Filed 10/2/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re S.S., a Person Coming Under the
Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E074852
Plaintiff and Respondent, (Super.Ct.No. RIJ1800321)
v. OPINION
T.S.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Cheryl Murphy, Judge.
Reversed with directions.
Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant and
Appellant.
Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand, and
Julie Koons Jarvi, Deputy County Counsel for Plaintiff and Respondent.
1
This appeal poses the question whether a juvenile court may, consistent with due
process and the dependency statutes, terminate the parental rights of a noncustodial father
who seeks custody even though the state detained and removed the child based only on
allegations against mother and the court found giving father custody would be
detrimental based on problems arising from his poverty.
The Riverside County Department of Public Social Services (department) filed a
petition seeking to remove an 18-month old girl based on mother’s substance abuse and
mental health issues and noncustodial father’s failure to provide for her. (Welf. & Inst.
Code, § 300, subds. (b)(1) & (g)(1), unlabeled statutory citations refer to this code.)
However, after the child was detained, father came forward and said he had been trying
to reunify with her since mother took the child when she was about four months old. He
also said he had established his paternity through a genetic test and had been paying child
support to mother throughout their separation.
Father said he couldn’t yet take custody of the child because his housing,
transportation, and employment weren’t stable, but he indicated he had obtained work
and was attempting to find suitable housing. He also indicated he would return to
Chicago, his home city, and live with relatives who were willing to help him raise her
once he obtained custody.
The department properly amended the petition to remove the allegations against
father before the jurisdiction and disposition hearing. They maintained the child should
be removed from both parents and asked the trial court to find by clear and convincing
2
evidence that placing the child with her parents would pose a substantial danger to her
health, safety, or well-being. The department indicated both parents were entitled to six
months of family reunification services, but due to the child’s young age their parental
rights could be terminated at the six-month review hearing. The court agreed with these
recommendations, including by finding under the clear and convincing evidence standard
that it would be detrimental to return the child to father’s custody.
At the six-month review hearing in February 2019, the court terminated both
parents’ reunification services and, in January 2020, terminated their parental rights.
Father had filed a section 388 petition claiming his situation had changed, noting he had
gained permanent full-time employment with benefits as well as a permanent place to
live, but the court denied his motion at the same hearing, concluding he had shown his
circumstances were changing, but not that they had changed.
Father argues the entire procedure violated his due process rights and there wasn’t
adequate support for the trial court’s finding that giving him custody would be
1
detrimental to the child. We hold a juvenile court may not terminate parental rights
based on problems arising from the parent’s poverty, a problem made worse, from a due
process standpoint, when the department didn’t formally allege those problems as a basis
for removal. Absent those impermissible grounds for removal there wasn’t clear and
1 Mother agreed to the termination of her parental rights in the trial court and isn’t
a party to this appeal.
3
convincing evidence that returning the child to father would be detrimental to her. We
therefore reverse the termination of father’s rights and remand for further proceedings.
I
FACTS
A. The Referral, Petition, and Detention Hearing
The child, Serenity, and her family came to the department’s attention on May 3,
2018, when they received a general neglect referral reporting mother was at a
governmental office with a child seeking housing assistance and she appeared to be
2
intoxicated and was anxious, shaking, and unable to speak. The family is black. The
referral said mother took the child out of her stroller and shook her twice to get her
attention and quiet her, though it noted she didn’t shake her hard.
Just over a week later, a department social worker interviewed mother at her
apartment. The social worker said, when mother came out, she was pacing, physically
clumsy, had difficulty concentrating, and spoke rapidly and sometimes nonsensically.
Mother said she’d been diagnosed with schizophrenia, attention deficit disorder, and
bipolar disorder but she wasn’t in therapy or on medication. She admitted to smoking
marijuana but denied other substance use. She said she was under a lot of stress because
she was in the process of being evicted.
2 Serenity’s half sister was involved in the case, but she has a different father, so
her situation isn’t relevant to this appeal.
4
The social worker inspected the apartment and observed a substandard living
environment. She found a great deal of trash on the floor and kitchen counters filled with
trash and dirty dishes. She discovered the bathroom lacked running water and there was
minimal food in the refrigerator. Mother agreed to take an oral saliva drug test and tested
positive for methamphetamines and amphetamines. She explained the result by saying
she had fallen at a party and took Vicodin or Tramadol a friend gave her for the pain.
Mother identified father as Serenity’s biological father but didn’t provide contact
information. The social worker tried to contact him using a phone number in the referral,
but the number didn’t work. The department then began standard efforts to locate the
father.
On May 15, 2018, the department filed a petition asserting Serenity was in need of
court protection. They alleged mother abused amphetamine and methamphetamine, lived
a transient and unhealthy lifestyle, suffered from untreated bipolar disorder and
schizophrenia, and had a criminal conviction for child endangerment for which she would
remain on probation until March 2021. She also had a history with child welfare services
in Texas involving another child, who was placed with a different father. (§ 300, subd.
(b)(1).) The department alleged Serenity’s father wasn’t a member of the household, his
whereabouts were unknown, and he therefore failed to provide Serenity with food,
clothing, shelter, and medical treatment. (§ 300, subd. (g)(1).) The department
recommended leaving Serenity in mother’s care but removing her from father.
5
Mother was present at the detention hearing, but father wasn’t there and wasn’t
assigned counsel. At the hearing, county counsel changed their recommendation and
asked the court to detain the child from mother as well as father. The court found the
department had made a prima facie showing Serenity fell within the statutory protections
of section 300, subdivisions (b)(1) and (g). This determination rested solely upon
evidence concerning mother’s conduct and father’s absence, as no other information was
provided about him in the social worker’s report or at the hearing.
The court removed Serenity from mother’s custody. Though father hadn’t
appeared, the court ordered the department to provide reunification services for both
parents, directed mother and father should be tested for alcohol and drugs, and that both
should receive parenting education, substance abuse treatment, and counseling. The court
also ordered twice-weekly supervised visits for mother and visits for father, if he
appeared, as the department determined to be appropriate.
