In re E.A.
Filed 2/6/13 In re E.A. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION FOUR
In re E.A., a Person Coming Under the Juvenile Court Law.
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY
SERVICES,
Plaintiff
and Respondent,
v.
Michael A.,
Defendant
and Appellant.
B241202
(Los
Angeles County
Super. Ct.
No. CK77073)
APPEAL
from an order of the Superior Court
of
County, Amy Pellman, Judge.
Reversed and remanded with directions.
Marissa
Coffey, under appointment by the Court of Appeal, for Defendant and Appellant.
John
F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and Kim
Nemoy, Deputy County Counsel, for
Plaintiff and Respondent.
Appellant
Michael A. appeals the order terminating parental rights over his daughter,
E.A. (E.), under Welfare and Institutions Code section 366.26.
by clear and convincing evidence that he was an unfit parent or that return of
the girl to his custody would create a risk of harm or detriment to the girl,
and that the absence of such a finding or substantial
evidence to support it precluded the court from terminating his parental
rights. We agree and reverse.
The
family came to the attention of the Department
of Children and Family Services (DCFS) in April 2009, when 10-year old E.
called 911 after finding her mother, F.A. (Mother), unconscious. Mother was taken to a hospital. The family home, where E. and Mother lived with
five-year old half-sister, R.H., and 18-year old half-brother, D.K., was dirty
and in disarray, with dangerous chemicals placed in locations easily accessible
to the children. E.’s hair was uncombed,
her face was not clean, and she was wearing dirty clothing. E., who is mildly mentally impaired, had been
enrolled in special education classes.
Her school reported that she was often absent. Mother reported being in and out of the
hospital since R.H.’s birth in 2004 due to numerous medical problems. Mother was taking multiple prescription
drugs, including hydrocodone and Seroquel.
E.
and half-sister R.H. were detained and placed with relatives. In May 2009, the girls were moved, with the
acquiescence of their parents, to the home of S.K., who was D.K.’s older
half-sister, but not a direct relative of E. or R.H.
Appellant,
who lived in
learned of the proceedings and appeared at the DCFS office for an interview on May 19, 2009. He denied knowing anything about the
condition of Mother’s home and claimed to have sent Mother up to $200 “when
[he] had extra money to pay.†He said he
had visited E. three or four times in the preceding year. He admitted using cocaine from 1978 until
1999, but said he had been clean since 2001.
He was receiving disability and living in a board and care facility.
Mother
reported that appellant had sent her $10 or $20 whenever she called him and
requested funds and came to visit E. “every once in a while.†The most recent visits were in September and
December 2008, when he bought clothing and a backpack for E. and gifts for her
and R.H. Mother reported appellant was
living in a drug rehabilitation house and had used crack cocaine off and on for
many years, which had been the cause of the couple’s 1999 divorce.
The
May 2009 jurisdictional/dispositional report does not indicate that DCFS made
any arrangements for appellant to visit E., although schedules for monitored
visitation were set up for Mother and R.H.’s father, Rafael H. At a June 2009 hearing, appellant reported he
was having difficulty obtaining visitation.
He had called S.K. and arranged a visit while he was in town for the
hearing, but S.K. had not brought E. to the designated location as promised and
then failed to return his calls. The
court advised him to contact the caseworker for assistance in securing
visitation.
At
the July 16, 2009 jurisdictional/dispositional hearing, which appellant
attended, the parties stipulated that if appellant testified, he would say that
he had lived with E. and Mother for the first two years of the girl’s life,
that he sent payments of $95 per month to the Department of Support Services
until 2006,
title="">[2] that he occasionally sent
Mother money in amounts of $100 to $200, and that when he came to see E., he
took her shopping for shoes, backpacks and school supplies. The court found true that Mother physically
abused the girls by striking them with an extension cord and belt, that she was
an abuser of prescription medication, that she had mental and emotional
problems, and that Mother’s home was in a “filthy, unsanitary and hazardousâ€
condition.
appellant -- that he failed to provide the necessities of life for E. --
finding that appellant had provided “somewhat†for his child. The court ruled, without objection from
counsel for DCFS, that as a non-offending parent, appellant need not
participate in reunification services.
