In re ANGELIA P., a Minor. DEPARTMENT OF SOCIAL SERVICES, Petitioner and Respondent, v. RONALD P. et al., Objectors and Appellants, 28 Cal. 3d 908

Opinion RICHARDSON, J. What degree of proof should be required in proceedings brought under

section 232, subdivision (a), of the Civil Code (all further statutory references are to this code unless otherwise cited) which describes the circumstances under which a parent-child relationship may be permanently severed? We will adopt the standard of “clear and convincing” evidence and sustain the trial court’s decision to sever the relationship between the subject, Angelia P., and her parents, the appellants. Angelia was born on September 30, 1974. On January 8, 1975, she was brought to a hospital emergency room.

A medical report described her on admission as “moribund from bilateral subdural hematomas as a result of child abuse.” She was suffering from a skull fracture which was diagnosed as having occurred three days to two weeks before her visit to the emergency room, and she was found to have had another, older skull fracture. As a result of irremediable brain damage caused by her injuries, Angelia required and continues to require special medical care. She has a “shunt” implanted in her head to drain excess fluid from the brain, and must take medication in order to control grand mal seizures.

She is, and is expected to remain, somewhat developmentally disabled, and requires special schooling. Angelia remained in the hospital for three months. Following the granting of a petition making her a dependent child of the court, she was then released to foster parents where she has since remained. On November 1, 1975, Mr. P., Angelia’s father, was incarcerated for a term of one to ten years following his conviction under Penal Code

section 273a, subdivision (1), of wilful cruelty to Angelia. At the time of the hearing in this proceeding, his expected parole release date had been fixed as January 1979. Mr. P.’s criminal history includes convictions of burglaries and escape, and a 1966 misdemeanor conviction for battery on his eldest son, then an infant. He has an alcohol problem for which he has received no treatment, nor has he apparently received any counseling pointed at correction of his child abuse. Mr. P. denies culpability in both of the offenses for which he was convicted, and claims the children’s injuries resulted from accidents.

During his incarceration he failed to send Angelia any letters, cards or gifts, but prior to incarceration, he and Mrs. P. visited Angelia in her foster home. The foster parents stated that on these visits he was frequently drunk, and on one occasion had threatened them while possibly armed. Mrs. P. is employed and resides with a younger daughter, born in August 1975. She was described by a supervising social worker as passive and dominated by her husband. Mrs. P. has regularly exchanged visits with Angelia.

In 1977, at her request, a program was planned for the eventual return of Angelia to her mother’s full-time custody. As the culmination of this program, the court ordered return of the child. However, in the following week after visiting her husband in prison Mrs. P. requested for the first time that the child not be returned for reasons that she described as economic. Although warned that she risked the possibility of proceedings to terminate the parental relationship, Mrs. P. persisted in her refusal to accept Angelia’s immediate return.

In May 1978, the Department of Social Services (Department) filed in the Yolo County Superior Court a petition under

section 232 to free the minor child from parental custody. A hearing was held in October 1978 during which appellants stated that they wished Angelia to be returned to their home gradually after Mr. P.’s release from prison. Mrs. P., when asked whether she had any reservations about returning with Angelia to live with Mr. P. after his release, stated that she had no doubts, believing that the injuries sustained by Mr. P.’s children were accidental. The trial court found that Angelia should be declared free from the custody and control of her parents because

(1) Mr. P. had been convicted of a felony proving his unfitness to have future custody and control over Angelia (§ 232, subd. (a)(4)); (2) both parents had neglected or abused the child who had been a dependent child of the juvenile court and removed from parental custody for at least one year {id., subd. (a)(2)); and

(3) Angelia had been in foster care for more than two years and her natural parents were unlikely to provide a home for her, or meet the other statutory responsibilities described in subdivision (a)(7). The court specifically found that it would be in Angelia’s best interests to be freed from her parents’ custody and control and to her detriment to place her with either or both parents then or in the future.

