Opinion
As Modified on Denial of Rehearing June 5, 1973.
Opinions on pages 365-408 omitted.
HEARINGS GRANTED
For Opinion on Hearing, see 114 Cal.Rptr. 444, 523 P.2d 244.
[108 Cal.Rptr. 122]Slaff, Mosk & Rudman, and Edward Mosk, Los Angeles, Vinnedge, Lance & Glenn, and Gary V. Spencer, Ontario, for appellant, the minors' mother.
David Keene Leavitt, Beverly Hills, as amicus curiae.
OPINION
GABBERT, Associate Justice.
This is an appeal from an order of the juvenile court placing its dependent children, B.G. and V.G. in foster home care. The children's mother, (hereinafter 'mother') appeals the order.
The designations 'B. G.' and 'V. G.' are used for identification purposes because of the distinctive names of the minors. (See T.N.G. v. Superior Court, 4 Cal.3d 767, 770, fn. 1, 94 Cal.Rptr. 813, 484 P.2d 981.)
V.G., a girl now 10 years of age, and B.G., a boy of 9, were born in Czechoslovakia. On August 29, 1968, ten days after troops of the Soviet Union occupied their native land, the children's father, an electrician, fled the country with the two children. He went to Munich, West Germany, about 180 miles from the family home in Czechoslovakia. His wife, the mother of the children, remained behind.
There was testimony the father of the minors had stated to persons in California he feared his father-in-law, a past member or functionary of the Communist Party, would turn him over to the Czech police if he learned of his plans to leave the country. At an earlier time the minors' father had mentioned leaving Czechoslovakia to his wife and she had told her father, who 'was almost going to turn him in.' The minors' father stated he believed his wife would follow him if he was successful in leaving the country. He then waited for her in Munich.
The father's mother and stepfather (hereinafter referred to as 'grandparents,' 'grandfather,' or 'grandmother') live in San Bernardino County, California. They are themselves persons uprooted by [108 Cal.Rptr. 123] events following World War II. They sent funds to the father in Munich and telephoned him suggesting he come to California as soon as possible. He so advised his wife in Czechoslovakia. He urged her to join him and the children in West Germany; he telephoned her weekly and wrote frequently. He arranged for airline tickets for her to use in leaving Czechoslovakia; however, she did not pick up the tickets. In all, the father remained in Munich for more than six months waiting for his wife and attempting to persuade her to join him and the children.
One month after her husband and the children left Czechoslovakia the minors' mother began divorce proceedings and by a divorce decree was granted custody of the children on October 21, 1968. The mother later testified in the California juvenile hearing she began the divorce case because an attorney in Czechoslovakia told her if she got custody in such proceeding, she could then ask for the return of the children to her own country. She did not tell her husband of the divorce proceedings and made no direct effort to obtain actual custody of the children when they were in Munich.
On March 19, 1969, the father and the children flew to the United States. They settled in the home of the grandmother. The father immediately got a job and personally arranged day care for the children with the persons later appointed as foster parents by the juvenile court.
The children's relationship with their father was very close. It is obvious he was a loving, devoted father deeply concerned with the welfare of his little son and daughter.
For about two years prior to leaving Czechoslovakia the father had not felt well and it was thought that he had 'stomach trouble.' He was unemployed because of his illness and for about a year and a half while he was ill he personally took daily care of the children. During the same period the mother had permanent professional employment and devoted herself to her job.
Three weeks after his arrival in California the father collapsed, was paralyzed and a medical examination disclosed he had terminal cancer. On June 17, 1969, he dictated through an interpreter a 'death wish' or a 'death will' written in the Czech language and later translated as follows:
'Request: I, [father], undersigned--born in 1934--hereby request that my children [daughter], age 6-- and [son], age 5--should remain in the United States of America. I do not want them to be sent back to Czechoslovakia.
'My first wish that my mother should have the children. If she is not able to have them or care for them, I would like [the foster parents] to care for them.
X X X'
Two persons witnessed the mark made by the father, who was physically unable to write due to his illness. The father died July 8, 1969.
On August 29, 1969, the minors appeared before the juvenile court as the result of a petition having been filed by a child welfare services social worker on behalf of each child alleging dependency. The two [108 Cal.Rptr. 124] petitions noted: (1) that the father died in California; (2) that the mother's exact address 'is unknown' she is presumed living in Czechoslovakia'; and (3) that the children were Czechoslovakian nationals. The allegations contained in the petitions were found to be true. Custody was placed with the probation officer and the minors were declared dependent children of the court. They were ordered maintained in the same home where they had been first placed by the father for day care. The welfare department was ordered to supervise their custody and report periodically to the juvenile court. The children were to be supported by welfare funds.
The social worker received the minors' cases 'about one day' after the death of the father. At that time a letter had been written by the welfare agency to the International Red Cross seeking help in contacting the mother. The response from the Red Cross 'was short, citing the difficulty about getting information from a communist country.' The social worker proceeded with a juvenile dependency filing 'since no parent was available.'
Although the children appeared before the juvenile court at least twice thereafter, at annual review hearings on August 27, 1970 and August 18, 1971, their legal status remained the same. The mother was not present or represented at either of these hearings, not was she notified of the proceedings. By some unexplained and unfortunate inadvertence the address of the mother, although placed in a welfare department file, was overlooked when the dependency petitions were filed and did not come to light for a considerable period of time thereafter. It was for this reason the mother had not been notified of the juvenile dependency proceedings.
