Opinion
F074007
03-23-2017
In re M.S., JR., et al., Persons Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. M.S., SR., Defendant and Appellant.
Caitlin Christian, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Kate Ayers, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 11CEJ300093-4, -6, -7)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Mary Dolas, Commissioner, and Gary L. Green, Temporary Judge. Caitlin Christian, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Kate Ayers, Deputy County Counsel, for Plaintiff and Respondent.
Pursuant to California Constitution, article VI, section 21.
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The Fresno County Department of Social Services (the Department) filed a petition pursuant to the provisions of Welfare and Institutions Code section 300, alleging, in essence, that Shawna D. (mother) abandoned five of her children. M.S., Sr. (father), who was incarcerated at all relevant times, appeals from orders terminating his parental rights to two of his children. He makes two arguments in this case. First, he argues the juvenile court applied an incorrect burden of proof when determining if placing the children in his custody would result in detriment to the children. Second, he asserts the juvenile court's decision to terminate his parental rights is not supported by substantial evidence.
All statutory references are the Welfare and Institutions Code unless otherwise stated.
Neither argument has merit. There is nothing in the record to suggest the juvenile court misunderstood the burden of proof it was required to apply, and every reference to the burden of proof in the record is to the appropriate standard. Moreover, the record overwhelmingly supports the juvenile court's orders.
FACTUAL AND PROCEDURAL SUMMARY
A petition was filed on April 7, 2015, alleging the children came within the provisions of section 300, subdivisions (b) and (g). The petition identified five of mother's children. Father is the father of three of the children, M.S., Jr. (age 11), K.S. (age 8), and P.S. (age 5). Two of the children, Bobby (age 10) and Jordan (age 20 months) had a different father, B.F., Sr.
References to "the children" refer to M.S., Jr., K.S., and P.S., collectively.
The petition alleged, in essence, that both fathers were incarcerated, and mother had abandoned the children at a motel without providing for care or support. Mother did not appear at any of the hearings and had minimal contact with the Department. It does not appear mother visited the children during the pendency of the proceedings. Eventually, the juvenile court terminated her parental rights. We focus on the facts related to father and the children since he filed the appeal.
In separate hearings, the juvenile court detained the children and assumed jurisdiction after finding the children fell within the provisions of section 300, subdivisions (b) and (g). At the disposition hearing, the juvenile court removed the children from the custody of mother and ordered the children placed in foster care. The juvenile court denied reunification services to father pursuant to the provisions of section 361.5, subdivision (e)(1) and found it would be detrimental to place the children with father pursuant to the provisions of section 361.2, subdivision (a). A permanency planning hearing pursuant to the provisions of section 366.26 was scheduled.
After several continuances, the permanency planning hearing was held on June 15, 2016. The juvenile court terminated father's parental rights as to K.S. and P.S. and ordered them placed for adoption. Father's parental rights as to M.S., Jr., were not terminated as the juvenile court determined foster care was the appropriate permanent plan.
DISCUSSION
Father's brief is far from a model of clarity. While he appeals from the order terminating his parental rights, as we understand his brief, he makes two arguments focusing on the detriment finding made by the juvenile court at the disposition hearing. First, he asserts the juvenile court utilized the incorrect standard of proof when it made its detriment finding. Second, he argues there is insufficient evidence that placing the children in his custody would be detrimental to the children.
We conclude neither argument has merit. Father's argument misperceives the events which occurred at the various hearings and the findings required to be made at those hearings. Because of this misunderstanding of the applicable law, the Department argued father has forfeited any right to appeal the detriment findings on which he now focuses. (See, e.g., In re Richard K. (1994) 25 Cal.App.4th 580, 590.) We reject the arguments on the merits to bring finality to father's appeal. We begin with the assertion that the juvenile court applied an incorrect standard of proof.
The Department also argues father does not have standing to prosecute this appeal. Since father is appealing from the decision to terminate his parental rights, the Department's standing argument does not have any merit.
Standard of Proof
In Santosky v. Kramer (1982) 455 U.S. 745, the Supreme Court held that before a state may terminate the parental rights of a parent, the state must prove its allegations are true under the clear and convincing evidence standard of proof. (Id. at pp. 747-748, 769-770.) The Supreme Court also noted that at the dispositional stage of the proceedings, the interests of the child and parents diverge. (Id. at p. 760.)
