One of the foundational aspects of California dependency court law and terminating parental rights is the concept of due process. As stated in Santosky v. Kramer (1982), this stems from the idea that “Parents have a fundamental liberty interest in the care, companionship and custody of their children.”
In practice, it means that the state needs to prove allegations through clear and convincing evidence, prior to parental rights being terminated. In accordance with Santosky, a judicial determination must be made that the “parents are unfit to raise their own children.”
In Cynthia D. v. Superior Court (1993), a parent asserted that, under Santosky v. Kramer, the dependency statutes of California violated due process law. This had to do with them permitting a termination of parental rights after a finding that the child’s return “would create a substantial risk of detriment.”
The court rejected this appeal as, by the time of section 366.26 hearings, multiple parental unfitness findings had already been demonstrated and grounds for an initial removal of the child from the custody of the parent established at a “clear and convincing” level.
In addition, the 366.26 hearing does not aim to bring further evidence to light regarding danger to the child, or parental unfitness. The focus rather is on securing a permanent alternative family placement for the child. For this reason, terminating parental rights requires only two findings: previous determination to terminate reunification services and convincing evidence that an adoption will occur.