As was explained to the juvenile court in the probation officer's report at the time of the hearing on which this appeal is based: 'Once a Dependency status is established, and no parent available, the concentration of casework supervision is on the child's adjustment to the foster home situation, and would not involve maintaining contacts with known relatives unless there was an expressed indication from them of interest to care for the minors. In this case, the paternal grandparents were out of the area during the normal working hours, had expressed their inability to provide a home for the minors, but did maintain regular visits with the children. Their unscheduled visit to the Welfare Department on December 7, 1970, was . . . the first indication to the Department of the desire of [the mother] to have her children returned.'
The mother was injured in an automobile accident in Czechoslovakia on November 19, 1968, suffering a broken lower cervical vertebrae. She was hospitalized and in various rehabilitation institutions through July 30, 1969. While she was at a health spa in May 1969, she first learned (via a letter from the grandmother) that the children's father was seriously ill. The grandmother sent the mother an air ticket, but apparently failed to provide the necessary documentation to permit her to come to the United States. Thereafter a second air ticket, together with necessary documentation, was sent to the mother. She did not use the ticket and did not come to California for the children.
On one occasion the grandmother wrote that she herself would go to Czechoslovakia and take the children. The mother testified, on the basis of what she had heard from the grandmother, she was under the impression the children were staying with the grandparents. Up to this point no one other than the grandmother had contacted the mother about the children. The mother, at various times, sought help in Czechoslovakia from the Red Cross, the Brno Office for the Protection of Children, the Ministry of Foreign Affairs and the Czechoslovakian Embassy in Washington, D.C.
On September 27, 1970, the mother remarried, and now resides with her second husband; they have a daughter born February 17, 1971. The mother testified she sleeps in the bedroom with the baby, because the baby is small, while her husband sleeps in the living room. She testified that if the two children now in California are returned to her they will use the bedroom downstairs. Her present husband works as a waiter or assistant to the manager of a restaurant. She stated she and her husband have adequate income to support the children and her husband was happy about the possibility the two children might return.
The mother testified the children would be able to return to school after getting [108 Cal.Rptr. 125] special training in the Czech language, which they do not presently understand. The mother declares the schools in her country are free, religious training is a personal matter, and that in the lower schools there is no special political indoctrination. She believes the children would have no special problems in returning to school in Czechoslovakia.
The mother is 33 years of age. Her own mother is a housewife and her father is a dispatcher in an electric works. She stated her father had been a member of the Communist Party of Czechoslovakia but was not an official. In 1969 he was dropped as an active member. She has one brother in Czechoslovakia working as a locksmith. She had nine years of basic schooling and four years' study of building construction engineering and structural technique. Her employment is in construction engineering, which she described as 'planning for projects.' Her principal work consists of making the drawings for buildings such as schools, apartment buildings, agricultural buildings and farm units, from which financial and dimensional calculations can be made.
She married her first husband, the father of the minors, on October 20, 1962. They resided first with her parents and in 1963 bought their own home, where she now lives. The home consists of two floors, each floor having a living room, a bedroom, a bathroom, a toilet and a kitchen. She owns her own automobile.
When the California juvenile authorities became aware of the mother's address and of her efforts to regain custody of the children, investigations were begun and negotiations were instituted for the return of the children to the mother. On November 4, 1971, after a further hearing, the court continued the minors in the custody of the probation officer but ordered the children be returned to Czechoslovakia. Transfer of the children was to be carried out through the Embassy, with the children to remain in the home of the foster parents until completion of the arrangements.
A schedule was worked out through the welfare department for delivery of the children to Los Angeles International Airport on November 18, 1971. The foster parents, however, did not deliver the children. At this juncture, several groups and a number of individuals became involved in the lives of the children. At the time of the proposed transfer when the welfare department representatives were trying to locate the children to carry out the court order, they were told by some of the persons who had interested themselves in the case: 'If you want to know where the kids are, watch T.V.' Thereafter on the evening television news the foster parents and the minors appeared. It was then stated by the foster parents they and the minors were going into hiding.
The next morning the juvenile court held an emergency session. The court was concerned about the widespread publicity given media statements that the Czechoslovakian Government had demanded the return of the children. The court directed the probation and welfare departments to consult with the county counsel for legal representation in the matter. On the same date a petition for writ of prohibition and request for temporary stay order was filed with the Court of Appeal. The action was purportedly taken on behalf of the minor children and the foster parents. Also on the same date, the Court of Appeal issued a temporary order staying transportation of the children to Czechoslovakia pending further order of the court.
The final report of the probation officer comments that such media statements were '. . . completely erroneous in [suggesting] that the Czech Government had requested the return of the children to their mother.'
On November 23, 1971, the foster parents filed a petition for appointment of a guardian for the children. The guardianship petition has been continued from time to time and has come on for hearing.
On December 3, 1971, the Court of Appeal ordered the juvenile court to set aside [108 Cal.Rptr. 126] its order on November 4, 1971, and reopen the juvenile proceedings for the purpose of conducting a dispositional hearing. It also ordered the juvenile court to appoint counsel for the minors.
On December 6, 1971, the juvenile court vacated the order of November 4, 1971, and set a date for a full dispositional hearing. On January 10, 1972, it appointed counsel for the children. After a hearing, the juvenile court permitted participation by counsel for the foster parents on the basis that a guardianship proceeding had been filed by them. The court ruled that counsel for the foster parents had 'a legitimate interest in the case' and could participate in the proceedings.
On February 8, 1972, placement of the children was transferred from the foster parents to the grandparents in order to provide visitation for the mother, who was to arrive from Czechoslovakia the following day.
