Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. NJ13583B, Michael Imhoff, Commissioner. Affirmed.
McDONALD, J.
Jose B. appeals a juvenile court order terminating his parental rights to his minor daughter, Nataly B., under Welfare and Institutions Code section 366.26. Jose contends the court violated his due process rights when it terminated his parental rights without a finding of his parental unfitness. We affirm the order.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Nataly was born in March 2008. When she was five days old, the San Diego County Health and Human Services Agency (Agency) filed a petition in the juvenile court under section 300, subdivision (b), alleging Nataly's mother, A.R., had a history of substance abuse, mental illness and domestic violence, which placed Nataly at substantial risk of harm. A.R. named Jose as one of two possible fathers. Jose, who was 16 years old and lived in Tijuana, appeared at the detention hearing and the court appointed counsel for him. The court detained Nataly in foster care and ordered paternity testing and liberal supervised visits for Jose.
A report prepared for the jurisdiction and disposition hearings stated Jose had a history of methamphetamine use. A.R. disclosed Jose regularly used drugs in the past, and she recently saw drugs in his home. The paternal grandmother denied that Jose used drugs.
Jose visited Nataly twice in March 2008. He held, kissed and cuddled her, but appeared uncomfortable and did not know how to properly feed her. Jose missed the next two scheduled visits. He said he would like his parents to care for Nataly if paternity tests showed he was her biological father. Agency was not in favor of placing Nataly with Jose until he participated in counseling and substance abuse treatment.
Based on paternity test results, the court declared Jose to be Nataly's biological father. Agency recommended reunification services for Jose and prepared a case plan that included substance abuse treatment, parenting classes, individual therapy and supervised visits.
During the next three months, Jose visited Nataly four times. Two of those visits occurred in the hallway at juvenile court while Jose was waiting for hearings. Jose cancelled five visits and did not attend two other scheduled visits.
At a contested jurisdiction and disposition hearing, the court sustained the allegations of the petition, declared Nataly a dependent, removed her from parental custody and placed her in foster care. The court found it would be detrimental to place Nataly with Jose because he did not have a relationship with her or have suitable housing, and he needed to address his chemical dependency.
Agency's report prepared for the six-month review hearing recommended the court terminate reunification services and set a section 366.26 selection and implementation hearing. Jose continued to live with the paternal grandparents in Tijuana, and an evaluation of that home was pending. Jose was not participating in services, even though he received referrals in San Diego and Tijuana. Jose said he had been using marijuana for two years, but denied using any other drugs. He recently used marijuana, despite knowing he had to drug test. Jose agreed to participate in drug treatment.
Jose's visits with Nataly continued to be sporadic. During one visit, Jose fed Nataly but did not change her diaper. He became nervous when she fussed and could not console her when she cried. He related to her as a sibling rather than a parent. Jose cancelled five more visits and, on three occasions, did not attend scheduled visits. He told the social worker he wanted Nataly placed with him in the paternal grandparents' home. In the social worker's opinion, there was no substantial probability Nataly could be placed with Jose in the next six months. Jose had not followed through with services or taken the necessary steps to have Nataly placed with him. He had stopped visiting Nataly, had not established a relationship with her, and his substance abuse remained untreated.
An evaluation of the grandparents' home in Tijuana showed it met the requirements of the World Health Organization.
At a contested six-month review hearing, the court found it would be detrimental to place Nataly with Jose. The court noted Jose had not progressed with his case plan. He had not consistently visited Nataly or addressed his chemical dependency. The court terminated services and set a section 366.26 selection and implementation hearing.
The social worker assessed Nataly as adoptable and recommended adoption as her permanent plan. Jose had not seen Nataly in eight months. He scheduled a visit for June 19.
At the selection and implementation hearing, the court received Agency's reports in evidence. All parties stipulated that if called to testify, the social worker would say Jose canceled the June 19 visit with Nataly a half-hour before it was to begin. After considering the evidence and arguments of counsel, the court found Nataly was adoptable and none of the statutory exceptions to adoption applied. The court terminated parental rights and referred Nataly for adoptive placement.
DISCUSSION
Jose contends the court violated his due process rights by terminating his parental rights without making a finding he was an unfit parent. Jose asserts: (1) he was entitled to the due process protections afforded presumed fathers because he promptly came forward to show he was committed to his parental responsibilities; (2) the court's previous findings of detriment are not supported by substantial evidence; and (3) he did not forfeit the right to claim his due process rights were violated even though he did not raise the issue in the juvenile court.
