POCHÉ, J., Concurring and Dissenting. I concur in the reversal of this judgment but write separately to express my profound disagreement with the majority’s analysis of issues which are unnecessary to the decision.
1.
Civil Code Section 4600.
In my view the majority’s limiting interpretation of Civil Code section 4600 is insupportable not only because it runs contrary to unanimous authority,1 but also because it denies effect to plain statutory language and to deeply engrained legal principles concerning the family.
[1214]Civil Code section 4600, subdivision (a), states in part: “In any proceeding where there is at issue the custody of a minor child, the court may, during the pendency of the proceeding or at any time thereafter, make such order for the custody of the child during minority as may seem necessary or proper.” Subdivision (c) then sets out the following mandate: “Before the court makes any order awarding custody to a person or persons other than a parent, without the consent of the parents, it shall make a finding that an award of custody to a parent would be detrimental to the child and the award to a nonparent is required to serve the best interests of the child.”
The majority, in observing that the Supreme Court held this provision applicable to Civil Code section 232 proceedings, concludes that it did so “without the slightest analysis of legislative intent.” (Ante, at p. 1207.) So far as I can determine the Supreme Court was merely complying with the fundamental principles of statutory construction. “Where the ‘statutory language is “clear and unambiguous there is no need for construction and courts should not indulge in it.’” [Citations.]” (In re Keith T. (1984) 156 Cal.App.3d 983, 986 [203 Cal.Rptr. 112].) “If no ambiguity, uncertainty, or doubt about the meaning of a statute appears, the provision is to be applied according to its terms without further judicial construction.” (People v. Superior Court (Price) (1984) 150 Cal.App.3d 486, 488 [198 Cal.Rptr. 61].)
The operative language of section 4600 is clear and unambiguous. By its terms it requires a finding of detriment, in “any proceeding where there is at issue the custody of a minor child,” before the court can make “any order awarding custody to a person or persons other than a parent, without the consent of the parents.” (§ 4600, subds. (a), (c).) On its face the statute has a universal application to all proceedings in which a natural parent asserts a right to custody as against a nonparent. It thus comes within the “cardinal rule that a court is not justified in ignoring the plain words of a statute unless it clearly appears that the language used is contrary to what, beyond question, was the intent of the Legislature [citation].” (Breshears v. Indiana Lumbermens Mut. Ins. Co. (1967) 256 Cal.App.2d 245, 250 [63 Cal.Rptr. 879] [rejecting a limiting construction of statute referring to “all fire policies”].)
Here the majority finds that a conflict exists between the all-inclusive language of section 4600 and a contrary, exclusive meaning it detects in Civil Code section 232. The exclusion results from the fact that two subdivisions of section 232 expressly require a finding of detriment while the [1215]remaining six do not. Applying the maxim expressio unius est exclusio alterius (“to express one thing is to exclude another”), the majority finds that the six subdivisions impliedly exclude the requirement of a finding of detriment. Legislative history is then relied upon to support the conclusion that section 4600 was not intended to apply in section 232 proceedings.
A nearly identical statutory analysis relying on “nullification by implication” was convincingly rejected in Williams v. Los Angeles Metropolitan Transit Authority (1968) 68 Cal.2d 599 [68 Cal.Rptr. 297, 440 P.2d 497], in which the Supreme Court was called upon to determine whether the tolling provisions of Code of Civil Procedure section 352 applied to a minor’s personal injury claim against a public entity. The entity noted that the Government Code specifically provided for the tolling of the claims period as to felons, and that it thereby “inferentially repealed the tolling provision for children.” (Id. at p. 603.) Justice Tobriner wrote (ibid.): “The [district] first proposes to overcome the words of the code through a process of nullification by negative implication. For this purpose it invokes the maxim expressio unius est exclusio alterius; yet that rule of construction, whatever its force or value, does not apply here. It cannot perform its proper role of resolving an ambiguity in statutory language or uncertainty in legislative intent because here we encounter neither ambiguity nor uncertainty. The language of section 352 of the Code of Civil Procedure presents no question of meaning; when section 945.6 of the Government Code is read with it, no doubt or conflict arises as to minors. In these circumstances there is no room for the proposed rule of construction.”