The hearing of the juvenile case began on February 28, and ended on March 15, 1972. On the latter date the judge announced reasons for his decision and concluded by stating 'the welfare and best interests of the children require that they be continued as dependent children of the court to be maintained at a home to be selected by the court . . .' Shortly thereafter the children were continued in the placement with the foster parents.
This appeal by the mother followed.
The lengthy record discloses the proceedings were conducted with understanding and fairness by the judge of the juvenile court despite the emotionalism engendered by the nature of the hearing. During its course persons who had left Czechoslovakia testified negatively as to conditions which might confront the returned children of an anti-communist defector in that country. The judge limited this testimony as far as possible to actual conditions which might impinge upon the children's lives should they be returned to the care and custody of the mother.
Considerable testimony was presented relating to the attitude and demeanor of the mother toward the children during the period she was with them in California. A complicating factor for all concerned was simple communication. The mother spoke no English. The children no longer spoke or understood Czech, nor did they appear to know their mother. Communication had to be through interpreters between the mother and the children as well as between the mother and others.
In deciding the case the juvenile court judge stated it was his considered opinion arrived at only at the end of the trial that 'the welfare and best interests' of the children required the dispositional order which was made. He gave a summary of the reasons for his decision. As a starting point, he found the mother of the children was not an unfit parent, stating in part: 'We come to the question of whether [the mother] is a fit or an unfit parent. There has been no evidence presented to this court whatsoever that would indicate that [the mother] is a bad person or an evil person, or that she has ever done anything other than provide adequate food, clothing, shelter, attention for her children while she had them and the child she has now. It is obvious to the court that she is an intelligent woman; she is neat, clean and dresses well. According to the testimony, she has a good job. She owns and maintains an adequate home . . . Her personal morals appear to be adequate by modern standards . . ..'
In his analysis of the problem the judge made note of the arguments both pro and con and made a number of observations on the custody problem presented to him. These statements are summarized as follows:
(a) The probation report is exhaustive in its detail.
The final report of the probation officer is 80 pages in length and is a complete exposition of this involved case. Other reports on the case by social welfare workers and probation officers are of greater total length. More than 100 pages of exhibits were filed with the juvenile court. The transcript of the final juvenile hearing consists of 1058 pages.
[108 Cal.Rptr. 127](b) All persons involved: mother, grandparents and foster parents '. . . all seem like very fine people.'
(c) Either alternative, i. e., continuing the minors as dependent children of the juvenile court or transferring custody to the mother has both good and bad points.
(d) The judge applied as the test to be followed in determining custody a weighing and balancing of the good and bad 'in both directions' and then chose 'that which all in all, will be in the best interests of the children.'
(e) He declared he could not base his decision upon politics. He noted, however, he could not ignore the effect of the political climate on the welfare of the children and honored the position that the government cannot step in and award or deny custody of children to parents solely based on the political beliefs of the latter.
(f) The judge found the children 'delightful,' and 'intelligent.' He found their personal wishes were to remain with the foster parents but found their reasons therefor 'childish.' He did not feel bound by their wishes.
(g) The judge regretted the absence of the usual investigation of home conditions in Czechoslovakia. As a consequence, he had 'to go by what I have observed or what others have observed and reported through testimony to the Court as to what has happened during the past month while [the mother] has been here in this country. These bring to the Court's attention some facts which are disturbing.'
(h) The court then specifically commented, in part, as follows:
'Let me review some of the facts which I must find to be so. These facts weigh upon the Court's judgment as to the welfare, how living with their mother . . . would affect the welfare of the children and, I suppose, to that extent upon her fitness . . .
'I can't help but conclude from the testimony that [the mother] has not coped well with the problems of marriage and home and motherhood. I don't know whether this is due to her personal personality or psychological problems, or whether it is due to the culture in which she lives. Maybe, to some extent, it is due to the modern liberation of women movement. She apparently does a good job at her employment, but you can't help but note that both of her marriages were impelled by unwanted pregnancies, that the second child of the first marriage was unwanted.
'I can't help but observe from the testimony, particularly from reading the letters written to her by her first husband, [the father] and saved by her, that there were serious problems between her and [the father] . . .
'I couldn't help but note from the testimony that the two children, when they arrived here in this country in March of 1969, were very thin. I couldn't help but note from the father's correspondence that they must have been thinner at the time they left Czechoslovakia, because he was commenting on the fact that they were gaining weight in West Germany.
'The testimony would indicate that the children were being raised primarily by [the mother's] parents and by her husband.
'There has been much talk in the evidence about [the mother's] inability to express her warmth, her love for the children.
'. . . Apparently that has been a problem from the beginning.
'The little evidence we have of her second marriage seems to indicate bad omens for the future.
'I find it difficult to conceive how a woman marrying a younger man and requiring him to sleep in the living room, [108 Cal.Rptr. 128] while she sleeps in the bedroom with the child, can expect a long and happy married life.
'These things, none of them are determinative. They are all just things which are apparently so and which I have to consider.
'. . ..
'I have been extremely empathetic with [the mother], her situation in coming to a strange country, thinking she was just going to come pick up her children and go home apparently very quickly . . . must have been very difficult.
'However, one can't help but notice that--well I got the impression that it would not have been much different if a government attache had come over to pick up the children in that there seemed to be this inability to just plain run to each other and hug and kiss and say sweet things. You don't even have to speak the same language to express those thoughts.
'The evidence makes it quite clear that [the mother] was unable to cope with that situation, and I think just had to hope that upon getting the children back home and learning the language that these things would all work out; but there appeared to be no real effort on her part to start working them out now.
