Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Del Norte County Super. Ct. No. 06-6100
Richman, J.
Samuel W. appeals from the order of the juvenile court of Del Norte County terminating his parental rights as to daughter S.W. in accordance with Welfare and Institutions Code section 366.26.
Statutory references are to this code.
Appellant contends the order should be reversed because the juvenile court never made a determination that giving him custody would be detrimental to S. Appellant then doubles back to attack the dispositional order before the termination proceedings were commenced, arguing that he should be excused the usual rule that such an attack is barred by the time a termination order is entered, because the juvenile court did not advise him of his right to appeal from the dispositional order. On the assumption that he can make that attack, appellant contends “the juvenile court erred at the dispositional hearing when it failed to proceed in accordance with section 361.2, the statute applicable to non-custodial parents. As a result, the juvenile court failed to inquire whether Samuel wished to assume custody of his daughter. Instead, it found that . . . family reunification services, which are intended for custodial parents, would be futile due to Samuel’s incarceration and ordered bypass of services, thereby setting the stage for termination of his parental rights.”
We conclude that appellant should be permitted to challenge the dispositional order. We further conclude also that there was error in the failure to apply section 361.2, but that there was no prejudice to appellant from such error. Thus, we reject both of appellant’s contentions on their merits, and affirm.
BACKGROUND
Many of the significant facts are without dispute. S. was born the daughter of mother Sheri H. and appellant. At the time of S.’s birth, appellant was in prison, and would remain there until at least October 2009.
A social worker described appellant’s conviction as “assault with a deadly weapon,” for which he received a sentence to state prison of seven years. The details were that he drove an automobile over the foot of the woman who was the mother of his three children prior to Sammy.
The dependency proceeding commenced in May 2006, before S. was one year old, when respondent Del Norte County Department of Health and Human Services filed a petition which alleged that Sheri was unable to care for S. and a sibling, S.’s half-sister Shannon. As subsequently amended to cover appellant, it was alleged that Sheri and appellant had failed to protect and care for S. (§ 300, subd. (b)); that neither had made provision for S.’s support (id., subd. (g)); and that S. had three half-siblings who had been severely neglected by appellant (id., subd. (j)), whose parental rights were subsequently terminated. The children were promptly detained.
It appears that Sheri was arrested for a probation violation about the time Sammy and Shannon were initially taken into custody. Sheri had seven older children that had previously been removed from her custody at respondent’s instigation. Sheri’s parental rights had been terminated with respect to three of the children. As to the other four children, two were in foster care and two were under guardianship of their parental grandparents.
At the jurisdictional hearing held on June 2, 2006, Sheri and appellant submitted on the petition, which the court then found true. The court signed an order for appellant’s transportation from state prison for the dispositional hearing. Once appellant had been transported, the court granted his request for a week’s continuance.
By the time the dispositional hearing was commenced on June 23, 2006, the court and counsel had received the social worker’s report, with its recommendation that Sheri should receive reunification services. However, the recommendation for appellant was that he should not be offered services, for two reasons: (1) he “is incarcerated . . . and there is clear and convincing evidence that reunification services would be detrimental to the child [WIC § 361.5(e)(1)],” and (2) he “has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior treatment of this problem during a three-year period immediately prior to this [dependency] petition . . . . [WIC § 361.5(b)(13) . . . ]” Attached to the report was a letter sent by appellant, asking to be present “for any and all Court proceedings,” and stating “I would also like to request information/assistance for Guardianship after my release from prison.” On June 23, the hearing was continued for a week to allow counsel to confer with appellant, who had just been transported from prison for the hearing.
The dispositional hearing resumed on June 30, at which appellant’s counsel conceded to the court that 2009 was appellant’s “earliest possible release date from prison,” and that “He’s never had any time with her.” Counsel also conceded that because of appellant’s release date, “there no possible way he could reunify realistically with [S.].” And, counsel went on: “So far as services to the dad—I realize there is every reason not to offer services to dad. And I think he realizes it, too. His interest is much more in providing for his child’s home with her half [sister than] . . . any realistic sense he might be able to reunify with her at this point.”
