In rе T.G., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. T.B., Defendant and Appellant.
No. A134874
First Dist., Div. Five.
Mar. 6, 2013.
Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and Appellant.
Donna Ziegler, County Counsel, Erin H. Reding and Teresa L. Robinson, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minor.
OPINION
BRUINIERS, J.—T.G. tested positive for cocaine at birth and was removed from the custody of his mother, Deanna G. (mother). Appellant T.B. (father) was not married to mother and did not reside with her, but was subsequently determined to be T.G.‘s biological father. He appeared at the jurisdiction hearing, requested paternity testing, and stated that he would seek custody if T.G. was his son. Although ultimately recognizing T.B. as T.G.‘s “presumed father,” the juvenile court terminated the parental rights of both mother and father. (
I. THE LAW REGARDING PARENTAGE
“The Uniform Parentage Act (
“California dependency law distinguishes between a presumed father, a biological father and a biological father who came forward early in the dependency case and displayed a full commitment to the child (Kelsey S. father). (Adoption of Kelsey S. (1992) 1 Cal.4th 816 [4 Cal.Rptr.2d 615, 823 P.2d 1216]; In re Zacharia D. (1993) 6 Cal.4th 435, 451 [24 Cal.Rptr.2d 751, 862 P.2d 751]; In re Jason J. (2009) 175 Cal.App.4th 922, 931–932 [96 Cal.Rptr.3d 625] . . . .)” (In re A.S. (2009) 180 Cal.App.4th 351, 362 [102 Cal.Rptr.3d 642] (A.S.).) “[T]he private interest at stake in dependency proceedings varies according to the father‘s status. Presumed fathers possess far greater rights than biological fathers. [Citation.] ‘[A] biological father‘s “desire to establish a personal relationship with [his] child, without more, is not a fundamental liberty interest protected by the due process clause.” [Citation].’ [Citation.]” (A.S., supra, 180 Cal.App.4th at p. 359, italics omitted.) “[O]nly a presumed, not a mere biological, father is a ‘parent’ entitled to receive reunification services under
At the dispositional hearing, a noncustodial presumed father is entitled to request custody, pursuant to
II. FACTUAL AND PROCEDURAL BACKGROUND
Section 300 Petition
On January 7, 2009, the Alameda County Social Services Agency (Agency) filed a
Detention Report and Hearing
On January 8, 2009, T.G. was ordered detained. In the detention report, the social worker reported: “This is [mother‘s] tenth child. She has four adult children and 5 minors who [have] been placed out of her care and adopted. [Mother] did not seek out prenatal care because she said that her other babies were born healthy. . . . [Mother] stated that she does not know the father of the child. She was prostituting herself when she got pregnant and has no idea who the father is.” Despite mother‘s long history of substance abuse, she had never entered a drug treatment program.
Jurisdiction/Disposition Report and Determination
In the jurisdiction/disposition report, the social worker recommended that no reunification services be provided to mother, pursuant to
By the time of the combined jurisdiction and disposition hearing, mother had disappeared. However, father appeared and was appointed сounsel. Father‘s counsel indicated that father had signed a statement regarding parentage (Judicial Council Forms, form JV-505) indicating that he was requesting the court to order paternity testing, although he was unable to pay for it. Father also stated that, if he was T.G.‘s biological father, he would seek custody. Father pointed out that he had custody of T.G.‘s then 14-year-old sister, Nicole B. The Agency stated that it opposed court-ordered testing because it was not willing to pay. When the juvenile court asked father‘s counsel for authority to support his request for court-ordered testing, father‘s counsel said: “It‘s been past custom in this county. I don‘t know if [father] has an absolute right. I think it‘s the court‘s discretion to order paternity testing for alleged fathers who present themselves in court and who have signed a declaration requesting same.”
The juvenile court concluded that father, as an alleged father, did not have standing to contest the jurisdictional allegations. Thus, the matter was submitted on the report prepared by the Agency. The court found “true” the allegations under both
Section 366.26 Report
In advance of the
The social worker also wrote: “[Father] was referred to the Department of Child Support Services (DCSS) to pursue a paternity test; however, the Agency has since been informed that the DCSS is no longer doing paternity tests unless there is a specific child support claim case opened. Further, staff from DCSS referred the Agency to send clients to the Family Law Facilitator‘s Office Self Help Center through which the alleged parent can complete and file a Paternity Packet with the Family Law Court. This would initiate a child support claim case and therefore a paternity test. On 05/01/2009, the undersigned spoke with [father] who reported that he would be willing to do this . . . .”
