Opinion
F042052.
7-21-2003
In re SHANA P., A Person Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. RAYMOND P., Defendant and Appellant.
Mario de Solenni, under appointment by the Court of Appeal, for Defendant and Appellant. Phillip S. Cronin, County Counsel, and W. Richard Bailey, Deputy County Counsel, for Plaintiff and Respondent.
Raymond P. appeals from an order terminating his parental rights (Welf. & Inst. Code, § 366.26) to his daughter, Shana. He contends the court erred by denying his request, made on the eve of the termination hearing, to relinquish his parental rights. On review, we will affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
During an episode of domestic violence in April 2001, appellant battered three-year-old Shana. As a result, respondent Fresno County Department of Children and Family Services (the department) detained Shana and initiated the underlying dependency proceedings. Meanwhile, appellant was arrested and eventually incarcerated for his cruelty. In July 2001, the Fresno County Superior Court adjudged Shana a dependent child of the court, removed her from parental custody, and ordered on-going reunification services for her parents. By June 2002, neither parent had reunified with Shana. The court therefore terminated reunification services and set a section 366.26 hearing to select and implement a permanent plan for her. It was undisputed that Shana was likely to be adopted.
At a settlement conference in late October 2002, the court learned through counsel that appellant had asked to relinquish his parental rights but that respondent declined the request. Among the departments concerns were whether appellant could and would knowingly and voluntarily relinquish his rights. The department also questioned appellants sincerity and motivation and expressed further concern that the relinquishment process would lead to additional delay. Trial counsel for appellant claimed there was no adequate basis to block his clients attempt to relinquish his rights. Counsel represented he reviewed the process with his client who in turn showed great insight into the situation.
Counsel for Shana questioned what difference it made whether the court terminated parental rights or the father relinquished his rights. This led the court to inquire of appellants counsel how appellant would benefit from a relinquishment. Counsel responded that a termination order could be held against his client in the future.
"If, some years down the road, my client should have another child, and if by some misfortune [the department] should somehow get involved with this child [sic] again, he could be denied reunification on the basis of there was an involuntary termination, which would not be the case in a relinquishment."
The judge thereafter denied the fathers request to relinquish, commenting:
"I dont find it would be in the interest of public safety or the safety of subsequent children, that this record, with this conduct by the father, should somehow be viewed as other than a termination of his parental rights."
Following the section 366.26 hearing in early November, the court terminated parental rights.
DISCUSSION
Appellant contends the court erroneously interfered with his statutory right (Fam. Code, § 8700, subd. (a)) to relinquish his parental rights to Shana. He acknowledges that the court has the power under section 361 to limit his control as necessary to protect Shana but argues that power does not authorize the court to deny his request for the sake of public safety or the safety of children he might father in the future.
We first address two preliminary matters. One, respondent claims appellant failed to preserve this issue for review by not proffering a valid written relinquishment for the juvenile court to consider. Given that it was respondent who brought the relinquishment question to the courts attention at the settlement conference, we will not permit respondent to change its position on appeal and adopt a new theory. (Ernst v. Searle (1933) 218 Cal. 233, 240, 22 P.2d 715.) Two, appellants argument is largely an attack on the courts reasoning. We take this opportunity to remind appellant however that, as an appellate court, we review the trial courts action, not its rationale. (Davey v. Southern Pac. Co. (1897) 116 Cal. 325, 329, 48 P. 117.)
On the merits, we disagree with appellants underlying assumption, that is he had an unrestricted right to relinquish his parental rights. A birth parent does have a general statutory right to relinquish a child to the State Department of Social Services or a licensed adoption agency for adoption. (Fam. Code, § 8700, subd. (a); 8518.)
This right even extends to a birth parent of a juvenile dependent. (Fam. Code, § 8700, subd. (i); § 358.1, subd. (g); § 361, subd. (b).) However, the same statutes recognizing a birth parents right to relinquish parental rights to a dependent child are expressly conditioned on the departments or adoption agencys willingness to accept the parents relinquishment. (Fam. Code, § 8700, subd. (i) [If the parent has relinquished a dependent child, "the department or agency accepting the relinquishment" shall give notice]; § 358.1, subd. (g) ["if an adoption agency is willing to accept the relinquishment"]; § 361, subd. (b) ["if the department or agency is willing to accept the relinquishment"].)