B. Father’s Appearance
In June 2018, father contacted the department and let them know he was living in
Temecula. The parents were in a committed relationship when the minor was conceived.
Father said they married when they moved to California, before Serenity was born, but
had separated later, and mother had made it difficult to see the child since then. He said
he hadn’t been in contact with mother because she was hostile and made threats against
him. Mother reported father is listed as Serenity’s father on her birth certificate. She said
6
she has a child support case for Serenity, and father reported he was paying child support
to mother. The department found father had no criminal history.
Father reported he was unable to make visits with the child because he didn’t have
transportation from Temecula. However, at father’s initiative, the department arranged an
online video visit with the child and noted no concerns about the visit. The social worker
noted father expressed his excitement and enjoyment at being able to see Serenity. Father
also told the social worker that if the court granted him custody, he would move back
home to Chicago, where he would have housing and the support of his family to care for
his daughter. He also confirmed in-person visits at the department’s Temecula office
worked well for him.
In July 2018, the social worker completed two interviews with father. He said he
was born in Chicago and lived in the Midwest most of his early life. He met mother in
Texas in February 2016. They moved together to California in May 2016 and married in
August 2016. He said Serenity was born in November 2016. He was present for her birth
and he was listed as the father on her birth certificate. After her birth, he and mother
began experiencing problems with housing, and lived in hotels and a car. In early 2017,
they got into an argument and mother punched him in the face. Mother left with Serenity
against his wishes. He tried to locate housing but continued staying in hotels. He said
mother and Serenity came back to stay with him for a week, but they moved out again
when she found a roommate.
7
Eventually, father got back into contact with mother and asked her why she had
run off with Serenity. Mother said she “needed space.” Father found her to be very
emotional, “stressing out and having suicide ideations.” Because of their inability to
establish housing, father had a plan to move back to his home state. He reported he had
Serenity for four days in March 2017, but then returned her to mother. The following day
she started telling him she was “stressed out and . . . did not ‘want to do this anymore’
and if a solution was not established she was going to give [Serenity] to the state.” Later,
father got a new job and a place to stay at a friend’s home in Perris, and they agreed
Serenity would move in with him, while mother remained in Riverside. However, those
plans fell through because he didn’t have childcare for the times he was working.
Father denied leaving Serenity without support. He reported he had been paying
child support to mother since February 2018. He said, “When [mother] left me and ‘went
wherever she went,’ I was working a temporary job leading up to getting hired full-time,
I was sending her money prior to getting placed on child support. I was supporting her by
providing her with $80-$90 on top of her receiving government assistance.” He said he
attempted to see Serenity, but mother would threaten him and hang up. At some point,
mother told him the child wasn’t his, so he took a paternity test as part of the child
support case, which showed he was her biological father.
Father told the social worker he wanted Serenity placed with him. “I would prefer
Serenity to be with me ‘Even if me and [mother] aren’t talking, I still would be willing to
work and be open to compromising and developing a plan.’ I do not want Serenity to not
8
know who her mother is but if it came down to one last thing, I would want her to be with
me.”
The social worker informed father of the statutory six-month limitation on
reunification for children as young as Serenity. She told him he could relinquish his
daughter for adoption, but he responded, “I’m going to say no to that. It’s not like
Serenity does not have any place to go. I have family back home and since moving to
California, it has become hard for a single person to do this by themselves. However, if
an adoption has to happen, I would like my family to adopt her and not a complete
stranger.” He said he would be willing to participate in parenting classes because Serenity
is his first child, as well as any services the department recommended. He indicated to the
social worker that he would need housing assistance to provide for his daughter.
The department included a recommended case plan for father. His objectives were
to “obtain and maintain a stable and suitable residence” and “acquire adequate resources
to meet her needs.” The case plan listed his responsibilities as participating in an
approved parenting education program and “individual counseling to address issues
relating to past relationship issues and/or trauma which may have an impact on his life.”
The department did not make any provision for helping father obtain aid in finding and
paying for a residence.
Also in July, father visited Serenity in person. The visit went well. The foster
parent reported Serenity was shy about interacting with father, but said father was patient
with her and understood she wasn’t sure who he was. During this period, mother
9
informed the social worker that she no longer wanted to fight and would choose not to
participate in reunifying with Serenity.
C. Jurisdictional and Dispositional Hearing
Based on these developments, the department filed an amended petition containing
amended recommendations for how to handle Serenity’s case. They struck the allegations
that father’s whereabouts were unknown and that he’d failed to provide Serenity with
adequate food, clothing, shelter, and medical treatment. After the changes, the petition
contained no allegations regarding father. The department recommended the trial court
find the allegations against mother true by a preponderance of the evidence, and that
Serenity be adjudged a dependent of the court.
Despite the absence of allegations, the department made recommendations
regarding father’s status. First, they recommended the court remove Serenity from the
physical custody of both parents. Second, they recommended the trial court find by clear
and convincing evidence as to both mother and father that “[t]here 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.” (§ 361, subd. (c)(1).) Third,
they recommended the trial court find by clear and convincing evidence that for father
“there would be a substantial danger to the physical health, safety, protection, or physical
or emotional well-being of the child for the [noncustodial] parent . . . to live with the
child or otherwise exercise . . . [his] right to physical custody.” (§ 361, subd. (d).) The
department also indicated they were required to provide reunification services to mother
10
and father. In their report, the department recommended the court find father is the
presumed father, though they neglected to include that recommendation in their amended
petition or their amended recommended findings and orders form which was attached to
the amended petition, and which juvenile courts have a practice of relying on to make
their findings if they agree with the department’s position.
The trial court held a contested jurisdiction and disposition hearing on July 18,
2018. Neither parent was present, though both were represented by counsel. The trial
court took the department’s reports into evidence. Father’s counsel informed the court he
had talked with father several times, and father was trying to get reliable transportation.