The court thereupon entered judgment freeing Angelia from her parents’ custody and control, appointing the Director of the Department of Social Services as her guardian, and referring her to the California Adoption Service for suitable placement. Each of the parents then separately appealed. t I. Burden of Proof in

Section 232 Proceedings Appellants, contending that due process requires proof beyond a reasonable doubt in

section 232 proceedings, thereby raise the central issue in the case. They stress that parenting is a fundamental right, that “a

section 232 proceeding involves a significant deprivation of liberty invoking the due process clause,” and that, because of the liberty interest involved and the stigma attached to both parent and child when the parent-child relationship is severed, due process requires the state to meet the highest burden of proof before parental rights may be terminated. Appellants describe the adversarial interest in a

section 232 proceeding as not those of parent versus child, but rather those of the family unit as opposed to the state which is “interfering with a natural and fundamental relationship.” It is undeniable that grave consequences flow from the permanent severance of the parent-child relationship. These include important financial results attending the extinction of the parent’s duty to support and the mutual right to inherit.

Additionally, the very essence of the proceeding is the complete and final legal termination of a relationship which is biological in nature and most personal in form. (Mnookin, Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy (Summer 1975) 39 Law & Contemp.

Prob. 226, 245; In re Jacqueline H. (1978) 21 Cal.3d 170, 175-177 [145 Cal.Rptr. 548, 577 P.2d 683].) We have recently acknowledged that “Parenting is a fundamental right, and accordingly, is disturbed only in extreme cases of persons acting in a fashion incompatible with parenthood.” (In re Carmaleta B. (1978) 21 Cal.3d 482, 489 [146 Cal.Rptr. 623, 579 P.2d 514]; In re B.

G. (1974) 11 Cal.3d 679, 688-689 [114 Cal.Rptr. 444, 523 P.2d 244].) Nonetheless, parental rights are not absolute and we must seek a consistent and reasonable approach to the varying rights involved when the state, by intervention, disturbs natural familial relationships. To that end we examine the nature of the affected rights. Historically, the parental right or preference doctrine originated with the concept that a parent’s right “in his child was akin to that of a property owner in his chattel” (In re B.

G., supra, 11 Cal.3d at p. 694), from which it followed that the parent’s interests in custody were of primary consideration. (See Comment, Alternatives to “Parental Right” in Child Custody Disputes Involving Third Parties (1963) 73 Yale L.J. 151, 155, hereinafter Yale Comment.) This principle survives, albeit in modified form, based on “the assumption that a natural parent will most adequately fulfill his child’s needs.” (Yale Comment, at p. 155.) More recently the primacy of another consideration has evolved in the reasoning of courts, legislatures and commentators which have focused on the child’s well-being, seeking to ascertain the “best interest” of and the “least detrimental alternative to the child.” Our Legislature’s concern is manifest in its direction that the statutes concerning the termination of parental rights “shall be liberally construed to serve and protect the interests and welfare of the child.” (§ 232.5; see also Welf. & Inst.

Code, §§ 302, 319.5, 328.5, 360-370; Sen. Bill No. 1726 (Presley 1980) [statutes establishing and regulating “demonstration” counties involved in innovative approaches to dealing with removal, termination, and foster care for children].) In theory, the evolving “parental preference” and “child’s best interests” standards do not necessarily conflict. As one commentator has noted, “In general, children’s needs are best met by helping parents achieve their interests. In some situations, however, there may be a conflict of interests.... In these situations, the legal system should protect the child’s interests.

Not only is the child a helpless party but the parents should suffer the consequences of their inadequacy rather than the child.” (Wald, State Intervention on Behalf of “Neglected” Children: Standards for Removal of Children from Their Homes, Monitoring the Status of Children in Foster Care, and Termination of Parental Rights (1976) 28 Stan.L.Rev. 625, 638, fn. omitted [hereinafter Wald]; Yale Comment, at pp. 155-156; see Goldstein et al., Beyond the Best Interests of the Child (1973) pp. 53-54 [hereinafter Goldstein et al.] [recommending “‘the least detrimental available alternative for safeguarding the child’s growth and development’” as a standard on the ground that the “best interest test” too often subordinates the child’s interests to those of various adult claimants].) The foregoing doctrinal expressions underscore the fundamental nature of the parents’ custodial rights, but also qualify these rights recognizing that they do not exist in a vacuum wholly devoid of legitimate competing interests.