At the August 24 dispositional hearing, the court granted appellant
unmonitored visitation, stating: “I
can’t find any cause to restrict [appellant’s] visitations with [E.]. There’s nothing in any of the reports
indicating E. would be at risk with unmonitored visits with [appellant].†At that hearing, the court found “by clear
and convincing evidence, there’s a substantial danger if the children were
returned home to the physical health, safety, protection or physical or
emotional well-being of the children,†referring to the home of Mother, “the
parent[] with whom the children resided at the time the petition was filed.â€
In
September 2009, Mother died. Sometime
between that date and February 2010, appellant informed DCFS that he had moved
to a one-bedroom apartment and would be able to care for E. In the February 2010 report, the caseworker
expressed concern because appellant had not seen or called E. since Mother’s
funeral. DCFS recommended continued
placement with S.K. because E. was well cared for, attending school, receiving Regional
Center services,
and did not wish to be separated from R.H. At the February 22, 2010 six-month review
hearing, which appellant attended, his counsel asked that appellant be
permitted to take E. to Las Vegas for a visit.
DCFS’s counsel stated there must first be a home investigation by Nevada’s
Child Protection Services (CPS). The
court instructed DCFS to arrange a courtesy visit of appellant’s home by CPS
and to then consider a week or weekend visit.
The court found “by a preponderance of the evidence, that return of the
children to the physical custody of their fathers [referring to both appellant
and Rafael] would create a substantial risk of detriment to the safety,
protection or physical, or emotional well-being of the children.â€
Between
February and August 2010, appellant had no visits with E. He stated he called every month, but was not
always successful in reaching the girl.
The caregiver reported that appellant had called three times during that
period. In June 2010, a CPS caseworker
visited appellant’s apartment and found it safe. The caseworker reported that she had
attempted to arrange a visit, but E. said she did not want to visit appellant
in Las Vegas. The caseworker “completed
an assessment and determined that the risk for E. to return home with [appellant]
would be low.†However, “due to a lack
of visitation and telephone contact with [E.],†DCFS recommended termination of
reunification services and parental rights.
At an August 2010 hearing, at which appellant was present, his counsel
reported that appellant was considering moving to California to facilitate
visitation due to E.’s reluctance to visit him in Las Vegas. The court again found “by a preponderance of
the evidence that return of the children to the physical custody of the fathers
would create a substantial risk of detriment to their safety, protection, or
physical or emotional well-being.â€
In
October 2010, the caseworker reported that appellant had visited with E. when
he was in Los Angeles for hearings and called her on her birthday. Appellant had not moved to Los Angeles, and
the caseworker had made no further efforts to persuade the girl to visit him in
his home in Las Vegas. The caseworker
again stated she had “completed an assessment and determined the risk for [E.]
to return home with [appellant] would be low,†but DCFS continued to recommend
termination of reunification services and setting a section 366.26 hearing to
terminate parental rights “due to a lack of visitation and telephone
contact.†At the 12-month review hearing
on October 29, 2010, at which appellant was present, his attorney asked the
court to address placing E. in appellant’s home as part of the upcoming
18-month review hearing. The court
stated that because E. was a Regional Center client, “the burden kind of slightly
shifts,†and that appellant would have to “demonstrate . . . that [he could]
provide a safe home for the child,†including services “to provide for all of
her special needs.†The court advised
appellant to call DCFS “to try to arrange a visit†while he was in the
area. The court gave DCFS “discretion to
allow for a holiday visit, over the minor’s objection.â€
In
January 2011, the caseworker reported that appellant was in the area for
Thanksgiving and had scheduled a visit through the caseworker. However, when the time came, E. said she did
not want to go and no visit took place.