The court reiterated the point made by the social worker, namely, “the law doesn’t require us to keep her on hold for three years waiting for you to get out of prison.” At appellant’s request, the hearing was again continued, to July 5.
One thing apparently resolved at the June 30 hearing was that, though Sheri was a tribe member, the Indian Child Welfare Act (ICWA) probably did not apply because her daughters did not qualify. However, it was not until December 1, 2006, that the court was confident enough to find that ICWA did not apply to Sammy and Shannon.
At the July 5 hearing, the court heard from appellant’s past case worker. She testified that three of appellant’s children were made dependents in 2001 because of appellant’s “substance abuse and neglect issues, some domestic violence.” “The parents were offered family reunification services . . . . The children were all under the age of three, so they were offered six months services. [Appellant] failed to reunify with the children and services were stopped. Eventually parent rights were terminated.”
In her disposition report already submitted, the case worker informed the court that the actual termination hearing occurred in June 2003.
The case worker further testified that she believed providing reunification services to appellant would be detrimental to S.: “[Appellant] does not have a relationship with her and is not going to be available to her, so I don’t see there would be any benefit to offering services to attempt to reunify when it’s not going to be possible. [¶] . . . [¶] There are siblings that are placed together that have a relationship, and they will not be able to continue on the same permanent plan track if we offer services to [appellant].” “[I]n trying to keep the siblings together, if their mother failed to reunify with them, it could leave her [S.] on a different track and delay the process . . . .” Providing reunification services to appellant “would have no benefit for S. if she can’t go home to her mother,” and “would be detrimental if the child had to wait for a permanent home.”
Finally, the case worker testified that the fact appellant was taking life skills and anger management classes in prison was essentially irrelevant: “He’s not due to be out until she’s [S.] four years old. He has no relationship with her. He cannot visit with her due to her age. It’s not really something we can have phone contact or written contact, because she’s not going to understand who that’s coming from. [¶] But establishing a relationship . . . with somebody . . . that she may not . . . ever be able to live with due to the time constraints of reunification, could potentially be detrimental emotionally.” According to the case worker, the likelihood of appellant reunifying with S. was “pretty well impossible,” in fact, “zero.”
Appellant testified about his efforts to improve himself in prison. Appellant acknowledged that his earliest possible release date is October 10, 2009, and that the prison in which he is incarcerated is approximately 750 miles away.
After hearing argument, the court ruled as follows:
“I do find by clear and convincing evidence, pursuant to . . . Section 361.5(b)(10), that reunification services have previously been terminated for half-siblings of [S.] because [appellant] failed to reunify with them, and the children were removed, and his parental rights were terminated, and I do find that the father has not subsequently made a reasonable effort to treat the problems that led to removal of the siblings.
“And I want to specifically say [to appellant], I think that what you’re doing now is good, but I think that’s the first steps as opposed to reasonable effort, and it might be the first steps toward a reasonable effort, but I don’t think you’ve made those efforts so far. . . .
“[¶] . . . [¶] I also find pursuant to 361.5(b)(13) . . . that the father has a history of extensive abuse and chronic use of drugs, and has resisted prior treatment for the problem during the three-year period immediately prior to filing the petition, and that the father’s use of drugs presents a risk to the child, and so that’s sufficient grounds for removal.
“I don’t think I’ll go into this at this point as to the (e)(1). However, I don’t know that it would be detrimental to provide services at this point. However, it would serve no purpose since father cannot possibly reunify, and I think that any services that would be appropriate would be meaningless at this point.
“The meaningful services I think for reunification only include visitations. As the father’s testified, he’s so far away that it’s not likely we could provide visitation, nor would [S.] appreciate any benefits from that. I’m not so sure it would be detrimental at the end of six months if I would provide services. I would have to make a finding that it’s likely that [S.] would reunify, and I couldn’t make that finding because father would still be in prison, so I’m not sure that we would, under any circumstances, continue to provide services beyond the six months . . . . I don’t see how that would happen.”