'I have been impressed by all of the evidence that [the mother], . . . perhaps being a bright woman, being a handsome woman, being a success in her occupation, has grown much more accustomed to getting than to giving.'
(i) The judge referred to the report of a psychiatric evaluation of the children. He also noted the results of a psychological examination that accompanied the probation officer's report. The court said: 'The psychiatrist apparently was quite concerned that it would be very bad for the children to tear them up again and send them to a strange environment.' Such would leave scars which the psychiatrist feared they would not be able to cope with in later years.
(j) The court observed it was most unfortunate the children had not been returned to the mother 'a couple of years ago.' He stated at that time the children were '. . . still speaking Czechoslovakian. They would still remember her. They would not have been . . . as Americanized, by which I only mean they would not have gotten to the point where they had totally forgotten their mother, their relatives, their original language, their old friends, and had adopted a complete new way of life, completely new language, a complete new set of relatives.'
(k) The court observed the children had been loved and well cared for by both the foster parents and the grandparents, a statement with which the mother agreed on the witness stand.
(l) After the mother and children were reunited they 'grew apart' and much work would have to be done for the children to again accept their mother.
Following the remarks which have been summarized above, the judge made the order continuing the minors as dependent children of the juvenile court.
Legal Issues
The mother raises several issues which, for convenience, we have consolidated as follows: (1) The court lacked jurisdiction to initially declare the children dependents. (2) The sole test to be used in depriving a parent of the custody of a minor child is that of fitness of the parent. (3) The denial of custody to the mother violated her constitutional rights under the Ninth and Fourteenth Amendments to the United States Constitution and Article I, Section 23 of the California Constitution. (4) The court went into irrelevant and immaterial matters which constituted denial of due process.
[108 Cal.Rptr. 129]Jurisdiction
The mother summarizes her argument on the issue of jurisdiction as follows:
'Since the record is uncontroverted that the San Bernardino County authorities and, indeed, the very department which initiated the petition for dependency had knowledge of the existence of the mother and how to locate her, the action of the court in depriving the mother of the children and declaring the children to be dependent children of the court without hearing, was unconstitutional, a violation of due process and equal protection, and exceeded the jurisdiction of the court. All of the subsequent actions of the court, which placed burdens on the appellant to convince the court that the children should not be continued as dependent children, flow from the initial wrongful act. They are therefore equally offensive to the constitution and must, on that basis alone, be reversed.'
Despite the above argument, however, the procedural history of the instant case establishes the fact the children were properly brought before the juvenile court following the death of their father. Thereafter, appellant also submitted herself to the court's jurisdiction and her argument to the contrary at the present time is belated.
When it was discovered the mother's address had been furnished to the welfare department but no notice of the juvenile court proceedings had been given her, the foster parents moved to dismiss the juvenile proceedings for lack of jurisdiction. The juvenile court, however, after a hearing, found the probation department had acted in good faith and had not, at the time of filing, known the whereabouts of the mother. The court also found the probation department was unaware the welfare department had previously acquired such knowledge and decided it (the court) had properly exercised jurisdiction in the matter.
The foster parents then, on February 28, 1972, the first day of the extensive juvenile hearing from which this appeal is taken, filed a petition for a writ of habeas corpus in the Court of Appeal, of which we take judicial notice, raising the same jurisdictional point now urged by appellant. The mother responded to this petition and stated she had, on February 28, 1972, through counsel, stipulated in writing to the jurisdiction over her person by the juvenile court. She further stipulated the juvenile court had had jurisdiction over her person since July 31, 1969.
The mother's statement, made in her response to the writ proceedings, correctly acknowledged the juvenile court had subject matter jurisdiction over the two children. After the death of the father of the minors, the welfare authorities properly sought a court petition to determine the dependency status of the children who ostensibly came within the provisions of Welfare and Institutions Code section 600(a). At that time the minors had no parent or guardian actually exercising care or control over them since their father was deceased and the mother was many thousands of miles away at an address unknown to the social service agents first involved. It was more than 15 months after initiation of dependency status before the probation and welfare officers were alerted to the address of the mother and learned of her desire to have the children returned to Czechoslovakia.
There were also a number of other admissions by the mother that the children were subject to the jurisdiction of the juvenile court. In opposition to the foster parents' writ of habeas corpus she stated:
[108 Cal.Rptr. 130]The Court of Appeal denied the petition filed by the foster parents for a wit of habeas corpus. The dispositional hearing then proceeded to its conclusion it the juvenile court. The mother made a general appearance and participated in that hearing. This appearance, coupled with her admissions and stipulations that the juvenile court had jurisdiction over her person, negates her present claim that she did not receive notification of the juvenile dependency hearing. (See Witkin, California Procedure (1970) p. 603.)
The mother also contends where a minor has been declared a dependent solely because no parent was exercising care or control over him, the juvenile court is required to return the child forthwith to the natural parent when the parent becomes available. In support of this premise she cites the policy of the juvenile law as set out in Welfare and Institutions Code, section 502:
'The purpose of this chapter is to secure for each minor under the jurisdiction of the juvenile court such care and guidance, preferably in his own home, as will serve the spiritual, emotional, mental, and physical welfare of the minor and the best interests of the State; to preserve and strengthen the minor's family ties whenever possible, removing him from the custody of his parents only when his welfare or safety and protection of the public cannot be adequately safeguarded without removal; and, when the minor is removed from his own family, to secure for him custody, care, and discipline as nearly as possible equivalent to that which should have been given by his parents. This chapter shall be liberally construed to carry out these purposes.'
