Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD226968
NICHOLSON, Acting P.J.
Appellant Peter G., father of E.G. (the minor), appeals from an order of the juvenile court terminating his parental rights (Welf. & Inst. Code, §§ 366.26, 395), arguing the court failed to first find him an unfit parent. We affirm the juvenile court’s order.
Further undesignated statutory references are to this code.
FACTUAL AND PROCEDURAL BACKGROUND
The minor was born in January 2008. The mother, Natasha B., tested positive for cocaine. Appellant was in custody in the county jail at the time.
According to the detention report, appellant had been arrested for robbery (Pen. Code, § 211) and was awaiting his next court date on that charge. The report also noted appellant was a registered sex offender (Pen. Code, § 290) and “has a warrant from the Florida Department of Corrections.”
The minor was detained a month later pursuant to a dependency petition filed by the Sacramento County Department of Health and Human Services (the Department) alleging the mother’s failure to protect because of substance abuse problems (§ 300, subd. (b)), and alleging both parents’ failure to provide support because mother had left the minor in the care of a relative who was unable and/or unwilling to provide further care, and because of appellant’s incarceration in the county jail (§ 300, subd. (g)). The mother’s whereabouts were unknown.
Prior to detention, appellant contacted the social worker by telephone from the county jail and stated the mother might be using drugs but he did not know her whereabouts. The minor’s paternal aunt, C.G., a licensed foster parent, also spoke with the social worker and expressed an interest in placement of the minor with her, but stated she was in the process of moving to Arizona.
Appellant and mother were both present at the February 2008 detention hearing. The court found appellant to be the presumed father. The court ordered supervised visitation with mother and with appellant upon his release, but ordered no contact with the minor during appellant’s incarceration. Reunification services were ordered for both parents.
On March 28, 2008, both parents were present and both admitted the allegations in the petition. The court sustained the allegations under subdivision (b) of section 300, dismissed the remaining allegations, and adjudged the minor a dependent child of the court (§ 300, subd. (b)).
Both parents were present for the relative placement hearing on April 11, 2008. The court ordered that the minor be placed with the maternal uncle.
According to the permanency review report for the September 2008 hearing, appellant had not participated in services available to him at the jail “due to his own behavior.” The report recommended that services to both parents be terminated. Appellant, still incarcerated in county jail but awaiting trial, informed the social worker that he wanted his sister, C.G. (the paternal aunt), to take guardianship of the minor “for the next five or ten years, until he is released from prison and can then parent his child.”
Appellant was present at the September 26, 2008, permanency hearing. At his request, the court ordered the Department to initiate an Interstate Compact on the Placement of Children (ICPC) as to the paternal aunt in Arizona. The court terminated reunification services to both parents and continued the no-contact order as to appellant. The court found, by clear and convincing evidence, that return of the minor to either parent “would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the [minor].”
The November 7, 2008, status report and relative placement hearing was continued to allow for completion of the ICPC on the paternal aunt.
The Department reported on November 26, 2008, that the State of Arizona had accepted the ICPC for consideration and that the paternal aunt had been interviewed and was found to be a good candidate for placement of the minor.
At the continued hearing on December 2, 2008, appellant expressed to the court that he was anxious for the ICPC to be completed so that placement of the minor with the paternal aunt could occur right away. The court indicated it would await the written report formalizing the completion of the ICPC, and sustained the section 387 petition, ordering that the minor be removed from her current placement with the maternal uncle.
The selection and implementation report for the January 23, 2009, hearing concluded the minor was “likely to be adopted.” The Department was still awaiting approval of the ICPC from the State of Arizona. In the meantime, the current foster parents expressed an interest in permanent placement with them should the ICPC fall through, as did Kenya C., appellant’s second cousin and a licensed foster/adoptive parent in Arizona. The report recommended that parental rights be terminated and the minor be freed for adoptive placement.
According to the social worker, the person handling the ICPC in Arizona was awaiting FBI clearance on the paternal aunt’s adult son who resides with the aunt due to “a hit out of California” requiring more information prior to approval of the aunt’s home for placement.
At the March 27, 2009, selection and implementation hearing, appellant contested termination of his parental rights, contending he was a nonoffending parent who, in spite of his incarceration, provided adequate care for the minor via the paternal aunt. The court noted that the issue was “whether there’s clear and convincing evidence of adoptability, and if so, any exceptions,” and set the matter for a contested hearing on those issues.
At the time of the hearing, appellant was incarcerated in state prison.
The contested hearing was held on June 10, 2009, with both parents present. Counsel for the Department and the minor both submitted on the reports and presented no additional evidence or witnesses. Mother objected to the proposed findings and orders and made a statement to the court, but presented no additional evidence.
Appellant objected to the proposed termination of parental rights. He testified that he first developed a bond with the minor when he spoke and sang to her in the womb. After her birth, the mother brought the minor to visit him in jail, where he would talk to her on the telephone and look at her through the window. Appellant denied being an unfit parent, and reiterated his continuing desire that the minor be placed with the paternal aunt. Appellant confirmed that he was serving a 17-year sentence in state prison.