California law is consistent with the requirements of Santosky. Section 361, subdivision (c) prohibits the removal of a child from a custodial parent unless clear and convincing evidence establishes one of the five specifically listed set of circumstances. If a noncustodial parent requests custody, the juvenile court must place the child with the noncustodial parent unless it finds by clear and convincing evidence that "placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child." (§ 361.2, subd. (a); see In re C.M. (2014) 232 Cal.App.4th 1394, 1400.) Similarly, reunification services must be provided to a child's mother and presumed father unless the juvenile court finds by clear and convincing evidence one of 17 enumerated sets of circumstances. (§ 361.5, subd. (b)(1)-(17).)
Finally, pertinent to this case is section 361.5, subdivision (e)(1), which provides that if a parent is incarcerated, the juvenile court must order reunification services to that parent "unless the court determines, by clear and convincing evidence, those services would be detrimental to the child."
In this case, at the disposition hearing the juvenile court twice made a detriment finding. First, it found that providing father with reunification services would be detrimental to the children pursuant to section 361.5, subdivision (e)(1). Second, when denying father custody as the noncustodial parent, the juvenile court found that placing the children with father would be detrimental to the children's safety, protection, or physical or emotional well-being pursuant to section 361.2, subdivision (a).
Father argues it is unclear whether these findings were made using the clear and convincing evidence standard of proof. We disagree. The disposition report prepared by the Department informed the juvenile court the detriment finding pursuant to section 361.5 must be made by clear and convincing evidence. The juvenile court signed the disposition report indicating it had reviewed the report. Counsel for the Department reiterated the clear and convincing standard during her closing argument. Father's counsel also reiterated the clear and convincing standard in her closing when she argued the Department had not met its burden of demonstrating reunification services should not be provided to father. In issuing its ruling, the juvenile court also referenced the clear and convincing evidence standard.
While not all the references were specifically directed at father, the clear and convincing standard of proof was the only burden of proof referred to when discussing the detriment findings. Under these circumstances, it is clear the juvenile court understood the Department was required to prove detriment by clear and convincing evidence. It is also clear the juvenile court applied this standard when it denied services to father and when it denied him custody as the nonoffending, noncustodial parent. While it is true the juvenile court did not specifically state it was applying the clear and convincing evidence burden of proof when announcing its decision, nothing in the record suggests the juvenile court applied a different standard. Accordingly, we reject father's argument.
Sufficiency of the Evidence
As stated above, once the juvenile court determines custody of the child must be removed from the custodial parent, section 361.2 requires the child be placed with a noncustodial parent unless the juvenile court finds that to do so "would be detrimental to the safety, protection, or physical or emotional well-being of the child." (Id., at subd. (a).) The juvenile court made this finding at the disposition hearing. Father argues the finding was not supported by substantial evidence.
In this case, the juvenile court made this finding "primarily due to the fact" father was in custody. In making this finding, the juvenile court rejected placing the children in father's care and allowing him to arrange for the care of the children. The juvenile court concluded "there just hasn't been enough evidence presented" that placing the children with father's fiancée, Nicole Moore, was an appropriate plan of care.
Father argues a finding of detriment cannot be based only on the fact of a parent's incarceration if the parent is able to arrange for the care of the children. He asserts he did arrange care for the children through Moore, which was sufficient to require the juvenile court to grant him custody.
Father cites numerous cases to support his argument. We have reviewed each case. The most pertinent is In re V.F. (2007) 157 Cal.App.4th 962. In this case, the appealing parent, the child's father, was incarcerated at the time the petition was filed. The juvenile court found the children came within the jurisdiction of the juvenile court pursuant to the provisions of section 300, subdivision (b). At the disposition hearing, the juvenile court removed the children from the parents' custody pursuant to section 361, subdivision (c) and denied father reunification services. (In re V.F., supra, at pp. 966-967.)
In re V.F., supra, 157 Cal.App.4th 962 was superseded on other grounds by amendment to section 361.5. See In re Adrianna P. (2008) 166 Cal.App.4th 44, 56-58.
The child's father argued the juvenile court erred by removing the children from his custody pursuant to section 361, subdivision (c). He asserted that because he was a noncustodial parent, the juvenile court was required to evaluate his custodial status pursuant to section 361.2, subdivision (a).. (In re V.F., supra, 157 Cal.App.4th at pp. 967-968.)
The appellate court began its analysis by reviewing the applicable statutes.