The six-month review was held on December 1, 2006. Because Sheri had made progress in meeting the goals of her case plan, the trial court adopted the case worker’s recommendation and ordered that Sheri be provided six additional moths of reunification services while S. remained in foster care.
However, in March 2007, at an interim review hearing, the court stated that “the mother seems to have disappeared off the radar screen. I’m told that there are warrants out for her arrest. And she’s not had any contact with the department since mid-December. The department requests that we put this over for another 45 days. And that if she still has not contacted . . . they would recommend we terminate services and set a hearing an implement a maintenance plan.” The court continued the interim review to April 6.
Thereafter, the case worker advised the court that Sheri was arrested in late March, pled guilty to a probation violation, “and was sentenced to serve 105 days in the County Jail with a release date of July 10, 2007.” Sheri had not visited the children since December of the previous year. And, the case worker concluded, “The children have adjusted well to not seeing their mother and the Department feels it would not be in the children’s best interest to begin visitation again after approximately three and a half months of no contact from [Sheri]. It is the Department’s opinion that to start visitation again with their mother at this time would be detrimental to the children’s emotional stability. With the Department recommending terminating services and setting the matter for a 366.26 hearing to select a permanent plan it would emotionally upset the children to have [her] in their lives for a short period of time. [Sheri] will be incarcerated until July 10, 2007, which is more than a month past the 12-Month Review date.”
When the matter was called on April 6, it appeared that appellant had not received timely notice of the hearing. The hearing was continued to April 27, and then to May 11, so that appellant could receive proper notice.
Meanwhile, Sheri was released from jail on May 10, so the hearing the following day was devoted to the issue of her resuming visitation with the children. With the 12-month review scheduled in three weeks, the court ordered an evaluation of whether the children would be detrimentally affected if Sheri had visits. A hearing on the evaluation was set for May 25. Sheri did not appear on May 25, so the court made no new order regarding visitation.
The case worker’s report for the 12-month review hearing was concerned with the total absence of contact Sheri had with the children since December. Because “dropping in and out of the children’s live[s] is not acceptable,” the report recommended that the court discontinue reunification services and commence termination proceedings. “The Department feels that the children need to be in a stable home in order to grow up to be well-adjusted children. . . . Both girls are well adjusted to foster care now, and refer to the prospective adoptive parents as mom and dad and are happy in their home. To turn their lives upside down at this point by reintroducing [Sheri] . . . would be detrimental to their development and well being.”
Neither Sheri nor appellant was present when the 12-month review hearing was held on June 1. All parties submitted the issue on the case worker’s report. The court accepted her recommendations, terminated reunification services to Sheri (whose whereabouts were still unknown), and ordered notices be sent for a termination hearing on September 28.
The social worker’s report, filed on September 14 for the upcoming hearing, recommended adoption as the permanent plan, and termination of both Sheri’s and appellant’s parental rights.
The September 28 hearing ended quickly upon the court learning two pieces of news. First, appellant’s presence at the hearing had not been secured. Second, the prospective adoptive parents had decided to divorce, even though the mother was still inclined to push ahead with adopting Shannon and S. The termination hearing was continued to October 26.
The hearing on October 26 was quite brief. Sheri was still not in contact, and notice to her was made by publication and personal service. Appellant was present, but added nothing to his counsel, who told the court that appellant’s position “is he would do anything he could to be in a different position, but the position he’s in is he has more time to serve in prison. Mom couldn’t keep it together, and he can’t do anything from his current position where he’s at now, so we’re pretty much hands tied.”
The court then ruled as follows: “Court finds that notice of the hearing has been given to all necessary parties. I have read and considered the [case worker’s] report as filed on September 14th of this year. There is clear and convincing evidence that it is likely that Shannon and [S.] would be adopted and adoption is a permanent placement goal for the children. The parental rights of Sheri . . ., the mother, and [appellant], the father, . . . are terminated. The children are placed for adoption.”
