Opinion
NOT TO BE PUBLISHED
APPEAL from the Riverside County Super.Ct.No. INJ016524. Christopher J. Sheldon, Judge
Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
Leslie A. Barry, under appointment by the Court of Appeal, for Minor.
OPINION
RICHLI, J.
Jesus A. (Father) appeals from the termination of his parental rights from a Welfare and Institutions Code section 366.26 hearing., Father appears to be raising two issues on appeal:
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
Counsel for Minor has adopted the respondent’s arguments and agrees with the juvenile court’s placement.
1. The juvenile court erred by failing to make findings under section 361.2, subdivision (a) that he was entitled to custody of Christopher Z. (Minor).
2. The termination of Father’s parental rights without a finding that he was an unfit parent violated his federal due process rights.
This court notes that Father has ignored the requirement of California Rules of Court, rule 8.204(a)(1)(B) that each legal point must be separately stated under a separate heading, but we will nevertheless address each argument.
We find no error. Hence, we will affirm.
I
PROCEDURAL AND FACTUAL BACKGROUND
On November 29, 2004, L.Z. (Mother) gave birth to Minor. During the birth, Mother was catatonic and did not appear to be suffering any pain. Mother did not acknowledge that she had given birth to Minor, never looked at Minor after his birth, and was unresponsive to questions from hospital staff. Mother had suffered from schizophrenia since the age of 15.
On December 2, 2004, the Riverside County Department of Social Services (the Department) filed a dependency petition as to Minor on the grounds of failure to protect (§ 300, subd. (b)) and no provision of support (id., subd. (g)). Minor’s father was listed as unknown. At the detention hearing, the juvenile court found that a prima facie showing had been made and ordered that custody of Minor be taken from Mother. At the jurisdictional hearing held on December 30, 2004, the juvenile court found Minor was within section 300, subdivision (b) and continued the matter so that Mother could be evaluated to determine whether any reunification services would be appropriate.
On February 7, 2005, the Department filed a disposition report recommending that, due to Mother’s mental condition, the court order a permanency plan of adoption; that reunification services be denied to Mother; and that the court find that the father was unknown. On February 10, 2005, the juvenile court adopted the recommendations in the report. The juvenile court set the section 366.26 parental termination hearing for June 2, 2005.
On June 2, 2005, the Department advised the juvenile court that Father had come forward. The section 366.26 hearing was continued, and a hearing was ordered for the appearance of Father on the original petition as Minor’s alleged biological father. Father was appointed counsel. Father admitted having sexual relations with Mother in February or March 2004 and admitted he found out about the pregnancy when Mother was three or four months pregnant. Paternity testing had been conducted, but the results were not yet available. The section 366.26 hearing was continued on several occasions.
On October 24, 2005, the Department advised the juvenile court that paternity testing established that Father was Minor’s father, reunification services were recommended by the Department and ordered by the court, and the section 366.26 hearing was vacated. On November 10, 2005, the Department filed a status review report recommending that the reunification services to Father continue for six months. Father advised the social worker that he did not want to relinquish Minor for adoption and wanted to reunify with Minor. At a hearing held on December 1, 2005, the court ordered that reunification services be continued for six months and that Minor remain a dependent of the court. Father was advised that if Minor could not be returned home to him by the next hearing, a section 366.26 hearing would be set.
On May 9, 2006, the Department filed a status review report recommending that reunification services be terminated as to Father and that adoption was in the Minor’s best interest. The Department recommended that a section 366.26 hearing be held within 120 days. An addendum report was filed on May 25, 2006.
At the hearing held on July 18, 2006, the Department struck portions of the May 9, 2006, report and excluded attachment A. The text of the May 25, 2006, report was stricken and was only offered for the Father’s psychological evaluation.
Father requested a contested review hearing on the termination of services. At the hearing held on July 18, 2006, the court stated it had reviewed and signed the report filed May 9, 2006, and the addendum report filed on May 25, 2006, both as amended. The juvenile court ordered that reunification services afforded Father be terminated and concluded that returning custody to Father or Mother would create a substantial risk of detriment to the safety, protection, or emotional well-being of Minor. The section 366.26 hearing was scheduled for November 8, 2006.
Father was given notice of the necessity of filing a petition for extraordinary writ pursuant to former California Rules of Court, rule 38 (now rule 8.452), and he filed a notice of intent to file such a petition (case No. E040970). Father later filed a letter informing this court that he had no grounds upon which to file a writ petition. This court dismissed that case on August 24, 2006.
On October 17, 2006, the Department filed a postpermanency status review report recommending adoption of Minor. An addendum to the report was filed on January 3, 2007. At the section 366.26 hearing, held on January 16, 2007, the juvenile court found that Minor was adoptable and terminated parental rights. Father filed a timely notice of appeal from the section 366.26 hearing terminating his parental rights.