Permanent Plan Hearing
The hearing on selection of a permanent plan took place on June 3, 2009. The matter was submitted on the social worker‘s report. However, father‘s counsel noted: “We would like you to order the Agency to do the paternity testing and go along and have the guardianship established. We want both things to occur.” The Agency‘s counsel responded: “It has been our position if someone wants to know those results because they want to step forward and be a father, then they should be responsible for that and take it on themselves. [¶] . . . [¶] We are asking that the legal guardianship proceed today. If he really needs to have that test result for himself, he can go to the Family Support Center and take the test. If he doesn‘t want to take on the financial responsibility, then I don‘t know why he would want to know that for sure. He is still being granted visitation rights.”
The juvenile court found that notice had been given аs required by law, found it likely that T.G. would be adopted, but selected legal guardianship as T.G.‘s permanent plan because he was living with a relative who was unable or unwilling to adopt. Reasonable visitation was ordered for both mother and father. Letters of guardianship issued. Father was directed to the Self-Help and Family Law Facilitator Centers for paternity testing.
Status Review Report
On October 23, 2009, the Agency filed a status review report, which indicated that S.T. and K.B. now wished to adopt. Accordingly, the Agency asked the court to schedule another
Presumed Father Finding
On November 23, 2009, the juvenile court received the positive results of the paternity testing and declared father T.G.‘s “рresumed father.” Father announced his intent to contest termination of his parental rights.
Request to Change Court Order
Shortly thereafter, father filed a request to change the court‘s February 4, 2009 order, which had concluded father was ineligible for reunification services. The Agency opposed father‘s request, arguing: “[W]here, as here, reunification services have been denied or terminated, particularly when the permanent plan is adoption, the focus shifts from a parent‘s interest in the care, custody, and companionship of the child to the needs of the child for permanency and stability. . . . [¶] . . . [¶] Here, Presumed Father alleges that the recent establishment of his paternity constitutes changed circumstances. This alleged change of circumstances comes too late. As mentioned earlier, Presumed Father‘s whereabout[s] were known as of January 8, 2009 and he has appeared in this matter as [T.G.‘s] alleged father since the first uncontested hearing on January 26, 2009. Therefore, as of January 26, 2009, . . . Presumed Father was represented by counsel [and] should have been made aware that a permanent plan of adoption would mean a termination of his parental rights. Even so, as previously discussed, Presumed Father did not pursue presumed father status in a timely manner. Presumed Father was given multiple referrals for paternity tests on February 4, 2009, March 25, 2009, May 1, 2009, and again prior to November 9, 2009, but did not follow through until October or November of 2009. [¶] . . . [¶] [I]t would likewise be difficult to imagine how Presumed Father could show that the best interests of [T.G.] would be served by returning him, since Father has never actually parented him prior to his removal. In fact, [the social worker], if called as a witness, is prepared to testify that Presumed Father has only initiated four (4) visits with [T.G.] since May of 2009.”
At a hearing on the matter, held on February 26, 2010, the juvenile court set aside its original order and ordered the Agency to provide father with six
The Agency sought reconsideration of the court‘s ruling, which was granted. The court ordered termination of father‘s reunification services. The court explained: “I still think it is a tough case. And upon further review, . . . I thoroughly agree with [the Agency‘s counsel.] I made a mistake. I did not analyze the facts like I should have. I put too much importance on [father‘s] desires to step up to be a father. That is not what the law requires in this instance. It‘s what‘s in the best interest of the child and whether or not there is a beneficial parent relationship that would be in the best interest of . . . the child. There is no evidence of that.” At the conclusion of the reconsideration hearing, the Agency represented that it was no longer seeking adoption as T.G.‘s permanent plan.
Requests to Terminate the Guardianship
A status review report, filed on July 28, 2010, indicated that the guardians now wished to set aside the legal guardianship and supported placement of T.G. with father. Father and T.G. continued to have unsupervised weekend visits. T.G.‘s guardians reported that T.G. appeared to enjoy the visits and returned to their home well cared for and in good spirits. Both father and the guardians filed requests to terminate the guardianship. K.B. stated, in her declaration in support: “I believe it is in [T.G.‘s] best interest to be allowed to be raised by his father . . . . [Father] has demonstrated a commitment to [T.G.], and will provide a stable and permanent home for [T.G.]”