The mother also refers to the 'Report of Recommendations of the Governor's Commission on Juvenile Justice' (1957) No. 13, to reinforce the policy argument favoring an immediate return of a child to an available parent. The Commission noted the juvenile court's ultimate objective was to return a child to his family as soon as possible. It suggested the institution of annual reviews in dependency cases as a means of hastening the restoration of children to their parents.
Following the revisions of the juvenile court law in 1961, an annual review of dependency cases, as suggested by the Governor's Commission, was provided by Welfare and Institutions Code, section 729. The progress of a case during the preceding year is reviewed by the juvenile court, which then makes its determination regarding the need for further jurisdiction and supervision. (See California Juvenile Court Deskbook (California College of Trial Judges), pp. 140 et seq.) Two annual reviews were had in the instant case. The third review, a full scale 11-day hearing--and the matter presently under appeal--was held with the mother in attendance, represented by counsel and participating in the proceedings.
We do not believe the policy provisions of the juvenile court law noted above require the immediate return of dependent minors to a parent whenever the parent becomes available. Assuming proper initiaion [108 Cal.Rptr. 131] of juvenile dependency proceedings, as here, the juvenile court has the duty and obligation to inquire into all circumstances before returning a child to a parent. No rule of law or rule of thumb requires the juvenile court to suspend its discretionary functions, after an initial dependency determination, and forthwith return a child to a parent without proper inquiry or investigation just because the parent 'turns up.'
After making its initial determination that a minor is to be declared a dependent child (the jurisdictional portion of the juvenile hearing) the juvenile court then, as noted in Welfare and Institutions Code, section 702, '. . . shall hear evidence on the question of proper disposition to be made of the minor.' Section 706 requires the court receive in evidence the social study of the minor and such other relevant and material evidence as may be offered. Section 725 provides that, after receiving and considering the evidence on the proper disposition of the case, the court may order and adjudge the minor to be a dependent child of the court.
Where a minor is adjudged a dependent child, the court may limit the control to be exercised over the child by any parent or guardian and shall by its order clearly and specifically set forth all such limitations. (Welf. & Inst.Code, § 726.) The same section provides no dependent child shall be taken from the physical custody of a parent or guardian (as applicable to this case) unless upon hearing the court finds: (1) that the parent or guardian is incapable of providing or has failed or neglected to provide proper maintenance, training, and education for the minor (§ 726(a)); or (2) that the welfare of the minor requires that his custody be taken from his parent or guardian. (§ 726(c).) (Emphasis added.)
The provisions of section 727 provide, in the case of dependent children, the juvenile court may make reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the minor subject to further court order. The court may order the care and custody to be under supervision of the probation officer, or may commit the minor to the care of other suitable persons, public or private agencies providing care for children.
In August 1969, when the juvenile court properly asserted its jurisdiction, the minors became dependent wards of the court. Such minors necessarily continue in this status until they reach 21 years of age or until the juvenile court becomes convinced on the evidence that they no longer require supervision for their proper care and protection, at which time it is the duty of the juvenile court to dismiss the proceedings. (In re Francecisco, 16 Cal.App.3d 310, 314, 94 Cal.Rptr. 186; Slevats v. Feustal, 213 Cal.App.2d 113, 117, 118, 28 Cal.Rptr. 517; In re Syson, 184 Cal.App.2d 111, 117, 7 Cal.Rptr. 298.)
Tests Used to Measure Custody
The mother alleges the right of a fit parent to custody is so fundamental that it is the sole test to be applied in determining that issue. This contention brings us directly to the question as to what test or tests are to be used to decide issues of custody in juvenile court dispositional hearings as between a natural parent and third parties.
Two tests have generally been followed by the courts of this nation in resolving third party vs. Parent custody disputes. They are (1) the 'parental right' test and (2) the 'best interests' of the child test. [108 Cal.Rptr. 132] These problems of custody usually come before the courts in divorce actions; however other custody rulings have arisen in guardianship, adoption or juvenile court proceedings.
See Kay, A Family Court: The California Proposal, 56 Cal.L.Rev. 1205 (1968); Kay and Philips, Poverty and the Law of Child Custody, 54 Cal.L.Rev. 717 (1966); Oster, Custody Proceeding: A Study of Vague and Indefinite Standards, 5 J.Fam.L. 21 (1965); Comment, Custody of Children: Best Interests of Child vs. Rights of Parents, 33 Cal.L.Rev. 306 (1945); Note Measuring the Child's Best Interests--A Study of Incomplete Considerations, 44 Denver L.J. 132 (1967); Note 4 Houston L.Rev. 131; Note (1972) 43 Miss.L.J. 247; Note 2 St. Louis L.J. 301; Note (1958) 32 Tul.L.Rev. 499; Note (1963) 73 Yale L.J. 151.
Today, in a majority of the state jurisdictions, the 'best interest of the child' rule seemingly determines custody issues between parents and third parties. The old concept of the 'child as a chattel' has been giving was to a growing concern for the child as an individual and a greater emphasis on the rights of the child vis-a-vis others, even including the rights of parents themselves. The societal interest in the development of the child and parental desires for the gratifications and challenges of parenthood may often be in conflict. (See e. g., Comment, 33 Cal.L.Rev. 306, 310, 316 (1945).)
Prior to the enactment of the Family Law Act in 1970 (Civ.Code, § 4001 et seq.) the courts of California, over the years, usually followed the now minority rule that, as between 'parental right' and the 'best interests' tests, the biological parent is entitled to custody in those cases where a court is acting affirmatively to take custody from a parent--unless the parent is shown to be unfit. A number of such cases are cited in the summarization of the rule in Moffitt v. Moffitt, 242 Cal.App.2d 580, 582, 583, 51 Cal.Rptr. 683. Moffitt, in discussing the many hardships the 'parental right' rule can create, deplored the dilemmas implicit in appellate review of custody matters which are created by the binding application of the rule.