Appellant filed a timely notice of appeal on November 27 from the October 26 termination order.
DISCUSSION
The Rule Precluding Attack On Antecedent Orders From Which No Appeal Was Taken Should Not Be Applied Here
An order terminating parental rights is appealable. (In re Janee J. (1999) 74 Cal.App.4th 198, 206.) Thus, by appealing from that order, appellant is entitled to challenge any part of it, or any finding made at the time the order was made. Respondent does not contend otherwise. The issue here is whether appellant may go back even further, to attack alleged defects in the dispositional order. Whether appellant will be allowed to do so depends on whether we apply the so-called waiver or forfeiture rule. (See In re S. B. (2004) 32 Cal.4th1287, 1293, fn. 2 [“Although . . . often referred to as a ‘waiver,’ the correct legal term for the loss of a right based on failure to timely assert it is ‘forfeiture’. . . . ”].)
Appellant obviously realizes that there is a sizable gap between the termination order made in October 2007 and the dispositional order made back in July 2006. Appellant is also aware that this court has repeatedly held that “The waiver rule as applied in dependency cases flows from section 395, under which the dispositional order is an appealable judgment, and all subsequent orders are directly appealable without limitation, except for post-1994 orders setting a .26 [termination] hearing, which are subject to writ review [Cal. Rules of Court, rule 8.452] and related limitations (§ 366.26, subd. (l)). A consequence of section 395 is that an unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order. [Citations.] In other words, ‘A challenge to the most recent order entered in a dependency matter may not challenge prior orders for which the statutory time for filing an appeal has passed.’ [Citation.] The rule serves vital policy considerations of promoting finality and reasonable expedition in a carefully balanced legislative scheme, and preventing late-state ‘sabotage of the process’ through a parent’s attack on earlier orders. [Citation.]” (In re Jesse W. (2001) 93 Cal.App.4th 349, 355; accord In re Janee J., supra, 74 Cal.App.4th 198, 206-207.)
However, we accepted that while application of the waiver rule was the norm, it would be relaxed if required by due process. (In re Janee J., supra, 74 Cal.App.4th 198, 208 [“the waiver rule will be enforced unless due process forbids it”].) Appellant claims he has such a due process claim here. We agree.
At the conclusion of a dependency dispositional hearing, the juvenile court is required to advise parents of their right to appeal. (Cal. Rules of Court, rules 5.585(d), 5.590.) Here, when the juvenile court made the dispositional order at the hearing on July 5, 2006, it did not so advise appellant.
Once a dependency accelerates towards concluding with a termination of parental rights, the right of appeal is, as a practical manner, largely displaced by a special type of writ petition. (See Cal. Rules of Court, rules 5.600, 8.450-8.452.) If those petitions are not used, the parent is precluded thereafter from raising issues that could have been reviewed at that time. (See § 366.26, subd. (l)(2); Cal. Rules of Court, rules 5.585(e), 5.600(b).) But there is no preclusion if there was no advisement of the parent’s right to seek a writ at the time the termination hearing is set. (§ 366.26, subd. (l)(3); In re Merrick V. (2004) 122 Cal.App.4th 235, 248-249; In re Athena P. (2002) 103 Cal.App.4th 617, 625; In re Ra shad B. (1999) 76 Cal.App.4th 442, 447-448.)
Here, the termination hearing was set at the 12-month review hearing held on June 1, 2007. Appellant was not present, so no advisement was orally given to him at that time. Nor did the notice he was mailed alert him to the possibility of seeking writ review. In short, at neither of the times when the court was required to tell appellant of his right to seek appellate review did it do so. In these circumstances, we conclude that the waiver/forfeiture rule should not be enforced, and we consider appellant’s two contentions on their merits.
