate facts . . . .” (In re J. T, supra, 40 Cal.App.3d at p. 641.) Even under the majority’s generous characterization of this petition, this is such a case. The majority’s departure from the rule is unexplained.
. The court in In re J. T. rested its decision on the operative code sections distinctive use of the words “finding” and “findings” (id., at pp. 640-641). The majority does not address this analysis. The decision in In re J. T. buttressed its statutory construction by reference to a variety of cases where the Supreme Court has required factual findings as a matter of due process. (In re Sturm (1974) 11 Cal.3d 258, 267 [113 Cal.Rptr. 361, 521 P.2d 97]; Topanga Assn, for a Scenic Community v. County of Los Angeles, supra, 11 Cal.3d at pp. 513-514; In re B. G. (1974) 11 Cal.3d 679, 699 [114 Cal.Rptr. 444, 523 P.2d 244].) Again, the majority ignores this analysis. Of course this court is not bound by a decision of a sister appellate court. It appears to me however, that when we part company with another court, we should say why we do so. This the majority has failed to do.
Moreover, in reality, no findings of fact were made in this case. The court merely checked various boxes on a standard form, the boxes, in turn, merely reflected the ultimate result. It may very well be true as the majority suggests that such forms are in use throughout the judicial system of California, that is not the point. Here by statute, rule and case law, specific factual findings were required and not made.
Finally, even if rule 1392(d)(1)(a) and prior case law did not require specific factual findings, I would suggest it is wholly consonant with the gravity of the determination to remove children from their parents that we do so. As the United States Supreme Court has observed “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose . . . function and freedom include preparation for obligations the state can neither supply nor hinder.” (Prince v. Massachusetts (1944) 321 U.S. 158, 166 [88 L.Ed. 645, 652, 64 S.Ct. 438].) I acknowledge this may well be a case in which that cardinal principle must be subordinated to the equally compelling obligation of the state to [184]intervene in extreme cases; but if so, let us at least justify the decision with clear and unambiguous factual findings.
I also must respectfully dissent from that portion of the opinion holding the mother is without standing to raise the issue of the receipt of the psychiatric testimony. My analysis of the problem does not require an examination of such imponderables, brushed aside by the majority, as what is the meaning of the term “privity” in this context2 (Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 875 [151 Cal.Rptr. 285, 587 P.2d 1098]), or when a case is not “ordinary.”3
The initial question is not who may assert the psychotherapist-patient privilege at trial, but whether assuming arguendo, that a holder of the privilege objected at trial, may a coparty raise the overruling of the assertion of privilege on appeal.
Resolution of this issue turns on whether, in the language of the California Jurisprudence section relied on by the majority, the error “affects only the appellant’s coparties” (5 Cal.Jur.3d, Appellate Review, § 485, p. 126). Thus, if the evidence was admitted only against the children, mother might well have no standing on appeal. Such was not the case here. The evidence was admitted for all purposes and against all parties—both the mother and the children objected—both objections were overruled. Thus we must examine the propriety of the ruling, for if the ruling was incorrect, since the evidence was introduced against her, it directly affects the mother’s case and she has standing on appeal.
As has been noted, the court appointed an attorney for the children. The children objected to the receipt of the evidence. Evidence Code section 1014 provides in pertinent part: “the patient. . . has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist if the privilege is claimed by: (a) The holder of the privilege; [¶] (b) A person who is authorized to claim the privilege by the holder of the privilege, ...” In turn Evidence Code section 1013 provides “As used in this article, ‘holder [185]of the privilege’ means: ‘(a) The patient when he has no guardian or conservator. . . .’ ” The previous section 300 proceeding, having deprived the mother of her rights over the children, left them without a guardian or conservator within the meaning of the provisions of section 1013. There was no court order designating anyone as the children’s guardian or conservator, these are words of art with specific meaning (Prob. Code, §§ 1400, 1701). Moreover, when the court appointed counsel for the children, he became “a person who is authorized to claim the privilege by the holder.” Thus, the court was obligated to honor the assertion of privilege raised by the children’s attorney unless there was an effective waiver. The Attorney General asserts the mother waived the privilege by signing releases to the Social Security Administration, the state Department of Health, and indeed the San Joaquin County Department of Public Assistance. However, as the mother properly points out, this occurred after the section 300 proceeding and thus the mother was no longer their guardian for purposes of claiming the privilege, and accordingly she could not waive.