Today, the corrective legislation of the Family Law Act serves to question the strict application of the earlier parental preference rule. The case fo Guardianship of Marino, 30 Cal.App.3d 952, 106 Cal.Rptr. 655, recently held the 'best interests' rule of the Family Law Act, section 4600, was applicable to determination of custody rights arising between a mother and a maternal aunt in a guardianship proceeding. The Marino court determined that although prior judicial interpretation of Probate Code sections concerned with guardianships required findings of parental unfitness before a child could be taken from a parent and placed with a third person as guardian, the Family Law Act eliminated the need for such a finding. '. . . [T]he enactment of Civil Code section 4600 operated to eliminate the finding of parental unfitness required theretofore by Smith to overcome the natural parent's preferential right to custody in all guardianship cases.' (Guardianship of Marino, [108 Cal.Rptr. 133] supra, 30 Cal.App.3d 952, 957, 106 Cal.Rptr. 655, 658.)
Civil Code, section 4600 reads as follows:
Guardianship of Smith, 42 Cal.2d 91, 265 P.2d 888.
California, by enacting the Family Law Act has now joined those majority jurisdictions placing greater emphasis on the 'best interests' of the child than on the 'rights' of a biological parent. The provisions of Civil Code section 4600, while not specifically made applicable to juvenile proceedings, even though referring to any proceeding where there is at issue the custody of a minor, nevertheless sets a new tone in California custody determinations. As the latest expression of legislative intent in custody matters it is obvious that greater emphasis is to be placed on the best interests of the children in all custody cases, including those involving parents and third parties. The new law would seem to emphasize the propriety of a policy placing a child with third persons where such child has become established in a wholesome and stable environment and where parental custody would be detrimental, even though the parent or parents were not unfit by pre-Family Law standards of fitness.
The juvenile court law, as set forth in section 726(c) Welfare and Institutions Code, also specifically permits that particular court to take a dependent child from the physical custody of a parent when 'the welfare of the minor requires that his custody be taken from his parent or guardian.' Thus, the juvenile court law itself recognizes the paramount interest of the child in certain situations,
Custody cases arising out of dissolution situations or in guardianship proceedings have not been subject to the required court reappraisal by welfare and probation agencies and annual review of custody orders as are mandated in juvenile court dependency proceedings. Such continuing reexamination of juvenile custody orders are an additional measure of protection for parents and all interested parties when juvenile courts adopt the 'best interests' rule as a valid test for child placement.
With the 'best interests' test a proper one for the juvenile court judge to use, he was still faced with the difficult problem of finding out just what was in the best interests of the children in this case. An assessment of the entire record presented to the juvenile court judge fails to show an abuse of discretion on his part in his analysis of what was for the best interests of the children. In fact, as we have previously noted, the judge was exceedingly patient, courteous, attentive, and obviously sincerely motivated to try and ascertain what the facts were and what results might follow from the courses open to him.
As stated in Coddington v. Coddington. 210 Cal.App.2d 96, 100, 26 Cal.Rptr. 431, 433: 'There is no fixed scientific formula for the care of children, and no one standard of what constitutes a child's best interests. Necessarily, the judge whose duty it is to make such a decision views the matter in the light of his own attitude and experience, realizing as he must that someone else, equally wise, might see the matter differently.' In divorce custody decisions it has been said that only in a clear case of abuse of discretion will appellate courts interfere. (Prouty v. Prouty, 16 Cal.2d 190, 191, 105 P.2d 295; Bialac v. Bialac, 240 Cal.App.2d 940, 946, 50 Cal.Rptr. 12; Combs v. Combs, 162 Cal.App.2d 33, 34, 327 P.2d 164.)
The burden of proving an abuse of the lower court's discretion falls on appellant. (Hoffman v. Hoffman, 197 Cal.App.2d 805, 811, 17 Cal.Rptr. 543; Horsley v. Horsley, 77 Cal.App.2d 442, 175 P.2d 580.) In the absence of such a showing an appellate court will not disturb a trial court's custody determination; its discretion in determining the best interests of a minor will be upheld unless the record is barren of substantial evidence to support it. (Messer v. Messer, 259 Cal.App.2d 507, 509, 66 Cal.Rptr. 417; Vercelli v. Vercelli, 215 Cal.App.2d 102, 106, 30 Cal.Rptr. 146; Foley v. Foley, 214 Cal.App.2d 802, 808, 29 Cal.Rptr. 857; Ducharme v. Ducharme, [108 Cal.Rptr. 134] 152 Cal.App.2d 189, 193, 313 P.2d 33; Noon v. Noon, 84 Cal.App.2d 374, 379, 191 P.2d 35.)
In a case such as this the judge who heard the evidence was in a particularly sensitive position. He was faced with problems as difficult and uncertain as any in the complex field of human relationships. He was the representative of the state and responsible for guarding the interests of the children and was just as responsible for protecting the interests of the mother. After a considered review of the record, we do not find an abuse of discretion by the juvenile court.
