14 Cal.App.5th 719
Cal. Ct. App.2017Background
- D.H., born 2008, lived with paternal grandparents who obtained a probate guardianship in 2010; father (D.H. Sr.) is a presumed father but was not the custodial parent when dependency began.
- In 2014 DPSS filed a dependency petition alleging the grandparents neglected D.H.; allegations and reunification efforts focused on the grandparents, not father.
- The juvenile court removed D.H. from the grandparents, provided services to them, later terminated their services, and set a section 366.26 permanency planning hearing.
- Father was largely absent from the dependency proceedings, provided intermittent contact information, and attended the section 366.26 hearing where counsel was appointed; DPSS recommended adoption and termination of parental rights.
- The juvenile court terminated father’s parental rights based on a best-interest analysis and an (erroneous) belief it had denied reunification services under Welf. & Inst. Code §361.5(a) because of a guardianship; the court never made a clear-and-convincing detriment or unfitness finding specifically against father.
- Father appealed, arguing the termination violated due process because no finding of unfitness/detriment was alleged or proven by clear and convincing evidence as required for a nonoffending, noncustodial presumed parent.
Issues
| Issue | Plaintiff's Argument (DPSS) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Whether due process required a prior finding (by clear and convincing evidence) that awarding custody to a nonoffending, noncustodial presumed father would be detrimental before terminating his parental rights | DPSS: Gladys L. should be limited or abandoned; best-interest standard (as in Probate Code §1516.5 cases) suffices in some dependency contexts | Father: Santosky and Gladys L. require a clear-and-convincing detriment/unfitness finding before termination of a presumed father’s rights when he was not subject to earlier adverse findings | Reversed: juvenile court violated due process by terminating father’s rights without a prior clear-and-convincing detriment/unfitness finding; remand for the juvenile court to determine if such evidence now exists |
| Whether appellate court may infer a detriment/unfitness finding from the record when the juvenile court made none | DPSS: appellate inference is permissible given facts showing father’s lack of involvement and risk factors | Father: appellate courts may not make fact findings that deprive him of notice and an opportunity to respond | Held: Court will not infer; appellate courts must not act as factfinder — remand required for trial court to consider evidence |
| Whether Probate Code §1516.5 and Supreme Court probate decisions (Ann S., Charlotte D.) eliminate the need for a detriment finding in dependencies | DPSS: Supreme Court probate precedent supports applying a best-interest analysis in some guardian-to-adoptive-parent contexts in dependency cases | Father: those probate cases are narrow and do not control dependency proceedings where state removal and reunification processes apply | Held: Ann S./Charlotte D. do not justify extending a probate best-interest standard to this dependency; different purposes and factual settings counsel against it |
| Whether the appeal was forfeited for failing to raise the due process objection below | DPSS: claim forfeited because father did not sufficiently object below | Father: constitutional issue preserved for appeal; appellate discretion to review important constitutional claim | Held: Court exercised discretion to reach the constitutional issue on the merits and rejected forfeiture argument |
Key Cases Cited
- Santosky v. Kramer, 455 U.S. 745 (U.S. 1982) (state must prove parental unfitness by clear and convincing evidence before involuntary termination of parental rights)
- Cynthia D. v. Superior Court, 5 Cal.4th 242 (Cal. 1993) (by the time of §366.26 hearings prior findings support termination; prior findings of detriment are linchpin for constitutionality)
- In re Guardianship of Ann S., 45 Cal.4th 1110 (Cal. 2009) (upheld Probate Code §1516.5 best-interest standard in probate guardianship adoptions; narrow holding)
- Gladys L. v. Superior Court, 141 Cal.App.4th 845 (Cal. Ct. App. 2006) (juvenile court may not terminate a nonoffending presumed father’s rights without a prior clear-and-convincing detriment/unfitness finding)
- Frank R. v. Superior Court, 192 Cal.App.4th 532 (Cal. Ct. App. 2011) (followed Gladys L.; reversed termination where no detriment finding was made)
- G.S.R. v. Superior Court, 159 Cal.App.4th 1202 (Cal. Ct. App. 2008) (reversed termination for failure to demonstrate detriment and lack of unfitness findings)
- Z.K. v. Superior Court, 201 Cal.App.4th 51 (Cal. Ct. App. 2011) (applied Gladys L. to a noncustodial mother; required specific detriment finding before termination)
- In re G.P., 227 Cal.App.4th 1180 (Cal. Ct. App. 2014) (one appellate decision inferred detriment in extreme circumstances; Court here declined to follow that approach)