CROSBY, J., Dissenting. The Supreme Court is already slated to determine whether that portion of Welfare and Institutions Code sections 366.26, subdivision (c)(1) which authorizes the juvenile court to terminate parental rights based in part on earlier findings made under a preponderance-of-the-evidence standard (e.g., Welf. & Inst. Code, §§ 366.21, subd. (f), 366.22, subd. (a)) is constitutional. (Cynthia D. v. Superior Court (1992) 3 Cal.App.4th 913 [4 Cal.Rptr.2d 909], review granted Apr. 23, 1992 (S025807); In re Daniela M. (1992) 3 Cal.App.4th 226 [4 Cal.Rptr.2d 290], review granted Apr. 23, 1992 (S025571).) The children affected by these statutory provisions are those who have become dependents of the juvenile court since 1989 and whose relationships with their parents were severed after they were removed from parental custody (Welf. & Inst. Code, § 361, subd. (b)); lived in an out-of-home placement for at least 12 months (Welf. & Inst. Code, §§ 366.21, 366.22); and, with their parents, were offered [1374]reunification services (Welf. & Inst. Code, § 361.5, subd. (a)). The overwhelming number of termination appeals involve dependent children in this category.1
The Legislature made the drafting of the revised statutory scheme a high priority. Accordingly, it is with reluctance and dismay that I join the rising chorus criticizing the apparent deficiencies in the previously noted subdivisions of Welfare and Institutions Code sections 366.21, 366.22, and 366.26. Unlike my colleagues who have considered them to date, however, I conclude all the good intentions in the world are insufficient to save them.2 In my view the new provisions run afoul of federal and state constitutional authority prohibiting the termination of parental rights on less than clear and convincing evidence. (Santosky v. Kramer (1982) 455 U.S. 745 [71 L.Ed.2d 599, 102 S.Ct. 1388]; In re Angelia P. (1981) 28 Cal.3d 908, 919 [623 P.2d 198].)3
California currently has two parallel statutory schemes for dependent children. One set of statutes applies to children who entered the juvenile justice system before 1989, and the other governs minors who become dependents on or after January 1, 1989. For those in the former category, there is no question that all the findings necessary to sever the parental relationship, regardless of the basis for the determination of parental unfitness, must be made under a clear-and-convincing standard. The controlling statute is Civil Code section 232; and subdivision (c) provides, “A finding [1375]pursuant to this section shall be supported by clear and convincing evidence.”4
Under the revised system, the governing termination statute is Welfare and Institutions Code section 366.26. The portion of section 366.26, subdivision (c)(1) challenged here is the counterpart to Civil Code section 232, subdivision (a)(7); i.e., it is directed to dependents who have been in out-of-home placements for at least 12 months. It authorizes the juvenile court to sever parental rights based upon (1) a finding at the most recent six-month review, under the preponderance-of-the-evidence standard, that return of the dependent to the parental home would pose a “substantial risk [of] detriment to the physical or emotional well-being of the minor” (Welf. & Inst. Code, §§ 366.21, subd. (f), 366.22, subd. (a)) and (2) clear and convincing evidence the child is likely to be adopted.5
The emphasis on the likelihood of adoption is a key element in the new legislation. By requiring the juvenile court to find clear and convincing evidence of a dependent’s adoptability before terminating parental rights, the [1376]Legislature has taken an important step to guarantee that minors who have been abused or neglected are not subjected to the vagaries of long-term foster care.
But adoptability must not be permitted to supplant or influence the independent finding concerning parental unfitness. Mandating that both elements of the termination decision, i.e., parental unfitness and adoptability, be made on clear and convincing evidence is the only way to ensure the respective due process rights of parents and children.
While the provisions authorizing parental unfitness findings based on a preponderance of the evidence are radical departures from the long-standing law in the area, I have found no pertinent legislative analysis or history to aid courts or practitioners in understanding the rationale or justification for them. Nevertheless, the Legislature has been so consistent in maintaining, at a minimum, the clear and convincing standard in all previous and contemporaneous revisions (see, e.g., fn. 5, ante), it is difficult to conclude the change to preponderance of the evidence was an unintended oversight. (Compare People v. Pieters (1991) 52 Cal.3d 894 [276 Cal.Rptr. 918, 802 P.2d 420].)
My colleagues defend these changes on the basis that Santosky and Angelia P do not require “proof by clear and convincing evidence of every element necessary to terminate parental rights when there is clear and convincing evidence that if parental rights are terminated, the child will be adopted.” (Maj. opn., ante, pp. 1367-1368.) I disagree. Today’s holding is not only unnecessary to the outcome, it is anathema to fundamental constitutional law as well.
“Drug” mothers and fathers, my colleagues say, by that status alone, forfeit the basic constitutional right to parent: “Indeed, we do not believe it can be seriously contended that, in this context at least, the rights of a ‘drug baby’ are not paramount to the rights of a ‘drug mother’ (or ‘drug father’ for that matter).” (Maj. opn., ante, p. 1371.) Accordingly, they hold that the relationship between drug addicted parents and their children may be severed on less than the clear-and-convincing standard mandated by both the United States and California Supreme Courts.
