In rе S.S., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. T.S., Defendant and Appellant.
E074852
Court of Appeal of the State of California, Fourth Appellate District, Division Two
October 2, 2020
CERTIFIED FOR PUBLICATION
Cheryl Murphy, Judge
APPEAL from the Superior Court of Riverside County. Cheryl Murphy, Judge. Reversed with directions.
Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant and Appellant.
Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand, and Julie Koons Jarvi, Deputy County Counsel for Plaintiff
This appeal poses the question whether a juvenile court may, consistent with due process and the dependency statutes, terminate the parental rights of a noncustodial father who seeks custody even though the state detained and removed the child based only on allegations against mother and the court found giving father custody would be detrimental based on problems arising from his poverty.
The Riverside County Department of Public Social Services (department) filed a petition seeking to remove an 18-month old girl based on mother‘s substance abuse and mental health issues and noncustodial father‘s failure to provide for her. (
Father said he couldn‘t yet take custody of the child because his housing, transportation, and employment weren‘t stable, but he indicated he had obtained work and was attempting to find suitable housing. He also indicated he would return to Chicago, his home city, and live with relatives who were willing to help him raise her once he obtained custody.
The department properly amended the petition to remove the allegations against father before the jurisdiction and disposition hearing. They maintained the child should be removed from both parents and asked the trial court to find by clear and convincing evidence that placing the child with her parents would pose a substantial danger to her health, safety, or well-being. The department indicated both parents were entitled to six months of family reunification services, but due to the child‘s young age their parental rights could be terminated at the six-month review hearing. The court agrеed with these recommendations, including by finding under the clear and convincing evidence standard that it would be detrimental to return the child to father‘s custody.
Father argues the entire procedure violated his due process rights and there wasn‘t adequate support for the trial court‘s finding that giving him custody would be detrimental to the child.1 We hold a juvenile court may not terminate parental rights based on problems arising from the parent‘s poverty, a problem made worse, from a due process standpoint, when the department didn‘t formally allege those problems as a basis for removal. Absent those impermissible grounds for removal there wasn‘t clear and
convincing evidence that returning the child to father would be detrimental to her. We therefore reverse the termination of father‘s rights and remand for further proceedings.
I
FACTS
A. The Referral, Petition, and Detention Hearing
The child, Serenity, and her family came to the department‘s attention on May 3, 2018, when they received a general neglect referral reporting mother was at a governmental office with a child seeking housing assistance and she appeared to be intoxicated and was anxious, shaking, and unable to speak.2 The family is black. The referral said mother took the child out of her stroller and shook her twice to get her attention and quiet her, though it noted she didn‘t shake her hard.
Just over a week later, a department social worker interviewed mother at her apartment. The social worker said, when mother came out, she was pacing, physically clumsy, had difficulty concentrating, and spoke rapidly and sometimes nonsensically. Mother said she‘d been diagnosed with schizophrenia, attention deficit disorder, and bipolar disorder but she wasn‘t in therapy or on medication. She admitted to smoking marijuana but denied other substance use. She said she was under a lot of stress because she was in the process of being evicted.
Mother identified father as Serenity‘s biological father but didn‘t provide contact information. The social worker tried to contact him using a phone number in the referral, but the number didn‘t work. The department then began standard efforts to locate the father.
On May 15, 2018, the department filed a petition asserting Serenity was in need of court protection. They alleged mother abused amphetamine and methamphetamine, lived a transient and unhealthy lifestyle, suffered from untreated bipolar disorder and schizophrenia, and had a criminal conviction for child endangerment for which she would remain on probation until March 2021. She also had a history with child welfare services in Texas involving another child, who was placed with a differеnt father. (
Mother was present at the detention hearing, but father wasn‘t there and wasn‘t assigned counsel. At the hearing, county counsel changed their recommendation and asked the court to detain the child from mother as well as father. The court found the department had made a prima facie showing Serenity fell within the statutory protections of
The court removed Serenity from mother‘s custody. Though father hadn‘t appeared, the court ordered the department to provide reunification services for both parents, directed mother and father should be tested for alcohol and drugs, and that both should receive parenting education, substance abuse treatment, and counseling. The court also ordered twice-weekly supervised visits for mother and visits for father, if he appeared, as the department determined to be appropriate.
