Opinion
G054937
11-27-2017
In re S.V., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. R.V., Defendant and Appellant.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torres, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 16DP1278) OPINION Appeal from an order of the Superior Court of Orange County, Dennis J. Keough, Judge. Affirmed. Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torres, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
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INTRODUCTION
R.V. (Mother) is the mother of S.V. (the Minor), who was taken into protective custody in November 2016 at the age of 14. Mother appeals from a dispositional order removing the Minor from Mother's physical custody pursuant to Welfare and Institutions Code section 361, subdivision (c) (section 361(c)). As the sole ground for reversal, Mother argues the juvenile court was required under section 361(c) and the due process clause of the United States Constitution to make an express finding that removal of the Minor from Mother's physical custody was not based on Mother's unfitness as a parent. We conclude the juvenile court was not required as a matter of law to make such a finding and therefore affirm.
Further code references are to the Welfare and Institutions Code. --------
FACTS AND PROCEDURAL HISTORY
The juvenile dependency petition alleged one count each of failure to protect (§ 300, subd. (b)(1)), sexual abuse (§ 300, subd. (d)), no provision for support (§ 300, subd. (g)), and abuse of sibling (§ 300, subd. (j)). The dependency petition alleged that Mother had failed to provide a stable residence for the Minor and had left the Minor at the maternal grandmother's home in May 2016. In November 2016, while living at the maternal grandmother's home, the Minor was sexually abused by the maternal uncle-in-law. The maternal grandmother had instructed the Minor not to inform Mother that the uncle-in-law was living in the home, and did not believe the Minor's reports of sexual abuse.
The dependency petition alleged that, before living with the maternal grandmother, the Minor, Mother, and the Minor's two half-siblings had been homeless for two years. Mother had been the subject of more than one child abuse referral based on homelessness and transiency.
The dependency petition also alleged: (1) Mother had an unresolved substance abuse problem that included heroin, methamphetamine, and alcohol; (2) Mother had exposed the Minor to domestic violence between Mother and the father of the Minor's half-siblings; (3) Mother had had two other children removed from her care due, in part, to her unresolved substance abuse problem and domestic violence; and (4) Mother had a criminal history. The whereabouts of the Minor's alleged father were unknown and he has never appeared in the dependency proceedings. The Minor's two half-siblings were dependents of the Los Angeles County Juvenile Court, and Mother and the half-siblings' father were receiving family reunification services.
When the dependency petition was filed, Mother was living in an inpatient drug treatment program.
At the detention hearing in December 2016, Mother appeared with appointed counsel and denied the allegations of the dependency petition. The juvenile court detained the Minor and found "there is a substantial danger to the physical health of the child and there are no reasonable means by which the child's physical or emotional health may be protected without removing the child from the parents' physical custody." The Minor requested placement with an aunt in Sherman Oaks, and the court authorized the Orange County Social Service Agency (SSA) to release the Minor to a relative or suitable adult as appropriate. The court authorized six hours per week of monitored visitation with Mother at her inpatient facility and ordered reunification services.
The Minor was placed with her maternal aunt in December 2016. By February 2017 that placement had failed. The Minor alleged the maternal aunt had tried to choke her and take her cell phone away. Mother took the Minor to a local police station but police officers saw no visible marks on the Minor's neck. The maternal aunt denied the allegations and reported her concerns about the Minor's dishonesty and sexual conduct. In the jurisdictional report dated January 17, 2017, SSA described Mother's history of substance abuse and her arrest record.
The jurisdictional hearing was conducted in February 2017. After considering and receiving into evidence SSA reports dated January 17 and 31, and February 21, 2017, the juvenile court found the allegations of the dependency petition true by a preponderance of the evidence.
By March 2017, Mother again was homeless. The Minor was placed at the Orangewood Children and Family Center. In March 2017, the Minor told the social worker she wanted to reunify with Mother as Mother was "all she had."