The addendum report filed May 1, 2009, stated that a requested update on the pending ICPC for the paternal aunt had yet to be received.
The court found the minor adoptable by clear and convincing evidence, and found that no exception applied under section 366.26. Based on those findings, the court terminated the parental rights of both parents.
The court also granted the foster parents’ motion for de facto parent status.
Appellant filed a timely notice of appeal.
DISCUSSION
Appellant contends the juvenile court erred by terminating his parental rights without a finding, by clear and convincing evidence, that he is an unfit parent. (In re Gladys L. (2006) 141 Cal.App.4th 845, 848 (Gladys L.).) As we explain, the court made a previous finding of detriment to the minor, and that finding will suffice as a basis to terminate parental rights pursuant to section 366.26, subdivision (c)(1).
We begin with a brief history of Gladys L. and its progeny. In Gladys L., a presumed father who was not the subject of the allegations contained in the dependency petition appeared at the detention hearing and thereafter was absent from the dependency proceedings until he appeared three years later at the section 366.26 hearing, where his parental rights were terminated. The presumed father was never adjudicated an unfit parent, nor was there evidence in the record that the juvenile court had ever found that return of the minor to the presumed father would result in detriment. (Gladys L., supra, 141 Cal.App.4th at pp. 847–848.) The Gladys L. court reversed the order terminating parental rights and remanded to permit the juvenile court to determine whether the presumed father could be the subject of a petition under section 300. (Gladys L., supra, at p. 849.)
Gladys L. states that “[p]arents 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] (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.’ (Id. at pp. 747–748.) ‘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.’ (Id. at p. 760.) ‘But until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship.’ (Ibid.)” (Gladys L., supra, 141 Cal.App.4th at p. 848.)
“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.’ (Id. at p. 256.) 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.’ (5 Cal.4th at p. 256.)” (Gladys L., supra, 141 Cal.App.4th at p. 848.)
In a subsequent case, In re P.A. (2007) 155 Cal.App.4th 1197 (P.A.), a nonoffending presumed father 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 respectfully disagreed with Gladys L. to the extent it suggested that a sustained section 300 petition as to each parent was a required precursor to termination of parental rights. (P.A., supra, 155 Cal.App.4th at p. 1212.) Noting that 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 that reasonable efforts had been made to prevent removal, the appellate court concluded that 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. (A.S., supra, 180 Cal.App.4th 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[.]” (A.S., 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. (A.S., at pp. 356-357.)
The presumed father appealed and, relying on Gladys L., contended that 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. respectfully 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, and noted that “the plain language of section 366.26, subdivision (c)(1), supports this conclusion. Section 366.26, subdivision (c)(1) identifies the circumstances that constitute a sufficient basis for termination of parental rights. The provision does not include an initial finding of parental unfitness. Rather, if the court finds the child is adoptable and there are no exceptions to termination, the court is required to terminate parental rights if the court has made a previous finding that (1) reunification services shall not be offered to the parent under section 361.5, subdivision (b) or subdivision (e)(1); or (2) the whereabouts of the parent have been unknown for six months or the parent has failed to visit or contact the child for six months, or the parent has been convicted of a felony indicating parental unfitness; or (3) the court has continued to remove the child from the custody of the parent or guardian and has terminated reunification services under section 366.21 or 366.22. (§ 366.26, subd. (c)(1).)” (A.S., supra, 180 Cal.App.4th at pp. 361-362, fn. omitted.)
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 that 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 that 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.)
This case is consistent with the law as it has developed after Gladys L. Here, the allegations against appellant in the original dependency petition were eventually dismissed. Nonetheless, the juvenile court found, by clear and convincing evidence, that return of the minor to appellant “would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the [minor].” That finding is supported by the fact that appellant “failed to participate regularly and make substantive progress in a [c]ourt-ordered treatment plan,” and made no progress “toward alleviating or mitigating the causes necessitating placement,” as a result of the fact that he “was moved off of the fourth floor of the Sacramento County Jail due to his own behavior and [did] not have access to services.” Appellant’s failure to behave in a manner that would allow him to avail himself of services provided to him while in prison is evidence sufficient to support a finding of detriment.
The finding is further supported by the fact that, despite appellant’s appearance at and participation in the dependency proceedings, he was at all times incarcerated and will remain so for several years, rendering it impossible for him to be considered for undertaking custody of the minor. While the crime that resulted in appellant’s current incarceration (i.e., robbery) is unrelated to the reasons underlying removal of the minor, the severity of the sentence (i.e., 17 years in state prison), compounded by the fact that appellant is a registered sex offender, is further evidence to support the finding of detriment.
The juvenile court made an adequate finding of detriment sufficient to support the termination of appellant’s parental rights pursuant to section 366.26.
DISPOSITION
The juvenile court’s order is affirmed.
We concur: ROBIE, J. BUTZ, J.