E.’s therapist reported that the girl was thriving in S.K.’s care,
noting she had attained a more appropriate weight and was doing well in school,
and stated that it would be “in the best interest of the child for the court to
deny [appellant’s] request and to allow [S.K.] full legal guardianship of [E.]
and the opportunity to adopt.†DCFS
continued to recommend termination of reunification services and setting a
section 366.26 hearing.
In
March 2011, the caseworker reported that appellant had not visited E. or
maintained telephone contact and had moved to a new residence. E. said she was willing to visit appellant,
but was happy in S.K.’s home. No
inspection of appellant’s new home took place because CPS no longer had the
staff to conduct courtesy inspections.
At a hearing on March 3, at which appellant appeared, his counsel
informed the court that appellant was not getting requested visitation and his
calls to the girl were not being returned.
The court instructed appellant and his counsel to have a “meet and
confer†to set up a visitation schedule.
A visit was scheduled for March 4.
Shortly before the scheduled visit, E. told the caseworker she did not
want to visit appellant and the caseworker cancelled the visit.
At
the March 28, 2011 contested 18-month review hearing, which appellant attended,
his counsel reported that appellant had been frustrated in his efforts to see
his daughter and that he was receiving little support from DCFS or S.K. to make
her available. The court advised
appellant to “work a little harder,†to “call every day and say ‘hi,’†to
“spend time with [E.] where she lives,†and to “go to her school [and] her
school activities.†The court stated to
appellant “it’s you who has to make the effort.†By order dated March 28, the court granted
appellant “reasonable visits with an overnight once each month,†but did not
specify a schedule or state where the visits were to occur.
At
a hearing in July 2011, appellant’s counsel informed the court in appellant’s
presence that appellant had four pages of notes documenting his efforts to
contact S.K. to set up visits or to speak to E. on the phone. In August 2011, after taking testimony in
connection with a section 388 petition filed by Rafael, who had also complained
about S.K.’s lack of cooperation with his attempts to visit his daughter, the
court ordered the children’s fathers -- both of whom were present -- and S.K.
to mediation. The mediation did not
result in a resolution of any issues.
In
September 2011, the caseworker reported that appellant had had no visits with
E. outside of the visits that took place when they attended court
hearings. Appellant had attempted to
schedule visits at the beginning of the review period but “[E.] was not
interested in having a visit with [him] at those times.†In addition, appellant had initially
maintained telephone contact but had made no recent calls. In March 2012, the caseworker reported that
E. had not received any telephone calls from appellant and saw him only when
they attended court hearings.
name="_ftnref7" title="">[7]
The
section 366.26 hearing was held May 8, 2012.
E. testified she had not visited appellant for a while and that he
“hardly†called her. Appellant testified
that he had called on multiple occasions since September 2011, but was not
always put through to E. He further
testified he had kept a phone log recording his attempts, although the log was
not introduced. Appellant had offered to
have overnight visits with E. at his mother’s house in Los Angeles. The caseworker had inspected the house and
found it safe, but informed him that everyone living there would need to be
fingerprinted, which his family was unwilling to do. Appellant further testified he had located a
school for E. in Las Vegas. S.K.
initially denied that appellant had called at all since January, but then
stated “he might have called once, but . . . [E.] didn’t want to
pick up the phone,†and also testified “when he does call, he calls at eight
o’clock at night and, maybe, sometimes she will be either getting ready for bed
or showering.†S.K. further testified
that E. was no longer receiving Regional Center services.
Counsel
for DCFS and counsel for E. argued that parental rights should be terminated
because appellant had not maintained sufficient contact with E. since
proceedings began. Appellant’s counsel
argued that it would be a denial of due process to terminate appellant’s
parental rights because there had never been a finding of his unfitness as a
parent. She further contended there was
ample evidence that appellant did try to stay in contact with E. throughout the
proceedings, but that his efforts were not supported. The court found that DCFS had met its burden
of establishing that E. was adoptable and that appellant had failed to
establish one of the exceptions to termination under section 366.26,
subdivision (c). With respect to
appellant’s contention that his visitation had been thwarted, the court found
appellant had not presented persuasive evidence, and that “all I have today is
[appellant’s] word against [S.K.’s].â€
The court stated there was “nothing in [the] evidence which shows that
[appellant] affirmatively . . . attempted to make more contact than an
occasional contact [with E.],†“attempted to . . . visit E. in
her area, in her territory,†or sought the intervention of the court after
being denied visitation or telephone calls.