II
ANALYSIS
Father claims that the juvenile court erred by failing to make the required findings under section 361.2, subdivision (a) that he was not entitled to custody of Minor at the time he was provided with visitation and reunification services.
A. Additional Facts
On July 18, 2006, a contested hearing was held based on the Department’s request that Father’s reunification services be terminated and requesting that a section 366.26 hearing be set. At the hearing, the Department relied upon its report filed on May 9, 2006. In that report, as amended by the Department at the hearing, the Department recommended that Father’s reunification services be terminated and that adoption was the permanent plan of placement. The Department noted that Father had engaged in 15 visits with Minor. Minor did not appear to be excited when he started the visits, nor did he become emotionally distraught when the visits were completed. The Department alleged that Father was not progressing on reunification and requested that the court find by clear and convincing evidence that return of Minor to the Father would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.
The Department also relied upon a report filed on May 25, 2006, that included an evaluation of Father by a licensed psychologist. The psychologist concluded that Father had low-average intellectual abilities. Father did not appear capable of caring for a child on his own. The psychologist was also concerned about a prior charge of child molestation charged against Father for which no further information was available. The psychologist concluded that Father did not have the ability to safely parent without oversight. Father submitted on the reports and offered certificates of completion of parenting classes. Father asked that he be allowed to have his child.
The juvenile court in its ruling indicated that it adopted the two reports submitted, as amended, by the Department. It specifically stated that it had considered the psychological evaluation. It found, by clear and convincing evidence, that return of custody to the parents would be detrimental, that Father had not progressed on reunification services, and that the permanency plan was adoption. Father was advised of the necessity of filing a petition for extraordinary writ, and the section 366.26 hearing was set.
At the section 366.26 hearing held on January 16, 2007, the Department submitted a report dated October 17, 2006, and an addendum filed January 3, 2007. The October 17, 2006 report included information that Father had been involved in 30 supervised visits with Minor, during which Minor was still excessively crying and having trouble separating from the prospective adoptive parents. Father had not shown any spontaneous parenting skills, and Minor had not bonded with the paternal grandmother, who also attended the visits. Father objected to termination of his parental rights but offered no evidence. The juvenile court terminated the parental rights of both Father and Mother, and Minor was deemed freed for adoption.
B. Failure To Grant Custody Under Welfare And Institutions Code
Section 361.2, subdivision (a)
Father relies upon section 361.2, subdivision (a), which provides: “When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If such a parent requests custody the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.”
At the time Minor was removed from Mother’s custody, Minor’s father was alleged to be unknown, and therefore no determination under section 361.2 was made at that time. In In re Zacharia D. (1993) 6 Cal.4th 435, the California Supreme Court interpreted section 361.2, subdivision (a) to be applicable only at the time that the child is removed from the custodial parent’s home. (Zacharia D., at p. 453.) Moreover, only a presumed father, and not a biological father, is entitled to assume immediate custody of his child. (Id. at p. 454.)
Here, once the juvenile court ordered reunification services, Father became the presumed father. Up until that time, he either had not come forward or had only established paternity. Reunification services were not ordered until October 24, 2005, which was almost one year after custody was taken from Mother. As such, Father has no claim under section 361.2, subdivision (a).
Moreover, even if it could be argued that section 361.2, subdivision (a) was applicable in the instant case, Father was not entitled to a specific finding that he could take custody of Minor.
“[A] nonoffending parent has a constitutionally protected interest in assuming physical custody, as well as a statutory right to do so, in the absence of clear and convincing evidence that [placement with the parent would] . . . be ‘detrimental to the safety, protection, or physical or emotional well-being of the child.’ [Citation.]” (In re Isayah C. (2004) 118 Cal.App.4th 684, 697.) However, “[w]here the noncustodial parent does not seek custody, there is no need to address any risk that might arise from placement with him.” (In re Terry H. (1994) 27 Cal.App.4th 1847, 1854.) Father never asked the juvenile court to make a finding under section 361.2, subdivision (a). A party who fails to complain of an error in the juvenile hearing has waived the error. (In re Riva M. (1991) 235 Cal.App.3d 403, 411-412.) As oftentimes noted by other courts, a rule to the contrary would permit a party to trifle with the court by standing silently by, permitting the proceedings to reach a conclusion, and thereafter avoiding an unfavorable conclusion. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339, and cases cited therein.) If Father had raised the claim in the juvenile court when he came forward, the juvenile court easily could have made a determination whether immediate custody should be granted to Father under the provisions of section 361.2, subdivision (a). Father, who had appointed counsel, should have filed a section 388 petition alleging changed circumstances, thereby alerting the juvenile court that a detriment finding should be made. Indeed, the juvenile court specifically advised Father to file a section 388 petition if he wanted to contest any of the prior orders. By failing to do so, Father forfeited his claim.
