55 Cal.App.5th 355
Cal. Ct. App.2020Background
- Infant Serenity was detained after a referral alleging mother’s substance abuse, mental illness, and substandard housing; initial petition also alleged father failed to provide support but those allegations were later stricken.
- Father (T.S.) later contacted the department, established paternity, said he had paid support, wanted custody, but lacked stable housing, transportation, and steady employment; he requested reunification services and help with housing.
- The department amended the petition to remove allegations against father but nonetheless recommended removal from both parents and asked the court to find by clear and convincing evidence placement with father would be detrimental under §361(d).
- At the contested disposition the juvenile court found by clear and convincing evidence placement with father would be detrimental, ordered reunification services, then terminated services at the six‑month review and later terminated parental rights at the §366.26 hearing.
- Father filed a §388 petition asserting changed circumstances (stable employment, near-complete therapy, new housing) which the court denied; father appealed the termination of parental rights.
- The Court of Appeal reversed, holding the detriment finding improperly relied on father’s poverty and the department’s failure to assist with housing, and remanded with directions for renewed factfinding and, if appropriate, renewed reunification efforts including housing assistance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) May father challenge the six‑month setting order on appeal despite not filing a timely extraordinary writ? | Dept.: appeal of setting order is forfeited unless an extraordinary writ was filed. | Father: court failed to give required oral/written notice about writ requirement; forfeiture should not bar review. | Held: Father may challenge detriment finding on appeal because the court failed to provide required notice of the writ remedy (notice was late/absent). |
| 2) Must the court make a clear and convincing detriment finding before terminating a noncustodial/presumed parent’s rights? | Dept.: previous finding under §361(d) at disposition sufficed; termination may follow. | Father: due process requires clear and convincing finding that awarding custody to him would be detrimental before terminating rights. | Held: Yes; the court did make a §361(d) clear and convincing detriment finding at disposition, satisfying the procedural standard. |
| 3) Was the court’s detriment finding supported by clear and convincing evidence? | Dept.: father’s unstable housing, lack of transportation, sporadic visits, and limited completion of services justified detriment. | Father: detriment finding impermissibly based on poverty and the department failed to assist with housing/transportation; poverty alone cannot support jurisdiction or termination. | Held: The detriment finding improperly relied on father’s poverty and lack of housing/transportation; those cannot alone justify termination—remand required. |
| 4) Remedy/remand instructions — what must the juvenile court/do on remand? | Dept.: termination should be affirmed or, if reversed, the court may still deny renewed services based on current facts. | Father: remand should require renewed reunification services and housing assistance so he has a real opportunity to reunify. | Held: Reverse termination and remand: court must determine whether legally sufficient current, non‑poverty grounds exist; if not, restart six months of reunification services and provide housing/transportation assistance; only if renewed efforts fail may termination proceed. |
Key Cases Cited
- In re G.S.R., 159 Cal.App.4th 1202 (disallowing termination based on father’s poverty and agency’s failure to assist with housing)
- In re D.H., 14 Cal.App.5th 719 (clear‑and‑convincing requirement before terminating noncustodial/presumed parent’s rights)
- In re Gladys L., 141 Cal.App.4th 845 (dependency scheme and necessity of prior findings supporting termination)
- In re Cathina W., 68 Cal.App.4th 716 (writ requirement and exception where court fails to notify parent)
- In re Harmony B., 125 Cal.App.4th 831 (notice requirements for writ and appellate review when notice not given)
- Hansen v. Department of Social Services, 193 Cal.App.3d 283 (policy favoring preservation of family and provision of services)
- In re John B., 159 Cal.App.3d 268 (legislative scheme contemplates intensive support services to reunify family)
- In re Marilyn H., 5 Cal.4th 295 (importance of §388 as due‑process escape mechanism)