Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Tulare County.No. J02-55085. Charlotte Wittig, Juvenile Court Referee.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.
Kathleen Bales-Lange, County Counsel, John A. Rozum, Chief Deputy County Counsel, and Jason G. Chu, Deputy County Counsel, for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Cornell, J. and Gomes, J.
OPINION
Before Vartabedian, Acting P.J., Cornell, J. and Gomes, J.
E.F. (father) appeals from a 2009 order terminating his parental rights (Welf. & Inst. Code, § 366.26) to his 11-year-old son C.F. The Tulare County Superior Court ordered legal guardianship for C.F. in 2004, having removed the child from parental custody in 2002 and given the parents’ subsequent failure to reunify with C.F. The court selected legal guardianship, over termination of parental rights and adoption, as C.F.’s permanent plan due to the child’s special medical needs. The court also terminated the child’s visitation with both parents, having found visitation was detrimental to C.F.’s best interest. Four years later, in 2008, father filed four successive petitions (§ 388) to regain custody of C.F., each of which the court denied. Father failed in each instance to show a change of circumstances such that it would be in C.F.’s best interest to modify the legal guardianship orders. In 2009, the court conducted a new hearing pursuant to section 366.26 and selected adoption as C.F.’s permanent plan based on his legal guardians’ commitment to the child.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Father contends the court, before terminating his rights, should have had clear and convincing evidence as of 2009 that he was an unfit parent. In its absence, father argues the court violated his due process rights. On review, we disagree and affirm.
Given the narrow focus of father’s appellate issue, we need not summarize the appellate record.
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 (1993) 5 Cal.4th 242, 253.) 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. In addition, there have been a series of hearings involving ongoing reunification efforts and, at each hearing, there was a statutory presumption (§§ 366.21, subds. (e), (f), 366.22, subd. (a)) that the child should be returned to the custody of the parent. 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. The purpose of the section 366.26 hearing is not to accumulate further evidence of parental unfitness and danger to the child. (Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 253.)
Solely because over four years had elapsed since the court last found return of custody to father would be detrimental to C.F., father argues the court should have revisited the issue of parental fitness as a matter of due process. He fails to cite any authority to support his position.
Instead, father relies on case law which he claims establishes that findings leading up to a section 366.26 hearing do not always translate into clear and convincing evidence of parental unfitness. (See In re P.C. (2008) 165 Cal.App.4th 98; In re G.S.R. (2008) 159 Cal.App.4th 1202; In re Gladys L. (2006) 141 Cal.App.4th 845.) As discussed below, none of these decisions has any bearing factually or legally on father’s argument.
In In re Gladys L., supra, 141 Cal.App.4th at pages 847 and 848, a court terminated the rights of a “nonoffending” parent whom it had never found unfit; all of the court’s findings had been as to the other parent. In In re G.S.R., supra, 159 Cal.App.4th at pages 1207-1213, a court terminated the rights of another “nonoffending” parent; although the court previously made detriment findings against that parent, there had not been a finding of unfitness and there was insufficient evidence to support the detriment findings. At most, evidence showed the parent’s lack of housing due to poverty. In In re P.C. supra, 165 Cal.App.4th at pages 104 and 105, the court terminated the rights of a parent who corrected all the problems that led to the court’s exercise of dependency jurisdiction over the parent’s children. The only reason the children were not returned was the parent’s lack of appropriate housing, again as in In re G.S.R., supra, due to the parent’s poverty.
In C.F.’s dependency, the court exercised its jurisdiction in part because of father’s domestic violence towards the child’s mother while in the child’s presence. The court removed the child from the father’s custody as well as the mother’s and ordered extensive reunification services for father. Despite 12 months of reasonable reunification services, father failed to participate regularly and make substantive progress in the court-ordered treatment programs. The court twice found return of C.F. to father’s custody would create a substantial risk of detriment to the child’s physical and emotional well-being. Four plus years and four unsuccessful modification petitions later, there had been no change in the father’s circumstances so that it would be in C.F.’s best interest for father to regain custody. Thus, we fail to see what constitutional purpose a new unfitness finding would serve.
Father also overlooks Guardianship of Ann S. (2009) 45 Cal.4th 1110, which indirectly addresses and rejects his argument over the lapse of time between the last detriment finding and the order terminating parental rights. The California Supreme Court in Guardianship of Ann S. upheld a Probate Code proceeding for terminating parental rights (Prob. Code, § 1516.5) -- as to a child who had been in a probate guardianship for two years -- as facially constitutional despite the fact the proceeding did not require a showing that the parent was currently unfit. (Guardianship of Ann S., supra, at p. 1118.) In so holding, the court explained: “[D]ue process requires some showing of parental unfitness before rights are terminated, to protect the parent's fundamental interest in child custody. However, it is settled that a showing of current unfitness is not always necessary when a court terminates parental rights.” (Ibid.)
Addressing an analogy that the appellant tried to draw to dependency law, the California Supreme Court explained: “[T]he relevant teaching of the dependency cases is that a finding of parental unfitness is not necessarily required at the point when parental rights are terminated. In a dependency proceeding, due process is satisfied if unfitness is established at an earlier stage, and parental rights terminated later based on the child's best interest. (Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 256; Santosky v. Kramer [(1982)] 455 U.S. [745,] 760.)... ” “... Due process does not require such findings to be simultaneous with the termination of parental rights.... ‘[A] finding of unfitness... is necessary at some point in the proceedings as a matter of due process before parental rights may be terminated.’ (In re Jasmon O. (1994) 8 Cal.4th 398, 423.)” (Guardianship of Ann S. (2009) 45 Cal.4th at p. 1134-1135, fn. omitted.)
Given the multiple previous findings of father’s unfitness, we conclude due process was satisfied and father’s argument is otherwise meritless.
DISPOSITION
The order terminating parental rights is affirmed.