A dispositional hearing was conducted on March 20, 2017. The juvenile court read, considered, and received into evidence SSA reports dated January 17 and 31, February 21, and March 20, 2017. Mother stipulated that under section 361, subdivision (d) reasonable efforts had been made to prevent or eliminate the need for removal and that the court find by clear and convincing evidence that section 361(c)(1), (4), and (5) applied and vesting custody with Mother would be detrimental to the Minor. The court declared the Minor a dependent child pursuant to section 300, subdivision (d). The court removed the Minor from Mother's physical custody based on findings made by clear and convincing evidence that section 361(c)(1), (4), and (5) applied, that vesting physical custody with Mother would be detrimental to the Minor, and vesting custody with SSA was required to serve the Minor's best interests. The court found that Mother had made no progress toward alleviating or mitigating the causes necessitating placement.
DISCUSSION
I. Mother's Argument
Mother argues the Minor was taken into protective custody due only to sexual abuse by the uncle-in-law and not due to parental neglect, and therefore "at the disposition hearing where placement of [the Minor] was the primary issue, the juvenile court was required by the case law interpretation of due process in California's child custody scheme to expressly articulate a finding that [the Minor]'s removal was based upon [Mother]'s unavailability and homelessness, not a detriment which revealed a parental unfitness."
Mother argument is based on the notion that a finding of detriment under section 361(c) is not necessarily a finding of parental "unfitness" which may be used later as the basis for an order terminating parental rights under section 366.26. The Minor's removal from Mother's physical custody was based, according to Mother, on her unavailability and homelessness, which cannot serve as the basis for terminating parental rights. Therefore, Mother argues, the juvenile court was required to make an express finding that the Minor's removal was due to unavailability and homelessness, not parental unfitness, and the court's failure to do so constitutes reversible error.
II. Forfeiture
As SSA points out, Mother stipulated to the findings on which removal was based and stipulated to vesting physical custody of the Minor with SSA, and therefore forfeited the argument she makes on appeal. In an appeal from a dispositional order entered pursuant to stipulation, the appealing party may challenge the underlying jurisdictional order and findings, but may not challenge the sufficiency of the dispositional order itself. (Adoption of Matthew B. (1991) 232 Cal.App.3d 1239, 1272; In re Jennifer V. (1988) 197 Cal.App.3d 1206, 1209.)
Mother argues there was no forfeiture because she raises a pure question of law based on undisputed facts. (In re Julien H. (2016) 3 Cal.App.5th 1084, 1089.) "Although in general, a party who does not raise an argument below forfeits the argument on appeal, where as here, an appellant poses a question of law, the appellate court can exercise its discretion to address the issue." (Ibid.) We will address the issue raised by Mother but only as a pure issue of law and based on undisputed facts without considering sufficiency of the evidence.
III.
The Juvenile Court Made the Statutorily-Required
Finding of Detriment and Was Not Required by Due
Process to Make a Finding of Mother's Unfitness.
A. Sections 361(c) and 366.26
We start by considering the language of section 361(c). It states: "A dependent child shall not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances listed in paragraphs (1) to (5), inclusive, and, in an Indian child custody proceeding, paragraph (6)." Here, the juvenile court made findings of the circumstances listed in paragraphs (1), (4), and (5).
The relevant portion of section 361(c)(1) states: "There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's or guardian's physical custody. The fact that a minor has been adjudicated a dependent child of the court pursuant to subdivision (e) of Section 300 shall constitute prima facie evidence that the minor cannot be safely left in the physical custody of the parent or guardian with whom the minor resided at the time of injury."
If a dependency proceeding reaches the permanency review hearing stage, section 366.22 requires the court to return the dependent child to the physical custody of his or her parent or legal guardian "unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (§ 366.22, subd. (a)(1).) At a section 366.26 hearing, the juvenile court "shall terminate parental rights" if the court finds by clear and convincing evidence "it is likely the child will be adopted." (§ 366.26, subd. (c)(1).)
