In re Peter L.

Filed 11/28/07 In re Peter L. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Peter L. appeals the termination of his parental rights, arguing the termination violated due process because the juvenile court never found by clear and convincing evidence that he was an unfit parent. We affirm.

Background

This is Peter L.s (Fathers) third appellate proceeding in the dependency cases of his children, Peter L., Jr. (born May 1998) and Brieanna L. (born April 2001).

Initially, the minors were the subjects of multiple child welfare referrals in the state of New Hampshire alleging drug use by both parents and domestic violence. Before that matter could be resolved, mother moved with the children to California, where the minors again were the subjects of repeated referrals to child welfare authorities. On March 1, 2004, the Sonoma County Department of Childrens Services (Department) filed a petition under Welfare and Institutions Code section 300,[1] alleging the minors came within the jurisdiction of the juvenile court based on their mothers neglect. No allegations were made against Father.

The children were detained and a jurisdictional and dispositional hearing was scheduled for March 24, 2004. The Department sent notices of the hearing to Father at two addresses in New Hampshire. One notice was returned undelivered. Father did not appear at the hearing. At the hearing, the juvenile court declared the minors dependents of the court, found that Father had voluntarily absented himself from the proceedings, and denied Father reunification services.

On April 21, 2004, the court received a letter from Father requesting counsel to assist him in obtaining custody of the minors. The following day, the court appointed counsel for him.

In a report prepared for the 12-month review hearing, the Department wrote that Father had called from New Hampshire but he had not completed necessary paperwork for a legal background check and had not contacted the social worker in several weeks. Following a November 5, 2004 hearing, the court terminated reunification services for the mother and set the matter for a section 366.26 hearing.

Father filed a petition for extraordinary writ relief challenging the orders terminating services and setting the section 366.26 hearing. He argued the trial court erred in denying him reunification services because he was a nonoffending parent and there was no clear and convincing evidence that it was in the best interests of the minors to deny him services. This court denied the petition because appellant had not appealed from the March 24, 2004 order that initially denied him services. (Peter L. v. Superior Court, A108828 (filed Feb. 25, 2005).)

In February 2005, Father filed section 388 petitions for modification of the disposition order, in which he requested reunification services. The petitions were denied. In May 2005, Father filed a second set of section 388 petitions, again requesting reunification services. Those petitions were also denied.

On June 6, 2005, the court terminated both parents parental rights and placed the minors for adoption. Father appealed from the order, arguing the juvenile court failed to provide proper notice under the Indian Child Welfare Act (ICWA) (25 U.S.C.  1901 et seq.). This court reversed, holding the Department prejudicially erred by not sending ICWA notice to the Bureau of Indian Affairs (BIA) and remanded for proper notification and further proceedings. (Sonoma County Human Services Dept. v. Peter L., A110901 (filed June 19, 2006).)

On remand, the Department sent ICWA notice to the BIA and two Indian tribes. A further section 366.26 hearing was repeatedly continued to provide time for ICWA notice, to provide proper notice to the mother of the section 366.26 hearing, and to accommodate Fathers request for a contested hearing. A contested hearing was scheduled for April 2, 2007. It was only in post-remand proceedings that Father argued that the court could not terminate his parental rights consistent with due process because the Department had never alleged or proved his parental unfitness. The Department contended this argument was forfeited by Fathers failure to raise it in prior proceedings.

On April 2, 2007, the court held a new section 366.26 hearing. The court found ICWA notice was proper and the ICWA did not apply. The court terminated both parents parental rights.

Discussion

Father argues the juvenile court violated his due process rights by terminating his parental rights without making a finding of parental unfitness. He relies on In re Gladys L. (2006) 141 Cal.App.4th 845, 847 (Gladys L.).)

I.                    Finding of Parental Unfitness

Gladys L. held that the parents due process rights were violated because it was neither alleged nor proven that [he] was an unfit parent before his parental rights were terminated. (Gladys L., supra, 141 Cal.App.4th at p. 847.) Gladys L. is factually distinguishable. In Gladys L., the section 300 petition did not make any allegations against the appellant parent. (Id. at p. 847.) Significantly, the record also did not disclose any other finding that placing the dependent child in the appellants care would be detrimental to her welfare. (Id. at p. 848, fn. 3.) Here, as we explain further below, the court made a detriment finding as to Father before it terminated his parental rights.

To the extent Gladys L. suggests that a parents parental rights may not be terminated consistent with due process unless the juvenile court sustains a section 300 allegation against the parent, we disagree. (See Gladys L., supra, 141 Cal.App.4th at p. 848; In re P.A. (2007) 155 Cal.App.4th 1197, 1211.) Gladys L. quotes Santosky v. Kramer, which holds, 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. (Santosky v. Kramer (1982) 455 U.S. 745, 747-748; Gladys L., at p. 848.) The allegations mentioned in Santosky encompassed much more than the initial allegations of neglect that bring a child under juvenile court jurisdiction. (Santosky, at pp. 759-760.) The factfinding hearing under consideration in Santosky involved issues comparable to those determined at disposition and status review hearings in the California dependency scheme: the questions disputed and decided are what the State didmade diligent efforts, [citation]and what the natural parents did not domaintain contact with or plan for the future of the child. [Citation.] (Ibid.) Proof of these allegations, Santosky explained, not only makes termination of parental rights possible; it entails a judicial determination that the parents are unfit to raise their own children. (Id. at p. 760; see  360-362, 366-366.2.) Under Santosky, therefore, due process requires proof of parental unfitness by clear and convincing evidence sometime before termination of parental rights, but not necessarily at the outset of the dependency proceeding when the court declares jurisdiction over the children.