We recognize that a supplemental petition naming Father was never filed by the Department. Father does not raise a claim of lack of jurisdiction in his opening brief, and therefore it is not cognizable. Nonetheless, the Department states that jurisdiction was established against Mother and that any procedural defect was waived by Father. It is true a jurisdictional finding against one parent is good against both. (In re Jeffrey P. (1990) 218 Cal.App.3d 1548, 1553-1554.) This principle accords with the purpose of a dependency proceedings to protect the child, rather than prosecute the parent. (See, e.g., In re Malinda S. (1990) 51 Cal.3d 368, 384.) Here, the juvenile court found the allegations against Mother to be true. Mother has not appealed the jurisdictional findings or the termination of parental rights. As such, the juvenile court could declare jurisdiction over Minor due to the actions of Mother. Moreover, Father was well aware of the fact that his parental rights potentially could be terminated by participating in reunification services and appearing at the contested hearing on July 18, 2006. In his reply brief, Father faults the Department for espousing the principle that jurisdiction can be established against only one parent. Father appears to claim that since he was a noncustodial parent under section 361.2, he was therefore exempted from the above finding and that findings of his unfitness were required. Father misinterprets the import of the jurisdictional discussion. This principle goes to whether the juvenile court has jurisdiction over the child, not whether findings of fitness are required prior to terminating parental rights.
Section 388, subdivision (a) provides in pertinent part as follows: “Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstances or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court.”
Father claims in his reply brief that his request for reunification services and subsequent participation were an implied request for immediate custody. However, section 361.2 requires a specific request for custody. It is clear from the record that Father made no indication that he wanted immediate custody of Minor until his reunification services were being terminated. Father had the obligation to alert the juvenile court that he wanted to take immediate custody of Minor. As such, no finding as to custody under section 361.2, subdivision (a), including whether granting custody to Father would be a detriment to the child, was required during the proceedings. (In re Terry H., supra, 27 Cal.App.4th at p. 1854.)
The record contains a minute order reflecting a hearing conducted on October 27, 2005, but Father has not requested that the reporter’s transcript of that proceeding be included in the appellate record. According to the minute order, no findings of detriment were made at the hearing. The minute order also does not indicate whether Father asked for custody of Minor at the hearing. Since Father has the responsibility of providing an adequate record on appeal, the record does not support that Father ever asked that he be granted immediate custody of Minor at this hearing.
In his reply brief, Father states that he did ask for custody at the time of the July 18, 2006 hearing. This appears to be a new argument in that Father stated in the opening brief that he was entitled to custody at the time that visitation and reunification services were granted; therefore, it is not properly considered. As set forth above, since Father failed to request custody prior to the July 18, 2006, hearing, he has forfeited his claim. We agree that Father did specifically request custody at the July 18, 2006, hearing. However, at that time, as will be set forth more extensively, post, the juvenile court in fact made a finding that returning custody to Father would be a detriment to Minor’s emotional and physical well-being. Hence, the juvenile court made the required findings.
Moreover, Father cannot contest the sufficiency of that detriment finding because he failed to file a petition for extraordinary writ after the setting of the section 366.26 hearing. An order setting a section 366.26 hearing has subsumed within it all previous orders. (In re Steven H. (1992) 6 Cal.App.4th 1752, 1756 [“subsidiary orders, leading to the referral order, are reviewable only by writ petition”].) Section 366.26, subdivision (l)(1) mandates that no appeal can be brought from the setting of a section 366.26 hearing unless a writ petition has been filed. Having failed to file the writ petition, Father cannot now argue either (1) that the juvenile court erred by failing to make a detriment finding prior to terminating his parental rights, or (2) that the evidence of the detriment finding at the July 18, 2006, hearing was insufficient. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150.) By waiting to assert his claim that the juvenile court failed to make the required findings under section 361.2 until this appeal from the section 366.26 hearing, appellant has forfeited his claim.
We therefore reject Father’s first claim.
C. Due Process Rights
Father additionally contends that the juvenile court deprived him of his federal due process rights by terminating his parental rights at the section 366.26 hearing without a showing by clear and convincing evidence that he was an unfit parent.
