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In Re J.L., A Person Coming Under the Juvenile Court Law. v. M.L

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Tehama)


December 16, 2011

IN RE J.L., A PERSON COMING UNDER THE JUVENILE COURT LAW. TEHAMA COUNTY DEPARTMENT OF SOCIAL SERVICES, PLAINTIFF AND RESPONDENT,
v.
M.L., DEFENDANT AND APPELLANT.

(Super. Ct. No. J11840)

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

In re J.L.

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.L., father of the minor, appeals from orders terminating his parental rights. (Welf. & Inst. Code, §§ 366.26, 395 [further undesignated statutory references are to the Welfare and Institutions Code].) Appellant contends that because there was no finding he was an unfit parent, the court could not terminate his parental rights. We affirm.

FACTS

One-year-old J.L. was placed in protective custody in December 2009 due to the mother's arrest for driving under the influence. Appellant was in state prison at the time.

The disposition report stated appellant had an 18-year criminal history with crimes related to controlled substances, theft, and violence. He had participated in anger management and parenting classes in the past. The report recommended offering appellant services although he had spent much of his life in prison and had no relationship with the minor. At the disposition hearing in March 2010, the juvenile court found appellant was a presumed father and ordered services for him. The plan required him to participate in domestic violence and substance abuse programs while in prison to the extent the programs were available to him.

The six-month review report filed in August 2010 recommended termination of services. The report stated the social worker had not had any contact with appellant although he had sent three letters to appellant. The social worker had contacted appellant's prison counselor regarding appellant's participation in programs and discovered no evidence appellant had done any of the programs available to him. The report concluded that neither parent could care for the minor at the current time. If appellant had shown any participation in services, the social worker could have recommended additional time for reunification, but appellant had not done so.

A supplemental report provided a letter from appellant which stated he was scheduled to begin classes that included anger management and parenting. The report also provided a concurrent planning report from the State Department of Social Services that indicated the current caretaker wanted to adopt the minor.

A second supplemental report provided a memorandum from the Department of Corrections which stated that appellant had participated in victim awareness, anger management, and stress management classes in September and October 2010. The memorandum further listed appellant's various rules violations, which included possession of drugs and contraband, refusal to drug test, and battery. The most recent rules violation for possession of drugs occurred in late October 2010.

At the review hearing in November 2010, the juvenile court terminated services for both parents, finding by clear and convincing evidence that they had failed to participate in services. The court continued the minor in relative placement and set a section 366.26 hearing. Appellant did not challenge the findings by extraordinary writ.

The report for the section 366.26 hearing recommended termination of parental rights and adoption by the relative caretaker. At the hearing the court followed the social worker's recommendation, finding clear and convincing evidence the minor was likely to be adopted, and terminated parental rights. The box for item 7 on mandatory Judicial Council form JV-320, which states "The court previously made a finding denying or terminating reunification services under Welfare and Institutions Code section 361.5, 366.21, 366.22, 366.25, 727.2, or 727.3, for [the father]," was not checked.

DISCUSSION

Appellant contends his constitutional due process rights were violated because the juvenile court did not make a finding by clear and convincing evidence that he was an unfit parent prior to terminating his parental rights.

"Parents have a fundamental interest in the care, companionship, and custody of their children. (Santosky v. Kramer (1982) 455 U.S. 745, 758 [71 L.Ed.2d 599, 102 S.Ct. 1388] (Santosky).) Santosky establishes minimal due process requirements in the context of state dependency proceedings. '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.' [Citation.] 'After the State has established parental unfitness at that initial proceeding, the court may assume at the dispositional stage that the interests of the child and the natural parents do diverge.' [Citation.] 'But until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship.' [Citation.]

"California's dependency system comports with Santosky's requirements because, by the time parental rights are terminated at a section 366.26 hearing, the juvenile court must have made prior findings that the parent was unfit. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254.) 'The number and quality of the judicial findings that are necessary preconditions to termination 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. (2006) 141 Cal.App.4th 845, 848, final italics added; accord, In re Frank R. (2011) 192 Cal.App.4th 532, 537.)

California's dependency scheme does not use the term "parental unfitness," requiring instead that the juvenile court find that awarding custody of a dependent child to a parent would be detrimental to the child. (In re Dakota H. (2005) 132 Cal.App.4th 212, 224, fn. 3.) This finding can be made in various ways, e.g., denial of services, abandonment, conviction of a felony showing parental unfitness, or continued removal from parental custody coupled with termination of reunification services.*fn1

Where any of these findings have been made during the reunification period, no further finding of detriment is required at the section 366.26 hearing. To comport with due process, it is only necessary that such a finding is made at some point in the dependency prior to termination of parental rights. (In re Gladys L., supra, 141 Cal.App.4th at pp. 848-849.)

In this case, appellant was a part of the proceedings from the outset. The minor was removed from appellant's custody at the dispositional hearing and appellant was ordered to participate in reunification services. Appellant did not contact the social worker during the reunification period. Between the review report and the time of the review hearing he had participated in some services, but his rules violations indicated he did not benefit from them. The court terminated his services, continued the minor in relative placement, and set a section 366.26 hearing. Appellant did not contest those findings and orders.

It is apparent from the record that "the court has continued to remove the child from the custody of the parent or guardian and has terminated reunification services" and found return of the minor to appellant would be detrimental. (§ 366.26, subd. (c)(1); In re Dakota H., supra, 132 Cal.App.4th at p. 224, fn. 3.) The fact that the juvenile court did not articulate those facts or check the proper box on the Judicial Council form is immaterial. The court acted properly within the statutory scheme to terminate appellant's parental rights. No violation of appellant's due process rights appears.

DISPOSITION

The orders of the juvenile court are affirmed.

We concur: BLEASE , J. BUTZ , J.


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