"The dependency statutory framework distinguishes between a parent with whom the child was residing at the time the section 300 petition was initiated (custodial parent), and a parent with whom the child was not residing at the time the events or conditions arose that brought the child within the provisions of section 300 (noncustodial parent). [Citations.] Section 361, subdivision (c) governs the child's removal from the physical custody of a parent. '"It does not, by its terms, encompass the situation of the noncustodial parent."' [Citation.] Unlike section 361.5, section 361.2 is not a removal statute. [Citation.] Rather, section 361.2 governs the child's temporary placement with the noncustodial parent and the provision of reunification services to the parents, and also permits the court to grant legal and physical custody of the child to the noncustodial parent. [Citations.]
"Here, the court ordered the removal of the children from the custody of both parents under section 361, subdivision (c) without considering whether the children resided with both parents at the time the petition was initiated. [The father] and the Agency acknowledge section 361, subdivision (c) applies only to the custodial parent. [The father] concedes the provisions of section 361, subdivision (c) do not apply to him because he had been incarcerated since May 2004, and the children were not residing with him at the time the petitions were initiated in January 2007.
"When the court has ordered the removal of a child from the custodial parent under section 361, subdivision (c), the court is then required to determine whether there is a parent 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. [Citation.] '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' (finding of detriment). [Citations.]" (In re V.F., supra, 157 Cal.App.4th at pp. 969-970, fns. omitted.)
The appellate court observed, "In making a finding of detriment, the court may consider any jurisdictional finding 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. In the absence of a finding of detriment, the court must place the child with the noncustodial parent. [Citation.]" (In re V.F., supra, 157 Cal.App.4th at p. 970.) The appellate court also cited In re Isayah C. (2004) 118 Cal.App.4th 684, 700 for the proposition a juvenile court may consider placing a child with a noncustodial, incarcerated parent pursuant to the provisions of section 361.2 if the parent "is able to make appropriate arrangements for the child's care during the parent's incarceration and placement with the parent is not otherwise detrimental to the child." (In re V.F., supra, at p. 971.) The appellate court also observed that under Isayah C., "the length of a parent's incarceration may be a factor in determining detriment under sections 361, subdivision (c) and 361.2, subdivision (a), but a finding of detriment cannot be based solely on the fact a parent is incarcerated. [Citations.]" (In re V.F., at p. 971.) The appellate court concluded reversal was required because the juvenile court failed to consider section 361.2 when it removed the children from father's custody. (In re V.F., at p. 973.) The other cases cited by father do not add to this analytic framework and are factually distinct.
Father's case here is factually similar to In re V.F., supra, 157 Cal.App.4th 962. A section 300 petition was filed because of mother's actions, and father was a noncustodial parent because he was incarcerated. Here, however, the juvenile court did consider father's request for custody pursuant to the provisions of section 361.2. Therefore, the error which occurred in In re V.F. did not occur in this case.
Which brings us to father's assertion the juvenile court's detriment finding pursuant to section 361.2 is not supported by substantial evidence.
"'We begin by noting that in dependency proceedings the burden of proof is substantially greater at the dispositional phase than it is at the jurisdictional phase if the minor is to be removed from his or her home. [Citations.] [¶] This heightened burden of proof is appropriate in light of the constitutionally protected rights of parents to the care, custody and management of the children. [Citation.] [¶] "'Parenting is a fundamental right, and accordingly, is disturbed only in extreme cases of persons acting in a fashion incompatible with parenthood.' [Citation.] 'In furtherance of these principles, the courts have imposed a standard of clear and convincing proof of parental inability to provide proper care for the child and resulting detriment to the child if it remains with the parent, before custody can be awarded to a nonparent.' [Citation.]" [Citation.]' [Citations.] [¶] We review the record in the light most favorable to the trial court's order to determine whether there is substantial evidence from which a reasonable trier of fact could make the necessary findings based on the clear and convincing evidence standard. [Citation.] Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt. [Citation.]" (In re Isayah C., supra, 118 Cal.App.4th at pp. 694-695.)
We apply well-established rules when reviewing a claim of insufficient evidence.
"[O]ur power begins and ends with a determination as to whether substantial evidence exists, contradicted or uncontradicted, supporting the dependency court's determinations. We review the evidence in the light most favorable to the dependency court's findings and draw all reasonable inferences in support of those findings. [Citations.] Thus, we do not consider whether there is evidence from which the dependency court could have drawn a different conclusion but whether there is substantial evidence to support the conclusion that the court did draw. [Citations.]" (In re Noe F. (2013) 213 Cal.App.4th 358, 366.)
Turning to the evidence in this case, father was incarcerated so he could not assume direct custody of the children. However, he argues he provided two individuals with whom the children could be placed shortly after the children were detained, Nicole Moore and Pauline Manny. The Department rejected each of these prospective placements.