In rejecting the argument that “proof beyond a reasonable doubt” is required when the state terminates a natural family relationship, one federal court has concisely identified these interests as follows: “the liberty and privacy interest afforded to the parents, the interest of the state, as parens patriae, in protecting children from harm, and finally, the often silent interest of the child.” (Sims v. State Dept. of Public Welfare, etc. (S.D.Tex. 1977) 438 F.Supp. 1179, 1191 [three-judge court].) In In re Carmaleta B., we recently noted that subdivision (a)(7) of

section 232 functionally “balances the interests of the child in secure and sufficient parenting with the conjoined interests of both parent and child in preserving the familial bond.” (21 Cal.3d at p. 491.) Acknowledging the fundamental nature of the respective rights involved and that due process protection must surround their assertion and termination, what evidentiary burden will meet constitutional requirements?

Section 232, subdivisions (a)(1) through (a)(6) are silent on the requisite burden of proof, but subdivision (a)(7) referring to children who have been at least two years in foster homes specifies a “clear and convincing evidence” standard. Evidence Code

section 115 states, as a generality, that unless otherwise provided the applicable standard is the preponderance of the evidence. Justice Harlan, in his useful concurring opinion in In re Winship (1970) 397 U.S. 358, 371-372 [25 L.Ed.2d 368, 379-380, 90 S.Ct. 1068] (fns. omitted) described the nature and general utility of this standard: “In a civil suit between two private parties for money damages, for example, we view it as no more serious in general for there to be an erroneous verdict in the defendant’s favor than for there to be an erroneous verdict in the plaintiff’s favor.

A preponderance of the evidence standard therefore seems peculiarly appropriate for, as explained most sensibly, it simply requires the trier of fact ‘to believe that the existence of a fact is more probable than its nonexistence before [he] may find in favor of the party who has the burden to persuade the [judge] of the fact’s existence.’” In our view, the more serious potential consequences of a section. 232 proceeding require a higher evidentiary standard than civil actions in which money damages are awarded. The conflicting interests are weightier when the result may be termination of natural parental rights.

Appellants, in turn, urge adoption of the “proof beyond a reasonable doubt” requirement which traditionally has been reserved for those cases where the unsuccessful litigant is subject to confinement or custody. “The reasonable-doubt standard plays a vital role in the American "scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence—that bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration of our criminal law.’ Coffin v.

United States [56 U.S. 432 (1895)] at 453.” (In re Winship, supra, 397 U.S. at p. 363 [25 L.Ed.2d at p. 375].) In criminal proceedings, where the conflicting interests involve an individual’s freedom and the state’s enforcement of its criminal laws, courts have traditionally been particularly sensitive to the citizen’s liberty.

Again in Justice Harlan’s words, “we do not view the social disutility of convicting an innocent man as equivalent to the disutility of acquitting someone who is guilty.... [If] [I]t is far worse to convict an innocent man than to let a guilty man go free.” (In re Winship, supra, at p. 372 [25 L.Ed.2d at p. 380], Harlan, J. cone.) Moreover, we have not refused to extend the “beyond reasonable doubt” test to those noncriminal situations in which a personal freedom similarly collides with the state’s interest in confinement for the protection of both the public and the individual. (See, e.g., Conservatorship of Roulet (1979) 23 Cal.3d 219 [152 Cal.Rptr. 425, 590 P.2d 1].) Such a liberty interest is not herein presented.

Rather, as recently expressed, “the goal of [§ 232] is to promote the welfare of the child; and the state as a parens patriae has not only a ‘compelling interest’ but also has a ‘duty’ to sever parental bonds once a situation contemplated by the statute arises.” (In re Terry D. (1978) 83 Cal.App.3d 890, 896 [148 Cal.Rptr. 221]; In re Eugene W. (1972) 29 Cal.App.3d 623 [105 Cal.Rptr. 736].) The protection which is required is for a complex group of interrelated, but perhaps conflicting, interests among which are those of (1) the parent and child in a continuing familial relationship; (2) the parent in preserving the integrity and privacy of the family unit, free of state intervention and social stigma attached to either parent or child; (3) the child in a permanent, secure, stable, and loving environment; and (4) the state in protecting the child.