Neither section 361(c)(1) nor section 366.22 requires an express finding of parental unfitness. Section 366.26 also does not require a finding of parental unfitness. "California's dependency scheme no longer uses the term '"parental unfitness,"' but instead requires the juvenile court make a finding that awarding custody of a dependent child to a parent would be detrimental to the child." (In re Z.K. (2011) 201 Cal.App.4th 51, 65; see In re Dakota H. (2005) 132 Cal.App.4th 212, 224, fn. 3; In re Cody W. (1994) 31 Cal.App.4th 221, 224-225.) The finding of detriment to the child has been said to be interchangeable with or the equivalent of a finding of parental unfitness. (In re A.S. (2009) 180 Cal.App.4th 351, 361, fn. 7; In re Dakota H., supra, 132 Cal.App.4th at p. 224, fn. 3.)
Thus, to remove the Minor from Mother's physical custody under section 361(c)(1), the juvenile court was statutorily required to find only that returning the Minor to Mother's custody would create "a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the [M]inor" and "there are no reasonable means by which the [M]inor's physical health can be protected without removing the [M]inor from [Mother]'s . . . physical custody." The juvenile court here made the required finding by clear and convincing evidence, and Mother stipulated to it. B. Due Process
Mother's due process argument is premised on Santosky v. Kramer (1982) 455 U.S. 745, 747-748 (Santosky), in which the United States Supreme Court considered the constitutionality of a New York law permitting the state to terminate parental rights upon a finding that a "'fair preponderance of the evidence'" showed the child was "'permanently neglected.'" The majority concluded that the due process clause requires that the state support its findings justifying termination of parental rights by at least clear and convincing evidence. (Id. at p. 748.)
In Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 256 (Cynthia D.), the California Supreme Court concluded the standard of proof for termination of parental rights under California law comported with Santosky. The court explained: "Considered in the context of the entire process for terminating parental rights under the dependency statutes, the procedure specified in section 366.26 for terminating parental rights comports with the due process clause of the Fourteenth Amendment because the precise and demanding substantive and procedural requirements the petitioning agency must have satisfied before it can propose termination are carefully calculated to constrain judicial discretion, diminish the risk of erroneous findings of parental inadequacy and detriment to the child, and otherwise protect the legitimate interests of the parents. At this late stage in the process the evidence of detriment is already so clear and convincing that more cannot be required without prejudice to the interests of the adoptable child, with which the state must now align itself." (Cynthia D., supra, at p. 256.) Put more succinctly, "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." (In re Gladys. L. (2006) 141 Cal.App.4th 845, 848.)
Mother argues that Santosky "mandated that due process required that 'parental fitness' be found before a court in a child custody proceeding was authorized to terminate parental rights." But Santosky addressed only the standard of proof mandated by the due process clause before parental rights can be terminated and did not circumscribe the grounds for termination. In other words, a finding of "parental unfitness" is not constitutionally mandated before the state may terminate parental rights to a child.
Santosky and Cynthia D. require that at some point in the dependency proceedings the grounds upon which termination of parental rights is sought have been proven by at least clear and convincing evidence. "While California's dependency scheme no longer uses the term 'parental unfitness,' and instead requires a finding that awarding custody of a dependent child to a parent would be detrimental to the child, due process requires that the finding of detriment be made by clear and convincing evidence before parental rights may be terminated." (In re G.P. (2014) 227 Cal.App.4th 1180, 1193; see In re P.A. (2007) 155 Cal.App.4th 1197, 1210-1211.)
This is an appeal from a dispositional order. Whether the section 361(c) findings are sufficient to support termination of parental rights is not before us because these proceedings have not reached the stage of a section 366.26 hearing. If these proceedings reach the stage of a section 366.26 hearing, termination of parental rights is not the only possible outcome. At a section 366.26 hearing, the juvenile court also has the options (as potentially relevant here) of appointing a relative as legal guardian, appointing a nonrelative as legal guardian, ordering permanent placement with a relative, and ordering placement in foster care. (§ 366.26, subd. (b)(3), (5), (6) & (7).)