The problem here, as in Williams, is that no conflict or ambiguity exists until after the “expressio unius” motto is brought into play. There is no logical repugnancy on the face of the statutes. (Compare People v. Memro (1985) 38 Cal.3d 658, 701 [214 Cal.Rptr. 832, 700 P.2d 446] [impossible to comply with both laws at same time].) Almost, the “detriment” language in Civil Code section 232 is redundant of section 4600. Even if that means the “detriment” language in section 232 is superfluous, the alternative— to construe section 4600 contrary to its plain meaning—runs afoul of a higher principle of statutory construction. (See Palos Verdes Faculty Assn. v. Palos Verdes Peninsula Unified Sch. Dist. (1978) 21 Cal.3d 650, 658-659 [147 Cal.Rptr. 359, 580 P.2d 1155].) If any Latin adage applies, it is not expressio unius but superflua non nocent—which unlike the former phrase is actually codified in our Maxims of Jurisprudence as “[superfluity does not vitiate.” (Civ. Code, § 3537.) The law recognizes that a drafter does not detract from a general principle merely by reiterating the principle in a specific context. Instances of redundant statutes are so numerous that [1216]utter chaos would result if each such instance were seen as an implied conflict or limitation upon the scope of the affected provisions.
Even if an occasion were presented for studying the history of sections 232 and 4600,1 find very little to support the majority’s analysis. In fact I understand the history of those sections to support a contrary conclusion. Since the rendition of the decisions in Carmeleta B. and Richard E., the Legislature has enacted at least 10 amendments to sections 232 and 4600 without expressing the slightest disagreement with or intention to alter the numerous holdings that a finding of detriment is required for an order terminating parental rights. (Stats. 1979, ch. 245, § 1, p. 532; Stats. 1982, ch. 978, § 1, p. 3525; Stats. 1983, ch. 309, § 2, p. 903; Stats. 1984, ch. 1246, § 1; Stats. 1984, ch. 1608, §§ 1,9.5; Stats. 1985, ch. 528, § 1; Stats. 1979, ch. 204, § 1, p. 447; Stats. 1979, ch. 730, § 13, p. 2470; Stats. 1979, ch. 915, § 1, p. 3149; Stats. 1984, ch. 1679, § 1; see fn. 1, ante.) This silence supports continued adherence to those holdings. ‘“Statutes are to be interpreted by assuming that the Legislature was aware of the existing judicial decisions. [Citation.] Moreover, failure to make changes in a given statute in a particular respect when the subject is before the Legislature, and changes are made in other respects, is indicative of an intention to leave the law unchanged in that respect.’” (Orr v. Superior Court (1969) 71 Cal.2d 220, 226 [77 Cal.Rptr. 816, 454 P.2d 712], quoting Alter v. Michael (1966) 64 Cal.2d 480, 482-483 [50 Cal.Rptr. 553, 413 P.2d 153].)
If our role were that of a legislature we might discern compelling reasons for excluding a case like this one from the sweep of section 4600. The most obvious and compelling reasons which a finder of fact might find here include: (1) Appellant appears to be little more than, in Justice Mosk’s words, a “casual inseminator” (Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 797, conc. opn. [218 Cal.Rptr. 39, 705 P.2d 362]); (2) appellant voluntarily abandoned his child for a period of some six years; (3) because of that abandonment, appellant is a complete stranger to the child; (4) because of that abandonment the child has formed strong familial bonds to another home.
There is no need, however, to consider whether any of the foregoing factors might constitutionally permit a severance of parental rights, without a finding of detriment, under a rationale such as waiver, estoppel, laches, or the like. That question cannot arise unless and until the Legislature acts . to limit the circumstances in which a finding of detriment is required. We do not sit in that branch of government.
[12172].
Sufficiency of Showing.