In June 2018, father contacted the department and let them know he was living in Temecula. The parents were in a committed relationship when the minor was conceived. Father said they married when they moved to California, before Serenity was born, but had separated later, and mother had made it difficult to see the child since then. He said he hadn‘t been in contact with mother because she was hostile and made threats against him. Mother reported father is listed as Serenity‘s father on her birth certificate. She said she has a child support case for Serenity, and father reported he was paying child support to mother. The department found father had no criminal history.
Father reported he was unable to make visits with the child because he didn‘t have transportation from Temecula. However, at father‘s initiative, the department arranged an online video visit with the child and noted no concerns about the visit. The social worker noted father expressed his exсitement and enjoyment at being able to see Serenity. Father also told the social worker that if the court granted him custody, he would move back home to Chicago, where he would have housing and the support of his family to care for his daughter. He also confirmed in-person visits at the department‘s Temecula office worked well for him.
In July 2018, the social worker completed two interviews with father. He said he was born in Chicago and lived in the Midwest most of his early life. He met mother in Texas in February 2016. They moved together to California in May 2016 and married in August 2016. He said Serenity was born in November 2016. He was present for her birth and he was listed as the father on her birth certificate. After her birth, he and mother began experiencing problems with housing, and lived in hotels and a car. In early 2017, they got into an argument and mother punched him in the face. Mother left with Serenity against his wishes. He tried to locate housing but continued staying in hotels. He said mother and Serenity came back to stay with him for a week, but they moved out again when she found a roommate.
Eventually, father got back into contact with mother and asked her why she had run off with Serenity. Mother said she “needed space.” Father found her to be very emotional, “stressing out and having suicide ideations.” Because of their inability to establish housing, father had a plan to move back to his home state. He reported he had Serenity for four days in March 2017, but then returned her to mother. The following day she started telling him she was “stressed out and . . . did not ‘want to do this anymore’ and if a solution was not established she was going to give [Serenity] to the state.” Later, father got a new job and a place to stay at a friend‘s home in Perris, and they
Father denied leaving Serenity without support. He reported he had been paying child support to mother since February 2018. He said, “When [mother] left me and ‘went wherever she went,’ I was working a temporary job leading up to getting hired full-time, I was sending her money prior to getting placed on child support. I was supporting her by providing her with $80-$90 on top of her receiving government assistance.” He said he attempted to see Serenity, but mother would threaten him and hang up. At some point, mother told him the child wasn‘t his, so he took a paternity test as part of the child support case, which showed he was her biological father.
Father told the social worker he wanted Serenity placed with him. “I would prefer Serenity to be with me ‘Even if me and [mother] aren‘t talking, I still would be willing to work and be open to compromising and developing a plan.’ I do not want Serenity to not know who her mother is but if it came down to one last thing, I would want her to be with me.”
The social worker informed father of the statutory six-month limitation on reunification for children as young as Serenity. She told him he could relinquish his daughter for adoption, but he responded, “I‘m going to say no to that. It‘s not like Serenity does not have any place to go. I have family back home and since moving to California, it has become hard for a single person to do this by themselves. However, if an adoption has to happen, I would like my family to adopt her and not a complete stranger.” He said he would be willing to participate in parenting classes because Serenity is his first child, as well as any services the department recommended. He indicated to the social worker that he would need housing assistance to provide for his daughter.
The department included a recommended case plan for fаther. His objectives were to “obtain and maintain a stable and suitable residence” and “acquire adequate resources to meet her needs.” The case plan listed his responsibilities as participating in an approved parenting education program and “individual counseling to address issues relating to past relationship issues and/or trauma which may have an impact on his life.” The department did not make any provision for helping father obtain aid in finding and paying for a residence.
Also in July, father visited Serenity in person. The visit went well. The foster parent reported Serenity was shy about interacting with father, but said father was patient with her and understood she wasn‘t sure who he was.
C. Jurisdictional and Dispositional Hearing
Based on these developments, the department filed an amended petition containing amended recommendations for how to handle Serenity‘s case. They struck the allegations that father‘s whereabouts were unknown and that he‘d failed to provide Serenity with adequate food, clothing, shelter, and medical treatment. After the changes, the petition contained no allegations regarding father. The department recommended the trial court find the allegations against mother true by a preponderance of the evidence, and that Serenity be adjudged a dependent of the court.