This interpretation of Santosky is consistent with California Supreme Court decisions holding that the California dependency scheme complies with due process. In Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 256, the Court held that Californias statutory scheme complied with Santosky because by the time termination of parental rights is possible, the danger to the child from parental unfitness is so well established that there is no longer reason to believe that positive, nurturing parent-child relationships exist. (Santosky[, at p. 766.]). By the time dependency proceedings have reached the stage of a section 366.26 hearing, there have been multiple specific findings of parental unfitness. Except for a temporary period, the grounds for initial removal of the child from parental custody have been established under a clear and convincing standard (see  361, subd. (b)); in addition, there have been a series of hearings involving ongoing reunification efforts and, at each hearing, there was a statutory presumption that the child should be returned to the custody of the parent. ( 366.21, subds. (e), (f), 366.22, subd. (a).) Only if, over this entire period of time, the state continually has established that a return of custody to the parent would be detrimental to the child is the section 366.26 stage even reached.[2] (Cynthia D., at p. 253.) As indicated in the last quoted sentence, the California scheme uses the term detriment to the child as the equivalent of Santoskys termparental unfitness. (In re Cody W. (1994) 31 Cal.App.4th 221, 225, citing In re Jasmon O. (1994) 8 Cal.4th 398, 423; see also Cynthia D., at p. 256 [at the section 366.26 hearing, the evidence of detriment is already so clear and convincing that more cannot be required without prejudice to the interest of the adoptable child].)

Here, the juvenile court ruled from the bench, pursuant to W&I Code section 361.5(b), the Court finds that reunification services shall not be provided to the father . . . . Section 361.5, subdivision (b) requires findings that are supported by clear and convincing evidence.  The required findings are findings of detriment, that is, findings that the parent has failed, and is likely to fail in the future, to maintain an adequate parental relationship with the child. (See Jasmon O., supra, 8 Cal.4th at p. 423; In re Cody W., supra, 31 Cal.App.4th at p. 225.)

Due process is satisfied with such findings. (See In re P.A., supra, 155 Cal.App.4th at pp. 1211-1212 [distinguishing In re Gladys L. based on detriment findings when the child was not returned to the parents custody and services were denied to the appellant].)

As discussed further below, if Father believed the juvenile court did not make the findings required by section 361.5, subdivision (b) when it denied him services, or that the court made findings that were not supported by substantial evidence, he could have raised those challenges in an appeal from the disposition order. He did not appeal that order and thus forfeited his argument that the juvenile court never made detriment findings before it terminated his parental rights. (Wanda B. v. Superior Court (1996) 41 Cal.App.4th 1391, 1396.)

II.                 Forfeiture

Father may not challenge the validity of those detriment findings at this late date. To the extent Gladys L. suggests due process arguments are never subject to forfeiture, we disagree. Gladys L. relies on In re Gerardo A. (Gladys L., supra, 141 Cal.App.4th at p. 849.) The parent in In re Gerardo A. did not receive notice of the challenged ruling until the section 366.26 hearing. (In re Gerardo A. (2004) 119 Cal.App.4th 988, 993.) In that circumstance, the court held that an appeal from the termination order was the parents first opportunity to raise the issue on appeal and deeming the issue forfeited would violate the parents due process rights. (Ibid.) If the parent has notice and fails to timely appeal an order, the parent forfeits his or her challenges to that order, including due process challenges. (See In re Meranda P. (1997) 56 Cal.App.4th 1143, 1151-1152 [holding claims of ineffective assistance of counsel are subject to forfeiture].)

Father was afforded due process: he had notice and an opportunity to timely appeal the courts detriment findings. Father informed the court on April 21, 2004 that he wanted custody of the minors. Counsel was appointed the next day. Father had more than one month before the expiration of the time to appeal the March 24, 2004 disposition order. (Cal. Rules of Court, rule 8.400(d)(1).) He did not appeal the disposition order. Father filed a writ petition from the November 5, 2004 order setting a section 366.26 hearing and argued in that petition that the juvenile court erred by failing to provide him with reunification services back in March 2004. In our February 25, 2005 opinion, we held that Father forfeited this issue when he failed to appeal the disposition order. (Peter L. v. Superior Court, supra, A108828, slip op. at 2; Wanda B. v. Superior Court, supra, 41 Cal.App.4th at p. 1396.) Father did not petition for review in the Supreme Court. In 2005, Father twice petitioned for modification of the disposition order so that he could receive reunification services and custody of the children. Both petitions were denied because the proposed modification would not promote the best interests of the children, for whom permanency planning pursuant to section 366.26 was well underway. Father purported to appeal from the denials of those petitions in his July 27, 2005 notice of appeal of the first termination order, but he failed to raise the issue in his appellate briefs. The issue was forfeited. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)

Due process is satisfied when a juvenile court makes a finding of detriment as a prerequisite to denying reunification services. Father had notice and an opportunity to timely appeal the disposition order and he failed to do so. He has forfeited his due process argument.

Disposition

The order terminating Fathers parental rights is affirmed.

GEMELLO, J.

We concur.

JONES, P.J.

SIMONS, J.

[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

[2] Although Cynthia D. v. Superior Court, supra, 5 Cal.4th 242, includes the initial jurisdictional finding among the multiple findings of parental unfitness made by the juvenile court that satisfy the due process concerns of Santosky, a jurisdictional finding is not required of each of a dependent childs parents. (In re P.A., supra, 155 Cal.App.4th at p. 1212; In re Alysha S. (1996) 51 Cal.App.4th 393, 397.) The jurisdictional finding establishes the child as a person in need of juvenile court supervision, which may be based on findings of neglect or abuse by one parent alone. (Alysha S., at p. 397.) At the disposition and status review hearings, however, the juvenile court may make detriment findings as to both parents (where the father is a presumed father) that support the ultimate termination of each parents parental rights. (See, e.g.,  361.5, 366.21, 366.26.)