The juvenile court judge was in a position which we are not. He was face to face with the children; he saw and heard the mother, the foster parents, the welfare workers, probation officers, and all the other witnesses. He was in a far better place to make a decision calling for the exercise of discretion than an appellate justice whose only source of guidance is in the cold lifeless pages of the record. As was eloquently stated by Loughran, J., on an appeal involving a parental custody dispute, in People ex rel. Herzog v. Morgan, 287 N.Y. 317, 322, 39 N.E.2d 255, 256: 'Our examination of . . . [the case] has been made with some anxiety because of the nature of the issue. The . . . [trial] judge saw and heard the witnesses. He was face to face with the infants whose paramount interests were to be fostered. The factors that made his duty clear to him can at this distance be seen by us only, as it were, through a glass darkly.'
Among the factors in the instant case, however, which we believe we can discern with some clarity, and to which the juvenile judge addressed himself, even though there was conflicting evidence on the issue, were the serious effects which would likely follow another uprooting of the two children. In a few short years they have been subjected to several tragic and traumatic experiences. They were removed from their home and subjected to the hazards of crossing the border into Germany. They lived as refugees for some months in temporary quarters subject to the uncertainties of whether or not their parents would be reunited. After coming to California, where they could not speak English, they were placed in day care and their father suffered his terminal illness and shortly afterward died. They became wards of the court, forgot their native tongue and even the recognition of their mother. They have fully adjusted to life with their foster parents and now look upon them as their family. Another uprooting, sending them overseas to a home in an unfamiliar country in which there is a new 'father' and a new sister they have never met and against their own wishes, could be extremely and even permanently traumatic. The trial judge was deeply concerned with this problem. His order recognized that under these circumstances parental custody would be detrimental to the minors.
The greatest amount of security possible is acknowledged as essential to child welfare. To further disrupt the continuing and admittedly successful development of the children by a revival of a relationship with the mother that has long been disrupted, with its natural ties lost, would not, as the court below explained, be in the best interest of the minors. The emotional stability of the children, the court concluded, was best protected by leaving the custody with the foster parents.
The continuity of parental care has been cited as of greater importance to the emotional welfare of a child than the individual attributes of the parent or parent-substitute who provides the care. It has been suggested that the uprooting of a child from a stable environment may be severe. (See Ellsworth and Levy, Legislative Reform of Child Custody Adjudication. An Effort to Rely on Social Science Data in Formulating Legal Policies, 4 Law and Society Rev. 167 (1969-70).) And it has been asserted that the '. . . trauma of separating a child from the custody of an adult with whom an affection-relationship exists may be psychologically equivalent in [108 Cal.Rptr. 135] its detriment to the orphaning of that child.' (Note 73 Yale L.J. supra, p. 161, citing Freud Interviews; Burlingham and Freud, Infants Without Families, 102-106 (1944).) We simply note that the two children in the case before us have in effect, already been orphaned once.
Substantial evidence points to a relationship between the children and the fosterparents that is warm, loving, and secure. This type of psychological intimacy promotes normal childhood development. Reports before the court show strong supportive relationships with the foster parents had, by 1972, assumed great psychological importance in the lives of the children. Were they to be returned to the mother, a similar psychological bond could be achieved, if at all, only after the greatest mutual effort by both the mother and the children. Failure by the mother and the children to develop such a bond, which appears likely on the basis of the record, would cause serious psychological detriment to the Children.
Inker, Expanding the Rights of Children in Custody and Adoption Cases 5 Family Law Quarterly 417, 420-421, states: 'Adherence to the traditional emphasis on the natural mother is contrary to most psychological and psychiatric studies done in the field of child behavior and development. (See generally, J. Bowlby, Attachment and Loss (1969).) Today, most experts in these fields agree that once a child is placed in a foster or adoptive home for a period of time enabling the child to adjust to that home, it may be dangerous to the child's emotional health to uproot him. 'In the view of most child psychiatrists, stability of the environment is far more crucial than its precise nature and content.' (Watson, The Children of Armageddon: Problems of Custody Following Divorce, 21 Syracuse L.Rev. 55, 64 (1969).) However, it would appear that courts have not considered the scientific distinction between a mother and a mother-figure. Although the mother-figure is usually, in fact, the natural mother, this is not because of the act of birth. Psychiatrists agree that to a child, a mother is the person who mothers the child and to whom the child becomes attached. The term 'mother the child' refers to gratification of the child's needs, initially food and warmth. Scientific findings have led psychiatrists to testify, in foster care and adoption proceedings, that to uproot a child threatens the development of the child's ability to form relationships based upon love, (See e. g., In re Jewish Child Care Association, 5 N.Y.2d 222, 183 N.Y.S.2d 65, 156 N.E.2d 700 (1959) discussed in S. Katz, Foster Parents Versus Agencies: A Case Study in the Judicial Application of 'the Best Interests of the Child' Doctrine, 65 Mich.L.Rev. 145, 148-50 (1966).) for the child seeks to insulate against an anticipated sudden loss. This threat decreases as the child grows older in that the older the child, the greater the ability to appreciate the cause of separation.'
The decision in this case will meet the requirements of juvenile court law. (Welf. & Inst.Code, § 726(c).) We find the court's decision will serve the best interests of the children, because of the detrimental results of returning custody to the mother. (Civ.Code, § 4600.)
Were the Mother's Constitutional Rights Violated?
The mother contends that although she is not a citizen of the United States, she 'is entitled to constitutional protection by reason of the fact that her children are in the United States and subject to the jurisdiction of an American court.' She urges that the 'fundamental right of every individual to parenthood and the fundamental right to raise one's own children in the manner and in the place desired by the parent, are included in the fundamental protections of the California Constitution in Article I, Section 23.' She reasons that a right so fundamental and precious as the right to raise one's own children may be impaired only when an overriding need of the state, supported by a constitutionally delegated statutory authority, exists to justify the deprivation. Any such overriding state interest is denied herein, and it is claimed that to deprive her of the right to her children would constitute a violation of her rights under both the federal and state constitutions.