I also decline to join in the majority’s discussion of the sufficiency of this record to support a finding of detriment. There is no need to discuss that issue since no such finding was made by the trial court. Since the question has been raised, however, I reject the idea that the ordinary consequences of removing a child from a settled home can constitute, by themselves, the kind of “detriment” which justifies the forced termination of parental rights. The majority’s analysis of this issue furnishes a rationale for unwarranted intrusion in all kinds of custody cases into the “private realm of family life which the state cannot enter.” (In re B.G., supra, 11 Cal.3d at p. 694, fn. 23, quoting Tray nor, J., concurring, in Guardianship of Smith (1954) 42 Cal.2d 91, 97 [265 P.2d 888, 37 A.L.R.2d 867].)
A parent’s right to the care, custody, and management of a child is a fundamental liberty interest protected by the federal Constitution. (Santosky v. Kramer (1982) 455 U.S. 745, 753 [71 L.Ed.2d 599, 606, 102 S.Ct. 1388].) “The courts have long taken the position that the right[s] to conceive and raise one’s children have been deemed essential, basic civil rights of man and rights far more precious than property. (Stanley v. Illinois (1972) 405 U.S. 645, 651 [31 L.Ed.2d 551, 558, 92 S.Ct. 1208, 1212].)” (In re Jack H. (1980) 106 Cal.App.3d 257, 263 [165 Cal.Rptr. 646].) In some respects, the acknowledgment of parental “rights” to the custody of children gives effect in the imperfect language of the law to a deeper social interest in the preservation and protection of the family unit as a whole. We should sanction intrusions into the presumptive inviolability of that unit only when compelling circumstances have been clearly demonstrated.
The majority opinion and some of the cases it cites may be read to support two equally intolerable rules for the termination of parental rights. One is that termination may be justified by the situational emotional upset which would result from removing the child from a “de facto” home. The other is that it is enough to show that the parents’ home is relatively disadvantageous to the child’s “best interests” when compared to an alternative placement.
Situational emotional disturbance is likely to occur whenever a child undergoes a change of environment. If this were a sufficient basis for termination of parental rights, the state could convert any temporary loss of custody into a permanent and irrevocable one. Such a rule would run afoul of the federal Constitution, for as the court observed in Santosky v. Kramer, supra, 455 U.S. at p. 753 [71 L.Ed.2d at p. 606] (italics added): [1218]“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.”
Similarly, to permit the state to terminate custody merely because it believes the parent’s home is relatively disadvantageous would give no more than lip service to the parents’ fundamental rights. The requirement of a finding of detriment would be wholly meaningless under such a standard, and the “best interests of the child” would in reality be the sole criterion. Yet an undue emphasis on the “best interests of the child” indicates an unrealistic and imprudent belief in the omniscience and infallibility of the state. The courts have recognized that “a parent fit to exercise custody may have a better understanding of the best interests of his child than does the juvenile court.” (In re B.G., supra, 11 Cal.3d at p. 694; see cases cited there.) Thus in Roche v. Roche (1944) 25 Cal.2d 141, 144 [152 P.2d 999], the California Supreme Court declared that parental rights could not be abridged simply because the home of a nonparent might appear better for the child (quoting In re White (1942) 54 Cal.App.2d 637, 640 [129 P.2d 706]): ‘“The right of a parent to the care and custody of a child cannot be taken away merely because the court may believe that some third person can give the child better care and greater protection.’”