Despite the absence of allegations, the department made recommendations regarding father‘s status. First, they recommended the court remove Serenity from the physical custody of both parents. Second, they recommended the trial court find by clear and convincing evidence as to both mother and father that “[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home.” (
The trial court held a contested jurisdiction and disposition hearing on July 18, 2018. Neither parent was present, though both were represented by counsel. The trial court took the department‘s reports into evidence. Father‘s counsel informed the court he had talked with father several times, and father was trying to get reliable transportation. Father‘s counsel emphasized there were no allegations against father in the first amended petition. He represented that father had had some contact with Serenity and asked for authorization to increase contact to include overnight and weekend visits and, ultimately, placement with father.
The court ordered family reunification services for both parents, and father‘s case plan included a parenting class and individual counseling. The court ordered supervised visits for father and gave the department discretion to allow unsupervised visitation. Father‘s counsel reiterated to the court that the allegations against his client had been stricken and he was a nonoffending parent, and requested unsupervised visits, overnight weekend visits, and placement. The court decided to maintain supervised visits because, “I don‘t think he was in the child‘s life. And [to] make sure that he‘s doing well,” but did give the department аuthority to approve unsupervised overnight visits and placement. The court didn‘t expressly address the recommendation in the department‘s report to find father had the status of presumed father.
D. Six-month Review Hearing and Termination of Reunification Services
By January 2019, the social worker reported father hadn‘t engaged in a parenting class or individual therapy. He was living with a friend in Hemet and working at a warehouse in Temecula. The social worker performed a background check and found father had no warrants and no arrests or convictions.
Father told the social worker he was aware of his goals and that he needed to find stable housing to have custody of Serenity. He said he wants to reunify with her but didn‘t understand why he had to complete services in order to do so. Mother was not participating in her case plan components.
The social worker reported father‘s visits with Serenity were sporadic. Initially, visits were limited to video calls. He had participated in only one in-person visit with the child. He arrived late for the visit and Serenity was distressed when he attempted to get close. However, her caregiver reported father was very patient and kind to the child and tried to play with her.
The social worker concluded the prognosis of returning Serenity to her parents’ custody was not good. “The parents have not dealt with the issues
On February 26, 2019, the trial court held a contested six-month review hearing. Neither parent was present. Father‘s counsel informed the court father was working full-time in Temecula at a warehouse and he did not have a car, so his only way to get to court was to take a long bus ride. He reminded the court that father was a nonoffending parent, and he had contacted the entity “A Loving Way” to begin parenting and individual counseling. He reported father had visited Serenity the week prior, and requested the court extend his services for six months. Mother‘s counsel reported that mother agreed her services should be terminated.
The court found the department had provided the parents with reasonable services, but they had made no progress toward alleviating the causes of the removal. The court found by a preponderance of the evidence that returning Serenity to father‘s care would create a substantial risk of detriment to her well-being.
The court terminated both parents’ reunification services and scheduled a
The court didn‘t mention the requirement that father seek an extraordinary writ to preserve his right to appeal the order terminating services and setting the
E. Father‘s 388 Petition and Termination of Parental Rights
In June 2019, father filed a
The court scheduled a
Father had continued participating in therapy, which contained a parenting component, and he was scheduled to complete therapy in November 2019. His therapist reported he was motivated to begin parenting his daughter and was an active participant in his therapy sessions.
Father came to the hearing in January 2020, but mother didn‘t. Father and the social worker testified.
1. The social worker‘s testimony
Father‘s counsel called the social worker as a witness. She said she had been on the case since May 2018. She acknowledged there were no allegations in the petition against father.
She said father had been living in the Temecula area throughout the case and reported he had obtained a new job at a hospital. She didn‘t talk with his therapist to confirm his participation in therapy because the therapist didn‘t have the necessary medical release paperwork. She was told there was already a release on file with the department but didn‘t contact father‘s attorney to obtain a release.
She acknowledged father had told her about his difficulties making visits and asked her to make them more convenient. She tried to do so by monitoring visits at the Lake Elsinore office in August and September 2019. She said father has also рarticipated in video chats with Serenity, and the caregiver told her what happened on these chats. She said father had not engaged in any improper activity during his visits, but that he simply played with the child and didn‘t express affection for her.
2. Father‘s Testimony
Father said he had recently moved into a new apartment with his cousin‘s family in Murrieta. He‘d been there for two weeks and said it‘s a long-term residence. He said he had also started a new job working at a Temecula Valley Hospital where he had just completed orientation. He was a full-time employee with benefits that would start after he‘d worked there for three months. He characterized the job as good, stable employment that paid more than his former warehouse job. The benefits included assistance with tuition and childcare and health insurance for himself and Serenity.