The Agency submitted a report in advance of the hearing, in which it recommended that the legal guardianship be set aside and T.G. be placed with
The matter came on for hearing on August 26, 2010. At the hearing, counsel for the legal guardians indicated that they had changed their minds yet again and now wanted to go forward with adoption. Because there was no longer any changed circumstance, the court denied the requests for a change of court order. The court also said: “I must say I am a little concerned, and for some reason mildly disappointed that we are here. I was really happy to hear that [father] was in a position to maybe get [T.G.] back.”
Third Request for a Change of Order
On September 9, 2010, father filed yet another request to change a court order, which sought termination of the guardianship and placement of T.G. in his custody. He asserted that S.T. and K.B. had not demonstrated commitment to T.G. The juvenile court concluded that father had not met his burden to show changed circumstances. The court explained: “There is no question in my mind that [father] has stepped up as a father. I have been consistent in that regard, but we must follow the law. [¶] . . . [¶] There is no evidence that the legal guardians, at this time, are unwilling to have physical custody of [T.G.]”
Section 366.26 Report
The Agency again recommended adoption as T.G.‘s permanent plan and another
An updated report was provided, on January 5, 2012. Therein, it was reported that father‘s visitation with T.G. had been inconsistent. Specifically, the social worker wrote: “The caregivers state that [father] canсelled the October visit due to him being . . . hospitalized for medical concerns. The caregivers . . . offered [father] a visit over the Halloween weekend but this offer was not acted upon. [¶] The caregivers also report that the visit in November was cancelled when [father] called and stated he did not have the funds to pick up and drop off [T.G.] this month [in Sacramento]. The caregivers reported . . . that they were traveling to the bay area and offered to drop [T.G.] off [at father‘s Oakland home] and [father] would then only be responsible for getting [T.G.] back to their home in Sacramento. This offer was also reportedly not acted upon. [¶] Finally, the caregivers have expressed some frustration that they have been the ones to initiate the visit by calling [father] and arranging the details and if they don‘t [father] will not call independently and a visit will not be scheduled. . . . Although the inconsistency of [father‘s] visitation has reportedly had little effect uрon [T.G.] at this young age, it may become more harmful to him if the pattern continues in the future.”
Termination of Parental Rights
The
The court found that it was likely that T.G. would be adopted and that father had not met his burden of proving an exception. The court said: “We wouldn‘t have been this far if you were able to visit more because everyone would have realized that you had developed [a parent-child] relationship. Unfortunately, you have not. I saluted you in the past for stepping up and wanting to be the father coming to court all the time doing all the testing and at some point visiting somewhat, but you didn‘t follow through, and it‘s a question of what your priorities are, how you spend your money—you weren‘t eligible after a certain period of time for transportation costs from the agency—then you have to decide is this worth it to me enough where I‘m going to prioritize my money to be able to go visit my son, and apparently you made the choice not to do that, and that‘s unfortunate.” Mother‘s and father‘s parental rights were tеrminated. Father filed a timely notice of appeal.
III. DISCUSSION
On appeal, father does not challenge the juvenile court‘s findings that it is likely T.G. will be adopted, within the meaning of
A. Forfeiture
Preliminarily, we must agree with the Agency that father has forfeited the argumеnt he raises on appeal. Not once did father‘s trial counsel argue that his parental rights could not be terminated because no finding of parental
B. The Merits of Father‘s Constitutional Argument
“[F]reedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment.” (Santosky v. Kramer (1982) 455 U.S. 745, 753 [71 L.Ed.2d 599, 102 S.Ct. 1388].) “[T]he State cannot presume that a child and his parents are adversaries. After the State has established parental unfitness at that initial proceeding, the court may assume at the dispositional stage that the interests of the child and the natural parents do diverge. [Citation.] But until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship.” (Id. at p. 760, some italics added & fn. omitted.) Thus, “[b]efore a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegаtions by at least clear and convincing evidence.” (Id. at pp. 747–748.)
In Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 253–254 [19 Cal.Rptr.2d 698, 851 P.2d 1307] (Cynthia D.), our Supreme Court held that Santosky v. Kramer did not require that a detriment finding be made, at the termination hearing, under the clear and convincing evidence standard. The
In arguing that the juvenile court terminated his parental rights in violаtion of due process, father relies on Santosky v. Kramer and a trio of appellate opinions distinguishing Cynthia D.: Gladys L., supra, 141 Cal.App.4th 845, Frank R., supra, 192 Cal.App.4th 532, and In re Z.K. (2011) 201 Cal.App.4th 51 [133 Cal.Rptr.3d 597] (Z.K.).
In Gladys L., supra, 141 Cal.App.4th 845, the minors became dependents of the juvenile court after being removed from their mother‘s custody. The nonoffending father appeared at the detention hearing, was declared the presumed father, but then disappeared for three years and did not seek custody. (Id. at p. 847.) He reappeared at the
But, the Gladys L. court went on to conclude that the requirements of Santosky v. Kramer and the safeguards embedded in the California dependency scheme had been ignored. (Gladys L., supra, 141 Cal.App.4th at p. 848.) The court reasoned: “[The social services agency] never alleged that [the father] was unfit and the trial court never made that finding. Due process therefore prohibits the termination of [his] parental rights. Implying a finding of detriment . . . asks this court to act as petitioner and fact finder, thereby denying [the father] an opportunity for notice of specific charges and an opportunity to respond to the charges against him. [Citation.]” (Id. at pp. 848–849.) The Gladys L. court also rejected the notion that the father had forfeited his due process argument by failing to raise it before the juvenile court. (Id. at p. 849.) It stressed: “Although the reversal of the juvenile court‘s order undermines the important goal of rapidly concluding dependency proceedings, it is the only way to safeguard [the father‘s] rights as . . . presumed father and ensure that he is afforded due process.” (Id. at p. 849.) Accordingly, the termination order was reversed. (Ibid.)
In Frank R., supra, 192 Cal.App.4th 532, an order terminating a nonoffending father‘s parental rights was reversed on similar grounds. (Id. at p. 534Id. at pp. 534–535section 300, subdivision (g), the court found the allegations untrue and dismissed them. Accordingly, at disposition, the children were removed from the mother‘s custody only. (192 Cal.App.4th at p. 535section 366.26 hearing. The father claimed that transportation was difficult and repeatedly requested bus passes. Although the child welfare agency obtained bus passes, the father never came to pick them up. He also did not request placement of the children. (192 Cal.App.4th at pp. 535–536.)
On appeal, the Second District Court of Appeal again held that the juvenile court had failed to comply with constitutional and statutory safeguards by failing to make a finding of detriment by clear and convincing evidence with respect to the father. (Frank R., supra, 192 Cal.App.4th at p. 538.) The court explained: “At the jurisdiction hearing, father was deemed a nonoffending parent. Hence, the juvenile court never even made the initial finding of unfitness . . . . [¶] More important, when the juvenile court was called upon to make the requisite finding of detriment by clear and convincing evidence in order to remove the children from a parent‘s custody [citations], it made no such finding as to father because he was noncustodial and did not request custody. Rather, the court stated at the hearing that it was proceeding as to mother only and then found in the singular that, ‘clear and convincing evidence [suggests] . . . [that] [s]ubstantial danger exists to the physical health of minor(s) and/or minor(s) is suffering severe emotional damage, and there is no reasonable means to protect without removal from parent‘s or guardian‘s physical custody.’ . . . At no time during the dependency did the court ever make the requisite detriment finding by clear and convincing evidence as to father. (
The Frank R. court also considered whether it could infer a finding of detriment. It observed: “Father argues that the only basis for an unfitness finding was his lack of housing and inability to afford transportation to visit his children, and that ‘pоverty alone, even abject poverty resulting in homelessness, is not a valid basis for assertion of juvenile court jurisdiction.’ (In re G.S.R., supra, 159 Cal.App.4th 1202, 1212.) The Department counters that father‘s unfitness lies in his failure to protect the twins from mother by allowing them to live with her when he knew she was abusing drugs; father‘s sporadic visits with the twins and lack of telephone contact during the dependency, and his failure to diligently attend to the children‘s educational needs, all of which supports the juvenile court‘s finding that father lacked motivation and commitment to the twins. However, although there may be valid bases for the juvenile court to make a finding of father‘s unfitness, the court never made that finding, let alone by the required clear and convincing standard. We may not make that finding here or infer such a finding.” (Frank R., supra, 192 Cal.App.4th at p. 539.) Accordingly, the court concluded that due process required reversal of the order terminating the father‘s parental rights. (Id. at pp. 539–540.)
