Lead Opinion
Beginning with In re Gladys L. (2006)
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 Probate Code section 1516.5. (See In re Guardianship of Ann S. (2009)
I
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.
DPSS took D.H. into protective custody and filed a dependency petition alleging he fell under section 300, subdivision (b)
At the detention hearing, the court found DPSS had made a prima facie showing D.H. fell within section 300, subdivision (b) based on grandmother's admitted methamphetamine use, as well as on the grandparents' failure to protect D.H. from father and his girlfriend's "possible" substance abuse. The court removed D.H. from the grandparents' custody and ordered alcohol and drug-related services for grandmother and parenting education services for grandfather. It ordered supervised
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
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 park." She said father no longer lived with them, howеver, and she did not know where he was.
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 section 361, subdivision (c)(1) to remove D.H. from their custody. The court ordered DPSS to provide family reunification services to the grandparents and approved their case plan, which prohibited them from using drugs, allowing drug use in the home, and allowing father to reside in the garage.
C. The Grandparents' Unsuccessful Reunification Period
During the six-month review period, the social worker reported the grandparents were сomplying 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
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."
At the 12-month review hearing in June 2015, the court found the grandparents had failed to benefit from services and lacked insight. The court terminated the grandparents' services, found returning D.H. to their care would be detrimental to the child's welfare, and set a section 366.26 hearing to determine his permanent plan.
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.
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.
DPSS placed D.H. in a prospective adoptive home in December 2015. In a January 2016 addendum report, DPSS informed the court it was concerned about the prospective adoptive parents' commitment level and unrealistic expectations for D.H. DPSS placed D.H. in a new prospective adoptive home in March 2016. In May, DPSS placed him in another prospective adoptive home, following two all-day and two overnight visits with the family. DPSS reported the family was "loving and open to [D.H.]" and D.H. wanted to bе adopted by them.
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
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 section 366.26 hearing in August 2016 and objected to DPSS's recommendation to terminate his parental rights. He asked the court to establish a legal guardianship over D.H. instead of proceeding with adoption and argued he shаred the type of bond with D.H. described in section 366.26, subdivision (c)(1)(B)(i), commonly referred to as the "parental benefit exception" to terminating parental rights. DPSS argued for adoption and termination of parental rights, arguing father's visitation had been "inconsistent throughout the dependency."
The court terminated father's parental rights, stating: "A sufficient basis for termination of parental rights exist[s] based upon findings made at the
Section 360 guardiаnships occur when a parent informs the juvenile court he or she is not interested in services after the child has been declared a dependent. (§ 360, subd. (a).) "The proceeding for the appointment of a [section 360] guardian shall be in the juvenile court." (Ibid. ) Although the record is bereft of information regarding the grandparents' appointment as guardians, D.H.'s could not have been a section 360 guardianship because the grandparents were appointed guardians in probate court long before D.H. became a dependent. The juvenile court seems to have been under the mistaken impression D.H.'s guardianship was established under section 360.
Father timely appealed the termination of his parental rights.
II
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)
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)
Gladys, the minor in the appeal, had become a dependent of the juvenile court while in her mother's custody. ( Gladys L ., supra ,
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,
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
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,
" 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 ,
Thus, аt minimum, a juvenile court must make a detriment finding against a presumed father before terminating his rights. The finding may be made at
The juvenile court terminated father's parental rights based on its belief it had denied him services under section 361.5, subdivision (a) due to the existence of a section 360 guardianship and its finding termination would not be detrimental to D.H. In fact, the court never denied father services because it never considered whether to grant him services in the first place. If it had, section 361.5, subdivision (a) would not have supplied authority to deny services because D.H.'s guardianship was not under a section 360 guardianship. Thus, the sole basis for the court's decision to terminate father's parental rights was a best interest of the child analysis, which Gladys L. and its progeny make clear is insufficient. ( Gladys L. , supra ,
DPSS argues section 366.26 does not require a finding of unfitness or detriment before a court may terminate parental rights. The court rejected this same argument in Z.K. , a more recent case applying the Gladys L. holding to a mother's constitutional interest in the care and custody of her child. The Z.K. court concluded the contents of section 366.26, a statutory provision, were "hardly determinative of whether mother's constitutional rights were violated by the termination of her parental rights." ( Z.K. , supra ,
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
DPSS argues in the alternative, if an unfitness or detriment finding is required, we can infer one from the record. For obvious due process reasons, appellate courts refuse to make such an important finding in the first instance. Even in cases where therе may have been "valid bases" for the juvenile court to have found a father unfit, appellate courts will not infer such a finding as it requires them " '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.' " ( Frank R. , supra ,
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)
Even if we were inclined to overlook the due process concerns expressed in cases like Gladys L. and Frank R. , we would nevertheless refuse to infer a detriment finding on this record. Here, father did not invite the failure to make a detriment finding. And, unlike the father in G.P. , father does have a relationship with D.H. and there is evidence the relationship is positive. D.H. reported he liked spending time with father, and grandmother said father was good with D.H. and would take him on various outings. Additionally, father is not incarcerated and therefore physically incapable of raising his son like the father in G.P. was. As of October 2015, father reported he was employed and had stable housing.