Though he had worked in his previous job at the warehouse for about a year, it was a temporary job. He also explained the warehouse job had created significant obstacles for making weekday visits to Lake Elsinore. He worked there every weekday from early in the morning until 3:30 in the afternoon. Since public transportation from Temecula to Lake Elsinore took him an hour and a half, he was usually unable to make in-person visits. For a while, Serenity‘s caretaker arranged in-person visits with him in Murrieta on Saturdays. However, that arrangement was inconvenient for her and she asked him to start visiting in Lake Elsinore on weekdays again.
Father also said after the court terminated services, the department informed him he could no longer arrange visits with the caregiver, and he would have to arrange visits through the department to occur during work hours on weekdays. He said the social worker had not worked with him to find a way to make visits fit his schedule. He said with his new work schedule, he would be able to visit once a week if services resumed, and he was saving to buy a car. Father also said if he was granted additional services, he hoped the department could help him with housing, which is what he has been told is the reason he can‘t have custody of his daughter.
Father said it has always been his goal to have Serenity in his custody. It was his hope to return to Illinois with his daughter. He said he was upset when he found out Serenity was in protective custody. He had recently lost his home in part because he was paying child support and expenses.
He said he had completed about 13 to 15 weeks of counseling and parenting classes. He found the therapy and his parenting sessions helpful for learning to take care of a small child, and said he did activities and role-playing. He would be willing to do additional therapy and parenting courses, if requested.
After argument, the court denied father‘s petition to change the order terminating services. It concluded father‘s circumstances were, at best, in the process of changing and that ordering additional services wasn‘t in Serenity‘s best interest.
“Father throughout the duration of this case since it began in May of 2018 has not demonstrated that he‘s capable of providing a safe and stable home, along with the financial means to have Serenity in his care. [¶] Even if father may have completed his case plan, this Court believes the circumstances to be more in line with changing and not sufficient change in circumstances. The fact that the case plan services may be completed does not in and of itself demonstrate that the parent is ready [to] have the child placed in their care. [¶] I understand from what counsel is representing today, he‘s not asking for placement. He‘s really asking for services so it could potentially lead to placement. But this Court has to look at the entire case and the actions of father and where he‘s progressed from the beginning to now, and the Court doesn‘t believe that giving six more months of services is going to get father to a point of being able to have his daughter in his care and weighing that with keeping Serenity where she is with her caregiver. [¶] Even if I did consider the circumstances of father currently to be changed, I don‘t see that father has shown it‘s in the best interest of the minor child to grant him six more months of services with [the] possibility of return.”
On termination of parental rights, father‘s counsel argued the parental child bond exception (
The court rejected these arguments. It found there was clear and convincing evidence Serenity was adoptable and the parental child bond exception didn‘t apply. The court concluded, “A sufficient basis for termination of the parental rights exists based upon the findings made at the [Welfare and Institutions Code] section .21(e) hearing held February 26, 2019. And at that hearing, the Court found that reasonable services were provided or offered to the parents to overcome the problems which led to the initial removal of the child. Nevertheless, despite the availability of those services, the child could not be returned to the parents’ custody, and there‘s no substantial probability of return within the next six months. [¶] Termination of parental rights would not be detrimental to the minor . . . and adoption is in the best interest of the
Father filed a timely notice of appeal challenging both rulings.
II
ANALYSIS
A. Forfeiture of Appellate Rights
Father challenges the trial court‘s finding that returning Serenity to his custody wоuld be detrimental to her, which undergirds the decision to terminate both services and parental rights. Before reaching the merits, we address the department‘s argument, first raised at oral argument, that father can‘t appeal the setting order, and therefore can‘t challenge the detriment finding, because he didn‘t preserve his right to appeal by seeking an extraordinary writ.3 (
However, the court must give the parent notice of the writ requirement and a failure to do so provides good cause for allowing the appeal. (In re Cathina W., supra, 68 Cal.App.4th at p. 719.) The statute directs the trial court “shall advise all parties of the
requirement of filing a petition for extraordinary writ review as set forth in this subdivision in order to preserve any right to appeal in these issues.” (
The trial court did not affect notice of the writ requirement in this case. It made no mention of the requirement at the February 26, 2019 hearing where it terminated reunification services and set the 366.26 hearing. And though it directed the clerk of court “to provide written notice as set forth in the California Rules of Court,” the only notice in the record advised father that a section 366.26 hearing had been set but omits any mention of the requirement of seeking an extraordinary writ to preserve his appeal rights. The written notice also came too late; it was sent one month after the heаring, not one day. (
Only a minute order says anything about the writ requirement, representing “the court advised all parties present in court” of the need to file a writ to preserve appellate rights. The transcript shows that advisement didn‘t happen, and in such a conflict the transcript controls. (People v. Zackery (2007) 147 Cal.App.4th 380, 385-386.) Where a “minute order contains a recital that ‘[t]he parties are advised of writ procedures in open court,’ [but] the reporter‘s transcript establishes the juvenile court failed to orally advise mother of her writ rights . . . we presume the reporter‘s transcript is the more accurate.” (Jennifer T. v. Superior Court (2007) 159 Cal.App.4th 254, 259.) In any event, father wasn‘t present at the hearing, so written notice was required.