A
Before a juvenile court can terminate parental rights, due process requires a finding, by clear and convincing evidence, that the parent is unfit. (In re Gladys L. (2006) 141 Cal.App.4th 845, 847; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254.) A finding that placing a child with a parent would be detrimental to the child is the equivalent of a finding of parental unfitness. (Cynthia D. v. Superior Court, supra, at p. 253.) However, no finding of unfitness is required if the parent is a mere biological father who has not achieved presumed father status. (In re Jason J. (2009) 175 Cal.App.4th 922, 934-935; In re A.S. (2009) 180 Cal.App.4th 351, 362.) "Under California dependency law, presumed fathers have greater rights than mere biological fathers." (In re Jason J., supra, at p. 931.) A biological father does not have a fundamental liberty interest protected by the due process clause merely because he wants to establish a personal relationship with his child. (In re Christopher M. (2003) 113 Cal.App.4th 155, 160.) " ' "Parental rights do not spring full-blown from the biological connection between parent and child. They require relationships more enduring." [Citation.]' " (Ibid., quoting Lehr v. Robertson (1983) 463 U.S. 248, 260.)
Jose was a biological father who did not seek to qualify as a presumed father. Because Jose was not entitled to the constitutional protections afforded presumed fathers, the court properly terminated his parental rights without expressly finding he was an unfit parent. (In re Jason J., supra, 175 Cal.App.4th at p. 934; In re A.S., supra, 180 Cal.App.4th at p. 362 [court may properly terminate parental rights of biological father who has had the opportunity to become a presumed father but has not done so].)
B
Acknowledging the limitations on rights of fathers who have not achieved presumed father status, Jose cites Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849 (Kelsey S.) to support his argument that due process prohibited terminating his parental rights absent a showing of his unfitness to parent because he promptly came forward to assume his parental responsibilities. A Kelsey S. father is entitled to the same constitutional protections as a presumed father with respect to a finding of unfitness before parental rights can be terminated. (Ibid.) A biological father qualifies as a Kelsey S. father if "he promptly stepped forward to assume full parental responsibilities for the child's well-being, including financial, emotional or other commitment; the child's mother thwarted his efforts to assume his parental responsibilities; and he [showed] a willingness to assume full custody of the child." (In re Jason J., supra, 175 Cal.App.4th at p. 932, citing Kelsey S., supra, at p. 849.)
Jose came forward promptly to visit Nataly when she was five days old. He requested a paternity test and asked for an evaluation of his home in Tijuana for placement of Nataly were he declared her biological father. However, Jose did not show he attempted to assume his parental responsibilities. He did not participate in reunification services and did not regularly visit Nataly in an effort to establish a relationship with her. When he did visit, he acted more as a sibling than a parent. He was not financially or emotionally committed to Nataly, and his lack of a relationship with her showed he was not willing to accept full parental responsibility for her. He concedes A.R. did not unilaterally prevent him from acquiring the statutory rights of a presumed father. Even under "a logical extension" of the holding in Kelsey S., Jose was not entitled to the constitutional protections afforded presumed fathers.
Because we addressed the merits of Jose's due process claim, we do not reach the issue of forfeiture.
C
Although the court was not required to make a specific finding of unfitness before terminating Jose's parental rights, its detriment findings, made at several hearings, sufficiently established parental unfitness to satisfy due process. (Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 253; In re Amanda D. (1997) 55 Cal.App.4th 813, 819.) "By the time dependency proceedings have reached the stage of a section 366.26 hearing, there have been multiple specific findings of parental unfitness." (Cynthia D. v. Superior Court, supra, at p. 253.) These prior determinations of parental unfitness and detriment comport with due process because, at this stage of the proceedings, "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 now align itself." (Id. at p. 256; see also In re Zeth S. (2003) 31 Cal.4th 396, 411 [court's prior findings of parental unfitness, detriment and failure to reunify may not be reopened or reconsidered at § 366.26 hearing].)
At the jurisdiction and disposition hearing, the court found, by clear and convincing evidence, that placing Nataly with Jose would be detrimental to her. The evidence showed Jose missed many opportunities to visit Nataly, which prevented him from developing a relationship with her. When Jose did visit Nataly, he appeared uncomfortable and did not know how to properly feed her or when to change her diaper. He was living with his parents in Tijuana, and that home had not yet been evaluated for Nataly's placement. Further, there was some evidence Jose had a history of drug abuse, and he was not participating in drug treatment. Based on this evidence, the court could reasonably find it would be detrimental to place Nataly with Jose.
Although lack of suitable housing alone cannot support a finding of detriment (In re G.S.R. (2008) 159 Cal.App.4th 1202, 1212), the court's ruling was not based on this factor.
At the six-month review hearing, the court again found it would be detrimental to place Nataly with Jose. An evaluation of the paternal grandparents' home was pending, but Jose was not participating in services, even after receiving referrals in both San Diego and Tijuana. Jose admitted he had used marijuana for two years. He recently used marijuana and declined to drug test because he knew he would test positive. Jose did not participate in drug treatment after agreeing to do so.
Further, Jose did not have a father-daughter relationship with Nataly, as he claims he did. Throughout the proceedings, Jose often chose not to visit Nataly. When he did visit, he related to her more as a sibling than a parent. He eventually stopped visiting Nataly, without having established a relationship with her. Substantial evidence supports the court's detriment findings.
DISPOSITION
The order is affirmed.
WE CONCUR: NARES, Acting P.J.O'ROURKE, J.