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."
Finally, DPSS argues the California Supreme Court's 2009 companion probate decisions In re Guardianship of Ann S. and In re Charlotte D. (2009)
In both cases, the probate court had terminated parental rights under Probate Code section 1516.5 upon finding that adoption was in the child's best interest. The parents appealed, arguing the provision was unconstitutional for failing to require the court to make an unfitness or detriment finding before terminating parental rights. ( In re Guardianship of Ann S. , supra ,
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. , Probate Code section 1516.5 was intended to facilitate the adoption process for guardians who have cared for a child for more than two years, in situations where the parents have "failed to exercise any custodial responsibility for [that] period." ( In re Guardianship of Ann S. , supra ,
By contrast, in this particular dependency, the guardianship did not proceed successfully but instead necessitated state intervention, followed by removal and foster care. Unlike a Probate Code section 1516.5 case, D.H. had not been in a successful guardianship for a two-year period when the court terminated father's pаrental rights. Instead, the child had been in a prospective adoptive home for three months. As a result, the particular interests that take precedence over parents' interests in Probate Code section 1516.5 cases-the child's interest in stability and the guardians' interest in care and custody-were not present to nearly the same degree. Here, the guardians'
In re Guardianship of Ann S. highlights additional "significant" distinctions between dependencies and probate adoption proceedings. ( In re Guardianship of Ann S. , supra ,
DPSS points out that the authors of California Juvenile Courts Practice and Proсedure have noted the rationale behind the best interest analysis in Probate Code section 1516.5 may apply to dependencies. Their treatise states: "An argument can be made that under Charlotte D. and Guardianship of Ann S. , a finding of unfitness is not constitutionally required in all cases involving a presumed ... parent before their rights can be terminated, where the child has developed a protected interest in remaining with the adoptive parents, and doing so is in their interest. In such cases the court should look to the nature of the relationship between the parent and the child, and whether the parent demonstrated a commitment to his or her parental responsibilities ... This is an area to watch for further developments." (Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2016 ed.) § 2.60 [7], p. 2-143.)
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
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 reviеw 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 ,
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 process, ... Still, we cannot allow the process to continue on the path toward termination of parental rights without further review in the trial court. We cannot undo the process but we can pause and restart the proceedings." ( G.S.R. , supra ,
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 tеrminating parental rights shall be reinstated.
CODRINGTON, J.
Notes
A "nonoffending" parent is one who has not been the subject of a jurisdictional finding under Welfare and Institutions Code section 300. (E.g., In re A.A. (2012)
Although the appellate record does not contain a paternity finding, the parties agree father is the presumed father. The court referred to him as such at hearings, and the Welfare and Institutions Code section 366.26 reports state the court found him to be the presumed father on May 7, 2015. Additionally, he is listed as the father on D.H.'s birth certificate, which indicates mother and father signed a voluntary declaration of paternity. (See Fam. Code, § 7611 [a voluntary declaration of paternity executed after Jan. 1, 1997 allows the male signatory to have presumed father status in dependency proceedings]; Cal. Rules of Court, rule 5.635(c) ; Health & Saf. Code, § 102425, subd. (a)(4)(C) [unwed father's name shall not be listed on birth certificate unless parеnts "sign a voluntary declaration of paternity at the hospital before the birth certificate is submitted for registration"]; In re Raphael P. (2002)
Unlabeled statutory citations refer to the Welfare and Institutions Code.
