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In re M.S., a Person Coming Under the Juvenile Court Law. v. M.D


November 30, 2010


The opinion of the court was delivered by: Hull, J.

In re M.S. CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

M.D., father of the minor M.S., appeals from the juvenile court's orders terminating his parental rights and denying his petition for modification. (Welf. & Inst. Code, §§ 395, 388, 366.26; undesignated statutory references that follow are to the Welfare and Institutions Code.) He contends that the juvenile court violated due process by terminating his parental rights without prior findings of parental unfitness and detriment, and that his petition for modification should have been granted. We affirm the juvenile court's orders.


The minor was placed in protective custody in March 2008 after her mother, B.S., suffered a seizure and fell onto the platform at a light rail station, leaving the two-year-old minor unattended. The mother was taken to the emergency room, which she left against the doctor's advice.

The Sacramento County Department of Health and Human Services (DHHS) filed a dependency petition two days later, alleging jurisdiction pursuant to section 300, subdivision (b). The minor was detained later that month. The juvenile court found that father was the minor's adjudicated father at the detention hearing.

The mother suffered from chronic epileptic seizures, which lasted from five to 10 minutes. The seizures started after she was hit by a truck at the age of seven and suffered a traumatic brain injury. As a result of her seizures, the mother could not be left alone for more than a short time. She was diagnosed with mood disorder, psychotic disorder, low-borderline intellectual functioning, and epilepsy.

Father was interviewed in April 2008. He was not living with the mother, could not address the allegations in the petition, but knew she had seizures. Regarding his relationship with the mother, he said: "we had a relationship. That's it. I'm not going to tell you my life story." Asked if he wanted to be a party to the case and if he wanted to continue the interview, father said he wanted the minor placed with maternal relatives, and asked what forms he had to sign so he could leave.

Father did not ask for services or placement of the minor. His child welfare history included five sustained referrals for general neglect regarding the minor's half siblings between November 2003 and October 2006. His services were terminated in April 2005, but were reinstated following another dependency in August 2006. That dependency was terminated in June 2007.

An amended petition was filed in August 2008, elaborating on the mother's impaired mental functioning, including allegations that she had very low self-care skills, suffered from auditory and visual hallucinations, and was unwilling to follow doctor's orders to refrain from holding the minor or taking her into public alone. The juvenile court sustained the amended petition in August 2008.

The mother was offered reunification services. The juvenile court found father did not want custody of the minor, and no services were offered. The minor was placed with the maternal great-aunt in June 2008.

A November 2008 report noted father was not visiting the minor. He asked the social worker how he could return his other children to their mother. The mother participated in services, but was still unable to be alone with the minor.

DHHS filed a supplemental petition (§ 387) in January 2009 requesting a changed placement, as the maternal great-aunt refused to allow the minor into her home. The juvenile court detained the minor later that month, and placed the minor with a foster family with whom she had been placed before.

Following the February 2009 detention hearing, father told the social worker that he had a medical marijuana card for a bad leg. He agreed to meet the social worker for a face-to-face interview, but never showed up.

The social worker had a phone interview with father in May 2009. Asked about his services in the prior dependency, father raised his voice and said he did not have to do any services. He refused an offer of family therapy and angrily declined to be drug tested, as his lawyer said he did not have to test.

Father admitted using medical marijuana. When he was told DHHS would be requesting drug testing, father became very upset and said, "Just give the baby to someone else." In March 2009, the mother contacted DHHS. She was very upset, and said she did not want the minor placed with father as he was inappropriate, did not have contact with the minor, and had not acknowledged the minor as his child until recently. She also suggested he was using marijuana, and needed to drug test with DHHS.

DHHS filed an amended supplemental petition in March 2009, adding allegations regarding the maternal great-aunt. The juvenile court sustained the amended supplemental petition that same month. At the disposition hearing on the amended supplemental petition, the juvenile court found by clear and convincing evidence that placement with the "presumed father" would be "detrimental to the safety, protection, or physical or emotional well-being of the [minor]." Services were ordered for the mother, but not for father.

A May 2009 report noted father had had several visits with the minor, but had cancelled or not shown up for others. At a permanency review hearing held later that month, the juvenile court found the mother's progress had been fair and father's had been minimal. Services were continued for the mother.

According to an October 2009 report, the mother still failed to grasp her limited ability to parent the minor without oversight. DHHS recommended terminating her services.

The mother died in November 2009. At the December 2009 review hearing, the minor's counsel was appointed as the minor's guardian ad litem for the purpose of taking appropriate action regarding the mother's estate. The juvenile court also set a selection and implementation hearing (§ 366.26), finding father's progress had been minimal, and that returning the minor to his custody would create a substantial risk to the minor's safety, protection, or physical or emotional well-being.