The Juvenile Court Erred In Not Following Section 361.2
Subdivision (a) of section 361.2 directs that “When a court orders removal of a child . . ., 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 that 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.” Appellant contends that this should have been the statutory framework employed by the juvenile court, not the one established by section 361.5. Again we agree.
Even so, section 361.5 is relevant to the inquiry. This court recently considered the general provisions for reunification set out in section 361.5, in In re Derrick S. (2007) 156 Cal.App.4th 436. There, we examined the statute’s language and concluded that it “establishes a dual-track approach based on the dependent minor’s age. If the child is under three, the default position is six months of reunification services. If the child is over three, the default position is 12 months. For both categories, the outer limit is 18 months. But neither of these time periods is immutable.” (Id. at pp. 444-445, fn. omitted.)
This, we noted, followed from the principle that “ ‘reunification services constitute a benefit; there is no constitutional “ ‘entitlement’ ” to those services.” [Citations.] Put even more bluntly, there is no absolute right to receive the maximum amount of statutorily-fixed services in any and all circumstances. [¶] This is made clear beyond doubt by subdivision (b) of section 361.5, which specifies no fewer than 15 situations in which the juvenile court is not required to provide any reunification services.” (In re Derrick S., supra, 156 Cal.App.4th 436, 445.)
Relevant here are two, and possibly three, of those exceptional situations. At the dispositional hearing, the juvenile court found—and appellant does not now challenge—that there was clear and convincing evidence that appellant had failed to reunify with half-siblings of S. (§ 361.5, subd. (b)(10)), and that appellant had an extensive history of chronic substance abuse for which he had resisted treatment. (Id., subd. (b)(12).) Also looming in the background is that appellant was in prison after having been convicted of a violent felony. (Id., subd. (b)(11).)
We accept for purposes of section 361.2 that appellant qualified as a non-custodial parent. Nevertheless, in the circumstances shown here, the juvenile court’s failure to follow section 361.2 qualifies as error only in the most technical sense.
The emphasis of the dispositional hearing, and for a considerable period of time thereafter, was to reunify S. with his mother. The court ordered reunification services be provided to Sheri, but it was not required to also provide services to appellant. (See In re Jesse W. (2007) 157 Cal.App.4th 49, 59) “The court’s determinations regarding whether to offer services . . . are necessarily made as to each parent individually.” (Ibid.) As already shown, the court found multiple reasons not to require services for appellant.
It is clear from the transcript of the dispositional hearing that the court was aware of section 361.2. Indeed, the court seems to have been prepared to make the finding required by section 361.2, that placing S. with appellant “would be detrimental to the safety, protection, or physical or emotional well-being of the child.” (§ 361.2, subd. (a).) It only held back from doing so because of the reality that no amount of services would be significant, because the maximum period for unifying appellant with S. would expire before appellant could possibly be released from prison.
The juvenile court cannot be faulted for considering section 361.2 in light of section 361.5. (See In re V. F. (2007) 157 Cal.App.4th 962, 969 [“section 361.2 governs the child’s temporary placement with the noncustodial parent and the provision of reunification services to the parents”]; In re Jesse W., supra, 157 Cal.App.4th 49, 59.) The time limit imposed by section 361.5 in effect mooted the promise of section 361.2. No matter how much, or how earnestly, appellant may have desired custody, it was simply not feasible within the maximum reunification period specified by section 361.5. It was entirely reasonable for the court “not to spend time and effort on the off chance a parent might want to assume custody at some indefinite future time.” (In re Terry H. (1994) 27 Cal.App.4th 1847, 1855.)
The concept of “custody” in this context diverges somewhat from its ordinary meaning. One court has stated “when section 361.2, subdivision (a) refers to a parent’s request for ‘custody,’ it means the parent is asking for the exclusive right to control decisions about the child and to have possession of the child, ire., the parent is seeking sole legal and physical custody.” (In re Austin P. (2004) 118 Cal.App.4th 1124, 1130-1131.) However, when the parent requesting custody is incarcerated, this definition must be heavily qualified. We have previously treated “custody” in this context as being primarily legal, not physical, because the incarcerated parent at best gets to “delegate[e] the day-to-day care of that child to a third party for a limited period of time,” subject to the on-going jurisdiction of the juvenile court over the dependent child. (In re Isaiah C. (2004) 118 Cal.App.4th 684, 697-698, 700 (Isaiah C.); see § 361.2, suds. (b)(1)-(b)(3); In re Austin P., supra, 1131, fn. 2.)