Weighing these competing interests, we conclude that use of a “beyond reasonable doubt” standard is not required. The proof beyond a reasonable doubt standard is inappropriate in a

section 232 proceeding where the state may be an adversary to the parents but also may be a necessary champion for the child. We conclude that findings under any subdivision of

section 232 must be made on the basis of clear and convincing evidence. Such a test is fully consistent with the goal of

section 232 to provide “the fullest opportunity to the parents for exercise of their rights not inconsistent with the ultimate best interests of the child” (In re Carmaleta B., supra, 21 Cal.3d at p. 492), and in harmony with the purposes delineated by the United States Supreme Court’s statement in Addington v.

Texas (1979) 441 U.S. 418, 423 [60 L.Ed.2d 323, 329, 99 S.Ct. 1804] that: “The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding is to ‘instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.’ In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J. concurring.).

The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.” “Clear and convincing” evidence requires a finding of high probability. This standard is not new. We described such a test, 80 years ago, as requiring that the evidence be “‘so clear as to leave no substantial doubt’; ‘sufficiently strong to command the unhesitating assent of every reasonable mind.’” (Sheehan v.

Sullivan (1899) 126 Cal. 189, 193 [58 P. 543].) It retains validity today. (In re Terry D., supra, 83 Cal.App.3d at p. 899.) Our conclusion is further supported by a review of the decisions of other courts, as well as some of the model codes and literature which have examined this issue. California appellate decisions addressing the question have almost unanimously held that clear and convincing evidence is required before parental rights may be terminated under any subdivision of

section 232. (See, e.g., In re Sarah H. (1980) 106 Cal.App.3d 326, 329, fn. 4 [165 Cal.Rptr. 61]; In re David B. (1979) 91 Cal.App.3d 184, 196 [154 Cal.Rptr. 63]; In re Heidi T. (1978) 87 Cal.App.3d 864, 870 [151 Cal.Rptr. 263]; In re Cynthia K. (1977) 75 Cal.App.3d 81, 84-85 [141 Cal.Rptr. 875].) The Alaska Supreme Court, in Matter of C.L.T. (Alaska 1979) 597 P.2d 518, rejected a constitutional challenge to the analogous Alaskan statutory scheme in a persuasive example of the decisions of sister states.

Concluding that clear and convincing proof was the appropriate standard, the Alaskan court noted that “This evidentiary standard balances the competing interests involved in a proceeding brought to terminate parental rights, one of which is the right of a child to an adequate home. Appellant all but ignores this interest. When a petition is brought to terminate an individual’s parental rights based upon alleged child abuse, the child’s interests do not necessarily coincide with the parent’s interest in continuation of the family unit.

While appellant’s standard would give the parent even greater due process protection, it would simultaneously decrease the ability of the state to protect the rights of the child.” (P. 526, fns. omitted; see also, In Interest of Atwood (1978) 2 Kan.App.2d 680 [587 P.2d 1, 2]; In Interest of Massey (1976) 35 Ill.App.3d 518 [341 N.E.2d 405, 407]; In re Sego (1973) 82 Wn.2d 736 [513 P.2d 831, 833]; Alsager v. District Court of Polk City, Iowa (S.D.Iowa 1975) 406 F.Supp. 10, 25; Sims v.

State Dept. of Public Welfare, etc., supra, 438 F.Supp. at p. 1194, and the cases cited in 59 Am.Jur.2d, Parent and Child, § 27, pp. 112-113, and 67A C.J.S., § 37, p. 274; cf., Matter of Five Minor Children (Del. 1979) 407 A.2d 198 [preponderance of the evidence standard applies in termination proceedings].) Similarly, Stanford N.

Katz, author of a Model Act to Free Children for Permanent Placement under a grant from the Department of Health, Education and Welfare, proposed a clear and convincing standard, noting that “Since the overriding consideration in termination proceedings is the welfare of the child, the fault or guilt of the parents is not a central focus. Thus, the standard of beyond a reasonable doubt used in the criminal process was deemed inappropriate for these proceedings.