It is at this point father's argument becomes confused because he considers evidence not before the juvenile court when it made the detriment finding. This issue of detriment was determined at the disposition hearing. Evidence presented at the permanency planning hearing (the § 366.26 hearing) was not relevant since no detriment finding was necessary at that time. Much of father's argument relies on evidence not presented at the disposition hearing.
The evidence before the juvenile court at the disposition hearing was provided by the reports submitted by the Department and testimony at the contested hearing. We focus primarily on the evidence related to father.
Detention Report
The detention report related a petition had been filed alleging the children came within the jurisdiction of the juvenile court in 2011. A section 300, subdivision (g) count had been found true against father as it was alleged he was incarcerated and unable to provide a suitable plan for the children's care. Father was denied reunification services pursuant to section 361.5, subdivision (e)(1). Mother successfully reunified with the children and the juvenile court terminated its jurisdiction in 2015.
The report also related the family had a history with the Department dating to 2001 with approximately 55 referrals. Reunification services had been provided in the past.
Father's criminal history in Fresno County began in 1998. The charges included assault with a deadly weapon other than a firearm, inflicting corporal injury on a spouse/cohabitant, assault with a firearm, assault with an assault rifle, discharge of a firearm at an inhabited dwelling, and possession of drugs while in jail.
At the time of this report, father had not identified any possible relative placement for the children.
Jurisdiction Report
The jurisdiction report was filed on May 13, 2015. At that time, visits were being scheduled with father. Father had provided Nicole Moore's name as a mentor and as a possible placement for the children. Moore identified herself as father's girlfriend and requested placement of the children on May 1. She was in the evaluation process at the time of the report.
A thorough review of the family's prior history with the Department was provided. As stated above, numerous referrals had been made in the past. Few were found to have any factual basis. One substantiated report occurred on May 21, 2009. A report was received that father had fired shots into the family apartment while the children were inside the apartment. Upon investigation, mother told the Department she refused to allow father into the home, and he became upset. Father retrieved a firearm from his truck and fired at the home at least three times. The children reported they were scared. Father was arrested. The police report was consistent with mother's statement to the Department.
The report indicated father was convicted of false imprisonment in 2009 and sentenced to 32 months in prison, presumably as a result of the above incident. In 2010 he was convicted of battery by a prisoner and sentenced to a consecutive term of four years. Also in 2010 he was convicted of possession of marijuana for sale and sentenced to a consecutive term of 16 months. In 2013, he was convicted of possession of a controlled substance in prison and sentenced to a consecutive term of 32 months in prison.
Disposition Report
The disposition report, dated June 10, 2015, began by recommending reunification services be denied to each parent, the children remain in foster care until a suitable relative or mentor home is located, and a hearing be set pursuant to section 366.26.
In addition to the other incidents referred to above, the report included an incident of domestic violence involving mother and father in 2002. Mother told the Department of the incident, claiming she and father were separated and she had a restraining order against him. This incident occurred before mother and father were married or any of the children were born. A 2009 incident of domestic violence, not the shooting referred to above, was also reported by mother involving father. At least one of mother's children witnessed the incident. No action was taken by the Department because mother reported she no longer lived with father and would not let him into her home.
The report indicated father still wished the children to be placed with Moore, whom he described as his fiancée. Father indicated he had been in a relationship with Moore for two years (during his incarceration) and the children have a positive relationship with Moore. Moore was scheduled to attend relative orientation on June 8, 2015.
The children were asked about Moore. K.S. stated she did not want to live with Moore because father would come when he got out of prison and she did not want to live with him. She stated her father is mean and tried to kill mother. She also described Moore as mean sometimes.
M.S., Jr., stated he did not want to live with Moore because she stays in her room and smokes marijuana. M.S., Jr., stated he could smell the marijuana in Moore's room. M.S., Jr., was also concerned father would come to live with them, and he did drugs and possessed firearms.
Moore confirmed her plan was to live with father when he was released from prison. Moore denied using marijuana. She was willing to provide a permanent plan of legal guardianship.
The Department concluded it would not be in the children's best interest to place them with Moore because they did not want to live with her, they were afraid of father, and the reports of marijuana usage.
In discussing whether father should be provided with reunification services, the Department noted father had not seen the children for the three years before this action began. M.S., Jr., and K.S. expressed some fear of father, the two children did not want to live with Moore, and father would not be released from prison for over two years, which exceeded the statutory time frame for reunification. The report also noted father's lengthy criminal record, his failure to provide for the children throughout their lives, the lack of positive attachment with father, and father's inability to participate in family reunification services due to his incarceration. We note that when father was incarcerated in 2009, M.S., Jr., was approximately five years old, K.S. two years old, and P.S. was a newborn.
