In re Diego H.
Filed 9/4/13 In re Diego H. CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re DIEGO H., a Person Coming
Under the Juvenile Court Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
R.H.,
Defendant and Appellant.
D063500
(Super. Ct.
No. NJ13209C)
APPEAL from orders of the Superior
Court of
County, Michael J. Imhoff, Commissioner. Affirmed.
Jamie A.
Moran, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas E.
Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel and
Patrice Plattner-Grainger and Dana C. Shoffner, Deputy County Counsel, for
Plaintiff and Respondent.
Patricia K.
Saucier, under appointment by the Court of Appeal, for Minor.
R.H.
appeals an order under Welfare and Institutions Code
section 366.26 selecting adoption as the permanent plan for his son Diego H.
and terminating his parental rights. He also appeals the court's denial of his
requests in a petition under section 388 for reunification services, placement
of Diego with his mother, and a finding that efforts by the
Agency (the Agency) to locate him were inadequate. R.H. contends (1) the Agency's failure to
conduct a diligent search for him to advise him of his rights violated his
right to due process; (2) there is insufficient evidence to support the court's
finding that Diego is adoptable; and (3) the court's termination of his
parental rights without a finding of parental unfitness violated his
FACTUAL AND
PROCEDURAL BACKGROUND
In July 2010, the Agency filed a
petition on behalf of two-year-old Diego under section 300, subdivision (b),
alleging he was at substantial risk of physical harm or illness due to his
mother's inability to supervise or protect him and provide regular care for him
due to substance abuse.
name="_ftnref2" title="">[2] The petition listed both R.H. and Robert O.
as alleged fathers and stated that R.H.'s address was unknown. The petition alleged the mother used
amphetamine/methamphetamine to excess and Robert used heroin to excess. During a probation search of the maternal
grandmother's home, where Robert and the mother were staying, police found
drugs and drug paraphernalia in areas that were accessible to Diego. The mother and Robert were both arrested and
incarcerated on drug charges, and Diego was removed from the maternal
grandmother's home and taken into protective custody.
The
Agency's detention report stated that the mother identified R.H. as Diego's
father and he was identified as the father on Diego's birth certificate. The mother did not know R.H.'s whereabouts,
but believed he was somewhere in Tijuana, Mexico. Robert thought he might be Diego's father and
wanted a paternity test to establish Diego's paternity.
The mother admitted to using
methamphetamine for 11 years. She had
previously lost custody of five older children to guardianship or adoption,
including a child she relinquished for adoption at birth. She told the social worker that after having
a brief affair with Robert in November of 2006, she started a relationship with
R.H. in Mexico
and became pregnant. After Diego was
born, the mother left him with R.H. and the paternal grandmother in Tijuana. She was later arrested and incarcerated for
transporting marijuana. While she was
incarcerated, the maternal grandmother went to Tijuana
and "took" Diego from R.H. and returned with him to the United
States.
In its jurisdiction/disposition
report, the Agency stated that Diego had been detained in a confidential foster
home placement. The Agency initiated
search efforts to find R.H. on August
4, 2010, and results were pending. A paternity test was done on Robert to
determine if he was Diego's father, although the mother did not believe he was
the father because she was in Tijuana
with R.H. when she became pregnant.
At the jurisdiction/disposition
hearing, the court entered a judgment of nonpaternity as to Robert because the
paternity test results indicated he was not Diego's biological father. The court found that reasonable efforts had
been made to locate and notify R.H. of the proceedings and that no one had come
forward to request presumed or biological father status. The court sustained the Agency's petition,
declared Diego a dependent of the court, and ordered him removed from the
mother's custody and placed in a licensed foster home.
A status review report for the
six-month review hearing stated that a parent search for R.H. was completed on October 18, 2010, with no
results. A social worker had contacted
R.H.'s mother, who lived in Tijuana. She told the social worker that R.H. was in a
Tijuana jail and would be incarcerated
for another year or two. She had not
seen R.H. in over a year and no one she knew had visited him in jail. She had not attempted to visit him because
she was upset with him about his behavior and drug use. The social worker contacted La Mesa Penitenciaria,
a prison in Tijuana, and was told
that R.H. had been released in 2006.
