In re D.H.
Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant.
Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Carole Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
Principles of due process require that the juvenile court not terminate a presumed father’s parental rights without first finding, by clear and convincing evidence, that the father is unfit. (In re G.S.R. (2008) 159 Cal.App.4th 1202, 1205 (G.S.R.).) In this dependency appeal, D.H., Sr. (father), the presumed father of D.H., argues the juvenile court violated due process by terminating his parental rights without making an unfitness or detriment finding against him by clear and convincing evidence at any point in the proceedings.
Beginning with In re Gladys L. (2006) 141 Cal.App.4th 845 (Gladys L.), appellate courts have held juvenile courts must make a parental unfitness or detriment finding by clear and convincing evidence before terminating the rights of noncustodial, nonoffending fathers. As we explain post, the court’s termination of father’s rights violated this important constitutional safeguard because at no point in this dependency was it either alleged []or proven that [he] was an unfit parent. (Id. at p. 847.) Here, D.H. was removed from, and failed to reunify with, his paternal grandparents, who had been caring for him under a probate guardianship. The entire case, from the petition, to removal, to termination of services, focused on the grandparents, not father.1
Nevertheless, at the permanency planning hearing, the court terminated father’s parental rights. Gladys L. and its progeny require us to reverse the order terminating [father’s]
Respondent Riverside Department of Social Services (DPSS) urges us to depart from Gladys L. and adopt in the dependency context the best interest of the child standard for terminating parental rights under
FACTUAL BACKGROUND
A. The Petition Against the Grandparents
D.H. was born in 2008. He is the son of J.S. (mother) and father, who never married.2 P.F. (grandmother) and A.F. (grandfather) are D.H.’s paternal grandparents. According to the detention report, they became his legal guardians in February 2010 under a probate court order. The record contains no other information regarding the circumstances of the guardianship.
In March 2014, DPSS received a referral alleging the grandparents were neglecting D.H. According to the referral, drug activity takes place in the garage of the home, where father and his girlfriend reportedly resided. The referral also reported father had a history of drug-related arrests and domestic violence. When the social worker interviewed the grandparents, they said father had been living in their garage off and on. The social worker asked the grandparents to drug test. Grandfather tested
DPSS took D.H. into protective custody and filed a dependency petition alleging he fell under
At the detention hearing, the court found DPSS had made a prima facie showing D.H. fell within
B. Removal from Grandparents’ Custody
During a subsequent interview, grandmother reiterated her methamphetamine use was a one time thing. She said she began caring for D.H. when he was only a few months old and ultimately sought legal guardianship over him because mother did not want to take care of him. The grandparents had not seen mother in several years. When the social worker contacted mother (who is not a party to this appeal), she reported she was struggling with substance abuse and bipolar disorder and had not had any interaction with her son for two years.
D.H. told the social worker he felt safe in the home and enjoyed spending time with father. He said he slept in his own bedroom and father slept in the garage. When he wanted to play, he would knock on the garage door and father and his girlfriend would come into the grandparents’ house and watch television with him or play with him. D.H. said everyone in the home got along well, except sometimes he could hear father and his girlfriend yelling at each other and sometimes the girlfriend hit father.
Grandmother said father was good with D.H. and she trusted him to care for his son. She said he would take D.H. on outings to Chuck E. Cheese, Castle Park or the
By the filing of the jurisdiction/disposition report, father’s whereabouts were unknown. Given the March 2014 referral, the social worker was concerned he might struggle with substance abuse and domestic violence. A search of his criminal history turned up a misdemeanor conviction for child cruelty in 1996 and two misdemeanor drug convictions in 2013.
Father appeared at the initial jurisdiction and disposition hearing in April 2014, but did not attend the continued hearing in May. The court found the allegations against the grandparents true by a preponderance of evidence. It also found it necessary under
C. The Grandparents’ Unsuccessful Reunification Period
During the six-month review period, the social worker reported the grandparents were complying with their case plan and visits were going well. D.H. enjoyed spending time with them and very much want[ed] to return to their home. Grandmother tested negative for drugs four times. At the review hearing in November 2014, the court expanded the grandparents’ visits to include unsupervised overnights and weekends, and found a substantial probability D.H. could be returned to their care within six months.
Months later, in February 2015, D.H. told the social worker he saw father at the grandparents’ house every weekend. D.H. thought father was living there because he slept on a couch in the garage and stored his personal belongings there. D.H. said the grandparents had told him not to tell anyone father was sleeping in their garage.