The detention report said DPSS had received five neglect referrals during the first year or so of D.H.'s life. Some of those referrals were against both mother and father and some solely against mother. DPSS ultimately determined two of those allegations were substantiated, both against mother-that she had tested positive for amphetamine upon giving birth to D.H. and for methamphetamine upon being admitted to San Bernardino Community Hospital for mental health issues about a year later. The record contains no prior substantiated referrals against father.
Dissenting Opinion
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 thе 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 questiоn is whether that guardianship was instituted upon nomination by the parents, or by a petition filed by the grandparents.
A guardian may be nominated by a parent ( Prob. Code, § 1500 ; Guardianship of Vaughan (2012)
Family Code section 3020 declares that the health, safety, and welfare of the child is the court's primary concern, and that it is the public policy of the state to assure that children have frequent and continuing contact with both parents after separation or dissolution of marriage or the end of their relationship, except where the contact is not in the child's best interest, as provided in Family Code section 3011. Family Code section 3040 lists the statutory order of preference for custody of a child. Significantly, Family Code section 3041, subdivision (a), provides in part that "Before making an order granting custody to a person or persons other than a parent, over the objection of a parent, the court shall make a finding that granting custody to a parent would be detrimental to the child and that granting custody to the nonparent is required to serve the best interest of the child."
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
The Court in Cynthia D. explained that unlike termination hearings evaluated in Santosky v. Kramer (1982)
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,
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 parental rights may be terminated upon a showing of detriment, insofar as unfitness was no longer the standard. ( In re B.G. (1974)
Similarly, in guardianship proceedings, early authorities held that parents were entitled to retain custody unless affirmatively found unfit. ( Guardianship of Ann S. (2009)
I agree that there are separate and distinct purposes of the juvenile, family, and probate courts ( In re J.T. (2014)
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 Family Code section 3041, subdivision (a), to warrant the award of custody to a nonparent. In probate guardianships, a finding of detriment made in accordance with Family Code section 3041, must be established by clear and convincing evidence, so unless father consented to the guardianship, the appointment of a legal guardian of D.H. necessarily comported with Santosky and due process. If such a finding was made, the judgment terminating parental rights is proper because there has been both a detriment finding and a removal of custody from the father.
The failure of the parties, the juvenile court, and now this Court, to review the Probate Court file pertaining to the guardianship in order to determine what tyрe of petition was filed, as well as the nature of the findings and order that were made as to that petition, precludes us from making any determination that there has never been a finding of detriment made against father. We just do not know, and it is inappropriate for us to engage in fact-finding on appeal. Further, it is legally and factually incorrect to say that the child had never been removed from father's custody. The appointment of a legal guardian necessarily involved a removal of legal and physical custody from the parents, so whether they agreed to it or not, there has been a removal of custody from father.
In any event, the trial court should have followed the proper procedures for termination of the guardianship, as set forth in Welfare and Institutions Code section 366.3, subdivision (b)(2) and (3), where parental rights were not previously terminated. Following this procedure would give the juvenile court an opportunity to consider father's current circumstances and allow father to request custody of his child and afford the court an opportunity to determine whether an award of custody to father would be detrimental within the meaning of Welfare and Institutions Code section 361.2.
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 Welfare and Institutions Code section 361.2, who would be entitled to custody. (See In re A.A. (2012)
If there was no finding of detriment in the process of appointing the legal guardians, the juvenile court should proceed pursuant to Welfare and Institutions Code section 361.2, to determine if placement with a noncustodial parent would be detrimental.
For these reasons, I dissent from the views expressed by the majority, although I concur in the judgment.
It should be noted that Family Code section 3041, subdivision (c), states only that the definition of "detriment to the child" includes the harm of removal from a stable placement, and in no way limits a finding of detriment to such situations.