California dependency law required the juvenile court at the dispositional hearing stage to make a finding only of detriment in order to remove the Minor from Mother's physical custody. Because the juvenile court made that finding by clear and convincing evidence, there is no merit as a matter of law to Mother's argument that the due process clause required the juvenile court to make a finding that removal was based on Mother's unavailability and homelessness. The cases cited by Mother are inapposite because they concern termination of parental rights with no prior finding of detriment by clear and convincing evidence. (In re Z.K., supra, 201 Cal.App.4th 51 [order terminating mother's parental rights violated due process because no finding of detriment was made as to mother]; In re Frank R. (2011) 192 Cal.App.4th 532 [order terminating nonoffending father's parental rights violated due process because juvenile court never made a finding of unfitness or detriment as to father]; In re G.S.R. (2008) 159 Cal.App.4th 1202 [order terminating presumed father's parental rights violated due process because no allegation or finding made by clear and convincing evidence of unfitness as a parent]; In re Gladys L. (2006) 141 Cal.App.4th 845 [order terminating father's parental rights violated due process because social services never alleged, and court never made finding, that father was unfit].) C. In re P.C.
Mother relies on our decision in In re P.C. (2008) 165 Cal.App.4th 98, 106-107 (P.C.) as supporting the requirement that a removal order specify whether it is based on parental unfitness. In P.C., the dependency petition alleged that the mother had physically abused her children and had participated in acts of domestic violence in their presence. (Id. at p. 100.) The children were removed and ultimately placed with prospective adoptive parents. (Id. at pp. 100, 102.) The mother visited the children consistently and appropriately, completed her case plan, and corrected her behavior, but was unable to find suitable housing. (Id. at pp. 101-102.) The juvenile court terminated reunification services and made a finding of detriment by clear and convincing evidence. (Id. at p. 102.) At a contested section 366.26 hearing, the social services agency recommended the children be adopted based solely on the mother's inability to find suitable housing. (P.C., supra, at p. 103.) The juvenile court terminated parental rights. (Ibid.)
In reversing, a panel of this court phrased the issue on appeal as, "[m]ay parental rights be terminated when the only current detriment to returning the children to mother's care and custody is her inability to obtain housing acceptable to SSA?" (P.C., supra, 165 Cal.App.4th at p. 103.) The court concluded parental rights could not be terminated for that reason given the mother's progress in correcting the problems that led to the dependency proceedings. "In this case, the juvenile court made a finding at each substantive hearing that returning the children to mother's custody would be a detriment to them. But again we must ask, what was the basis of that finding? Initially, it was based on mother physically abusing the children and exposing them to incidents of domestic violence. If mother had not completed her case plan and corrected her behavior, we would agree that the court's continued findings of detriment were tantamount to a finding of parental unfitness. But mother resolved those problems, and the later findings of detriment were based solely on mother's inability to find suitable housing." (Id. at p. 106.)
Mother contends the removal order in this case was insufficient to support a parental unfitness finding which, under the reasoning of P.C., is necessary to support termination of parental rights. We note that the dispositional order here was not based solely on Mother's homelessness and that the Minor was detained not only because she had been sexually abused. The dependency petition alleged four counts, including failure to protect and no provision for support. The petition alleged that Mother has a criminal record and an unresolved substance abuse problem and had exposed the Minor to domestic violence. The juvenile court's finding of detriment (to which Mother stipulated) was based on SSA reports.
It is premature to opine any further on the applicability of P.C. to this case. Mother has been provided reunification services and we do not know whether she will complete her case plan and resolve the issues that brought the Minor into the dependency system. We do not know whether these proceedings will reach the stage of a section 366.26 hearing and if they do, which permanency plan the juvenile court will order.
DISPOSITION
The order is affirmed.
FYBEL, ACTING P. J. WE CONCUR: IKOLA, J. THOMPSON, J.