The court also found that it would be detrimental to return E. to
appellant because E. did not know him very well, and appellant had not
developed a strong relationship with her.
In this regard, the court stated:
“[E.] needs special attention.
She goes to special classes. She
has to have a parent who goes to school and watches her school work. She’s had special health needs at the
time. [¶] She needs someone who is there 24/7. And for the court to deny her that and to
release her to you today would be extremely detrimental to her.†Based on these findings, the court terminated
appellant’s parental rights. This appeal
followed.
Appellant
contends the juvenile court violated due
process by terminating his parental rights because he was a nonoffending
parent and no finding was ever made by clear and convincing evidence that he
was unfit or that return of E. to his custody would create a risk of detriment
or harm to the girl. Appellant further
contends that the court’s finding at the section 366.26 hearing that returning
E. to him would be “extremely detrimental†was not supported by substantial
evidence. For the reasons discussed, we
agree that due process requires a finding of parental unfitness or detriment,
made by clear and convincing evidence, and that to the extent the court’s
finding at the section 366.26 hearing was intended to operate as the necessary
finding, it was not supported by the evidence in the record. Accordingly, we reverse the order terminating
parental rights.
“A
parent’s interest in the companionship, care, custody and management of his or
her children is a fundamental civil right.†(In re
P.A. (2007) 155 Cal.App.4th 1197, 1210; accord, In re Gladys L. (2006) 141 Cal.App.4th 845, 848.) In Santosky
v. Kramer (1982) 455 U.S. 745 (Santosky),
the United States Supreme Court held that before infringing or severing the
parent-child relationship, a state must establish parental unfitness by clear
and convincing evidence. (
of determining parental fitness “does not purport -- and is not intended -- to
balance the child’s interest in a normal family home against the parents’
interest in raising the child. Nor does
it purport to determine whether the natural parents or . . . foster parents
would provide the better home.†(
proves parental unfitness, the child and
his parents share a vital interest in preventing erroneous termination of
their natural relationship.†(
212, 223 [“Children, too, have a compelling independent interest in belonging
to their natural family.â€].)
The
California Supreme Court has held that California’s dependency system comports
with Santosky’s requirements “because
the ‘precise and demanding substantive and procedural requirements the
petitioning agency must have satisfied before it can propose termination are
carefully calculated to constrain judicial discretion, diminish the risk of
erroneous findings of parental inadequacy and detriment to the child, and
otherwise protect the legitimate interests of the parents.’†(In re
Dakota H., supra, 132 Cal.App.4th
at p. 224, quoting Cynthia D. v. Superior
Court (1993) 5 Cal.4th 242, 256 (Cynthia
D.).) Generally, “by the time
parental rights are terminated at a section 366.26 hearing, the juvenile court
[has] made prior findings that the parent was unfit.â€
Gladys L., supra, 141 Cal.App.4th
at p. 848.) The existence of grounds for
removal of the child from the parent’s home and custody are typically resolved
at the jurisdictional/dispositional hearings, where removal cannot take place
absent a finding by “clear and convincing evidence†of abandonment, serious
abuse or a substantial risk of physical or emotional harm. (§ 361, subd. (c); see Cynthia D., supra, 5
Cal.4th at p. 253; In re G.S.R.
(2008) 159 Cal.App.4th 1202, 1211.) This
is followed by “a series of hearings involving ongoing reunification efforts
and, at each hearing, . . . a presumption that the child should be returned to
the custody of the parent.†(
supra, 159 Cal.App.4th at p.
1211.) The “‘number and quality’†of
these judicial findings “‘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 state
must align itself.’ [Citation.]†(In re
Gladys L., supra, at p. 848.)