The ease with which the state could sever familial bonds under the majority’s analysis sends constitutional and other shivers down my spine. To its credit, the trial court explicitly recognized the Orwellian character of such a rule and just as explicitly rejected it: “Counsel, don’t you believe that . . . when they refer to it being detrimental to the child to return to the parent, they’re referring to . . . more than the situation where the child has grown fond of the people in the foster home? ... I can envision a situation where a parent who [through] absolutely no fault of his or her own find themselves in a situation where a child is in a foster care home for more than a year ... In that case, regardless of the merits of the parents, parental ability . . . you could argue that it would be detrimental to return that child to the home because the child was comfortable in the foster home. And I can’t believe that is the Legislature’s intent. [1f] It would seem to me that the legislative intent means something more than the fact that the child is comfortable in the foster home. [If] Mr. Farr: ... In this case ... I believe the evidence is much . . . stronger than mere comfort. It’s a mother/child relationship, a father/child relationship. [H] The Court: But that’s my whole point. It just seems to me that you’re often going to have that relationship when a child has been in a foster home for a year or more. . . . But [it] seems to me when the Legislature was saying that it would be detrimental to return the child to the parent, they meant that for some reason [1219]it would be detrimental because of that parent’s ability to parent and they didn’t mean simply because the child has grown attached to the mother figure in the foster home. ... I can’t believe . . . the Legislature would be saying that you could terminate the parental rights of a parent who had done nothing wrong, on the face is a good parent.”
Concededly, the former requirement that the parent be found “unfit” was replaced in 1969 with the current rule requiring a finding of detriment to the child. (In re B.G., supra, 11 Cal.3d at pp. 694-695.) Despite this change, however, I do not believe the fundamental point made by the court below and by the Supreme Court in Roche has changed. The Family Law Act, by which the change was accomplished, was not intended to disturb the practice of “awarding custody to nonparents in preference to parents only in unusual and extreme cases.” (Id., at p. 698, italics added.) And the elimination of “unfitness” as a sine qua non does not mean that it loses all relevance to the question whether the interests sought to be protected by the state are of such compelling nature as to warrant the irrevocable destruction of a family unit.
In my view, the “detriment” standard requires at least that the trial court expressly find that return to the parent’s custody would result or be likely to result in (1) physical harm, including sexual abuse, or (2) serious emotional or mental harm. By “serious” harm I mean unusual or extraordinary psychological damage, not mere transitory or situational distress. Such detriment may be found without any finding of parental unfitness or fault; however, where the parent is materially and psychologically fit to care for the child a finding of detriment will rarely be justified. Most importantly, it is not sufficient that a return of the child to the parent’s custody would result in the loss of some relatively advantageous features of an alternative placement.
Nor, in my opinion, can a finding of detriment rest solely on the fact that the child would be separated from a “de facto” parent. If the distress which would result from separation is not severe and lasting, it cannot justify the permanent termination of parental rights. On the other hand, the disruption of a strong “de facto” parent-child relationship may support a finding of detriment where the relationship has existed for an unusually long time, and where there is no basis for expecting the development of a comparable relationship with the parent—as where there has never been any intimate relationship between the child and the parent requesting custody, and where competent evidence is presented demonstrating that the severance of the de facto relationship would cause severe and lasting emotional harm to the child.
[1220]Whether the evidence presented below would justify finding these features is not a question we ought to address at this time.
For these reasons I concur in the judgment.
Before today, every court remarking upon the subject has considered a finding of detriment necessary to a judgment severing parental rights under Civil Code section 232. (In re Carmaleta B. (1978) 21 Cal.3d 482, 495-496 [146 Cal.Rptr. 623, 579 P.2d 514]; In re Richard E. (1978) 21 Cal.3d 349, 356-357 [146 Cal.Rptr. 604, 579 P.2d 495]; In re David B. (1979) 91 Cal.App.3d 184, 194 [154 Cal.Rptr. 63]; In re James M. (1976) 65 Cal.App.3d 254, 264-265 [135 Cal.Rptr. 222]; In re Michele C. (1976) 64 Cal.App.3d 818, 823 [135 Cal.Rptr. 17]; In re Rose G. (1976) 57 Cal.App.3d 406, 417 [129 Cal.Rptr. 338]; In re D. L. C. (1976) 54 Cal.App.3d 840, 849 [126 Cal.Rptr. 863]; In re Susan M. (1975) 53 Cal.App.3d 300, 314 [125 Cal.Rptr. 707]; In re T. M. R. (1974) 41 Cal.App.3d 694, 704 [116 Cal.Rptr. 292].)