Family Code section 8700, subdivision (a) provides in pertinent part:
"(a) Either birth parent may relinquish a child to the department or a licensed adoption agency for adoption by a written statement signed before two subscribing witnesses and acknowledged before an authorized official of the department or agency."
Family Code section 8518 provides:
"`Department means the State Department of Social Services."
Family Code section 8700, subdivision (i) provides:
"If the parent has relinquished a child, who has been found to come within Section 300 of the Welfare and Institutions Code or is the subject of a petition for jurisdiction of the juvenile court under Section 300 of the Welfare and Institutions Code, to the department or a licensed adoption agency for the purpose of adoption, the department or agency accepting the relinquishment shall provide written notice of the relinquishment within five court days to all of the following:
"(1) The juvenile court having jurisdiction of the child.
"(2) The childs attorney, if any.
"(3) The relinquishing parents attorney, if any."
Section 358.1, subdivision (g) provides in relevant part that each social study in a dependency action shall include an indication of:
"(g) Whether the parent has been advised of his or her option . . . to voluntarily relinquish the child for adoption if an adoption agency is willing to accept the relinquishment."
Section 361, subdivision (b) provides:
"(b) Subdivision (a) [which authorizes the court to limit the control to be exercised over a juvenile dependent by any parent or guardian] may not be construed to limit the ability of a parent to voluntarily relinquish his or her child to the State Department of Social Services or to a licensed county adoption agency at any time while the child is a dependent child of the juvenile court, if the department or agency is willing to accept the relinquishment."
In this case, respondent — whose functions included that of a licensed adoption agency — was unwilling to accept appellants attempt to relinquish his rights. Thus, under the circumstances of this case, appellant has no grounds on which to argue that the juvenile court interfered with his statutory right of relinquishment. Respondent had already made clear that it would not accept the fathers relinquishment. We consequently will not further consider appellants criticism of the courts ruling.
Notably, appellant does not renew on appeal the claim he implicitly made in the juvenile court, namely that the department lacked an adequate basis to reject his attempt to relinquish his rights. Instead, he restricts his appellate attack to the courts alleged interference. We therefore do not address under what circumstances, if any, the court could intervene on a parents unsuccessful bid to relinquish and what showing would have to be made and by whom.
We conclude alternatively that even if there were some error in the rejection of appellants attempt to relinquish his parental rights, he cannot show prejudice, i.e. that it is reasonably probable the result would have been more favorable to him but for the error (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243). Either way — voluntary relinquishment or court-ordered termination — appellant would have lost his parental rights to Shana. Furthermore, appellants claim of future prejudice — i.e. he could be denied reunification services in a future case based on the termination of his rights to Shana (see § 361.5, subd. (b)(11)) - is too speculative to meet the Watson test of reasonable probability. Last and out of an abundance of caution, we observe that even had appellants voluntary relinquishment been accepted, the potential for no services under his hypothetical still existed. Because he failed to reunify with Shana in this case, it remained possible that a court could order no services under section 361.5, subdivision (b)(10).
Section 361.5, subdivision (b)(10) and (11) provide as follows:
"(b) Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [P] . . .
"(10) That the court ordered termination of reunification services for any siblings or half-siblings of the child because the parent or guardian failed to reunify with the sibling or half-sibling after the sibling or half-sibling had been removed from that parent or guardian pursuant to Section 361 and that parent or guardian is the same parent or guardian described in subdivision (a), and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half-sibling of that child from that parent or guardian.
(11) That the parental rights of a parent over any sibling or half-sibling of the child had been permanently severed, and this parent is the same parent described in subdivision (a), and that, according to the findings of the court, this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half-sibling of that child from the parent."
DISPOSITION
The order terminating parental rights is affirmed.