The preponderance of the evidence standard, used in some civil proceedings, was rejected because this lesser test would make it too easy for the state to separate a child from its parents.” (Katz, Freeing Children for Permanent Placement Through a Model Act (1978) 12 Fam.L.Q. 203, at p. 240; see also Institute of Judicial Administration, ABA Project on Standards for Juvenile Justice, Stds. Relating to Abuse and Neglect (Tent.

Draft 1977) stds. 8.3, 8.4, pp. 154-161 [for children maintained in placement out of the home for the specified period the court shall order termination unless it finds by clear and convincing evidence that an exception as provided in the proposed scheme exists].) In candor, we must acknowledge the existence of at least one model statute developed by the National Council of Juvenile Court Judges (Fam. L. Rep., Reference File, p. 201:0070) as cited in Matter of Five Minor Children, supra, 407 A. 2d at page 200, which recommended the more lenient preponderance of the evidence test.

In only one instance have we found the application of proof beyond a reasonable doubt in a parental rights setting. In the Federal Indian Child Welfare Act of 1978, Congress required the establishment of proof beyond a reasonable doubt before parental rights could be terminated.

It has been suggested that the legislative establishment of the higher standard of proof was a response to a particular problem. “In passing the Act, Congress recognized that current state standards and procedures were leading to the wholesale destruction of Indian families and the unwarranted removal of Indian children from their homes.” (Miles, Custody Provisions of the Indian Child Welfare Act of 1978: The Effect on California Dependency Law (1979) 12 U.C.

Davis L.Rev. 647, 655, fns. omitted.) Initially, our own Legislature provided that the standard of proof in proceedings brought under section" 232, subdivision (a)(7), should be proof beyond a reasonable doubt, but as noted in In re Lynna B. (1979) 92 Cal.App.3d 682 [155 Cal.Rptr. 256], “Civil Code

section 232, subdivision (a)(7) was amended in 1976 to substitute ‘by clear and convincing evidence’ for ‘beyond a reasonable doubt.’ It was amended again in 1977, to become operative July 1, 1978, to change the burden of proof back to ‘beyond a reasonable doubt.’ However, an urgency measure was enacted in 1978 again amending the statute, operative July 1, 1978, to provide for the ‘clear and convincing evidence’ standard [which remains the present test]. (Stats. 1978, ch. 429, § 23; ch. 1269 §§ 1-3.)” (P. 694, fn. 2.) The several statutory changes in the standard represent a clear legislative assertion of a right to establish such a test.

There is authority for the Legislature’s exercise thereof because “Here we are in the arena of policy, but not properly judicial policy.... [T]hese are social problems which the Legislature has attempted to deal with over the years as it deems best, attempting to balance the interest of the children with that of the parents.” (In re Terry D., supra, 83 Cal.App.3d at p. 897.) Use of the “clear and convincing evidence” standard of proof fairly protects the interests represented in proceedings brought under any subdivision of

section 232, and we turn to appellants’ remaining contentions. II. Exclusion of Evidence Regarding Appellants’ Other Child The appellants assert that the trial court erred in excluding testimony concerning Mrs. P.’s kindly treatment of appellants’ younger daughter, Lisa. After hearing preliminary testimony proffered by appellants regarding Lisa’s general well-being in the care of her mother, the court ruled that further evidence regarding Lisa was irrelevant.

Appellants argue that the evidence should have been admitted as “relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid.

Code, § 210.) It is true that “an order to free a child from parental custody and control must rest on present circumstances as well as past acts although such prior acts are evidence which may be considered by the court in deciding whether there is sufficient showing to justify the order.” (In re Carmaleta B., supra, 21 Cal.3d, at p. 493.) However, a trial court has wide discretion in determining the relevancy of the evidence. (Larson v.

Solbakken (1963) 221 Cal.App.2d 410, 420 [34 Cal.Rptr. 450].) No issue regarding appellants’ treatment of Lisa had been raised by any pleading in the case, nor did the Department assert that Mrs. P. had physically abused Angelia directly. Evidence regarding Lisa therefore was of doubtful relevance. It was undisputed that Lisa received adequate care during the period when Mr. P., who had actively abused Angelia, was absent from the home. The primary question presented at the hearing was whether

section 232 applied to appellants’ treatment of Angelia. The trial court here was well within its discretion in refusing to admit the proffered evidence. III. Failure to Consider! Alternate Care Appellants argue that the trial court failed to consider alternate care plans for Angelia before terminating the parent-child relationship. Specifically, they contend that the court should have considered the possibility of maintaining the status;quo until Mr. P. could obtain counseling and reestablish himself following, his release from prison.