In Santosky v. Kramer (1982) 455 U.S. 745 [102 S.Ct. 1388, 71 L.Ed.2d 599], the court held: “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.” (Id. at pp. 747-748.) Although Father refers to Santosky, he does not claim that section 366.26 fails to comport with due process. Rather, he claims the juvenile court violated his federal due process rights by failing to make a determination by clear and convincing evidence that he was an unfit parent. This court concludes that a determination of Father’s unfitness was made by clear and convincing evidence at the hearing terminating reunification services, and we therefore reject his claim.
In Cynthia D. v. Superior Court (1993) 5 Cal.4th 242 (Cynthia D.), the California Supreme Court held that California dependency law satisfies the requirements of the federal due process clause under Santosky. The court stated that because clear and convincing evidence of detriment to the child must be shown before removal, and clear and convincing evidence of failure to reunify must be shown before termination of reunification services, “[b]y 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., at p. 253.) Therefore, “[a]t this late stage in the process 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.)
As further stated by the Supreme Court in Cynthia D., “[i]t is not the purpose of the section 366.26 hearing to show parental inadequacy, which had to have been previously established, and there is no burden on the petitioning agency to show at the section 366.26 hearing that the parents are ‘at fault.’” (Cynthia D., supra, 5 Cal.4th at p. 254.) Moreover, in In re Brittany M. (1993) 19 Cal.App.4th 1396, 1403, the court concluded, “[S]ection 366.26 does not violate a parent’s right to due process in failing to mandate an express finding of parental unfitness. The detriment findings made at each review hearing preceding the section 366.26 hearing [citations] sufficiently establish parental unfitness to satisfy due process requirements.”
Here, the juvenile court in terminating reunification services and setting the section 366.26 hearing, found that Father was unfit. The juvenile court was asked by the Department to find by clear and convincing evidence that the return of Father would be detrimental to Minor’s well-being. It was also recommended that reunification services be terminated. The psychological evaluation submitted with its recommendation indicated that Father was unable to take care of Minor on his own and was not capable of parenting. The juvenile court specifically adopted the Department’s report and recommendation and relied on the psychological evaluation.
We recognize that Father was not part of the disposition hearing wherein the juvenile court is required to find by clear and convincing evidence that there would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of Minor if he were returned home, like the defendant in Cynthia D., supra, 5 Cal.4th 242. (§ 361, subd. (c).) However, at the time that reunification services were terminated, the juvenile court made the above determination. As such, the termination of reunification services and the above finding of detriment to Minor contained the findings that the Supreme Court in Cynthia D. held are sufficient findings of parental unfitness to satisfy due process and warrant the subsequent termination of parental rights.
Father cannot challenge the sufficiency the evidence of unfitness on his appeal from the termination order itself. No finding of unfitness by clear and convincing evidence was made at the selection and implementation hearing, because none was required under Cynthia D., supra, 5 Cal.4th 242. Additionally, Father did not challenge by writ petition the termination of reunification services and the setting of the section 366.26 hearing. As such, any due process challenge to the sufficiency of evidence supporting those orders is foreclosed in this appeal. (In re Meranda P., supra, 56 Cal.App.4th at pp. 1151-1160; §§ 366.26, subd. (l), 395.)
Father claims that he did not forfeit his right to raise the issue of the termination of his rights by relying upon In re Gladys L. (2006) 141 Cal.App.4th 845. In Gladys L., the father was found to be the presumed father, but no petition alleging any violation of section 300 was alleged against him. He appeared at the detention hearing and then disappeared for three years. He reappeared at the section 366.26 hearing, asked for visitation, and was denied. The father’s parental rights were then terminated. (Gladys L., at p. 847.) On appeal, the appellate court rejected that the father had forfeited his right to appeal the termination by failing to act sooner, relying on the fact that he had never been deemed an unfit parent and a petition was not filed against him. (Id. at p. 849.)
The instant case differs from Gladys L. Although Father was never named in section 300 petition, he did insert himself into the instant proceeding. Furthermore, contrary to the father in Gladys L., Father was granted reunification services, in which he participated. Father then appeared at a contested hearing, where he was denied services after the trial court found he was not making sufficient progress and was not adequately bonding with Minor, and a determination was made by clear and convincing evidence that returning Minor to his custody would be detrimental to Minor’s well-being. Here, the juvenile court determined by clear and convincing evidence that Father was an unfit father. Since such a finding comported with due process, the excuse from waiver found in Gladys L. is not applicable here.
We are bound by Cynthia D.’s determination that the above findings terminating reunification services and finding detriment satisfy due process. By failing to contest by writ petition the findings at the time that the reunification services were denied and the section 366.26 hearing was set, Father cannot now claim that they were insufficient. We therefore must reject Father’s contention that the termination of his parental rights violated due process.
III
DISPOSITION
The order appealed from is affirmed.
We concur:
McKINSTER, Acting P.J., KING, J.