The mother was incarcerated with an
expected release date of April 1, 2011,
and was participating in her services.
Diego remained in confidential licensed foster care and was stable. At the six-month review hearing, the court
ordered that Diego's foster placement be continued and the Agency continue to
provide the mother services. The court
again noted that no one had come forward to request presumed or biological
father status.
The Agency's status review report
for the 12-month review hearing recommended that reunification services be
terminated and the matter be set for a section 366.26 hearing. The mother was released from prison on April 1, 2011, but was arrested and
incarcerated several times after that date for possession of drugs and drug
paraphernalia. She was on probation and
had entered a residential treatment program.
Diego was thriving in his foster home and was doing well in
preschool. The Agency had submitted a
new request through its international liaison office (liaison office) for the
Baja California State Attorney General's office to locate R.H. and results were
pending. At the 12-month review hearing
held on November 18, 2011, the court found the mother was making substantial
progress with her case plan and there was a substantial probability that Diego
would be returned to her custody by the 18-month date. The court continued Diego's placement in
foster care and set an 18-month review hearing.
In its status review report for the
18-month hearing, the Agency again recommended that reunification services be
terminated and the matter be set for a hearing under section 366.26. Although Diego's behavior had deteriorated
for a period of time and his caregiver at one point had given notice for his
removal, his behavior had improved and the caregiver no longer wanted him
removed. The Agency reported Diego
currently was on track developmentally and was generally very well behaved and
well adjusted in his foster home.
The mother said she wanted to
reunify with Diego, but she had not participated in services beyond visits with
Diego since leaving her residential treatment program and had not progressed to
unsupervised visits. She had not
responded to the social worker's telephone calls and visits to her home to
inquire about her current plans and perception of what she needed to do to gain
custody of Diego. At the 18-month review
hearing, the court terminated services to the mother and set a hearing under
section 366.26.
In an assessment report prepared
for the section 366.26 hearing, the Agency reported that R.H. was located on
May 3, 2012, in Tijuana and served with notice of the hearing. He had not visited Diego and did not have a
parental relationship with him. The
mother could not be located and was served with notice through her attorney.
Diego was in good health and had no
known medical problems. He was
developing normally and his social skills were improving. He was a happy child most of the time. His caregiver had planned to adopt Diego, but
changed her mind during a period when he was acting out aggressively at
preschool. Although Diego's behavior had
improved and she was willing to keep him as a foster child, the caregiver had
decided to pursue educational interests and did not feel that it was an
appropriate time to adopt Diego.
However, the Agency reported there were 65 families with approved
adoption home studies that had requested a child matching Diego's description. The Agency recommended adoption as Diego's
permanent plan.
On June 14,
2012, the court appointed counsel for R.H. and ordered that counsel be provided
a copy of the case file. In an addendum
report filed on July 24, 2012, the Agency reported that R.H. told Martha
Sanchez, a staff member of the liaison office, that Diego had lived with him
and the paternal grandmother for the first year and nine months of his life and
that he (R.H.) had a 13-year-old son who was Diego's half brother. In a paternity questionnaire, R.H. stated the
mother told him Diego was his child when she was two months pregnant.
On August
2, 2012, R.H. filed a petition under section 388 requesting that the court
change its September 13, 2010, jurisdiction/disposition order by finding he was
Diego's presumed father; finding the Agency had not made adequate efforts to
locate him; vacating the prior dispositional findings; providing him six months
of reunification services; and placing Diego with the paternal
grandmother. R.H. alleged the requested
changes would be better for Diego because his current caregiver was not willing
to adopt him and no specific family had been identified that was. In addition, Diego had spent the first year
and a half of his life with R.H. and the paternal grandmother and there was a
half sibling in the paternal grandmother's home.
