Due Process in Terminating Parental Rights in California

"Parents have a fundamental liberty interest in the care, companionship and custody of their children. For this reason, they have certain due process protections in juvenile dependency proceedings." (In re G.S.R. (2008) 159 Cal.App.4th 1202, 1210, relying upon Santosky v. Kramer (1982) 455 U.S. 745, 758 (Santosky).) In Santosky, the court held that due process requires the state to prove its allegations by clear and convincing evidence before terminating parental rights. (Santosky, pp. 779, 754, 747-748, 751-754 concluding New York procedures terminating parental rights upon a showing of neglect by " 'a fair preponderance of the evidence' " did not satisfy due process.) Santosky did not purport to require a finding of parental unfitness in proceedings to terminate parental rights, addressing only the standard of proof in such proceedings. The court noted, however, that victory by the state "entails a judicial determination that the parents are unfit to raise their own children," and suggested a showing of unfitness may be constitutionally required. (Santosky, supra, 455 U.S. at p. 760 & fn. 10, citing Quilloin v. Walcott (1978) 434 U.S. 246, 255.) In Cynthia D. v. Superior Court (1993) 5 Cal.4th 242 (Cynthia D.), the California Supreme Court addressed a parent's contentions that, under Santosky v. Kramer (1982) 455 U.S. 745, California's dependency statutes violate due process because they permit termination of parental rights based on a finding, by a preponderance of the evidence, that return of the child would create a substantial risk of detriment. (Cynthia D., at pp. 245-246, 250.) The court held that the procedure for terminating parental rights under section 366.26 comports with due process, when considered in the context of California's dependency scheme as a whole, and that Santosky does not compel the use of an elevated standard of proof. (Cynthia D., at pp. 253, 254-256.) The court explained: "By the time dependency proceedings have reached the stage of a section 366.26 hearing, there have been multiple specific findings of parental unfitness. . . . The grounds for initial removal of the child from parental custody have been established under a clear and convincing standard ; in addition, there have been a series of hearings involving ongoing reunification efforts and, at each hearing, there was a statutory presumption that the child should be returned to the custody of the parent. " (Cynthia D., at p. 253.) By the time a juvenile court considers termination, "the evidence of detriment is already so clear and convincing that more cannot be required without prejudice to the interests of the adoptable child . . . ." (Id. at p. 256.) Thus, where the court has made the findings necessary to remove the child at the disposition hearing and to overcome the presumption of return at subsequent status reviews, due process does not require evidence of unfitness at the section 366.26 hearing. "The purpose of the section 366.26 hearing is not to accumulate further evidence of parental unfitness and danger to the child, but to begin the task of finding the child a permanent alternative family placement." (Cynthia D., supra, 5 Cal.4th at p. 253.) "In order to terminate parental rights, the court need make only two findings: (1) that there is clear and convincing evidence that the minor will be adopted; and (2) that there has been a previous determination that reunification services shall be terminated." (Id. at pp. 249-250.)