One other consideration as to this issue, suggested but not briefed by the Attorney General, is whether the section 300 hearing placed the power to waive the privilege in the Department of Social Welfare. On our own motion we augmented the record to include the original disposition of the section 300 proceeding. The original order provided that “the D.P.A. is authorized to provide for medical, surgical and dental care for the minors” and that “custody of minors awarded to Department Of Public Assistance.” Although custody is not equivalent to guardianship, even if by virtue of the court’s order, the department somehow became a “holder of the privilege” and thereby empowered to waive the privilege, it does not follow that the waiver is effective. Evidence Code section 912, subdivision (b), specifically provides “[w]here two or more persons are joint holders of a privilege provided by Section . . . 1014 (psychotherapist-patient privilege) a waiver of the right of a particular joint holder of the privilege to claim the privilege does not affect the right of another joint holder to claim the privilege. . . .” As I have noted, the previous section 300 hearing placed the children in the custody of the department—no conservator or guardian proceedings were initiated— thus the children were also holders of the privilege and their attorney’s assertion of the privilege was effective. Finally, I note, that under the circumstances, the psychiatrists may have been required to assert the privilege. (Evid. Code, § 1015.)4
[186]Finally, I must dissent from the majority’s determination that there was sufficient evidence to support the judgment. Because I do not believe that there is a record before this court which permits us to determine the basis of the juvenile court’s order, I believe we are unable to and should not reach this issue. I recognize the extremely delicate decisions which juvenile courts must make in these kinds of proceedings. Indeed, this case is almost a classic example. On the one hand, we are faced with apparently severely disturbed children whose best interests may well require separation from their mother. On the other hand, we are required to, and should be quite' sensitive to our society’s primary reliance on the natural relationship between parents and children for the latter’s rearing. “The courts have long taken the position that the rights to conceive and raise one’s children have been deemed essential, basic civil rights of man and rights far more precious than property.” (In re Cynthia K (1977) 75 Cal.App.3d 81, 84 [141 Cal.Rptr. 875].) While we deal here with disturbed children, we cannot know from this record if the juvenile court found that their illness had anything to do with who had custody. Indeed, much of the evidence which the majority finds substantial, bears at most circumstantially on the issue before the court. Clearly, the mother’s repeated moves were due to her lack of finances and cannot be viewed as affecting her right to her children. (I cannot conceive that the majority believes poverty authorizes the state to remove children from their parents.) Moreover, much of the other evidence bears on lifestyle or the mother’s inability to get along with social workers and teachers. Does the majority mean to suggest that a mother disagrees with petty bureaucrats and overworked educators at the risk of her children? I wish to stress that I do not find that there is no substantial evidence either. I do believe that in the absence of specific findings, we are without a record to determine the propriety of the trial court’s decision. Accordingly, I believe that the entire matter should be returned to the trial court for retrial.
On February 16 and 23, 1979, the opinion was modified to read as printed above.
Assigned by the Chairperson of the Judicial Council.
Fairness requires that I recognize that certain factual allegations were made. There is nothing conclusionary about the assertion that the mother did not seek or receive approval of the worker in the changes of residence. Whether such an allegation could possibly support removal of the children from the mother’s home is, of course, another matter.
The court in its opinion asserts that there was no privity between the mother and the children. It appears that the counsel for the children may have sought to maintain the children in the mother’s home, and in any event both mother and children sought to exclude this evidence.
The law also is said to be “However, when it is necessary to do complete justice, and those portions of the judgment that affect the nonappealing party- adversely aré woven inextricably with the whole judgment, the reviewing court may reverse the entire cause.” (5 Cal Jur.3d, Appellate Review, § 485, p. 127.)
By the observations I have made concerning waiver of the privilege under the circumstances presented to the trial court, I in no way mean to circumscribe the trial court’s power to have a person examined in an appropriate case. (Evid. Code, § 1017.)