At a hearing on August 2, 2012, the
court found that R.H. was Diego's presumed father. The court set the remainder of R.H.'s section
388 petition for a "further initial hearing on [August 15, 2012]." The court ordered a home evaluation on the
paternal grandmother's home for possible placement of Diego with the paternal
grandmother or R.H. in her home.
In an addendum report filed on
August 15, 2012, the social worker stated that R.H. had essentially abandoned
Diego. R.H. knew the maternal
grandmother was taking Diego back to California, and the social worker thought
it was "not only odd but negligent" for R.H. not to have asked for
the address where Diego would reside or a telephone number he could call to
maintain contact with Diego. The social
worker noted R.H. had a criminal history and that he "gave his child
away" and had not attempted to maintain contact with or locate Diego at
any time, including the preceding six months after his release from prison.
ever contacted the Agency to find out where Diego was or request placement with
them until R.H.'s appointed counsel recently contacted him.
The social worker noted that Diego,
who spoke English only, would have an extremely difficult time adjusting to
people he no longer knew who did not speak the same language he spoke. He was five years old and had not seen R.H.
since he was two years old. The social
worker stated that Diego was "already struggling to learn the things that
he needs to know to be successful in school[,] and he will likely suffer a huge
set back if he has to go to Mexico and be in a home and school that speaks a
language that is completely foreign to him."
At the hearing on August 15, 2012,
the court found that R.H. had carried his initial burden on his section 388
petition. The court granted R.H. an
evidentiary hearing on the petition to be held prior to the contested section
366.26 hearing.
In an addendum report filed on
October 1, 2012, the social worker provided additional information from a
conversation with the maternal grandmother.
The maternal grandmother said R.H. had her phone number but never
called. The paternal grandmother had
called her twice during the first two weeks after she brought Diego back from
Mexico, and she called the paternal grandmother two or three times every other
week for about a month and a half and then stopped. Diego was covered in scabies when the
maternal grandmother got him and had been "very neglected."
The social worker reported that
Diego's current caregivers had decided that they wanted to adopt him and were
applying to do so. Diego had been in
their home for over two years and was a part of their family and everyone in
the family loved him. The foster mother
had completed her schooling and an externship and was working as a pharmacy
technician. Diego had bonded with his
caregivers and their children and their extended family.
An addendum report filed on January
24, 2013, addressed a favorable home study performed on R.H. by the Mexican
agency Desarollo Integral de la Familia (DIF).
Although the Agency had requested a home study of both R.H. and the
paternal grandmother, liaison office staff member Sanchez said they did not ask
DIF to do a home study of the grandmother because it was not requested on the
referral. DIF "only checked the
house, income and a few other things, but did not interview the father or
grandmother about the time they spent with Diego or any of the other questions
[the Agency] had."
The Agency contacted R.H. by
telephone on January 16, 2013, and questioned him about his home
environment. R.H. said the paternal
grandmother wanted to keep Diego and would adopt him if he could not be placed
with R.H. R.H.'s 14-year-old son lived
in the house with R.H. and the grandmother and there was room for Diego. The grandmother's house had two rooms—a
kitchen and another room "they all share." R.H. worked six days a week and would spend
his day off with Diego. He was unaware
that Diego spoke only English and conceded it would be a problem for Diego if
he did not speak or understand Spanish.
He was not sure what he would do about that or how he would handle
it. He was also unaware that Diego had
been with the same foster family for about two years and was doing very well at
home and at school, and the family wanted to adopt him. However, he still wanted Diego to live with
him and the paternal grandmother because "he is blood."
The Agency's addendum report filed
on February 8, 2013, noted that although R.H. stated the paternal grandmother
was willing to care for Diego, she had not personally requested that he be
placed with her. R.H. stated he had been
incarcerated from May or June 2009 until February 2012 and was sentenced for
robbery. After he was released, he did
not make any efforts to search for Diego.