The Agency does not discuss any of these cases, with the exception of Gladys L., in its respondent‘s brief. Instead, it broadly argues: “A finding of
If father had never elevated his status to presumed father, we would agree that his rights could be terminated solely by considering T.G.‘s best interests. (See Quilloin v. Walcott (1978) 434 U.S. 246 [54 L.Ed.2d 511, 98 S.Ct. 549] (Quilloin) [parental rights of natural father who had never had or sought custody could be terminated without finding of unfitness]; Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1129 [90 Cal.Rptr.3d 701, 202 P.3d 1089] [”Quilloin demonstrates that the best interest of the child is a constitutionally permissible basis for terminating parental rights in some circumstances” (italics added)]; A.S., supra, 180 Cal.App.4th at p. 362 [a biological father‘s parental rights can be terminated without any finding of unfitness or detriment].)2 But, that is not the issue before us. Here, father was found to be T.G.‘s presumed father and hе repeatedly sought custody. The Agency has never challenged the juvenile court‘s finding that father was T.G.‘s presumed father. And, the Agency cites no authority holding that the parental rights of a presumed father who seeks custody can be terminated solely on consideration of the child‘s best interests. At oral argument, the Agency suggested that this rule should apply simply because the dependency matter was in the permanency planning stage when presumed father status was established.
An argument similar to that raised by the Agency was rejected by the Third District Court of Appeal, in Z.K., supra, 201 Cal.App.4th 51. In that case, the mother was not involved in the early stages of the dependency proceeding
On appeal, the social services agency argued that the ” ‘Welfare [and] Institutions Code does not explicitly require a finding of detriment or unfitness for a noncustodial parent at the [section] 366.26 hearing, except for a parent of an Indian child which does not apply here.’ ” (Z.K., supra, 201 Cal.App.4th at p. 66.) The court rejected the argument, reasoning as follows: “The fact that
The Z.K. court went on to сonsider whether it could imply a detriment finding from the record. “To support the termination of mother‘s parental rights, the department must point to specific evidence from which we can reasonably imply a finding by the juvenile court that it would be detrimental to place the minor with mother.” (Z.K., supra, 201 Cal.App.4th at p. 67, italics omitted.) It observed: “The social worker‘s testimony at the
Gladys L., Frank R., and Z.K. teach that a court may not terminate a nonoffending, noncustodial mother‘s or presumed father‘s parental rights without finding, by clear and convincing evidence, that awarding custody to the parent would be detrimental.3 As explained below, the record does not support the Agency‘s alternative argument that, if any detriment finding was required, the juvenile court made the necessary finding.
The Agency‘s reliance on A.S., supra, 180 Cal.App.4th 351 and P.A., supra, 155 Cal.App.4th 1197 is misplaced. In A.S., the father appeared in dependency proceedings involving two children, A.S. and P.S., after they had been removed from their mother‘s custody for 22 months. After establishing his paternity, he qualified as A.S.‘s presumed father and P.S.‘s biological father. (A.S., at pp. 354–355Id. at p. 362.) With respect to A.S., the due process argument was rejected because the court had found, at a disposition hearing, by clеar and convincing evidence, that return of the minors to the father would be detrimental. (Id. at p. 363.) The court also stated: “To the extent the parties agree this finding was problematic, the record clearly indicates [the father] initially refused to participate in dependency proceedings, his whereabouts were unknown for a substantial period and he did not
In P.A., the presumed father knew about the dependency case involving his daughter for months, but ignored the notices he received. (P.A., supra, 155 Cal.App.4th at pp. 1199–1200, 1204.) The father also never requested reunification services and never filed a
The Second District Court of Appeal held that the required finding of detriment was made by the necessary standard, as to the father, where the juvenile court found at the disposition hearing “by ‘clear and convincing evidence there exist[ed] a substantial danger to the children and [there was] no reasonable means to protect them without removal from the parents’ custody’ ” (P.A., supra, 155 Cal.App.4th at p. 1212) and removed the children from the parents’ custody. (Ibid.) The father‘s failure to take responsibility for his child and his failure to maintain contact with her constituted substantial evidence to support the detriment findings. (Id. at pp. 1212–1213.)
