Opinion
B301671
05-29-2020
In re C.R., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. S.R., Defendant and Appellant.
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel and Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. CK84981) APPEAL from an order of the Superior Court of Los Angeles County, Kristen Byrdsong, Juvenile Court Referee. Affirmed. Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel and Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
S R. (Father) appeals from the order terminating his parental rights to his daughter C.R. (born in 2005). He argues that the juvenile court erred in failing to order reunification services when he appeared for the first time in the proceedings at the Welfare and Institution Code section 366.26 hearing. He also contends that because the court failed to make a finding of parental unfitness it erred in terminating his parental rights. We disagree and affirm.
All statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
FACTUAL BACKGROUND
The family in this case consists of Father, his daughters C.R. (born in 2005) and T.R. (born in 2004), half sibling A.N. (born in 2010), and their mother V.P. The parents separated in 2007, two years after C.R.'s birth.
A.N. has a different father, P.N.
Only Father and C.R. are the subjects of this appeal.
The Los Angeles County Department of Children and Family Services (DCFS) has been involved with the family for more than 15 years. Specifically, DCFS substantiated a 2007 referral alleging Father's emotional abuse. After the mother obtained a restraining order against Father, he tried to take the children from the mother and attacked her in front of the children. After that, Father was no longer involved with his daughters, and he lost contact with the family.
On October 27, 2014, DCFS received a referral that the father of half sibling, A.N., had sexually abused C.R. and T.R. On December 22, 2014, DCFS filed a section 300 petition on behalf of all of the children alleging that they were at risk of harm because of the sexual abuse of the girls by A.N.'s father and that the mother failed to protect them. At the detention hearing in December 2014, the juvenile court found that Father was the presumed father of T.R and C.R. The mother reported Father's whereabouts were unknown. The court detained the children from their respective fathers but maintained them in the mother's custody. The court ordered DCFS to initiate a search to locate Father.
The DCFS jurisdiction/disposition report disclosed that DCFS had conducted a search but was unsuccessful in locating Father. The mother confirmed that Father had not had any contact with the children since they were young. At the February 13, 2015 jurisdiction and disposition hearing, the juvenile court found notice and efforts to locate Father were sufficient, sustained the section 300 petition, found the children were described by section 300, subdivisions (b), (d), and (j) and declared them dependents of the court. It also found by clear and convincing evidence, that "continuance in the home of the father[ ] is contrary to the children's welfare, and that a substantial danger exists to the[ir] physical health, safety, protection, physical and emotional well-being" if they were placed in the Father's custody. The court found that no reasonable means existed to protect the children without removal from Father, and that reasonable effort had been made to prevent removal. The juvenile court maintained the children with the mother and ordered DCFS to provide her with family maintenance services. Based on clear and convincing evidence that Father's whereabouts were unknown, the court denied Father reunification services.
For the remainder of 2015, the DCFS status reports revealed that the children remained with the mother, Father had not contacted DCFS or visited the children, and his whereabouts continued to be unknown. In early December 2015, DCFS removed the children from the mother's home and filed a petition under section 342, alleging the mother abused alcohol, which placed the children at risk of harm. In its detention report, DCFS disclosed that the mother consistently reported that she had not heard from Father. The report also provided: "[Father] comes by sometimes but he appears to be homeless so the mother never bothered to talk to him." DCFS continued to report Father's whereabouts were unknown. At the detention hearing the court ordered the children detained from the mother and placed in foster care.
The DCFS report regarding the search for Father prepared for the adjudication of the section 342 petition disclosed Father's whereabouts continued to be unknown, but also revealed that he had been arrested on January 5, 2016, and released on January 7, 2016. DCFS recommended that the juvenile court deny Father reunification services based on his whereabouts being unknown.
DCFS obtained Father's California Law Enforcement Telecommunications System (CLETS) reports, which revealed a lengthy history of arrests and convictions and reported his most recent address as "transient."
On February 17, 2016, at the jurisdiction hearing, the mother pleaded no contest to the section 342 petition, and the court sustained the petition, finding that the mother's alcohol abuse put the children at a risk of harm. At the March 25, 2016 disposition hearing on the section 342 petition, the court ordered services for the mother but not for Father, finding that he had not participated in the case, had no contact with the children and he could not be located despite DCFS's diligent search for him.