Father’s whereabouts were still unknown at this point. The social worker wrote in the 12-month review report that she had not had contact with him and was unaware of his current living status, employment status, how he is supporting himself, his relationship status, or any other circumstances. The only information she had learned about father was he had been discharged from a substance abuse outpatient program in March 2015 for exceeding the limit of allowable absences and thus had a warrant for failure to follow through with drug diversion.
The report recommended terminating the grandparents’ services. The social worker cited their lack of judgment in allowing father unsupervised access to D.H. in violation of their case plan and the fact they coach[ed D.H.] to lie to his caregiver and the Department about his father residing in their garage.
D. Termination of Father’s Parental Rights
Father’s whereabouts were still unknown when DPSS filed its 366.26 report in September 2015. The report recommended adoption and requested time to identify a prospective adoptive home. The report also recommended termination of parental rights, on the ground the bond between D.H. and his parents was minimal.
In an addendum report, DPSS informed the court it had recently talked to father. He had given the social worker his current address in Riverside and reported he had not been living at the grandparents’ house for at least a year. He was working in construction, specializing in bathroom and kitchen remodels. He said he had enrolled in a drug treatment program five months earlier, but was unable to complete it due to work and transportation difficulties. Likewise, he had not been in contact with DPSS because he had been overwhelmed, but he wanted to know what he needed to do to get his child back. The social worker told him he could attend the upcoming November 2015 hearing and ask the court to appoint him an attorney.
Father attended the hearing and the court appointed him counsel. About two months later, the court found adoption was in D.H.’s best interest and terminated the grandparents’ guardianship over the child.
That same month, father attended a hearing and asked the court for permission to visit D.H. The court replied he was allowed monthly visits under an existing order. DPSS added it wanted to hold off on visits with father for at least a month to allow D.H. time to settle into his placement.
In a July 2016 addendum report, DPSS informed the court that D.H. had adjusted positively in his prospective adoptive home and that it was continuing to recommend termination of parental rights. Although D.H. had only been living with the prospective adoptive family for a few months, he appeared happy in the home. The prospective adoptive parents had three children of their own who were excited about the adoption.
On July 25, 2016, father called DPSS and provided his current address in Jurupa Valley. Father then attended the
The court terminated father’s parental rights, stating: A sufficient basis for termination of parental rights exist[s] based upon findings made at the jurisdiction [and] dispositional hearing. At that hearing the mother and father were not offered services as they are not entitled pursuant to [Welfare and Institutions] Code 361.5(a). Termination of parental rights would not be detrimental to the minor in that none of the exceptions set out in
Father timely appealed the termination of his parental rights.
DISCUSSION
A. Father Did Not Forfeit His Argument
Before turning to the merits, we address DPSS’s contention father forfeited his due process argument by failing to raise it with the juvenile court. A party forfeits a claim of error on appeal when he or she fails to raise the objection in the trial court; however, application of the forfeiture rule is not automatic. (In re T.G. (2013) 215 Cal.App.4th 1, 14.) When a party raises an important constitutional argument like the one father raises here regarding his due process interest in the care and custody of his son, we exercise our discretion to consider the argument on its merits. (Id. at pp. 13-14 [refusing to apply forfeiture doctrine to the father’s claim his due process rights were violated when the court terminated his parental rights without a finding of unfitness or detriment]; accord, Gladys L., supra, 141 Cal.App.4th at p. 849, Frank R. (2011) 192 Cal.App.4th 532, 539 (Frank R.).) We therefore decline DPSS’s invitation to dismiss the appeal on forfeiture grounds. Because father has raised a question of law, we review the claimed constitutional violation de novo. (In re T.G., at p. 14.)
B. Due Process Requires a Detriment Finding
Gladys L., the foundational California case on presumed fathers’ constitutional protections against termination of their parental rights, explains: Parents have a fundamental interest in the care, companionship, and custody of their children. (Santosky v. Kramer (1982) 455 U.S. 745, 758 [71 L.Ed.2d 599, 102 S.Ct. 1388] (Santosky).)
Gladys, the minor in the appeal, had become a dependent of the juvenile court while in her mother’s custody. (Gladys L., supra, 141 Cal.App.4th at p. 847section 300 petition to assert allegations against the presumed father, but it never did so. (Gladys L., at p. 847.) Like here, Gladys’s presumed father disappeared after the detention hearing, and was not involved in the proceedings for the next three years. (Ibid.) He reappeared at the section 366.26 hearing and requested visits with Gladys. The juvenile court found it was not in the child’s best interest to have contact with him and terminated his parental rights. (Gladys. L., at p. 847.)