We therefore conclude father may seek review of the court‘s detriment finding on appeal of the order terminating his parental rights.4 We
B. Clear and Convincing Evidence Standard
Father argues the trial court violated his due process rights by terminating his parental rights without first finding, under the clear and convincing evidence standard, that giving him custody would be detrimental to Serenity.
Father is without question correct that parental rights are fundamental and a trial 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 D.H. (2017) 14 Cal.App.5th 719, 730.)
This is an application of the longstanding protections we afford parents, based on the recognition of their fundamental interest in the companionship, care, custody, and management of their children. (In re B.G. (1974) 11 Cal.3d 679, 688.) “‘Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence.’ [Citation.] ‘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.‘” (In re Gladys L. (2006) 141 Cal.App.4th 845, 848.)
The detriment finding may occur earlier in the proceedings than the section 366.26 hearing. “California‘s dependency system comports with [the due process] requirements because, by the time parental rights are terminated at a section 366.26 hearing, the juvenile court must have made prior findings that the parent was unfit. [Citation.] ‘The number and quality of the judicial findings that are necessary preconditions to termination convey very powerfully to the fact finder the subjective certainty about parental unfitness and detriment required before the court may even consider ending the relationship between natural parent and child.’ [Citation.] The linchpin to the constitutionality of the section 366.26 hearing is that prior determinations ensure ‘the evidence of detriment is already so clear and convincing that more cannot be required without prejudice to the interests of the adoptable child, with which
The problem with father‘s argument is his premise that the trial court failed to make a detriment finding under the heightened clear and convincing evidence standard. In fact, in keeping with the principles set out above, the court made an explicit detriment finding at the disposition hearing under the new section 361, subdivision (d), which relates specifically to noncustodial parents and provides that “[a] dependent child shall not be taken from the physical custody of his or her parent[] . . . with whom the child did not reside at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence that there would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child for the parent [or] guardian . . . to live with the child or otherwise exercise the parent‘s . . . right to physical custody, and there are no reasonable means by which the child‘s physical and emotional health can be protected without removing the child from the child‘s parent‘s . . . physical custody.” (
C. Support for the Detriment Finding
The real problem with the trial court‘s detriment finding is it was based on father‘s poverty, which is barred by statute and our case law. The dependency statute directs “[a] child shall not be found to be a person [subject to dependency proceedings] solely due to the lack of an emergency shelter for the family.” (
We
To that end, California courts have repeatedly found social services must actively seek to assist a parent suffering from poverty in obtaining adequate housing and that trial courts may not terminate reunification services оr parental rights if they have failed to do so. (T.J. v. Superior Court (2018) 21 Cal.App.5th 1229, 1247-1248 [reversing termination of reunification services where social services merely referred mother to a housing assistance program which put her on a wait list]; In re P.C. (2008) 165 Cal.App.4th 98, 106 [reversing termination of parental rights based on inadequate housing where social services “simply recommended mother look in the Pennysaver for housing, and admittedly was unaware of other resources to which she could refer mother for low-income housing“]; In re T.W.-1 (2017) 9 Cal.App.5th 339, 347 [concluding reunification services were inadequate where “the case plan failed to include any housing services, despite the juvenile court‘s direction that such services be included“]; G.S.R., supra, 159 Cal.App.4th at pp. 1213-1214 [reversing termination of parental rights based on father‘s lack of housing when social services failed to provide housing assistance].)