Moreover, the court would obviously seek to keep S. together with Shannon, but there is nothing to suggest appellant was willing to assume responsibility for both children. This was another factor against awarding S.’s custody to appellant, on however contingent a basis. (See In re Isaiah C., supra, 118 Cal.App.4th 684, 700; In re Luke M. (2003) 107 Cal.App.4th 1412, 1422.)
Plus, section 361.2 looks to a parent “who desires to assume custody of the child.” Appellant never expressed such a desire at the dispositional hearing. Indeed, even the letter he sent to respondent went no further than requesting “information/assistance for Guardianship after my release from prison.” (Italics added.) He did not identify a relative who could substitute for him until he was released. A parent invoking section 361.2 is usually expected to arrange appropriate arrangements for the child’s care in a suitable setting. (In re V. F., supra, 157 Cal.App.4th 962, 971; Isaiah C., supra, 118 Cal.App.4th 684, 698-699; In re Erika W. (1994) 28 Cal.App.4th 470, 476.)
Finally, appellant’s odds would have been improved if he was a non-offending parent, that is, his or her acts or omissions had not formed a basis for the juvenile court assuming jurisdiction for the child. (See § 361, subd. (c)(1).)
Our decision in Isaiah C., supra, 118 Cal.App.4th 684, is distinguishable for three significant reasons. First, the incarcerated father there had had joint custody of the child when the dependency was begun. Second, he suggested suitable arrangements for the child’s placement with relatives while he was incarcerated. (Id., at pp. 695-698.) Third, he was facing what we termed a “relatively short incarceration” of less than five months. (Id., at pp. 700, 690.) Here, appellant had no relationship with S.—indeed, was unaware of her very existence until the dependency acquainted him with that fact. So far as the record shows, appellant put forth no relatives who were willing and able to assume custody at the time of the dispositional hearing. And there is no way appellant’s period of incarceration can be characterized as “relatively short.”
Last year we stated that “A principle objective of the juvenile court is to provide ‘an expedited proceeding to resolve the child’s status without further delay.’ [Citation.]
. . . As our Supreme Court recently noted, sometimes ‘ “[c]childhood does not wait for the parent to become adequate” ’ [Citation.]” (In re Derrick S., supra, 156 Cal.App.4th 436, 449.) All we have to do is substitute the word “available” for the word “adequate” and the reasoning is no less applicable here.
Although The Juvenile Court Did Not Make An Actual Finding Of Detriment If Appellant Was Given Custody of S., Such A Finding May Be Implied On The Record Before Us
Appellant’s final contention is that “The juvenile court erred when it terminated parental rights because it had never found by clear and convincing evidence that giving [appellant] custody of his daughter would be detrimental to her.” This is true. But because the evidence is so one-sided, we will imply a finding to that effect.
A finding of detriment is to be made according the clear and convincing standard. (Isaiah C., supra, 118 Cal.App.4th 684, 699-700.) “Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt.” (In re Luke M., supra, 107 Cal.App.4th 1412, 1426) “In making a finding of detriment [under section 361.2], the court may consider any jurisdictional findings that may relate to the noncustodial parent under section 300, as well as any other evidence showing there would be a protective risk to the child if placed with that parent,” including the length of the parent’s incarceration. (In re V. F., supra, 157 Cal.App.4th 962, 970, 971.)