Testimony
Only two witnesses testified, father and the social worker for the Department. Father testified he was due to be released almost two years after the hearing. He had visited with his children while he was in local custody for the dependency proceedings, and the visits had gone well. He asserted the children had asked to live with him. According to father, the children also expressed a desire to live with Moore, but she had been rejected as a possible placement by the Department.
Father did not have any contact with the children before coming to Fresno County for the dependency hearings, although he did speak with them if they were staying with Moore. Father had been in custody since 2009, and Moore apparently began visiting with the children in 2012. He did not have any contact with the children between 2009 and 2012. Father also wrote to the children beginning in 2012. Father testified there are no programs available to him at the prison at which he was incarcerated. Father was living with the children before he was incarcerated in 2009. He was incarcerated for false imprisonment.
The social worker testified the children have not told her they wanted to live with Moore. Moore's application was closed because the Department determined she was unsuitable for placement as the children had stated they did not want to live with her. Moore did not complete the orientation required of her. Another individual suggested by father, Paula Manny, was being screened for placement, although Manny did not have any relationship with the children. No other relative had been identified who would be willing to care for the children.
The social worker confirmed father had been visiting with the children while in local custody and that the visits had gone well.
Juvenile Court Ruling
As pertinent, the juvenile court noted the children were in the sole physical and legal custody of mother at the time the petition was filed and the children were removed from her custody. Recognizing the applicability of section 361.2, the juvenile court observed it was required to determine whether there is a noncustodial parent who desired custody of the children. If that parent requested custody, the juvenile court was required to place the child with that parent unless it found placement with the parent would be detrimental to the safety, protection, physical and emotional well-being of the child.
The juvenile court then stated its conclusion that it would be detrimental to place the children with father because he had not provided an appropriate plan of care. It observed it knew little about Moore, and there was no evidence she would be an appropriate care provider. Since there was no other plan of care provided by father, his incarceration made placing the children in his care detrimental to their safety, protection, physical and emotional well-being.
The juvenile court also denied reunification services to father pursuant to section 361.5, subdivision (e)(1). It concluded that due to the length of his incarceration, he would be unable to reunify within the statutory time frame. We also note father testified there are no reunification programs available in his current prison placement.
The juvenile court noted the problems that brought the children before the court were mother's problems, not father's problems. However, even though father had shown a lot of interest and affection for the children, due to his incarceration he was unable to assist the children in overcoming the issues with which they were confronted. The juvenile court reminded father that if he was released early, he should immediately contact his attorney.
Finally, the juvenile court informed father that if he wanted appellate review of the decisions it made, which could lead to termination of parental rights, he must file a notice of intent to appeal within seven days.
Analysis
As stated above, father argues there was insufficient evidence to support the juvenile court's detriment finding. We disagree.
We first focus on the precise issue before the juvenile court. Father was incarcerated at the time of the hearing, so he could not assume direct custody of the children. His entire claim depended on father arranging for the care of the children. His primary desire was to place the children with Moore, a woman father apparently began a relationship with while in prison. It also appears father had not seen the children interact with Moore, and had not seen her home. No information was provided about Moore's financial ability to provide for three young children since, presumably, father could not contribute to their care and support since he was incarcerated. Nor was there any evidence Moore had a suitable temperament to cope with the potentially significant emotional issues related to the children's difficult life experiences. Moore did not testify she still desired to care for the children, nor did she explain why she failed to complete the course recommended by the Department. Nor did Moore explain her relationship with father, or what would happen to the children if that relationship should end. We note Moore described herself as father's girlfriend, while father referred to Moore as his fiancée. Therefore, the commitment Moore had to father was unclear at best.
The juvenile court also had before it the statements of M.S., Jr., and K.S. expressing no desire to live with father or Moore. Father testified the children changed their attitude after visiting with him in jail. However, the children did not testify, and the juvenile court was not required to accept father's testimony, even though the social worker described the children's visits with father as going well.
Father also refers to his testimony regarding Pauline Manny. However, father identified her as a possible caretaker shortly before the disposition hearing, and virtually nothing was known about her at the time of the hearing.