Father's whereabouts continued to be unknown, and Father had no contact with his daughters during the remainder of 2016 and 2017. In mid-November 2017, the court terminated reunification services for the mother and scheduled a hearing pursuant to section 366.26 to select and implement a permanent out-of-home plan.
The DCFS March 2018 section 366.26 report indicated that Father had not had any contact with the children for the approximately three years of proceedings, and his whereabouts still remained unknown. DCFS's most recent search disclosed that in the fall of 2016, Father was found mentally incompetent and committed to the Patton State Hospital (Patton), but the state prison inmate locater did not indicate he was incarcerated. DCFS attempted to confirm that Father was at Patton several times, but Patton would not disclose any information.
Father's CLETS report indicated that he had been arrested on an arson charge and found mentally incompetent to stand trial.
The court continued the section 366.26 hearing several times, and in the fall of 2018, DCFS identified adoption as the children's permanent plan and had identified a potential adoptive family for C.R. and half sibling, A.N, but not for T.R.
DCFS continued to make efforts to identify an adoptive home for T.R.
On March 8, 2019, DCFS filed a supplemental section 366.26 report, indicating that C.R. and A.N. had been placed with prospective adoptive parents in January 2019 and had been doing well; they had bonded with their caregivers, were thriving in their home, and eager to be adopted by them. DCFS reported that it was highly likely that all three children would be adopted. DCFS recommended that parental rights as to C.R. and A.N. be terminated and recommended that they be freed for adoption.
Although DCFS found T.R. was adoptable, because DCFS had not found her an adoptive placement, DCFS recommended that the court continue the matter as to T.R. to allow DCFS to find an adoptive home for her.
DCFS conducted a new search for Father that disclosed an address in El Monte, California, at the Mountain View Care Center, a residential assisted living facility for adults with mental health problems. In early May 2019, DCFS confirmed that Father resided at the facility, and the social worker spoke with him. According to the social worker, Father was "in agreement" with his daughters being adopted but wanted to visit them.
At the May 21, 2019, section 366.26 hearing, Father appeared in court with counsel, and at Father's request the court continued the hearing to give the Father the opportunity to file any motions. The interim review report for the continued section 366.26 hearing disclosed that Father now resided with the paternal uncle in Apple Valley. DCFS recommended that the juvenile court terminate parental rights for C.R. and A.N. and continue the section 366.26 hearing for T.R.
On October 8, 2019, the juvenile court conducted the contested section 366.26 hearing. DCFS and the children's counsel asked the juvenile court to terminate parental rights as to C.R. and A.N., pointing out with regard to C.R., that Father had no relationship with her, that she refused to see him, and that she would not benefit from continuing their relationship. Father's counsel asked the court not to terminate parental rights, asserting the beneficial parent-child relationship exception. Without presenting any evidence, Father's counsel stated, "Although the father has not visited [C.R.] in quite some time, he just wants the court to know he loves his daughter very much and hopes to have a relationship with her in the future." Father made no other challenge to termination at the hearing. The court found that beneficial parent-child relationship exception did not apply, that C.R. was adoptable, and terminated parental rights to C.R.
Father does not challenge the court's finding that C.R. was adoptable.
Father timely appealed.
DISCUSSION
Before considering the merits of Father's arguments, we address DCFS's contention that Father forfeited his assertions on appeal because he did not raise them in the juvenile court. Although, in general, a party who does not raise an argument in the trial court forfeits it on appeal, the application of forfeiture is not automatic, where an appellant raises questions of law or issues based on undisputed facts, the appellate court can exercise its discretion to address them. (See, e.g., In re M.S. (2019) 41 Cal.App.5th 568, 588-589 (M.S.) [refusing to apply forfeiture to parent's failure to object to court's order terminating parental rights based on the argument that the court lacked legal authority to terminate her parental rights without first determining her entitlement to reunification services].) Because the arguments Father raises—that the juvenile court erred as a matter of law when it failed to order reunification services for him at the section 366.26 hearing and that the court failed to make the required finding of parental unfitness—are primarily issues of law based on uncontested facts, we decline to apply forfeiture.
A. The Juvenile Court Did Not Err in Terminating Father's Parental Rights Without Providing Him Reunification Services
Father argues that, as a matter of law, when he appeared at the section 366.26 proceedings, the court was required to determine his entitlement to reunification services before terminating his parental rights. We disagree.