The practice of implying findings of fact on appeal is common is civil cases (In re Marriage of Scarceness (1990) 51 Cal.3d 1130, 1137), but less so in dependency or termination cases. Some courts have declined to imply a finding of detriment under section 361.2, and have remanded where the juvenile court failed to make an express finding on the subject. (In re V. F., supra, 157 Cal.App.4th 962, 966; In re Marquis D. (1995) 38 Cal.App.4th 1813, 1821-1824.) The reluctance to put words in the juvenile court’s mouth, and the limited scope for overcoming that reluctance, was expressed by one court that declined to imply a finding of detriment: “[W]here the trial court has failed to make express findings the appellate court generally implies such findings only where the evidence is clear.” (In re Marquis D., supra, at p. 1825.) We understand that reluctance, and we shared it in Isaiah C., supra, 118 Cal.App.4th 684, 699, where “the state of the evidence [did not] permit us to imply any such findings.” By contrast, the evidence here does not merely permit such a finding, it virtually compels it.
First of all, appellant was hardly blameless. He was an offending parent because all of the three grounds on which the juvenile court assumed jurisdiction were directed at least in part at his failings and neglect. Appellant admitted to an extensive and chronic problem controlling his substance abuse, and the reason appellant was in prison was for an extreme example of domestic violence. (See fn. 2, ante.) Appellant was only just now starting to address these problems.
Second, appellant did not have the resources to make his concern more than purely academic. He had no relative who could assume custody of S. There is no hint in the record on appeal that appellant had offered, or was able, to contribute to the expenses of raising S.
By sustaining the allegations of the dependency petition, the juvenile court determined that appellant was an unfit parent. Similar findings were made thereafter. “By the time dependency proceedings have reached the stage of a section 366.26 hearing, there have been multiple specific findings of unfitness. 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 (see § 361, subd. (b)); in addition, there have been a series of hearings involving ongoing reunification efforts and, at each hearing, there was a statutory presumption that the child should be returned to the custody of the parent. (§§ 366.21, suds. (e), (f), 366.22, subd. (a).) 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 even reached.” (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 253.)
The details here may be different, because appellant was never given reunification services, but the overall point remains sound. By the time matters had progressed to the termination stage, “the state continually has established that a return of custody to the parent would be detrimental to the child.” (Cynthia D. v. Superior Court, supra, 5 Cal.4th 242, 253) Nothing significant in appellant’s situation changed between the dispositional hearing and the termination hearing. Thus, there is every likelihood that the juvenile court would have made the same determination at the dispositional hearing.
In the same vein, by sustaining the allegations of the petition, the court clearly was aware of appellant’s history with respect to the three children he had already lost. And, it is important to note, at the dispositional hearing the court did find that “the father’s use of drugs presents a risk to the child.” It defies belief that the court would have any confidence in appellant’s ability to act as a parent to S., even if he would have done so at some distance.
The issue of reunification services has already been discussed. For purposes of an implied finding, we have no doubt that, had it been required, the juvenile court would have accepted the case worker’s recommendation that that providing reunification services to appellant would have been detrimental (§ 361.5, subd. (e)(1)) because it would have been pointless. Given the strict timetable for the dependency, services to appellant would only have raised hopes that could not be fulfilled. Particularly credible on this point was the case worker’s testimony that S. was simply too young to start a relationship with appellant before time ran out—and that it would detrimental to S. to try.
Although appellant’s attention is naturally upon S., the court would also look to the relationship between S. and Shannon, who was one year older, and with whom S. has apparently spent her entire life with. Even after they were detained, they were kept together, and it was clearly intended that they should be adopted together. Section 361.2, subdivision (i) is only one of many statutes which expressly direct the juvenile court to consider maintaining any sibling relationships. (See In re Luke M., supra, 107 Cal.App.4th 1412, 1420-1423 and authorities cited.) Separating S. from Shannon, after he had been separated—permanently it turned out—from his mother, would obviously be detrimental to her.
In light of the foregoing, we conclude that that overwhelming contradicted evidence supports an implied finding that giving custody of S. to appellant would have been detrimental to her.
DISPOSITION
The order is affirmed.
We concur: Kline, P.J., Harley, J.