We also observe, although not specifically mentioned by the juvenile court, that it had before it father's lengthy criminal history, his incarceration throughout the reunification period, the reports of domestic violence involving father and mother, and the unavailability of any reunification programs for father while he was incarcerated. Each of these factors strongly suggests father was not, nor would be upon his release, a suitable parent for the children. Since father's plan was to marry Moore upon his release, these were valid factors for the juvenile court to consider when deciding if it would be detrimental to grant father custody of the children.
Each of these factors provides compelling evidence supporting the juvenile court's order. Therefore, to the extent father is arguing there is insufficient evidence to support the juvenile court's order denying him placement pursuant to section 361.2, we reject father's argument.
Father cites In re C.M., supra, 232 Cal.App.4th 1394, 1402 for a nonexclusive list of factors the juvenile court could (or should) consider when deciding whether the children should be placed with a noncustodial parent. These factors include the child's wishes, the sibling bonds, the child's relationship with the noncustodial parent, the length of the noncustodial parent's incarceration, and the ability of the noncustodial parent to make arrangements for the care of the children while he or she was incarcerated. However, none of these factors supports father's argument.
At best, the wishes of the children were unclear. They never expressed to either the social worker or the juvenile court a desire to live with father. Father's testimony was the only evidence the children wished to live with him. More importantly, the two older children expressly stated they did not want to live with father or Moore.
The issue of sibling bonds is simply not a factor in this case. It appears mother had eight children with at least three fathers. While only five of the children were involved in this proceeding, two fathers were involved. If father was granted custody of the children, they would be separated from their two siblings. It seems unlikely all five children would be placed together in any event, and subsequent events proved this to be true. There were at least four different placements for the children. Therefore, this factor was not entitled to great weight.
As explained above, the children had virtually no relationship with father or Moore. Father's incarceration, while not lengthy, exceeded the amount of time left for reunification. Finally, father failed to make suitable arrangements for the care of the children during his incarceration. Accordingly, In re C.M. does not provide any support for father's argument.
While this analysis establishes the juvenile court's detriment orders were supported by substantial evidence, it appears father is actually making a different argument. He appears to be arguing the juvenile court failed to make a detriment finding at the section 366.26 hearing by framing his argument as insufficient evidence at the section 366.26 hearing to support a finding of detriment. If this is father's argument, it evidences a misunderstanding of the proceedings at the permanent placement hearing.
The detriment finding was made twice at the disposition hearing, once when the juvenile court denied father's request for custody pursuant to section 361.2, and once when it denied him reunification services pursuant to section 361.5, subdivision (e)(1). As explained by the Supreme Court,
"[S]ection 366.26 cannot properly be understood except in the context of the entire dependency process of which it is part. Unlike the termination hearings evaluated in Santosky v. Kramer, supra, 455 U.S. 745, and In re Angelia P. [(1981)] 28 Cal.3d 908, the purpose of the section 366.26 hearing is not to accumulate further evidence of parental unfitness and danger to the child, but to begin the task of finding the child a permanent alternative family placement. By the time dependency proceedings have
reached the stage of a section 366.26 hearing, there have been multiple specific findings of parental 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, subds. (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 stage even reached." (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 253, fn. omitted.)
"Thus, in order to terminate parental rights, the court need only make two findings: (1) that there is clear and convincing evidence that the minor will be adopted; and (2) that there has been a previous determination that reunification services shall be terminated. According to the task force, 'the critical decision regarding parental rights will be made at the dispositional or review hearing, that is, that the minor cannot be returned home and that reunification efforts should not be pursued. In such cases, the decision to terminate parental rights will be relatively automatic if the minor is going to be adopted.' [Citation.]" (Cynthia D. v. Superior Court, supra, 5 Cal.4th at pp. 249-250.)
Since findings of detriment were made at the disposition hearing, much of father's argument is irrelevant. Father argues many facts discussed at the permanent placement hearing (§ 366.26 hearing). However, the detriment finding was not made at this hearing, and facts developed after the disposition hearing were not relevant to the detriment finding. As explained in Cynthia D. v. Superior Court, supra, 5 Cal.4th 242, the purpose of the permanent placement hearing was not to gather additional evidence of unfitness, but to make a permanent plan for the children. And once a suitable adoptive home was found for K.S. and P.S., the decision to terminate father's parental rights at the permanent placement hearing was relatively automatic because the findings of detriment had already been made.
DISPOSITION
We conclude the juvenile court followed the applicable code sections, applied the correct burden of proof, and made a decision that is amply supported by the evidence before it. The order terminating father's parental rights is affirmed.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
GOMES, Acting P.J. /s/_________
DETJEN, J.