Orange County Department of Social Services v. Arthur H.

[444]Opinion

SONENSHINE, J. The father of three minor children appeals the granting of the Orange County Department of Social Service’s petition to terminate his parental rights.1 We affirm.

The father and mother lived together approximately four and a half years. These three children resulted, but the union was not a happy one. In April of 1982 the children were declared dependent children of the Orange County Juvenile Court under section 300, subdivisions (b) and (d) of the Welfare and Institutions Code. They were taken from the parents and began to reside in foster homes. The following month the father was arrested for stabbing the mother 17 times in the neck, chest, abdomen, back and extremities. He was convicted of assault with a deadly weapon and is currently serving a seven-year prison term.

The underlying petitions were filed and granted in 1984. The trial court found “stabbing the mother of the children ... 17 times certainly indicates a nature . . . that the man has either a substantial drug and/or drinking problem, or a nature of temper outbursts or such which are dangerous, could be deleterious to the children.” The court also commented on the father’s past criminal conduct and apparent drug and/or alcohol problems.2 The court found “by clear and convincing evidence, pursuant to 232 (a) (4) [sz'c] of the Civil Code . . . that [in] the best interests of the children, pursuant to 4600 of the Civil Code,3 it would be detrimental to return the three minors to the custody of the father.

[445]“The children [will] be free for adoption, and the court will therefore declare the minors free from parental custody and control of the father and refer the matters to social agency for adoptive placement. ”

Father alleges there was no substantial evidence to support a subdivision (a)(4) finding. He argues “the cases all seem to imply that an (a)(4) finding requires that the children be present or in current danger when the felony occurs.” However, neither the statute nor the cases interpreting it mandate such a conclusion.

The statute allows termination of parental rights if the “parent or parents are convicted of a felony, if the facts of the crime of which the parent or parents were convicted are of a nature so as to prove the unfitness of the parent or parents to have the future custody and control of the child.” There is no requirement, nor should there be, that the children be present when the felony occurs or that they be in current danger. The purpose of the statute is to prevent future harm. The court considers the circumstances of the felony to determine whether it is likely that future harm may result to the child if the parental rights are not terminated.