Father’s counsel emphasized there were no allegations against father in the first amended
petition. He represented that father had had some contact with Serenity and asked for
authorization to increase contact to include overnight and weekend visits and, ultimately,
placement with father.
The trial court followed the department’s recommendations and recommended
findings. It found true, by a preponderance of the evidence, the allegations in the first
amended petition. It found Serenity to be a dependent of the court and that the department
had made reasonable efforts to prevent removal. It found by clear and convincing
evidence it would be detrimental to Serenity to return her to her home, and ordered the
child removed from the custody of both parents. As to father in his role as a noncustodial
parent, the court found by clear and convincing evidence that it would be detrimental to
Serenity to place her in his custody.
11
The court ordered family reunification services for both parents, and father’s case
plan included a parenting class and individual counseling. The court ordered supervised
visits for father and gave the department discretion to allow unsupervised visitation.
Father’s counsel reiterated to the court that the allegations against his client had been
stricken and he was a nonoffending parent, and requested unsupervised visits, overnight
weekend visits, and placement. The court decided to maintain supervised visits because,
“I don’t think he was in the child’s life. And [to] make sure that he’s doing well,” but did
give the department authority to approve unsupervised overnight visits and placement.
The court didn’t expressly address the recommendation in the department’s report to find
father had the status of presumed father.
D. Six-month Review Hearing and Termination of Reunification Services
By January 2019, the social worker reported father hadn’t engaged in a parenting
class or individual therapy. He was living with a friend in Hemet and working at a
warehouse in Temecula. The social worker performed a background check and found
father had no warrants and no arrests or convictions.
Father told the social worker he was aware of his goals and that he needed to find
stable housing to have custody of Serenity. He said he wants to reunify with her but
didn’t understand why he had to complete services in order to do so. Mother was not
participating in her case plan components.
The social worker reported father’s visits with Serenity were sporadic. Initially,
visits were limited to video calls. He had participated in only one in-person visit with the
12
child. He arrived late for the visit and Serenity was distressed when he attempted to get
close. However, her caregiver reported father was very patient and kind to the child and
tried to play with her.
The social worker concluded the prognosis of returning Serenity to her parents’
custody was not good. “The parents have not dealt with the issues that brought their
family to the attention of Child Protective Services. . . . The father has not completed any
of his case plan services and is currently homeless. He has no stability and or provisions
to adequately provide for the child. The Department cannot safely return the child to the
care of either parent as the child would be at risk for continued abuse and or neglect.”
Consequently, the department recommended the court terminate the parents’ services and
schedule a section 366.26 hearing to determine a permanent plan for Serenity.
On February 26, 2019, the trial court held a contested six-month review hearing.
Neither parent was present. Father’s counsel informed the court father was working full-
time in Temecula at a warehouse and he did not have a car, so his only way to get to
court was to take a long bus ride. He reminded the court that father was a nonoffending
parent, and he had contacted the entity “A Loving Way” to begin parenting and
individual counseling. He reported father had visited Serenity the week prior, and
requested the court extend his services for six months. Mother’s counsel reported that
mother agreed her services should be terminated.
13
The court found the department had provided the parents with reasonable services,
but they had made no progress toward alleviating the causes of the removal. The court
found by a preponderance of the evidence that returning Serenity to father’s care would
create a substantial risk of detriment to her well-being.
The court terminated both parents’ reunification services and scheduled a section
366.26 hearing for June 26, 2019 to determine a permanent plan for the minor. The court
reduced father’s visits to one time a month for father and refused father’s counsel’s
request for visits twice a month.
The court didn’t mention the requirement that father seek an extraordinary writ to
preserve his right to appeal the order terminating services and setting the section 366.26
hearing, nor did it mention that father would have to file a notice of intent to file a writ
petition within seven days. The court merely directed the clerk “to provide written notice
as set forth in the California Rules of Court.” However, the written notice sent to father a
month later, on March 25, 2019, doesn’t mention that he would have to seek an
extraordinary writ to preserve his appeal.
E. Father’s 388 Petition and Termination of Parental Rights
In June 2019, father filed a section 388 petition seeking to change the court’s
February 2019 order terminating his family reunification services. Father sought a new
order for services, as a nonoffending parent, based on the fact he was engaged in therapy,
as required by his reunification plan. He attached a letter from his therapist confirming
his participation in individual therapy over the previous two months and offering to
14
provide parenting education classes to him as well. He said he had difficulty visiting
Serenity in the beginning of the case because of problems with transportation and money.
The court scheduled a section 388 hearing to coincide with the upcoming section
366.26 hearing, which ultimately occurred in January 2020. In the time leading up to the
hearing, the social worker noted father continued to participate in video conferencing
visits with Serenity and had some in-person visits, but only on a sporadic basis. Father
had trouble scheduling and keeping appointments, which he blamed on his work schedule
and lack of transportation. Serenity often seemed uncomfortable around father.
Father had continued participating in therapy, which contained a parenting
component, and he was scheduled to complete therapy in November 2019. His therapist
reported he was motivated to begin parenting his daughter and was an active participant
in his therapy sessions.
Father came to the hearing in January 2020, but mother didn’t. Father and the
social worker testified.
1. The social worker’s testimony
Father’s counsel called the social worker as a witness. She said she had been on
the case since May 2018. She acknowledged there were no allegations in the petition
against father.
She said father had been living in the Temecula area throughout the case and
reported he had obtained a new job at a hospital. She didn’t talk with his therapist to
confirm his participation in therapy because the therapist didn’t have the necessary
15
medical release paperwork. She was told there was already a release on file with the
department but didn’t contact father’s attorney to obtain a release.
She acknowledged father had told her about his difficulties making visits and
asked her to make them more convenient. She tried to do so by monitoring visits at the
Lake Elsinore office in August and September 2019. She said father has also participated
in video chats with Serenity, and the caregiver told her what happened on these chats.
She said father had not engaged in any improper activity during his visits, but that he
simply played with the child and didn’t express affection for her.