In In re David B. (1979) 91 Cal.App.3d 184 [154 Cal.Rptr. 63], the court noted that “It is well recognized that before the parental relationship may be permanently severed, the trial court should consider the availability of less severe alternatives designed to keep the family intact.” (P. 198.) However, when such services have not been offered, “the decision as to whether the services should be ordered and the proceeding delayed until the results are evaluated lies within the sound discretion of the superior court.” (In re Susan M. (1975) 53 Cal.App.3d 300, 311 [125 Cal.Rptr. 707].) Both the foregoing general principle and its important qualification are sound.

In In re Carmaleta B., supra, we emphasized that

section 232, subdivision (a)(7), “has the added advantage of permitting the parents a longer period, two years, in which to rehabilitate themselves to a position whereby they can properly support this most fundamental responsibility. Such an accommodation, inherent in the structuring of

section 232, affords the fullest opportunity to the parents for exercise of their rights not inconsistent with the ultimate best interests of the child.” (21 Cal.3d at pp. 491-492.) Here the trial court properly considered alternatives and was fully free to decide that termination was appropriate. Angelia had been in foster care for almost four years, yet her parents, after having rejected an earlier return, requested an even further delay until some uncertain future date when, if all went well, Angelia could be returned to them. Such uncertainty conflicts with the intent of

section 232 to afford children during their formative years a permanent, secure, and stable environment. (In re Lynna B., supra, 92 Cal.App.3d at pp. 698-699; In re David B., supra, 91 Cal.App.3d at p. 195; see generally Goldstein et al. and Wald.) IV. Sufficiency of the Evidence Appellants argue insufficiency of the evidence. We apply, with appropriate modifications, our holding in People v. Johnson (1980) 26 Cal.3d 557, 578 [162 Cal.Rptr. 431, 606 P.2d 738], made in accordance with Jackson v.

Virginia (1979) 443 U.S. 307 [61 L.Ed.2d 560, 99 S.Ct. 2781]; “the [appellate] court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find [that termination of parental rights is appropriate based on clear and convincing evidence].” (See In re Marcos S. (1977) 73 Cal.App.3d 768, 781 [140 Cal.Rptr. 912], quoting Garrett v.

Duncan (1959) 176 Cal.App.2d 296, 298-299 [1 Cal.Rptr. 461], and cases cited therein.) The record demonstrates that substantial evidence supports the trial court’s action under several provisions of

section 232. Subdivision (a)(2) permits termination if a child has “been cruelly treated or neglected by either or both of his parents, if such person has been a dependent child of the juvenile court” and the child has been removed from parental custody for at least one year. The trial court found that Mrs. P., “a very passive person, has repeatedly failed to protect or look after the best interest of the minor child.” Mrs. P.’s challenges to these findings lack merit. Mrs. P., on a continuing basis, failed to protect Angelia while she was in the home. Her firm intention to reunite with Mr.

P. upon his release made her passive relationship to her husband relevant to the issue of Angelia’s care. In a similar context in In re Carmaleta B., supra, we noted that the mother’s testimony “that she never feared for the safety of the children around their father, a convicted sex offender, may have properly convinced the trial court that Mrs. B. did not appreciate the necessity of keeping the children apart from Mr.

B. and therefore could not be relied upon to live away from him if the children were returned to her care.” (21 Cal.3d at pp. 494-495; see In re Jacqueline H. (1979) 94 Cal.App.3d 808, 817 [156 Cal.Rptr. 765] [court could consider child’s fear of stepfather in determining quality of care mother would provide for child].) Child abuse includes more than a parent’s physical abuse. In a given case, as here, the term may involve a failure to protect the child from harm caused by others.