We find G.S.R. too analogous to ignore. There, the trial court removed two children from their mother‘s custody after she was arrested for having sex with a minor. (G.S.R., supra, 159 Cal.App.4th at p. 1205.) At the time, social workers couldn‘t locate father, so the trial court placed the children with their paternal grandmother and uncle. (Ibid.) The father appeared two months later and thereafter remained involved in his children‘s lives. However, he wasn‘t able to assume custody because he couldn‘t provide the children with suitable housing and wasn‘t employed full-time. (Id. at p. 1206.) He also admitted to prior alcohol and drug use but said he‘d stopped using any drugs more than a decade earlier and had stopped drinking a year ago. (Ibid.) The
The Court of Appeal concluded the trial court had failed to apply the clear and convincing evidence standard when it made its detriment finding, but also concluded the record didn‘t support such a finding in any event. (G.S.R., supra, 159 Cal.App.4th at pp. 1210-1212.) Thе appellate court refused to rely on the father‘s lack of housing as supporting the detriment finding. “As for the finding of detriment based on [father‘s] lack of housing, that finding arises directly out of the fact of his poverty. The record is devoid of evidence that, but for his inability to obtain housing, [the father] is incapable of adequately parenting his sons.” (Id. at p. 1214.) The court noted lack of housing can‘t serve as a legitimate ground for removing a child from parental custody, and rejected the suggestion that social services could “bootstrap the fact that [the father] was too poor to afford housing . . . to support findings of detriment, all of which flow directly from the circumstances of [father‘s] poverty.” (Id. at p. 1213.) The court emphasized social services had compounded the problem by utterly failing to assist the father in locating suitable housing. (Id. at pp. 1214-1215.) The court also rejected the trial court‘s reliance on the fact the father had missed some sobriety treatment sessions because “there was never any showing his failure to [attend] posed any risk to his sons. While [the department] may desire it from an abundance of caution, participation in [sobriety] or another rehabilitation program should not be a prerequisite for a parent who has shown no problem maintaining sobriety.” (Id. at p. 1214.)
The facts of this case are remarkably similar. Father‘s absence from the home and failure to support the child were the department‘s initial bases for removing Serenity from him. But those allegations proved unfounded once he made contact with the department. He said he was married to mother and present for Serenity‘s birth, lived with them for about four or five months before mother left with the child, and tried to reunite but had trouble with childcare due to irregular housing and the demands of his temporary job. He also said he‘d had a paternity test and paid child support under a family court order. In the face of this new information, the department rightly amended the petition to remove the only allegations against him—that he had failed to provide support. Thus, just like the father in G.S.R., Serenity‘s father was a
Also like the father in G.S.R., father couldn‘t regain custody of Serenity because of his economic situation, not his parenting ability. He lacked adequate housing and also lacked transportation. Those are the reasons he initially declined to take custody, though he always indicated his intention to address those circumstances. The department‘s case plan for him, which the court adopted, said his objectives were to “obtain and maintain a stable and suitable residence” and “acquire adequate resources to meet her needs.” Father did make progress on obtaining housing, but not quickly enough. He held down a regular job for about a year, though it was a low-paying, temporary job with little flexibility. As a result, he wasn‘t able to get permanent housing until months after the trial court had terminated his reunification services. We agree with the court in G.S.R. that these housing problems do not support the trial court‘s detriment finding as a basis for terminating father‘s parental rights.
Meanwhile, again as in G.S.R., the department did nothing to help father resolve the real barriers to custody. Father himself identified housing as a barrier to his taking custody of Serenity and repeatedly requested help from the social worker. The case plan itself rightly identifies obtaining a stable residence and adequate resources to take care of Serenity as objectives he should pursue to regain custody. Yet the department did nothing to help him achieve those goals. Their negligence compounded father‘s problems, as did their insistence that he expend time and resources attending individual counseling sessions and parent classes, which the department recommended and the court imposed even before father had contacted the department. Under these circumstances, father‘s problems with housing cannot support the court‘s detriment finding. (G.S.R., supra, 159 Cal.App.4th at pp. 1213-1214.)
The department points to father‘s problems with maintaining a regular visitation schedule as an important difference between this case and G.S.R.