The social worker acknowledged her relationship with father was strained. She
said she didn’t think the court should grant his section 388 motion because his situation
was the same as when the department became involved in the case.
2. Father’s Testimony
Father said he had recently moved into a new apartment with his cousin’s family
in Murrieta. He’d been there for two weeks and said it’s a long-term residence. He said
he had also started a new job working at a Temecula Valley Hospital where he had just
completed orientation. He was a full-time employee with benefits that would start after
he’d worked there for three months. He characterized the job as good, stable employment
that paid more than his former warehouse job. The benefits included assistance with
tuition and childcare and health insurance for himself and Serenity.
Though he had worked in his previous job at the warehouse for about a year, it
was a temporary job. He also explained the warehouse job had created significant
16
obstacles for making weekday visits to Lake Elsinore. He worked there every weekday
from early in the morning until 3:30 in the afternoon. Since public transportation from
Temecula to Lake Elsinore took him an hour and a half, he was usually unable to make
in-person visits. For a while, Serenity’s caretaker arranged in-person visits with him in
Murrieta on Saturdays. However, that arrangement was inconvenient for her and she
asked him to start visiting in Lake Elsinore on weekdays again.
Father also said after the court terminated services, the department informed him
he could no longer arrange visits with the caregiver, and he would have to arrange visits
through the department to occur during work hours on weekdays. He said the social
worker had not worked with him to find a way to make visits fit his schedule. He said
with his new work schedule, he would be able to visit once a week if services resumed,
and he was saving to buy a car. Father also said if he was granted additional services, he
hoped the department could help him with housing, which is what he has been told is the
reason he can’t have custody of his daughter.
Father said it has always been his goal to have Serenity in his custody. It was his
hope to return to Illinois with his daughter. He said he was upset when he found out
Serenity was in protective custody. He had recently lost his home in part because he was
paying child support and expenses.
He said he had completed about 13 to 15 weeks of counseling and parenting
classes. He found the therapy and his parenting sessions helpful for learning to take care
of a small child, and said he did activities and role-playing. He would be willing to do
17
additional therapy and parenting courses, if requested.
3. The Court’s Rulings
After argument, the court denied father’s petition to change the order terminating
services. It concluded father’s circumstances were, at best, in the process of changing and
that ordering additional services wasn’t in Serenity’s best interest.
“Father throughout the duration of this case since it began in May of 2018 has not
demonstrated that he’s capable of providing a safe and stable home, along with the
financial means to have Serenity in his care. [¶] Even if father may have completed his
case plan, this Court believes the circumstances to be more in line with changing and not
sufficient change in circumstances. The fact that the case plan services may be completed
does not in and of itself demonstrate that the parent is ready [to] have the child placed in
their care. [¶] I understand from what counsel is representing today, he’s not asking for
placement. He’s really asking for services so it could potentially lead to placement. But
this Court has to look at the entire case and the actions of father and where he’s
progressed from the beginning to now, and the Court doesn’t believe that giving six more
months of services is going to get father to a point of being able to have his daughter in
his care and weighing that with keeping Serenity where she is with her caregiver. [¶]
Even if I did consider the circumstances of father currently to be changed, I don’t see that
father has shown it’s in the best interest of the minor child to grant him six more months
of services with [the] possibility of return.”
18
On termination of parental rights, father’s counsel argued the parental child bond
exception (§ 366.26 (c)(1)(B)(i)) applies and that the department was asking the court to
terminate father’s parental rights due to poverty, which is explicitly barred by statute.
“[T]he Department has been a bar to visitation. They have been the obstacle to having
consistent contact. Because of poverty, dad is having the situation right now where his
parental rights can be terminated. So, we object to the recommendation.”
The court rejected these arguments. It found there was clear and convincing
evidence Serenity was adoptable and the parental child bond exception didn’t apply. The
court concluded, “A sufficient basis for termination of the parental rights exists based
upon the findings made at the [Welfare and Institutions Code] section .21(e) hearing held
February 26, 2019. And at that hearing, the Court found that reasonable services were
provided or offered to the parents to overcome the problems which led to the initial
removal of the child. Nevertheless, despite the availability of those services, the child
could not be returned to the parents’ custody, and there’s no substantial probability of
return within the next six months. [¶] Termination of parental rights would not be
detrimental to the minor . . . and adoption is in the best interest of the child.” The court
terminated father’s and mother’s parental rights and ordered a permanent plan of
adoption for Serenity.
Father filed a timely notice of appeal challenging both rulings.
19
II
ANALYSIS
A. Forfeiture of Appellate Rights
Father challenges the trial court’s finding that returning Serenity to his custody
would be detrimental to her, which undergirds the decision to terminate both services and
parental rights. Before reaching the merits, we address the department’s argument, first
raised at oral argument, that father can’t appeal the setting order, and therefore can’t
challenge the detriment finding, because he didn’t preserve his right to appeal by seeking
an extraordinary writ.3 (§ 366.26, subd. (l)(1) [“An order by the court that a hearing
pursuant to this section be held is not appealable at any time unless . . . [a] petition for
extraordinary writ review was filed in a timely manner”].) As the department points out,
ordinarily “[a] setting order is not appealable; direct appellate consideration of the
propriety of the setting order may be had only by petition for extraordinary writ review of
the order.” (In re Cathina W. (1998) 68 Cal.App.4th 716, 719.)
However, the court must give the parent notice of the writ requirement and a
failure to do so provides good cause for allowing the appeal. (In re Cathina W., supra, 68
Cal.App.4th at p. 719.) The statute directs the trial court “shall advise all parties of the
3 Ordinarily, we trust the parties to raise meritorious issues in their briefing, and
don’t address issues not raised until oral argument “because such consideration would
deprive the [other party] of an opportunity to counter the argument.” (American Drug
Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.) We exercise our discretion to
address their argument only because the principle is important, and we were easily able to
confirm forfeiture doesn’t apply.