Here, in marked contrast to both A.S. and P.A., the juvenile court was clear, in its disposition findings, that T.G.‘s welfare required removal only from mother‘s custody. The Agency does not contend that the juvenile court made the necessary detriment finding, at either the
Next, the Agency points to the fact that the juvenile court found that “[T.G.‘s] placement [was] necessary and appropriate” at the initial
Finally, the Agency points to the following statement by the juvenile court, at the hearing in which the court reconsidered its ruling granting father reunification services: “I put too much importance on [father‘s] desires to step up to be a father. That is not what the law requires in this instance. It‘s what‘s in the best interest of the child and whether or not there is a beneficial parent relationship that would be in the best interest of . . . the child. There is no evidence of that. There is . . . no question that this gentleman wants to be the father, that he is visiting, but there is nо evidence . . . that it would be in the best interest to continue the parental relationship at this time.”
It appears that there was some confusion regarding the appropriate standard to be applied to father‘s request to change the court‘s order on reunification services. The juvenile court appears to have ultimately relied on In re Vincent M. (2008) 161 Cal.App.4th 943 [74 Cal.Rptr.3d 755] and In re Zacharia D., supra, 6 Cal.4th 435, which held that a biological father, who does not come forward and assert paternity until the end of the reunification period, has the burden to show changed circumstances and that reunification services are in the child‘s best interests. (In re Vincent M., at pp. 955–956; In re Zacharia D., at pp. 453–455.) Arguably these cases were inapplicable. Both involved fathers who did not assert paternity until the end of the reunification period and who never obtained presumed father status. In contrast, father came forward at the beginning of T.G.‘s dependency and was deemed T.G.‘s presumed father in November 2009.
In any event, the court made clеar that it only reconsidered its previous ruling to grant father reunification services because it was convinced it had committed an error of law. Although the court clearly found that it was not
We cannot imply that the court found placement with father would be detrimental, when it had previously stated on the record: “[E]ven when in the company of the father, there is no risk that has been mentioned or brought up in evidence either through the father‘s testimony, and in cross-examination, or through any of the reports, at least it hasn‘t been pointed out to me. [¶] The largest concern I have about the father is his representation that he has been a successful parent, and obviously that is questionable given the number of children he‘s had who have been through the system one way or the other, or permanently planned either adopted or dependent. So the court has some concern about his parenting skills, though that wasn‘t fully developed. [¶] Looking at the second purpose of providing services to the family to preserve the family or reunify with the family . . . this is not a matter of termination of family reunification services by the father . . . by anything that he did such as being abusive, neglectful, or not visiting with his child. To the contrary, . . . [¶] he has done nothing to cause the break up of the family.”
We are mindful of the fact that, by the time of termination of father‘s parental rights, T.G. had been living with S.T. and K.B. for over two years and that he has a compelling interest in stability and permanency. But we can find no evidence in this record to support even an implied detriment finding. In A.S., supra, 180 Cal.App.4th 351 and P.A., supra, 155 Cal.App.4th 1197, detriment findings were implied because both fathers had persistently sought to avoid responsibility for their children and failed to visit for long stretches at a time. Here, on the other hand, the juvenile court acknowledged thаt father stepped forward when T.G. was only one month old and had consistently visited with him until recently. One could reasonably infer that visitation broke down because father did not take his parental role seriously. But, one could also reasonably infer that visitation was interrupted because S.T. and K.B. reneged on their agreement to transport T.G. home from Oakland and because father was unable to afford the train fare in both directions to and from Sacramento. There was a passing suggestion that father had previously had his parental rights terminated as to other children. However, the juvenile court itself concluded that evidence on this issue had not been “fully developed.” On this record, we cannot imply a finding, supported by clear and convincing evidence, that placement with father would be detrimental. (See Frank R., supra, 192 Cal.App.4th at p. 539; Z.K., supra, 201 Cal.App.4th at pp. 66–69.) The juvenile court‘s order terminating father‘s parental rights must be reversed.
IV. DISPOSITION
The order terminating T.B.‘s parental rights is reversed. The case is remanded to the juvenile court to determine whether, based on the facts as they exist at this time, a finding of unfitness may be made by clear and convincing evidence and to thereafter make such other orders as are necessary and appropriate.
Jones, P. J., and Simons, J., concurred.