The Gladys L. court reversed the termination order, observing the case had not progressed like the typical dependency where, by the time of termination, the juvenile court had already made prior findings that the parent was unfit. (Gladys L., supra, 141 Cal.App.4th at pp. 848-849, quoting Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254 (Cynthia D.), italics added.) Such prior findings, the court explained, are necessary
Gladys’s dependency was not like the typical dependency in that regard because DCFS never alleged that [the father] was unfit and the trial court never made that finding. (Gladys L., supra, 141 Cal.App.4th at p. 848.) The Gladys L. court concluded the juvenile court had ignored the requirements of Santosky and the safeguards embedded in the California dependency scheme by terminating the father’s rights without having found he was unfit based on clear and convincing evidence at some point in the dependency. (Id. at pp. 848-849.)
Thus far no appellate decision has disagreed with the holding in Gladys L. and many have followed it. (See, e.g., In re T.G., supra, 215 Cal.App.4th at pp. 23-24; G.S.R., supra, 159 Cal.App.4th 1202, 1211; Frank. R., supra, 192 Cal.App.4th at p. 537; Z.K. (2011) 201 Cal.App.4th 51, 64-65 (Z.K.).) For example, in Frank R., the appellate court reversed an order terminating a nonoffending, noncustodial presumed father’s
Gladys L., Frank R., and [their progeny] 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. (In re T.G., supra, 215 Cal.App.4th at p. 20.) The finding need not occur at the
Thus, at minimum, a juvenile court must make a detriment finding against a presumed father before terminating his rights. The finding may be made at the dispositional stage or during a subsequent review period, but it must occur prior to termination. ‘California’s dependency scheme no longer uses the term ‘parental unfitness,’ but instead requires the juvenile court make a finding that awarding custody of a dependent child to [the] parent would be detrimental to the child.’’ (Frank. R., supra, 192 Cal.App.4th at p. 537, italics added.) This finding must be based on clear and convincing evidence. (Id. at p. 538)
No such finding occurred in this case. At no stage in D.H.’s dependency did DPSS allege, or the juvenile court find, that father was an unfit parent or that awarding him custody of D.H. would be detrimental to the child. All of the allegations in the petition, as well as the court’s jurisdictional and dispositional findings, concerned the grandparents. While it included information about father in its reports, DPSS was never held to the standard of presenting clear and convincing evidence of father’s ability to parent D.H. As a result, father has been deprived of the minimal due process requirement articulated in Santosky and applied in Gladys L.—the state must have at least clear and convincing evidence of parental unfitness before it may sever completely and irrevocably the rights of parents in their natural child. (Santosky, supra, 455 U.S. at pp. 747-748.)
DPSS argues
Next, DPSS argues Gladys L.’s analysis is potentially faulty because the court relied on Santosky and Cynthia D., which address termination of the rights of presumed parents from whom the minors had been removed, not of parents who had never had custody, like father here. Courts have rejected this argument as well. For example, in Z.K., the court explained: [F]rom a constitutional perspective, it was exactly because [the nonoffending, noncustodial parent] was not involved in the earlier stages of the proceeding that a specific finding of detriment was needed before her rights were terminated at the section 366.26 hearing . . . [T]he only reason the termination of parental rights at a section 366.26 hearing in a typical dependency proceeding is constitutional is because of the findings that have necessarily been made as to the parent at earlier stages of the proceeding. Here, no such findings were made as to mother because her whereabouts were unknown and she was not a subject of the earlier stages . . . [M]other ‘was not the custodial parent, the child was not removed from her custody and she was not denied placement [at the dispositional hearing].’ Thus, to terminate her parental rights at the section 366.26 hearing over her request for custody, a specific finding of detriment, supported by clear and convincing evidence, had to be made. (Z.K., supra, 201 Cal.App.4th at p. 66, italics added.) Again, we agree with the reasoning in Z.K.
We are aware of only one case where the appellate court inferred a detriment finding to support a termination order when the juvenile court had made no findings against the father during the dependency. In In re G.P. (2014) 227 Cal.App.4th 1180 (G.P.), the father’s counsel had argued at the permanency planning hearing that the juvenile court was not required to make a detriment finding before terminating parental rights. (G.P., at pp. 1194-1195.) On appeal, the father argued the lack of any detriment finding violated due process. The appellate court concluded even if his counsel had not invited the error, it could infer a detriment finding based on the fact he never had a relationship with his children, was currently serving a lengthy prison sentence in Indiana, and was likely to be deported upon his release. (Id. at p. 1196.)