It‘s true the father in G.S.R. had more successful and more regular visits with his children. However, his situation was comparatively easy. His children were 6 and 8 years old at the beginning of the case—old enough that they already had a relationship with him—and their grandmother was local and able to take custody. That made visiting the children and maintaining a relationship easy. In this case, father was similarly adamant about regaining custody, but Serenity was an infant, mother had taken her away when she was only four or five months old, and he didn‘t have local family support. At that point, mother was still attempting to reunite with Serenity. Since mother resided in Riverside, the department placed the child in foster care near her, which turned out to be a prohibitive distance from him. Though he repeatedly told the social worker he was having trouble with transportation and consistently sought to supplement in-person visits with online video visits, the department did nothing to provide real assistance. We can all appreciate now, in the midst of the COVID-19 quarantine, that video meetings are not an adequate substitute for meeting in person, even for adults. That‘s even more true for children, especially small children, who aren‘t cognitively developed enough to engage in that setting. The department stood by and allowed father‘s reunification efforts to fail due to his lack of economic resources. Like the court in G.S.R., we conclude he must be given a real opportunity to reunite with Serenity before his parental rights are terminated.
We recognize there‘s no completely satisfactory remedy for this situation. The department‘s failure to engage with father‘s core problem—his poverty—and its focus on peripheral issues have deprived him and his daughter of years during which they could have established a loving relationship. As a result, Serenity has been placed in a prospective adoptive home that is presumably loving and at least stable. We wish there were a way of addressing the problem that would not create even more turmoil and uncertainty than she already has experienced. Obviously, it would have been better for Serenity and father had the trial court and the department been more
We conclude G.S.R. provides an imperfect, but appropriate framework for addressing the circumstances of Serenity and her father on remand. The G.S.R. court determined the father‘s “due process rights were denied by [the department‘s] failure to demonstrate sufficient detriment and the juvenile court‘s failure to find a legitimate basis for deeming him unfit.” Recognizing thе difficulty of repairing the problem at such a late stage, the court reversed the termination and remanded “with instructions that the trial court revisit the issue of whether, based on facts and circumstances as they exist at this time, there exist legally sufficient grounds to find it would be detrimental to return the [children] to [the father], recognizing poverty is not such a ground. If not . . . the juvenile court shall restart the clock on reunification services and related efforts, including housing assistance, to afford [the father] a legitimate opportunity to build a relationship with and become a full-time parent to his [children]. Only in the event those renewed efforts fail may the juvenile court proceed with termination of parental rights. If the trial court determines it would not be detrimental to return the [children] to [his] care, it shall take the necessary steps to assist [their] return to [his] custody.” (G.S.R., supra, 159 Cal.App.4th at pp. 1215-1216.)
D. Changed Circumstances
Our conclusion makes it unnecessary to review the trial court‘s order denying father‘s section 388 petition. We note, however, that the ability of parents to show their circumstances have changed is critical to ensuring parents receive due process. “[S]ection 388 plays a vital role in preserving due process in dependenсy proceedings overall” because “it is only when read in conjunction with the ‘escape mechanism’ section 388 procedures create that the limited options available at a selection and implementation hearing under section 366.26 comply with due process. [Citation.] Thus, that section 388 provides such an ‘escape mechanism’ in practice, not just in theory, ‘is vital to the constitutionality of our dependency scheme as a whole, and the termination statute, section 366.26, in particular.‘” (In re J.M. (2020) 50 Cal.App.5th 833, 847; see also In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
We are not convinced the trial court was correct in finding father hadn‘t established changed circumstances in this case. Although the developments were recent, he testified he had finally obtained a permanent full-time job at higher pay as well as health care and childcare assistance that would benefit Serenity. He also testified he had nearly completed individual counseling and
III
DISPOSITION
We reverse the order terminating father‘s parental rights and remand the case to the trial court with directions to conduct a hearing to address whether legally sufficient current grounds—independent of his poverty and lack of stable, suitable housing and transportation—would make it detrimental to place the child in his care. If no such grounds exist, the juvenile court shall order the department to restart reunification services and related efforts, including, but not limited to, assistance in obtaining stable, suitable housing and transportation, and take the necessary steps to return the child to father‘s custody. The trial court shall order the department to provide reunification services for a period of six months. If these renewed efforts fail, the trial court may proceed to terminate father‘s parental rights. If grounds independent of his poverty and lack of stable, suitable housing and transpоrtation currently exist making it detrimental to place the child in his care, the court shall reinstate its order terminating father‘s parental rights.
CERTIFIED FOR PUBLICATION
SLOUGH
J.
We concur:
MILLER
Acting P. J.
RAPHAEL
J.