Although, in general, the juvenile court must provide reunification services when it removes a child from parental custody, the court may deny those services to a parent if the court finds, by clear and convincing evidence, that one of the exceptions in section 361.5, subdivision (b) applies. (See § 361.5, subd. (b) ["Reunification services need not be provided to a parent . . . described in this subdivision when the court finds, by clear and convincing evidence, any of the . . . [exceptions in subsections (1)-(16)"].) At issue here, section 361.5, subdivision (b)(1) provides that reunification services need not be provided to a parent when the whereabouts of that parent are unknown. (Ibid.; see In re Jonathan P. (2014) 226 Cal.App.4th 1240, 1257.)
If reunification services are not ordered for a parent at disposition but the whereabouts of a parent become known within six months of the out-of-home placement of the child, the court shall order the social worker to provide family reunification services to that parent. (§ 361.5, subd. (d).) Because Father's whereabouts, after reasonable efforts by DCFS, did not become known within that six month window, indeed for three years, he was not entitled to consideration of services as of right. The only way at that point in the proceedings a parent may obtain reunification services is by filing a section 388 petition to modify the prior order denying them and demonstrating a change of circumstances warranting services. (See In re P.A. (2007) 155 Cal.App.4th 1197, 1209 (P.A.) [filing a section 388 petition is proper method to obtain order for reunification services for a parent whose whereabouts although unknown for the first six months after the child's removal later appears in the action].) Father did not file such petition, and, in any case, did not even purport to make the showing required under section 388.
The cases upon which Father relies are inapposite. They involve the trial court's failure to order services when the parent was located within the first six months after the child was removed from parental custody (see, e.g., In re T.M. (2009) 175 Cal.App.4th 1166, 1169, 1173 [reversing the termination of Mother's parental rights finding that although the mother's whereabouts became known to the department three months after the child's out-of-home placement, no reunification services were ordered]), or where the evidence did not support the court's finding that the parent's whereabouts were unknown during the first six months after removal. (See, e.g., M.S., supra, 41 Cal.App.5th at pp. 581-582 [holding that the court erred in finding that the mother's whereabouts were unknown when evidence showed the department knew the mother's location when the child was removed from parental custody].)
Accordingly, the court did not err in failing to reconsider Father's entitlement to reunification services before terminating his parental rights.
B. The Trial Court Found Return of C.R. to Father Would Be Detrimental
Father also contends that the juvenile court erred by terminating his parental rights without finding, by clear and convincing evidence, that placement with him would be detrimental to C.R. or that he was unfit to be a parent. We disagree.
"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 a parent would be detrimental to the child." (P.A., supra, 155 Cal.App.4th at p. 1211.)
Due process requires, that before a court terminates parental rights, the court must find, by clear and convincing evidence, that remaining in the parent's custody would be detrimental to the child. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254; In re D.H. (2017) 14 Cal.App.5th 719, 722, 730-731; see also Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1134 [holding that due process is satisfied when detriment to the child is established at an earlier stage in the proceedings—prior to the section 366.26 termination hearing—"and parental rights terminated later based on the child's best interest"].) Thus, the necessary finding of detriment may be made at the dispositional stage of the proceedings. (In re D.H., supra, 14 Cal.App.5th at pp. 730-731; P.A., supra, 155 Cal.App.4th at p. 1211.)
Here, although at the disposition of the section 300 petition the court did not use the term "detriment," the court's finding, by clear and convincing evidence, that continuance in the home of Father posed a substantial danger to the children and was contrary to their welfare, satisfied the due process requirement that a detriment finding be made prior to the termination of parental rights. (See, e.g., P.A., supra, 155 Cal.App.4th p. 1212 [holding the juvenile court made the necessary finding of "detriment" to support the subsequent termination of father's parental rights when it found at the disposition hearing by " 'clear and convincing' evidence there exist[ed] a substantial danger to the children and [there was] no reasonable means to protect them without removal from [the father's] custody" (italics omitted)].) Here uncontroverted evidence in the record supported the court's findings at the disposition. Specifically, the evidence was undisputed that Father did not provide support or participate in his children's lives since 2007, when he exposed them to his domestic abuse. Consequently, as in P.A., we conclude that the court here made legally sufficient detriment findings as to Father before termination proceedings, and therefore, did not err in terminating Father's parental rights.
DISPOSITION
The order terminating parental rights is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J. We concur:
CHANEY, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.