The trial court correctly applied subdivision (a)(7), which requires findings that the parent has failed and will fail to provide an adequate home for and parental relationship with the child, and that the child’s return to the parent will be detrimental to the child. The court concluded that “The basic factors which led to the original child abuse have not changed.

Moreover, based on the past and present conduct of the parents... it is likely that the parents will continue to fail, as in the past, to provide their permanently damaged child with an adequate home, care and control, parental relationship and continuous contact that the child needs.” As we have noted, “Past conduct is relevant on the issue of future fitness, although it is of course not controlling.” (In re Terry D., supra, 83 Cal.App.3d at p. 900.) Under the circumstances of this case, the trial court could conclude that the dominance of Mr. P. and Mrs. P.’s failure to protect Angelia from Mr.

P., and the consequences flowing therefrom fully justify the order of termination. It is significant that Mr. P. has not challenged the trial court’s ruling under subdivision (a)(4) of

section 232, which permits termination on a finding that a parent was convicted of a crime of a type tending to prove the parent’s unfitness to have care, custody and control of his child. On this basis alone, the court’s judgment terminating Mr. P.’s rights is sustainable. (See, e.g., In re Geoffrey G. (1979) 98 Cal.App.3d 412 [159 Cal.Rptr. 460]; Adoption of D. S. C. (1979) 93 Cal.App.3d 14 [155 Cal.Rptr. 406].) Finally, substantial evidence also supported the finding as required by In re Carmaleta B., supra, 21 Cal.3d at pages 495-496, that return of Angelia to her parents would be detrimental to her interests, pursuant to the more general provisions of

section 4600. (See In re B. G., supra, 11 Cal.3d at p. 683.) V. Introduction of Mr. P.’s Probation Report Early in the proceedings, Department’s attorney requested the court to take judicial notice of the 1975 superior court proceedings in which Mr. P. had been convicted of child abuse on Angelia. Thereafter, at the close of the evidence, in response to an inquiry from the court, the clerk stated that the record, except for the probation report, was available, and that the probation report which was not in the file was being brought up.

The court then stated “We’ll take a short recess then, and I’ll read that.” No objection was made. (See Evid. Code, § 353.) Appellants now contend that the court’s consideration of the report was erroneous because it was hearsay, that appellants were denied an opportunity to object, and alternatively that the failure to object demonstrated that their appointed counsel provided ineffective assistance. We are unpersuaded.

In arguing that they had no chance to object, appellants ignore the opportunity afforded -to them when the court recessed to consider the report and also at the point when Department’s attorney first requested the court to take judicial notice of the criminal proceedings. Next, assuming arguendo that the report was hearsay, counsel’s failure to object did not indicate inadequate representation even under the standards urged by appellants. Mr. P.’s criminal history was part of the probation officer’s report prepared under

section 233 which provides that the juvenile probation officer “shall render to the court a written report of the investigation with a recommendation....

The court shall receive such report in evidence and shall read and consider the contents thereof in rendering its judgment.” (Italics added.) It has been held that “the written report mandated by the statute is admissible over a general hearsay objection so long as a meaningful opportunity to cross-examine and to controvert the content of the report is afforded.” (In re Heidi T. (1978) 87 Cal.App.3d 864, 875 [151 Cal.Rptr. 263]; In re George G. (1977) 68 Cal.App.3d 146, 155-156 [137 Cal.Rptr. 201].) Appellants had such an opportunity to cross-examine the probation officer who prepared the report and to produce any controverting evidence.

They did not refute the evidence thus presented. The information contained in the probation report was therefore cumulative of similar information presented in the

section 233 report and admission of the evidence was harmless. The failure of counsel to object did not reflect any lack of competence, because, faced with his adversary’s request for the court to take judicial notice, counsel could well have concluded that it was better to permit admission of the report rather than to risk presentation of. in-court testimony from other witnesses w|jose adverse testimony may have been more damaging. This would have been an informed tactical decision. VI. Conclusion We conclude that the trial court was correct in terminating the parental rights of appellants.

Although, understandably, it did not expressly articulate its use of the appropriate standard of proof, it properly applied a test of clear and convincing evidence. We find no merit in appellants’ other contentions. The judgment is affirmed. Tobriner, J., Mosk, J., and Clark, J., concurred.