Here,
due to the atypical circumstances of the case, the “‘precise and demanding
substantive and procedural requirements the petitioning agency must have
satisfied before it can propose termination’†did not occur. No judicial finding of unfitness or detriment
was made with respect to appellant during the initial phase of the
proceeding. When E. and her half-sister
were detained and jurisdiction established, appellant was nonoffending and
noncustodial. The minors were removed
from Mother’s home due to Mother’s actions and to physical abuse the girls
suffered at the hands of other relatives.
The court found by clear and convincing evidence that returning them to
found that appellant posed no risk of harm to E. -- and specifically ruled that
he could not be limited to monitored visitation or be required to participate
in reunification services designed to rectify parental deficiencies.
Appellant
did not immediately seek custody, as he lived out of the area and had no
suitable housing. However, after
Mother’s untimely death in September 2009, appellant obtained an apartment and
contacted DCFS with the intention of obtaining transfer of custody from S.K. DCFS did not assert that appellant was or
would be an unfit parent, or that he posed a risk of harm to E.; to the
contrary, the caseworker repeatedly opined that the risk to E. of allowing her
to be placed with appellant was “low.â€
DCFS recommended continued placement with S.K. based on a best interest
analysis, concluding that S.K. offered a superior home because she had helped
E. succeed in school, lived in California where Regional Center services were
available, and had custody of E.’s half-sibling, R.H.
of E. to appellant would be “extremely detrimental,†the court’s conclusion was
based in large part on its findings that appellant, unlike S.K., would not be
the kind of parent “who goes to school and watches [E.’s] school work†and who
would be there “24/7.†That this type of
parenting would be best for [E.] is undeniable.
However, due process requires more than the court’s conclusion that
someone else would provide a better home or be a superior parent. (Santosky,
supra, 455 U.S. at p. 759.) “[T]he existence of a successful relationship
between a foster child and foster parent cannot be the sole basis for
terminating parental rights or depriving the natural parent of custody in a
dependency proceeding.†(
418.)
The
court also found that appellant had no real relationship with E. and that E.
did not know him very well. This finds
some support in the record. Appellant
lived with Mother and E. for only two years after the girl’s birth in 1998 and
paid child support for an indefinite period thereafter. He visited two to four times in 2008. Once dependency proceedings began, contacts
were not substantially increased. Prior
to his initial request for custody, he and E. had visited in May, June and July
2009, when they attended the multiple court hearings that occurred during that
period, and in September 2009, when he traveled to Los Angeles for Mother’s
funeral. In the two years that followed,
appellant visited E. at the court hearings they both attended -- approximately
ten during this period -- and called her three times between February and
August 2010, on her birthday in October 2010, sporadically throughout 2011, and
once in January 2012.
name="_ftnref10" title="">[10] We do not doubt that lack of significant
parental contact, particularly where the child is mentally or emotionally
fragile, could lead to a reasonable finding that return to the parent would be
so detrimental to the child as to pose a risk of emotional damage under section
300, subdivision (c). (Cf.
appeared at detention hearing and disappeared for the three years that
followed, court reversed order terminating parental rights and remanded for
finding of unfitness under clear and convincing evidence standard];
532 [court presumed that father’s “sporadic visits with the [minors] and lack
of telephone contact during the dependency†could support valid basis for court
to make finding of unfitness or detriment and remanded for court to make such
finding under required standard].)
However, such finding must be supported by evidence of serious emotional
detriment. (Compare In re Jasmon O., supra, 8
Cal.4th at pp. 416-418 [psychologists’ opinion testimony that minor developed
“‘high intensity’ anxiety†and “depression†when court attempted to transition
her from foster home to father’s home, and that transfer of custody would cause
her “serious lifelong emotional detriment†supported juvenile court’s decision
that placement with father would be detrimental], with In re Rodrigo S. (1990) 225 Cal.App.3d 1179, 1186-1187 [although
minor was “psychologically fragile†and evidence was undisputed that foster
care placement had been “highly successful,†absence of evidence that minor
would suffer “psychological or emotional harm other than that inherent in any
move from one home to another†led appellate court to reverse finding of
detriment].) The sole evidence presented
by DCFS to address this point -- the letter from E.’s therapist -- did not
support a finding of serious emotional detriment or risk of harm, as the
therapist addressed only “the best interest†of the child.