We are sympathetic to DPSS’s concern that father has not shown much initiative or parental responsibility during the dependency proceedings thus far. Despite being aware of DPSS’s involvement in his son’s life, he failed to appear at several hearings, and failed to complete a drug treatment program unrelated to the dependency. This evidence does raise questions about his fitness as a parent. However, the statements about father in DPSS’s reports do not constitute clear and convincing evidence he is unfit or it would be detrimental to D.H. to place the child in his custody.
At a minimum, a presumed father is entitle[d] to an opportunity to defend himself against a factually specific charge that he is not. (G.S.R., supra, 159 Cal.App.4th at p. 1214.) It is not up to [the father] to prove he is a fit parent. Rather, it is up to [the department] to satisfy its constitutional burden to establish, by clear and convincing evidence, that he is not. (Id. at pp. 1214-1215.) [A]lthough there may be
Finally, DPSS argues the California Supreme Court‘s 2009 companion probate decisions In re Guardianship of Ann S. and In re Charlotte D. (2009) 45 Cal.4th 1140 (Charlotte D.) indicate a detriment analysis was unnecessary and all that due process required was a best interest analysis. In those two cases, our high court addressed the constitutionality of
In both cases, the probate court had terminated parental rights under
Despite this caveat, DPSS asks us to extend that holding to the termination of parental rights in a dependency setting. We refuse to do so because the circumstances in dependencies are so different from probate adoption proceedings. As the court noted in In re Guardianship of Ann S.,
By contrast, in this particular dependency, the guardianship did not proceed successfully but instead necessitated state intervention, followed by removal and foster
In re Guardianship of Ann S. highlights additional “significant” distinctions between dependencies and probate adoption proceedings. (In re Guardianship of Ann S., supra, 45 Cal.4th at p. 1122 [“The differences between probate guardianships and dependency proceedings are significant“].) “A section 1516.5 proceeding is brought to permit a private adoption by the guardian. Dependency proceedings are fundamentally different.” (Id. at p. 1133.) In probate guardianships, “[u]nlike dependency cases, . . . [i]t is the family members and the guardians who determine, with court approval, whether a guardianship is established, and thereafter whether parent and child will be reunited.” (Id. at p. 1122) “The state is not a party to a probate guardianship, and its resources are not pitted against the parent. [Citation.] Nor does the state assume jurisdiction over the child and proceed toward family reunification or an alternative permanent placement . . .
DPSS points out that the authors of California Juvenile Courts Practice and Procedure have noted the rationale behind the best interest analysis in
Whether or not we agree there may be factual scenarios where a best interest analysis would sufficiently protect a presumed father‘s constitutional rights in a dependency setting—an issue we need not decide here—we hold this is not one of those scenarios. D.H. had lived with his prospective adoptive parents for only three months and the record contains scant information about the bond they shared. Additionally,
We note DPSS‘s reports indicate there were probate proceedings in 2010 in which the probate court granted the grandparents’ guardianship application. On remand, the juvenile court may review D.H.‘s probate file to determine if it contains any findings relevant to father‘s parental fitness. If so, the juvenile court may consider them in its analysis, bearing in mind however, that its conclusion as to detriment must be based on father‘s current circumstances. (Cynthia D., supra, 5 Cal.4th at p. 256 [detriment finding must occur in the proceeding where parental rights are terminated and be based on current circumstances]; see also In re Rodrigo S. (1990) 225 Cal.App.3d 1179, 1186 [“a finding of detriment to the [dependent] child must be based on present circumstances rather than on the family situation which existed at the time the child was initially removed from parental custody“].)
We reiterate the sentiments of the Second District in G.S.R., when it reversed a termination order for the same reason we do here: “We recognize and regret the procedural and emotional difficulty of undoing this fundamental error at this stage of the
III
DISPOSITION
We reverse the order terminating father‘s parental rights and remand the case to the juvenile court to determine whether there is clear and convincing evidence to support a finding of parental unfitness or detriment, based upon the facts as they currently exist. If the court finds detriment, the order terminating parental rights shall be reinstated.
CERTIFIED FOR PUBLICATION
SLOUGH
J.
I concur:
CODRINGTON
J.