[108 Cal.Rptr. 136]We believe these contentions are answered by again pointing out that appellant expressly submitted to the jurisdiction of the juvenile court. She had counsel and, apparently, supportive assistance from her own government. Her claim to custody was tacitly upheld by the welfare agencies and by the counsel for the children, all of whom argued favorably for her position at the conclusion of testimony. Her rights were not violated by any procedure during the juvenile hearing. The fact she was unsuccessful is not the measure of constitutional deprivation.
Was Irrelevant and Immaterial Evidence Admitted at the Hearing?
The mother complains that the court permitted inquiry beyond the single issue of her 'presence and willingness to exercise parental control.' She now objects to the discussion of issues 'never pleaded' and as to which she was not given notice.
Her 'presence and willingness' was not the only issue, however, and she herself opened up areas of evidence by examinations directed to the issue of her fitness. Further, she failed to object, not only to the range of inquiry, but to the probation officer's report in which the facts and custody issues were exhaustively presented. Appellant also offered into evidence her own deposition and the letters attached to it as exhibits.
In the absence of a timely objection at the trial, questions of the introduction of evidence may not be raised for the first time on appeal. (Evid.Code, § 353.)
Appellant's brief treats the hearing ordered by this Court as a jurisdictional one, in which the only issue was whether the minors had a parent willing to exercise care or control. This question had already been decided in August 1969 when the children were first declared dependent wards.
The hearing ordered was in the nature of a dispositional hearing. The mother was the subject of no allegations or accusations in connection with this hearing. The only question was whether the best interests of the children were served by freeing them from further supervision. The burden of proof was on appellant to show cause why the dependency status should be terminated. (In re Francecisco, supra, 16 Cal.App.3d 310, 314, 94 Cal.Rptr. 186; In re Robinson, 8 Cal.App.3d 783, 786-787, 87 Cal.Rptr. 678.) In the Francecisco case it was stated (16 Cal.App.3d p. 314, 94 Cal.Rptr. p. 189) that the burden (on a review or subsequent dispositional hearing) '. . . was on the person seeking a termination of the court's jurisdiction.' And 'It is clear that appellant may not at a dependency status renewal hearing relitigate the original issue of jurisdiction . . .'
The juvenile judge did not, nor can we, assess whether the minors would suffer negatively as the children of a defector should they be returned to Czechoslovakia. There was testimony concerning which might follow the children. Whether the children's now internalized values, derived from several years residence in this state, would cause conflict in the mother's homeland is impossible to say. From all accounts, however, the father had strong beliefs on the subject and was convinced the children would suffer persecution and reprisal for his defection should they be, in effect, deported. His 'death will' manifested his concern about this matter.
The trial judge carefully considered the long-range best interests of the children in holding their custody should remain with the foster parents. We refuse to upset a stable and satisfactory situation for one which is uncertain and could be severely damaging psychologically. Viewing the evidence and all reasonable inferences therefrom, in the light most favorable to the order of the court below, we conclude the record before us discloses no abuse of judicial discretion.
The order is affirmed.
GARDNER, P. J., and KAUFMAN, J., concur.
Section 600, Welfare and Institutions Code provides: 'Any person under the age of 21 years who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge such person to be a dependent child of the court:
'(a) Who is in need of proper and effective parental care or control and has no parent or guardian, or has no parent or guardian willing to exercise or capable of exercising such care or control, or has no parent or guardian actually exercising such care or control.'
'It is not disputed that on July 31, 1969 when the petition was filed on this ease, and on August 29, 1969 when the San Bernardino Superior Court, sitting in as Juvenile Court jurisdiction declared the minors [B. G. and V. G.], ages 6 and 5 respectively at the time, to be dependent children of the Court; that said minors were in the physical custody and care of [the foster parents] of Yucaipa, California, County of San Bernardino, and that their father had died on July 8, 1969; further it is not disputed that their mother was living in Czechoslovakia at that time.
'Thus it is absolutely clear that the children were under the age of twenty-one years, and had no parent or guardian actually exercising control.
'The legislative history of the Juvenile Court Act clearly contemplates the fact that the Court will have the power and authority to act in order to protect the minors even if the natural parents are unavailable or cannot be found for the purpose of serving notice.
'. . .
'Thus, to the extent any of the arguments put forth by [foster parents] are intended to question the power of the Court to act over the subject matter in this particular case, they are clearly erroneous.
'In this case the children were orphaned in the United States and had a mother living in Czechoslovakia who was not actually exercising control over them due to the extreme distances involved.
'There is no question but that the children were subject to the subject matter jurisdiction of the Juvenile Court.'
'In any proceeding where there is at issue the custody of minor child, the court may, during the pendency of the proceeding, or at any time thereafter, make such order for the custody of such child during his minority as may seem necessary or proper. It a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to his wishes in making an award of custody or modification thereof. Custody should be awarded in the following order of preference:
'(a) To either parent according to the best interests of the child, but, other things being equal, custody shall be given to the mother if the child is of tender years.
'(b) To the person or persons in whose home the child has been living in a wholesome and stable environment.
'(c) To any other person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child.
'Before the court makes any order awarding custody to a person or persons other than a parent, without the consent of the parents, it must 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. Allegations that parental custody would be detrimental to the child, other than a statement of that ultimate fact, shall not appear in the pleadings. The court may, in its discretion, exclude the public from the hearing on this issue.'