Moreover,
a court may not terminate parental rights based on the lack of a relationship
where visitation was effectively out of the hands of the parent. (In re
Hunter S. (2006) 142 Cal.App.4th 1497, 1504-1505 (Hunter S.); see In re Z.K.
(2011) 201 Cal.App.4th 51, 69-70.) It
was undisputed that appellant scheduled additional visits in June 2009, June
2010, November 2010, March 2011, and during the review period that proceeded
September 2011. On each of these
occasions, E. announced a disinclination to attend and no apparent efforts were
made to persuade her to change her mind or to schedule visits over her
objection. Similar conduct on the part
of the child occurred in Hunter S.,
where the Court of Appeal explained that due process is violated where the
juvenile court leaves complete discretion over visitation with the minor and
thereafter terminates parental rights based on the absence of a parent-child
relationship: “The Supreme Court has
held the statutory procedures used for termination of parental rights satisfy
due process requirements only because of the demanding requirements and multiple
safeguards built into the dependency scheme at the early stages of the
process. [Citations.] If a parent is denied those safeguards
through no fault of her own, her due process rights are compromised. Meaningful visitation is pivotal to the
parent-child relationship, even after reunification services are terminated.
. . . A visitation order which fails to protect a parent’s
right to visit is illusory.†(
1504-1505.) The Court of Appeal faulted
the juvenile court for failing to ensure that visitation at the minimum level
determined by the court’s order occurred:
“While the court granted visitation in theory, none was permitted in
reality. . . . In the end, . . . [the minor] himself was given
virtually complete discretion to veto visitation, and indeed all contact, with
his mother, a discretion he exercised without any oversight or direction by the
court. This was clearly improper. The juvenile court cannot impermissibly
delegate to the child’s therapist, DCFS or any third person, unlimited
discretion to determine whether visitation is to occur. [Citation.]
In no case may a child be allowed to control whether visitation occurs. [Citations.]â€
(Ibid.)
The
court below attempted to address Hunter S.
in its ruling, stating there was “nothing in evidence which shows that
[appellant] affirmatively . . . attempted to make more contact than an
occasional contact [with E.],†“attempted to . . . visit [E.] in
her area, in her territory,†or sought the intervention of the court after
being denied visitation or telephone calls.
The record demonstrates otherwise.
visitation and set up numerous visits with E., only to have them cancelled when
E. expressed her unwillingness to attend.
Appellant’s counsel repeatedly informed the court that appellant was not
getting the visitation to which he was entitled. At various points during the proceedings,
different judicial officers advised appellant to call the caseworker or DCFS to
arrange visits, to meet and confer with S.K., or to “work . . .
harder.†It was not until March 2011
that the court issued an order theoretically granting appellant visitation two
weekends a month, but the order did not specify which weekends or establish a
place for visitation to occur. On this
record, the court’s finding that that lack of visitation and contact were the
fault of appellant and justified a finding of detriment and termination of
parental rights is not supported.
Respondent
contends that we should follow In re P.A.,
supra, 155 Cal.App.4th 1197, where
the Court of Appeal concluded that the juvenile court’s findings of detriment
sufficiently protected the absentee father’s due process rights. There, the father deserted the family when
his child was six months old, more than two years prior to the initiation of
dependency proceedings. He did not make
an appearance in the proceedings for more than a year and a half, although
paternal relatives had appeared at the early hearings, and the father had knowledge
of his child’s situation. While the case
was ongoing, he made only perfunctory requests for custody, and police found a
large quantity of drugs in his car. The
juvenile court had not sustained any allegations pertaining to the father, but
found by clear and convincing evidence at the dispositional hearing that there
was no reasonable means to protect the child without removal from
finding that return of the child to the father would be detrimental when it
denied the father’s request for reunification services. On these facts, the Court of Appeal concluded
the findings of detriment were sufficient to support the order terminating the
father’s parental rights. (
The
present situation is not comparable.