RAMIREZ, P. J., Concurring and Dissenting
Today my colleagues hold that the juvenile court erred by terminating parental rights of D.H., Sr., a noncustodial father, because no unfitness or detriment finding had been made as to him prior to severing the familial relationship. I agree that the juvenile court erred, but I dissent from the majority‘s assumption that no finding of detriment had ever been made and that father‘s noncustodial status had not been interrupted by a removal of custody, when the record is incomplete. In my view, remand should be ordered to direct the juvenile court to review the probate guardianship file to determine the nature of the factual findings made in that proceeding, where, as a matter of law, custody was removed from both parents.
DISCUSSION
The majority concludes that reversal of the termination of parental rights is required because there was never a finding of detriment against father, nor was there a removal of custody from him. This is a bold statement given that at no time has this court, nor the trial court, nor any of the parties sought to review the guardianship file.
Because the appointment of a guardian involves an award of custody to a nonparent, there was necessarily a removal of custody from both parents. The question is whether that guardianship was instituted upon nomination by the parents, or by a petition filed by the grandparents.
The majority contends that a parent must be found “unfit” before parental rights can be terminated in a dependency and that the court‘s mistaken belief that it had denied father services under
The Court in Cynthia D. explained that unlike termination hearings evaluated in Santosky v. Kramer (1982) 455 U.S. 745, and In re Angelia P (1981) 28 Cal.3d 908 (holding that a finding of unfitness by clear and convincing evidence pursuant to
It is apparent that in finding the scheme (which permits termination of parental rights without any finding of unfitness) passed constitutional muster, our Supreme Court considered the terms “unfitness” and “detrimental” to be equivalents, because it concluded that unfitness had been established despite the fact that at no time in a dependency proceeding is a parent found to be unfit. The only way to reconcile the court‘s holding that the due process concerns of Santosky had been met (Cynthia D., supra, 5 Cal.4th at p. 256), is to equate the two concepts.
The term “unfitness” is not a “talismanic incantation” that imposes a higher standard. My interpretation finds support in Supreme Court precedents predating the 1987 revisions. As far back as 1974, the California Supreme Court has recognized that
Similarly, in guardianship proceedings, early authorities held that parents were entitled to retain custody unless affirmatively found unfit. (Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1122-1123, citing 14 Witkin, Summary of Cal.Law (10th ed. 2005), Wills and Probate § 928, pp. 1031-1032.) Although the court noted the significant differences between a
I agree that there are separate and distinct purposes of the juvenile, family, and probate courts (In re J.T. (2014) 228 Cal.App.4th 953, 961), but the principle that parenting is a fundamental right (see Stanley v. Illinois (1972) 405 U.S. 645, 651 [parenting is a basic civil right]; In re B.G., supra, 11 Cal.3d at pp. 688-689) is a thread that runs through all three, applicable in Family Court, Probate Court, and Juvenile Court. The majority has pointed to no authority suggesting that the definition of detriment sufficient to warrant an award of custody to a nonparent in a Family Law or Probate guardianship case is lesser than the standard of detriment applicable in dependency
Here, we know that the grandparents were appointed as guardians in 2010, but we do not know the basis for the appointment of legal guardians, and the trial court did not have that information before it. Without that information, it is impossible to say that there has never been a finding of detriment as to father. Even if father consented to the guardianship, the judgment making the child a ward of his grandparents necessarily involved a removal of custody from his parents in order to award custody to the guardians.
Moreover, if the grandparents filed a petition that was contested, there would necessarily have been a detriment finding pursuant to
The majority notes that there has never been a juvenile dependency petition filed against father. (Maj. opn. p. 16) However, if the child had been judicially removed from father‘s custody upon a finding of detriment in the guardianship matter, naming him in the dependency petition or removing custody from him—again—at the disposition hearing would have been redundant, and the law neither does nor requires idle acts. (
In any event, the trial court should have followed the proper procedures for termination of the guardianship, as set forth in
For this reason, I am compelled to agree that the judgment must be reversed. However, in my view the remand should direct the juvenile court to ascertain from the Probate Court guardianship file whether detriment was found in the course of those proceedings. If detriment was found there, the order terminating parental rights should be reinstated and the adoption should proceed because he was not a noncustodial parent within the meaning of
If there was no finding of detriment in the process of appointing the legal guardians, the juvenile court should proceed pursuant to
For these reasons, I dissent from the views expressed by the majority, although I concur in the judgment.
RAMIREZ
P. J.