The key to the majority’s thinking is found in their footnote 5 (maj. opn., ante, p. 1371). My colleagues would apparently deny, by judicial fiat, rather than legislative reform, any opportunity of rehabilitation to drug parents. Indeed, their solution to the drug crisis gives parents who have “been convicted of causing the death of another child through abuse or neglect” [1377](Welf. & Inst. Code, § 361.5, subd. (b)(4)) greater rights than parents who once used drugs. Only the Legislature has the right to make that decision; a pair of appellate judges certainly does not.
In espousing this notion, the majority purports to rely on the dissent in Santosky v. Kramer, supra, 455 U.S. 766. But the dissenting justices there did not see an exception for drug addicted parents to the long-standing and universally recognized principle “that the interest of parents in their relationship with their children is sufficiently fundamental to come within the finite class of liberty interests protected by the Fourteenth Amendment.” (Santosky v. Kramer, supra, 455 U.S. at p. 774 [71 L.Ed.2d at p. 620] (dis. opn. of Rehnquist, J.).)* [6]
I reiterate: The adoptability finding adds an extra measure of protection to the dependent minor. But it cannot be interpreted to strip mothers and fathers of their fundamental constitutional right to parent. It cannot give the juvenile court carte blanche to make parental unfitness decisions based on how cute or desirable a prospective adoptee may be. No government should have such power.7
A petition for a rehearing wac denied June 17,1992. Crosby, J., was of the opinion that the petition should be granted. Appellant’s petition for review by the Supreme Court was denied August 13, 1992.
Over the years, this court has seen far fewer appeals in cases involving minors whose parents abandoned them without providing identification for the children (Civ. Code, § 232, subd. (a)(1)); “suffer a disability because of the habitual use of alcohol [or] . . . controlled substances ... or are morally depraved (Civ. Code, § 232, subd. (a)(3)); have been “convicted of a felony ... of a nature so as to prove [unfitness to parent]” (Civ. Code, § 232, subd. (a)(4)); or are mentally disabled and “unable to adequately care for and control the child” (Civ. Code, § 232, subds. (a)(5), (a)(6); see fn. 4, post.)
A number of juvenile court judges are avoiding the constitutional issue entirely by making the necessary findings at the 12- or 18-month review on clear and convincing evidence. For example, the court in this case did precisely that at the 12-month review, but employed the lesser standard at 18 months. In those cases where the finding relied upon to justify termination was made on the higher standard, I would agree reversal is not required, the constitutional infirmity in the statute notwithstanding.
In Angelia P. the Supreme Court noted the Legislature waffled on the standard of proof question during the 1970’s. At various times, Civil Code section 232, subdivision (a)(7) required proof beyond a reasonable doubt before parental rights could be severed. The clear and convincing standard had been in effect since July 1, 1978, however; and the court agreed it satisfied due process requisites while “serv[ing] and protecting] the interests and welfare of the child.” (28 Cal.3d at p. 916, internal quotation marks omitted.)
Most of the termination appeals filed in this court have fallen under subdivision (a)(7) of section 232; i.e., they involved minors who were dependents of the juvenile court in out-of-home placements for more than 12 months. The Legislature has long required that the superior court order severing parental rights in those cases be accompanied by several contemporaneous findings, all made on clear and convincing evidence. For example, the court must conclude “that return of the child to the child’s parent. . . would be detrimental to the child and that the parent . . . [has] failed during that period, and [is] likely to fail in the future, to maintain an adequate parental relationship with the child . . . .” (Civ. Code, § 232, subd. (a)(7).) Also, “[t]he court shall make a determination that reasonable services have been provided or offered to the parent[] which were designed to aid the parent[] to overcome the problems which led to the deprivation or continued loss of custody and that despite the availability of these services, return of the child to the parent[ ] would be detrimental to the child.” (Ibid.)
Nevertheless, Welfare and Institutions Code section 366.2, added as of January 1, 1989 (Stats. 1987, ch. 1485, § 42, p. 5628) and applicable only to minors who became dependents of the juvenile court before 1989, tracks the language in Welfare and Institutions Code sections 366.21 and 366.22 and permits children to remain in out-of-home placements at six-month status review hearings if “by a preponderance of the evidence, [the court] finds [ ] the return of the child would create a substantial risk of detriment to the physical or emotional well-being of the minor.” (Welf. & Inst. Code, § 366.2, subd. (e).) Unlike the situation involving children who become dependents of the juvenile court after 1988, however, these findings are not relied upon by the superior court in terminating parental rights per Civil Code section 232, subdivision (a)(7).
A11 the other portions of section 366.26, subdivision (c)(1), drafted at the same time as the challenged provisions, retain the clear-and-convincing standard. For example, parental unfitness findings may be made on clear and convincing evidence “that the whereabouts of a parent have been unknown for six months or that the parent has failed to visit or contact the child for six months or that the parent has been convicted of a felony indicating parental unfitness.” Also, a finding of parental unfitness may be based on the earlier decision, under Welfare and Institutions Code section 361.5, subdivision (b), not to offer reunification services, provided that determination is supported by clear and convincing evidence.
Nonetheless, the dissenters thought a preponderance-of-the-evidence standard adequate to protect parental rights. How my colleagues can defend their position based on a dissenting opinion in the United States Supreme Court is beyond me.
The Supreme Court should grant review of or depublish today’s decision.