In March 2010, father filed a petition for modification (§ 388) requesting reunification services, with the goal of returning the minor to his custody. In support of the petition, he alleged he was regularly visiting with the minor, attending parenting classes, voluntarily attending AA and NA meetings, had voluntarily drug tested three times, and noted that his long-term partner was participating in parenting classes and substance abuse treatment.

The juvenile court denied the petition and terminated parental rights.


I The Requirement of a Finding of Unfitness

Father contends the juvenile court erred by terminating his parental rights without finding, by clear and convincing evidence, that he is an unfit parent, or that placement with him would be detrimental to the minor. (In re Gladys L. (2006) 141 Cal.App.4th 845, 848 (Gladys L.).)

Father's contention has been forfeited because no objection was lodged in the juvenile court. "[A] reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected." (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. omitted.) The California Supreme Court has cautioned that "the appellate court's discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue," and this discretion "must be exercised with special care" in dependency cases. (Ibid.) This is not a rare case presenting an important legal issue and we decline to excuse the forfeiture.

Citing In re M.F. (2008) 161 Cal.App.4th 673, 682, father argues forfeiture does not apply when it is forbidden by due process. "Relaxation of the waiver rule is appropriate when an error 'fundamentally undermine[s] the statutory scheme so that the parent would have been kept from availing himself or herself of the protections afforded by the scheme as a whole.' [Citation.]" (Ibid.) The error alleged by father, termination of his parental rights without a finding of detriment, may implicate his due process rights, but does not implicate his ability to preserve his claim on appeal. Father was able to object to the alleged error by the juvenile court, and his failure to do so forfeits his contention on appeal.

Father's claim also fails on the merits.

In Gladys L., the minor and her two siblings were detained from their mother's custody. The minor's father, against whom no allegations were made in the section 300 petition, appeared in the dependency proceeding without requesting custody. Soon after, he disappeared from the minor's life. At the section 366.26 hearing, which was held three years later, the father filed a request for visitation. The request was denied as contrary to the minor's best interests, and his parental rights were terminated. (Gladys L., supra, 161 Cal.App.4th at p. 847.) In a summary legal discussion that occupies less than a single page of text, Gladys L. held the juvenile court had violated the father's "fundamental interest in the care, companionship, and custody of [his] child[]" by terminating his parental rights without first finding he was an unfit parent. (Id. at p. 848.)

Gladys L. stands on a slim legal foundation. The court derived the "minimal due process requirements" (Gladys L., supra, 141 Cal.App.4th at p. 848) of a finding of parental unfitness from United States and California Supreme Court decisions addressing the standard of proof necessary at different stages of a dependency proceeding. (Santosky v. Kramer (1982) 455 U.S. 745, 760 [71 L.Ed.2d 599, 609-610]; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 256.) Neither opinion purports to address the substantive requirements for termination of parental rights, and Gladys L. extracted the requirement of a finding of unfitness from dictum. (Gladys L., at p. 848.) Furthermore, Gladys L.'s use of the term "unfit parent" is archaic. "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. [Citation.]" (In re P.A. (2007) 155 Cal.App.4th 1197, 1211 (P.A.).)

We need not address the validity of Gladys L., however, because its application has been narrowed substantially by later decisions. P.A. involved a nonoffending presumed father who did not appear in the dependency proceedings until just before the section 366.26 hearing, nearly two years after the filing of the petition. (P.A., supra, 155 Cal.App.4th at pp. 1199-1203.) Following a contested hearing, the juvenile court terminated the presumed father's parental rights. (Id. at p. 1207.)

On appeal, the presumed father relied on Gladys L. in contending that the juvenile court's failure to find him an unfit parent precluded termination of his parental rights. (P.A., supra, 155 Cal.App.4th at p. 1210.) The appellate court disagreed with Gladys L. to the extent it suggested a sustained section 300 petition as to each parent was a required precursor to termination of parental rights. (P.A., at p. 1212.) Noting the juvenile court had, early on in the proceedings, found by clear and convincing evidence that "'there exists a substantial danger to the children and there's no reasonable means to protect them without removal from the parents' custody'" (italics omitted), and reasonable efforts had been made to prevent removal, the appellate court concluded those "findings of detriment made by the juvenile court in this case are sufficient to support the order terminating [the presumed father's] parental rights." (Id. at p. 1212.)