20
requirement of filing a petition for extraordinary writ review as set forth in this
subdivision in order to preserve any right to appeal in these issues.” (§ 366.26, subd.
(l)(3)(A); see also Cal. Rules of Court, rule 5.695(g)(10).) “The juvenile court must
provide oral notice to all parties present at the setting hearing and notice by mail to all
other parties that such a writ may be filed.” (In re Harmony B. (2005) 125 Cal.App.4th
831, 838.) California Rules of Court, rule 5.695(g)(10)(A) specifies the court must
provide written notice within 24 hours of the hearing. “When notice is not given, the
parents’ claims of error occurring at the setting hearing may be addressed on review from
the disposition following the section 366.26 hearing.” (In re Harmony B., at p. 838; see
also In re Cathina W., supra, 68 Cal.App.4th at pp. 722-726; In re Rashad B. (1999) 76
Cal.App.4th 442, 450 [“Since appellant was not given notice of her right to file a writ
petition, and since that failure of notice is ultimately attributable to an error of the court,
appellant’s claims of error are cognizable on appeal even though they would serve to
undermine the referral order”].)
The trial court did not affect notice of the writ requirement in this case. It made no
mention of the requirement at the February 26, 2019 hearing where it terminated
reunification services and set the 366.26 hearing. And though it directed the clerk of court
“to provide written notice as set forth in the California Rules of Court,” the only notice in
the record advised father that a section 366.26 hearing had been set but omits any
mention of the requirement of seeking an extraordinary writ to preserve his appeal rights.
The written notice also came too late; it was sent one month after the hearing, not one
21
day. (Cal. Rules of Court, rule 5.695(g)(10)(A) [“Within 24 hours of the hearing, notice
by first-class mail or by electronic service in accordance with section 212.5 must be
provided by the clerk of the court to the last known address of any party who is not
present when the court orders the hearing under section 366.26”].)
Only a minute order says anything about the writ requirement, representing “the
court advised all parties present in court” of the need to file a writ to preserve appellate
rights. The transcript shows that advisement didn’t happen, and in such a conflict the
transcript controls. (People v. Zackery (2007) 147 Cal.App.4th 380, 385-386.) Where a
“minute order contains a recital that ‘[t]he parties are advised of writ procedures in open
court,’ [but] the reporter’s transcript establishes the juvenile court failed to orally advise
mother of her writ rights . . . we presume the reporter’s transcript is the more accurate.”
(Jennifer T. v. Superior Court (2007) 159 Cal.App4th 254, 259.) In any event, father
wasn’t present at the hearing, so written notice was required.
We therefore conclude father may seek review of the court’s detriment finding on
appeal of the order terminating his parental rights.4 We recognize allowing the late
challenge cuts against the strong interest in establishing Serenity in her final placement as
4 Some courts have declined to allow appeal of a setting order, but instead convert
the purported appeal into an ordinary writ of mandate, relieving the parent of the
normally shortened period for seeking an extraordinary writ. (E.g., Jennifer T. v. Superior
Court, supra, 159 Cal.App.4th at p. 260.) Those cases involve attempts to appeal directly
from the setting order, not attempts to challenge findings supporting the setting order on
an appeal of a termination order. (Ibid.) In any event, both lines of cases, including our
own precedent, establish failure to advise a parent of the writ requirement provides good
cause to bring a late challenge to findings that form the basis of a setting order. (In re
Harmony B., supra, 125 Cal.App.4th at p. 838.)
22
quickly as possible. However, the “rule is a necessary evil required to protect
fundamental due process despite its detrimental impact on the goals of expedition,
finality and stability.” (In re X.Z. (2013) 221 Cal.App.4th 1243, 1251.)
B. Clear and Convincing Evidence Standard
Father argues the trial court violated his due process rights by terminating his
parental rights without first finding, under the clear and convincing evidence standard,
that giving him custody would be detrimental to Serenity.
Father is without question correct that parental rights are fundamental and a trial
court “may not terminate a nonoffending, noncustodial mother’s or presumed father’s
parental rights without finding, by clear and convincing evidence, that awarding custody
to the parent would be detrimental.” (In re D.H. (2017) 14 Cal.App.5th 719, 730.)
This is an application of the longstanding protections we afford parents, based on
the recognition of their fundamental interest in the companionship, care, custody, and
management of their children. (In re B.G. (1974) 11 Cal.3d 679, 688.) “‘Before a State
may sever completely and irrevocably the rights of parents in their natural child, due
process requires that the State support its allegations by at least clear and convincing
evidence.’ [Citation.] ‘After the State has established parental unfitness at that initial
proceeding, the court may assume at the dispositional stage that the interests of the child
and the natural parents do diverge.’ [Citation.] ‘But until the State proves parental
unfitness, the child and his parents share a vital interest in preventing erroneous
termination of their natural relationship.’” (In re Gladys L. (2006) 141 Cal.App.4th 845,
23
848.)
The detriment finding may occur earlier in the proceedings than the section 366.26
hearing. “California’s dependency system comports with [the due process] 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. [Citation.] ‘The
number and quality of the judicial findings that are necessary preconditions to
termination convey very powerfully to the fact finder the subjective certainty about
parental unfitness and detriment required before the court may even consider ending the
relationship between natural parent and child.’ [Citation.] The linchpin to the
constitutionality of the section 366.26 hearing is that prior determinations ensure ‘the
evidence of detriment is already so clear and convincing that more cannot be required
without prejudice to the interests of the adoptable child, with which the state must align
itself.’” (In re Gladys L., supra, 141 Cal.App.4th at p. 848.) 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 Dakota H. (2005) 132 Cal.App.4th 212, 224, fn. 3.)
The problem with father’s argument is his premise that the trial court failed to
make a detriment finding under the heightened clear and convincing evidence standard.