Appellant lived with E. the first two years of her life, and thereafter
provided occasional support payments, clothing and school supplies. He appeared at DCFS offices for an interview
within weeks of her detention. He
attended nearly every court hearing. He
acquired two apparently suitable places to live and repeatedly sought
custody. Although not completely
analogous, his situation has some parallels to that of In re Z.K., supra, 201
Cal.App.4th 51, where the court found a violation of due process and reversed
an order terminating parental rights.
The minor there had been kidnapped as an infant by his father, and his
mother had no knowledge of his whereabouts until the section 366.26 hearing was
set, five years after the child’s disappearance. The department opposed return to the mother
due to concerns about the adequacy of her income and housing. It placed the burden on her to establish her
fitness by participating in a psychological study and an ICPC (Interstate
Compact on the Placement of Children) home study conducted by officials in her
state of residence, which included background checks of the people with whom
she resided. The Court of Appeal
rejected the contention that the mother’s lack of cooperation with its multiple
procedural requirements justified the juvenile court’s termination order. The court specifically found that “neither
the [psychological] study nor the [ICPC] evaluation could lawfully be required
as a precondition to placing the minor with mother and avoiding the termination
of mother’s parental rights.†(201
Cal.App.4th at p. 64.) To the extent the
refusal to transfer custody was based on the failure to receive background
information on persons living with the mother, “the department fail[ed] to
explain why it was mother’s
responsibility to provide such a background check in the first place. ‘[I]t is the party opposing placement who has
the burden to show by clear and convincing evidence that the child will be
harmed if the noncustodial parent is given custody.’ [Citation.]
Upon learning that [a third party] was living with mother, it was
provide evidence that the situation would be detrimental to [the minor] if the
minor were placed in mother’s custody; it was not mother’s responsibility to
prove the contrary.†(
Here,
DCFS similarly offered no support for appellant’s attempts, as a nonoffending
parent, to obtain custody of his child, but instead put multiple barriers in
his path over which he had no control.
It insisted that appellant’s first Nevada apartment be cleared by CPS,
which did not occur until June 2010.
After appellant moved, DCFS demanded another clearance, although it had
been informed that CPS would not undertake another home visit. When appellant suggested his mother’s house
as an alternative for overnight and weekend visitation, DCFS insisted that
every person be fingerprinted although there is no requirement that individuals
to whom a non-offending parent exposes a child during unmonitored visitation be
subject to fingerprinting or background checks.
At no point did the court step in to impose or enforce a specific
visitation order.
In
short, the court’s findings that termination of appellant’s parental rights could
be justified by his lack of a relationship with the child cannot be sustained
because visitation was out of appellant’s hands. The order terminating parental rights must be
reversed as contrary to appellant’s due process rights. Appellant does not appear to be seeking an
immediate order transferring custody and it would be inadvisable for this court
to issue such an order, as we have no knowledge of how circumstances may have
changed while the appeal was pending.
(See In re G.S.R.,
[after reversal of order terminating nonoffending father’s parental rights,
court remanded to allow juvenile court to revisit whether current facts and
circumstances indicated legally sufficient ground for finding of detriment,
with the understanding that the basis on which juvenile court made its original
finding -- father’s poverty and lack of suitable housing -- was not such
ground].) However, appellant is entitled
to reinstatement of his parental rights, regular visitation supported by any
necessary court orders, and an opportunity to seek custody of E. in due
course. In resolving any future custody
issues, the court may consider whether appellant and E. continue to lack a
parent-child relationship and whether transfer of custody to appellant will
cause emotional harm to E. However, any
such finding must be supported by clear and convincing evidence of a serious
risk of emotional harm.
The
order terminating appellant’s parental rights is reversed. The matter is remanded for further
proceedings consistent with this opinion.
TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA,
J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.
the Welfare and Institutions Code.
these payments.