Next came the case of In re A.S. (2009) 180 Cal.App.4th 351 (A.S.), in which a presumed father of one of the minors did not appear at the jurisdiction/disposition hearing, but appeared for the first time in the dependency proceedings nearly two years later, after being found in custody on criminal charges. (Id. at pp. 354-355.) In a settlement reached by the parties at the section 387 proceedings, the court found by clear and convincing evidence that "return of the children to [the presumed father] and [the mother] would create a substantial risk of detriment to the children's physical and emotional well-being." (Id. at p. 355.) At the contested section 366.26 hearing 10 months later, the court terminated the presumed father's parental rights, finding the children adoptable and finding no compelling reason to determine that termination of parental rights would be detrimental to them. (Id. at pp. 356-357.)

The presumed father appealed and, relying on Gladys L., contended the juvenile court violated his due process rights when it terminated his parental rights "without an initial finding of parental unfitness and a subsequent, adequate finding of detriment." (A.S., supra, 180 Cal.App.4th at p. 360; see id. at pp. 359-360.) The court in A.S. disagreed with Gladys L. and adopted the reasoning of P.A. that the absence of a jurisdictional finding that relates specifically to the aggrieved parent does not prevent termination of parental rights. (A.S., at pp. 361-362.)

In response to the presumed father's claim of failure to make an adequate finding of detriment as to him, the A.S. court concluded the finding made by the juvenile court at the section 387 disposition hearing that return of the children would create a substantial risk of detriment to them was sufficient to pass statutory and constitutional muster under section 366.26, subdivision (c)(1). (A.S., supra, 180 Cal.App.4th at p. 363.) The court noted the finding of detriment was supported in the record by the presumed father's initial refusal to participate in dependency proceedings and his failure to make his whereabouts known or to visit the children for a period of six months. (Ibid.)

In March 2009, the juvenile court sustained the amended section 387 petition alleging the maternal aunt could not adequately care for the minor. At the disposition hearing the following month, the juvenile court found "[b]y clear and convincing evidence, placement with the presumed father, [M.D.] would be detrimental to the safety, protection, or physical or emotional well-being of the [minor]."

Citing In re Joel H. (1993) 19 Cal.App.4th 1185, father contends the juvenile court's finding is insufficient because a section 387 petition seeking removal of a dependent child from a relative is adjudicated under a less stringent standard than removal of a child from a parent pursuant to section 361. (Joel H., at p. 1201, fn. 14.) This distinction between sections 361 and 387 is irrelevant to the matter before us. The juvenile court found by clear and convincing evidence that placing the minor with the father was detrimental to the minor's well-being. That finding is supported by the father's child welfare history, and his unwillingness to seek custody of the minor or engage in services. The absence of a jurisdictional allegation of parental unfitness did not preclude the court from making the finding of substantial danger. (A.S., supra, 180 Cal.App.4th at pp. 360-361.)

II The Section 388 Petition

Father contends the juvenile court abused its discretion in denying his section 388 petition seeking reunification services with the goal of getting custody of the minor. We disagree.

Section 388, subdivision (a), provides that a parent of a dependent child may petition the juvenile court "upon grounds of change of circumstance or new evidence . . . for a hearing to change, modify, or set aside any order of court previously made . . . ." Section 388 permits modification of a dependency order if a change of circumstance or new evidence is shown and if the proposed modification is in the best interests of the minor. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526 (Kimberly F.).)

When a petition for modification is brought after the termination of reunification efforts, the best interests of the child are the paramount consideration. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) In assessing the best interests of the child at this stage of the proceedings, the juvenile court looks to the child's needs for permanence and stability. (Ibid.)

The party petitioning for modification has the burden of proof by a preponderance of the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 48.) A modification petition "is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion." (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)

The juvenile court may consider "(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been." (Kimberly F., supra, 56 Cal.App.4th at p. 532.)

Father argues it was the mother's inability to care for the minor that led to the dependency, and, "[w]ith all due respect," her "death totally eliminated the problems that led to the juvenile court's intervention." In support of his claim, he notes his "full participation in services" since the mother's death, and his visits with the minor had gone well.

Assuming the tragic death of the young mother and father's attempts at services presented changed circumstances, father has not established his burden of proving the petition was in the minor's best interests.

Father has played almost no role in the minor's life, other than occasional visits during the dependency. Aware that the minor's mother was subject to seizures, he did nothing to protect the minor before the dependency was initiated. He repeatedly disavowed custody or services; he was thus denied services pursuant to Robert L. v. Superior Court (1996) 45 Cal.App.4th 619, 628, 629.

Father has a substantial child welfare history, his criminal record includes a conviction for domestic violence, and there is evidence he used controlled substances. His petition came at the last minute of the dependency, after years of declining to take custody of the minor or play any substantial role in her life. It was not an abuse of discretion for the juvenile court to deny father's petition for modification.


The juvenile court's orders are affirmed.

We concur: RAYE, Acting P. J. ROBIE, J.


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