In fact, in keeping with the principles set out above, the court made an explicit detriment
finding at the disposition hearing under the new section 361, subdivision (d), which
relates specifically to noncustodial parents and provides that “[a] dependent child shall
24
not be taken from the physical custody of his or her parent[] . . . with whom the child did
not reside at the time the petition was initiated, unless the juvenile court finds clear and
convincing evidence that there would be a substantial danger to the physical health,
safety, protection, or physical or emotional well-being of the child for the parent [or]
guardian . . . to live with the child or otherwise exercise the parent’s . . . right to physical
custody, and there are no reasonable means by which the child’s physical and emotional
health can be protected without removing the child from the child’s parent’s . . . physical
custody.” (§ 361, subd. (d), italics added.) Before the jurisdiction and disposition hearing,
after father had contacted the department and interviewed with the social worker, the
department recommended that the trial court find by clear and convincing evidence that
placing Serenity in father’s custody would be detrimental to her well-being under this
provision. At the contested July 2018 jurisdiction and disposition hearing, the trial court
made the required finding under that provision. To the extent father’s argument relies on
the premise that the court made no such finding, his argument is unsound.
C. Support for the Detriment Finding
The real problem with the trial court’s detriment finding is it was based on father’s
poverty, which is barred by statute and our case law. The dependency statute directs “[a]
child shall not be found to be a person [subject to dependency proceedings] solely due to
the lack of an emergency shelter for the family.” (§ 300, subd. (b).) It follows that
“poverty alone, even abject poverty resulting in homelessness, is not a valid basis for
assertion of juvenile court jurisdiction. . . . Put differently, indigency, by itself, does not
25
make one an unfit parent and ‘judges [and] social workers . . . have an obligation to guard
against the influence of class and life style biases.’” (In re G.S.R. (2008) 159 Cal.App.4th
1202, 1212 (G.S.R.).)
We recognize this rule because the overriding interest of the dependency laws is to
maintain and support the family unit. (Hansen v. Department of Social Services (1987)
193 Cal.App.3d 283, 293-294 [“a regulation that requires the removal of a child from his
or her family in order to interpose social services with the ostensible purpose of providing
shelter for such child, contradicts and subverts the primary purpose of our child welfare
laws”].) Thus, where family bonds are strained by the incidents of poverty, the
department must take steps to assist the family, not simply remove the child and leave the
parent on their own to resolve their condition and recover their children. That approach is
consistent with “the purpose of the Juvenile Court Act that the bond between a minor and
[their] family be ‘preserved and strengthened’ (§ 202) through the provision of
appropriate services. [Citation.] ‘The legislative scheme contemplates immediate and
intensive support services to reunify a family where a dependency disposition removes a
child from parental custody.’” (Hansen, at pp. 292-293, quoting In re John B. (1984) 159
Cal.App.3d 268, 274.)
To that end, California courts have repeatedly found social services must actively
seek to assist a parent suffering from poverty in obtaining adequate housing and that trial
courts may not terminate reunification services or parental rights if they have failed to do
so. (T.J. v. Superior Court (2018) 21 Cal.App.5th 1229, 1247-1248 [reversing
26
termination of reunification services where social services merely referred mother to a
housing assistance program which put her on a wait list]; In re P.C. (2008) 165
Cal.App.4th 98, 106 [reversing termination of parental rights based on inadequate
housing where social services “simply recommended mother look in the Pennysaver for
housing, and admittedly was unaware of other resources to which she could refer mother
for low-income housing”]; In re T.W.-1 (2017) 9 Cal.App.5th 339, 347 [concluding
reunification services were inadequate where “the case plan failed to include any housing
services, despite the juvenile court’s direction that such services be included”]; G.S.R.,
supra, 159 Cal.App.4th at pp. 1213-1214 [reversing termination of parental rights based
on father’s lack of housing when social services failed to provide housing assistance].)
We find G.S.R. too analogous to ignore. There, the trial court removed two
children from their mother’s custody after she was arrested for having sex with a minor.
(G.S.R., supra, 159 Cal.App.4th at p. 1205.) At the time, social workers couldn’t locate
father, so the trial court placed the children with their paternal grandmother and uncle.
(Ibid.) The father appeared two months later and thereafter remained involved in his
children’s lives. However, he wasn’t able to assume custody because he couldn’t provide
the children with suitable housing and wasn’t employed full-time. (Id. at p. 1206.) He
also admitted to prior alcohol and drug use but said he’d stopped using any drugs more
than a decade earlier and had stopped drinking a year ago. (Ibid.) The trial court ordered
the father to participate in a sobriety program anyway and awarded him unmonitored
visitation with the children at the grandmother’s home. (Id. at p. 1207.) At subsequent
27
hearings, including the permanency planning hearing, the trial court found placement
with father would be detrimental to the children because he didn’t have stable housing
and had skipped some sobriety program meetings. The court made that finding despite
the fact that father was a nonoffending, noncustodial parent, who had provided support
and remained in contact with the children. (Id. at pp. 1211, 1213.) The court determined
the children were likely to be adopted and terminated his parental rights.
The Court of Appeal concluded the trial court had failed to apply the clear and
convincing evidence standard when it made its detriment finding, but also concluded the
record didn’t support such a finding in any event. (G.S.R., supra, 159 Cal.App.4th at
pp. 1210-1212.) The appellate court refused to rely on the father’s lack of housing as
supporting the detriment finding. “As for the finding of detriment based on [father’s] lack
of housing, that finding arises directly out of the fact of his poverty. The record is devoid
of evidence that, but for his inability to obtain housing, [the father] is incapable of
adequately parenting his sons.” (Id. at p. 1214.) The court noted lack of housing can’t
serve as a legitimate ground for removing a child from parental custody, and rejected the
suggestion that social services could “bootstrap the fact that [the father] was too poor to
afford housing . . . to support findings of detriment, all of which flow directly from the
circumstances of [father’s] poverty.” (Id. at p. 1213.) The court emphasized social
services had compounded the problem by utterly failing to assist the father in locating
suitable housing. (Id. at pp. 1214-1215.) The court also rejected the trial court’s reliance
on the fact the father had missed some sobriety treatment sessions because “there was
28
never any showing his failure to [attend] posed any risk to his sons. While [the
department] may desire it from an abundance of caution, participation in [sobriety] or
another rehabilitation program should not be a prerequisite for a parent who has shown
no problem maintaining sobriety.” (Id. at p. 1214.)
The facts of this case are remarkably similar. Father’s absence from the home and
failure to support the child were the department’s initial bases for removing Serenity
from him. But those allegations proved unfounded once he made contact with the
department. He said he was married to mother and present for Serenity’s birth, lived with
them for about four or five months before mother left with the child, and tried to reunite
but had trouble with childcare due to irregular housing and the demands of his temporary
job. He also said he’d had a paternity test and paid child support under a family court
order. In the face of this new information, the department rightly amended the petition to
remove the only allegations against him—that he had failed to provide support. Thus, just
like the father in G.S.R., Serenity’s father was a nonoffending, noncustodial parent, who
had been absent when the case began, but quickly turned up and expressed strong interest
in regaining custody.5
5
The department argues father is not entitled to due process protections because
the trial court never formally found him to be a presumed father. We disagree. After
father contacted the department, he confirmed he is Serenity’s biological father and said
he was married to mother, present at Serenity’s birth, appears on her birth certificate,
took a paternity test to confirm he’s the biological father, and paid child support, both on
his own and under a family court order. The department rightly conceded he is a
presumed father in its submission to the trial court and requested that the trial court make
that finding. However, the department didn’t include the request in its formal
recommended findings, and the court neglected to include it in its order, but proceeded as
[footnote continued on next page]
29
Also like the father in G.S.R., father couldn’t regain custody of Serenity because
of his economic situation, not his parenting ability. He lacked adequate housing and also
lacked transportation. Those are the reasons he initially declined to take custody, though
he always indicated his intention to address those circumstances. The department’s case
plan for him, which the court adopted, said his objectives were to “obtain and maintain a
stable and suitable residence” and “acquire adequate resources to meet her needs.” Father
did make progress on obtaining housing, but not quickly enough. He held down a regular
job for about a year, though it was a low-paying, temporary job with little flexibility. As a
result, he wasn’t able to get permanent housing until months after the trial court had
terminated his reunification services. We agree with the court in G.S.R. that these housing
problems do not support the trial court’s detriment finding as a basis for terminating
father’s parental rights.
Meanwhile, again as in G.S.R., the department did nothing to help father resolve
the real barriers to custody. Father himself identified housing as a barrier to his taking
custody of Serenity and repeatedly requested help from the social worker. The case plan
itself rightly identifies obtaining a stable residence and adequate resources to take care of
Serenity as objectives he should pursue to regain custody. Yet the department did nothing
to help him achieve those goals. Their negligence compounded father’s problems, as did
their insistence that he expend time and resources attending individual counseling
if it had, ordering reunification services, appointing counsel, and taking up father’s rights.
We note the notice of the section 366.26 hearing identifies father as the presumed father.
30
sessions and parent classes, which the department recommended and the court imposed
even before father had contacted the department. Under these circumstances, father’s
problems with housing cannot support the court’s detriment finding. (G.S.R., supra, 159
Cal.App.4th at pp. 1213-1214.)
The department points to father’s problems with maintaining a regular visitation
schedule as an important difference between this case and G.S.R. They argue the fact he
managed only six in-person visits with Serenity and the indications she was not bonding
with him supports the detriment finding. We disagree. Father’s problems with visitation
recapitulate his problems with housing. There’s no evidence he failed to make visits out
of a lack of commitment to Serenity. Instead, the record shows he missed visits because
the department had placed Serenity in a foster home far from where he worked and lived.
Father lived and worked in Temecula, Perris, and Hemet, while Serenity lived in Corona.
As he explained in his testimony, the distance severely limited his ability to attend
regular visits with his daughter, which in turn harmed his ability to build a relationship
with her. Taking the bus, it took him an hour and a half to travel to see Serenity. Given
his work schedule, that made it next to impossible to visit her on weekdays, which the
department preferred. Father expressed a preference for visits at the department’s
Temecula office. For a while, Serenity’s caregiver agreed to meet him in Murrieta and on
the weekends, but that arrangement eventually broke down. And after the trial court
terminated reunification services in February 2019, the department told father he would
have to travel to Lake Elsinore to see Serenity and would have to make visits work during
31
regular working hours on weekdays. Father said the social worker hadn’t worked with
him to make visits fit his schedule. Father was, unsurprisingly, unable to make that work
on a regular basis.
It’s true the father in G.S.R. had more successful and more regular visits with his
children. However, his situation was comparatively easy. His children were 6 and 8 years
old at the beginning of the case—old enough that they already had a relationship with
him—and their grandmother was local and able to take custody. That made visiting the
children and maintaining a relationship easy. In this case, father was similarly adamant
about regaining custody, but Serenity was an infant, mother had taken her away when she
was only four or five months old, and he didn’t have local family support. At that point,
mother was still attempting to reunite with Serenity. Since mother resided in Riverside,
the department placed the child in foster care near her, which turned out to be a
prohibitive distance from him. Though he repeatedly told the social worker he was
having trouble with transportation and consistently sought to supplement in-person visits
with online video visits, the department did nothing to provide real assistance. We can all
appreciate now, in the midst of the COVID-19 quarantine, that video meetings are not an
adequate substitute for meeting in person, even for adults. That’s even more true for
children, especially small children, who aren’t cognitively developed enough to engage in
that setting. The department stood by and allowed father’s reunification efforts to fail due
to his lack of economic resources. Like the court in G.S.R., we conclude he must be given
a real opportunity to reunite with Serenity before his parental rights are terminated.
32
The department attempts to salvage the termination order by pointing out he failed
to fulfill his obligation to complete individual counseling and parent training, two
elements of his reunification plan. This argument raises another similarity between the
father in this case and the father in G.S.R. The department and trial court included in the
reunification plans of both men certain prophylactic treatment requirements that had little
or no connection with the barriers they faced to gaining custody. In both cases, it was
mother’s conduct that brought the children into the dependency system, and neither father
faced any allegations in the dependency petition. In both cases, if the fathers had stable
housing, it’s likely the children would have been placed with them. But in both cases, the
department and court took the opportunity to require them to attend counseling that might
give them a better chance of succeeding as parents in the event they did gain custody. In
G.S.R., the court required father to attend sobriety counseling meetings, even though
there was no evidence he still drank or that drinking affected his parenting. Here, the
court required father to attend individual counseling and a parenting class. Father agreed
to both, and when he did attend them, belatedly, he admitted they were helpful. But there
was no suggestion that either form of counseling had any bearing on the reasons he
couldn’t have custody of Serenity, nor was there evidence they were required to address
any problem with his parenting. Indeed, as we mentioned above, the department
recommended these services and the court ordered them, before he had returned to the
scene. Though he readily agreed to participate in parenting classes and any other services
the department recommended, he rightly emphasized to the social worker that what he
33
really needed was housing assistance to provide for the child. For these reasons, we reject
the department’s argument that father’s initial failure to attend these counseling sessions
supports the detriment finding. (See In re M.R. (2020) 48 Cal.App.5th 412, 424 [juvenile
court “cannot arbitrarily order services that are ‘not reasonably designed’ to eliminate the
behavior or circumstances that led to the court taking jurisdiction of the child”]; In re
Drake M. (2012) 211 Cal.App.4th 754, 770 [“The imposition of parenting courses cannot
be ‘based on a rote assumption that [father] could not be an effective single parent
without parenting classes”].)
We recognize there’s no completely satisfactory remedy for this situation. The
department’s failure to engage with father’s core problem—his poverty—and its focus on
peripheral issues have deprived him and his daughter of years during which they could
have established a loving relationship. As a result, Serenity has been placed in a
prospective adoptive home that is presumably loving and at least stable. We wish there
were a way of addressing the problem that would not create even more turmoil and
uncertainty than she already has experienced. Obviously, it would have been better for
Serenity and father had the trial court and the department been more diligent from the
outset. It’s unfortunate that we have to reset the clock now, but we can’t permit
termination of father’s parental rights on the basis of his economic status when the
department failed to provide adequate assistance.
We conclude G.S.R. provides an imperfect, but appropriate framework for
addressing the circumstances of Serenity and her father on remand. The G.S.R. court
34
determined the father’s “due process rights were denied by [the department’s] failure to
demonstrate sufficient detriment and the juvenile court’s failure to find a legitimate basis
for deeming him unfit.” Recognizing the difficulty of repairing the problem at such a late
stage, the court reversed the termination and remanded “with instructions that the trial
court revisit the issue of whether, based on facts and circumstances as they exist at this
time, there exist legally sufficient grounds to find it would be detrimental to return the
[children] to [the father], recognizing poverty is not such a ground. If not . . . the juvenile
court shall restart the clock on reunification services and related efforts, including
housing assistance, to afford [the father] a legitimate opportunity to build a relationship
with and become a full-time parent to his [children]. Only in the event those renewed
efforts fail may the juvenile court proceed with termination of parental rights. If the trial
court determines it would not be detrimental to return the [children] to [his] care, it shall
take the necessary steps to assist [their] return to [his] custody.” (G.S.R., supra, 159
Cal.App.4th at pp. 1215-1216.)
D. Changed Circumstances
Our conclusion makes it unnecessary to review the trial court’s order denying
father’s section 388 petition. We note, however, that the ability of parents to show their
circumstances have changed is critical to ensuring parents receive due process. “[S]ection
388 plays a vital role in preserving due process in dependency proceedings overall”
because “it is only when read in conjunction with the “‘escape mechanism’” section 388
procedures create that the limited options available at a selection and implementation
35
hearing under section 366.26 comply with due process. [Citation.] Thus, that section 388
provides such an “‘escape mechanism’” in practice, not just in theory, ‘is vital to the
constitutionality of our dependency scheme as a whole, and the termination statute,
section 366.26, in particular.’” (In re J.M.. (2020) 50 Cal.App.5th 833, 847; see also In re
Marilyn H. (1993) 5 Cal.4th 295, 309.)
We are not convinced the trial court was correct in finding father hadn’t
established changed circumstances in this case. Although the developments were recent,
he testified he had finally obtained a permanent full-time job at higher pay as well as
health care and childcare assistance that would benefit Serenity. He also testified he had
nearly completed individual counseling and parent education. While these developments
were new, the court’s determination that father had established only that his
circumstances were “changing, not changed,” was too cavalier given the important role
section 388 petitions play in the constitutionality of California’s dependency scheme. In
any event, on remand, the trial court must determine father’s current circumstances, so
his circumstances in January 2020 will no longer be relevant, and father will be able to
inform the court whether he’s been able to maintain his new housing and employment
and obtain transportation.
36
III
DISPOSITION
We reverse the order terminating father’s parental rights and remand the case to
the trial court with directions to conduct a hearing to address whether legally sufficient
current grounds—independent of his poverty and lack of stable, suitable housing and
transportation—would make it detrimental to place the child in his care. If no such
grounds exist, the juvenile court shall order the department to restart reunification
services and related efforts, including, but not limited to, assistance in obtaining stable,
suitable housing and transportation, and take the necessary steps to return the child to
father’s custody. The trial court shall order the department to provide reunification
services for a period of six months. If these renewed efforts fail, the trial court may
proceed to terminate father’s parental rights. If grounds independent of his poverty and
lack of stable, suitable housing and transportation currently exist making it detrimental to
place the child in his care, the court shall reinstate its order terminating father’s parental
rights.
CERTIFIED FOR PUBLICATION
SLOUGH
J.
We concur:
MILLER
Acting P. J.
RAPHAEL
J.
37