The social worker's assessment was that placing Diego in the care of
either R.H. or the paternal grandmother would likely be very traumatic for him
and would not be in his best interests, and any future benefit from a
relationship with R.H. did not outweigh the benefits of adoption.
On February 8, 2013, the court held
the contested hearing on R.H.'s
section 388 petition and the contested section 366.26 hearing and admitted all
of the Agency's reports into evidence.
The court found that the Agency's search efforts for R.H. were
reasonable and denied R.H.'s section 388 petition. Proceeding to the section 366.26 hearing, the
court found by clear and convincing evidence that it was likely Diego would be
adopted and adoption was in his best interests.
The court terminated parental rights, continued Diego's placement in
foster care, and referred him to the Agency for adoptive placement. Both parents appealed. This court dismissed the mother's appeal on
June 4, 2013, because she raised no claim of error or other defect.
DISCUSSION
I. Denial
of the Section 388 Petition
R.H.
contends the court's denial of his section 388 petition was an abuse of
discretion because the Agency failed to use reasonable efforts to locate him,
and its lack of diligence in searching for him violated his
"Section 388 allows a parent
or other person with an interest in a dependent child to petition the juvenile
court to change, modify, or set aside any previous order. (§ 388, subd. (a).) 'Section 388 provides the "escape
mechanism" that . . . must be built into the process
to allow the court to consider new information.' [Citations.]
The petitioner has the burden of showing by a preponderance of the
evidence (1) that there is new evidence or a change of circumstances and (2)
that the proposed modification would be in the best interests of the
child. [Citations.] That is, '[i]t is not enough for [the
petitioner] to show just a genuine change of circumstances under the
statute. The [petitioner] must show that
the undoing of the prior order would be in the best interests of the
child.' " (
586, 615, italics omitted.) "In
considering whether the petitioner has made the requisite showing, the juvenile
court may consider the entire factual and procedural history of the case." (Id.
at p. 616.) We review a juvenile
court's denial of a section 388 petition for abuse of discretion. We will not disturb the juvenile court's
decision "unless that court has exceeded the limits of judicial discretion
by making an arbitrary, capricious, or patently absurd
determination." (
1335.)
A section
388 petition "is a proper vehicle to raise a due process challenge based
on lack of notice." (
181, 189 (Justice P.).) "Parents are entitled to due process
notice of juvenile court proceedings affecting the care and custody of their
children, and the absence of due process notice to a parent is a 'fatal defect'
in the juvenile court's jurisdiction.
[Citation.] Due process requires
'notice reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them an opportunity
to present their objections.'
[Citation.] The means employed to
give a party notice for due process purposes must be such as one, desirous of
actually informing the party, might reasonably adopt to accomplish it. [Citation.]
[¶] If the whereabouts of a parent are unknown, the issue becomes
whether due diligence was used to locate the parent. [Citation.]
The term 'reasonable or due diligence' ' "denotes a thorough,
systematic investigation and inquiry conducted in good faith." ' [Citation.]
Due process notice requirements are deemed satisfied where a parent cannot
be located despite a reasonable search effort and the failure to give actual
notice will not render the proceedings invalid." (In re
Claudia S. (2005) 131 Cal.App.4th 236, 247; In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418-1419 [there is no
due process violation if the Agency has made a good faith effort to provide
notice to a parent whose whereabouts were unknown for most of the proceedings];
see also Mullane v. Central Hanover Bank
& Trust Co. (1950) 339 U.S. 306, 317
["[I]n the case of persons missing or unknown, employment of an
indirect and even a probably futile means of notification is all that the
situation permits and creates no constitutional bar to a final decree
foreclosing their rights."].)
At the
hearing on his section 388 petition, it was R.H.'s burden to show the Agency's
efforts to search for him were inadequate and, if so, it would be in Diego's
best interests to return the case to the disposition phase.
P., supra, 123 Cal.App.4th at pp. 189-191.)
We conclude the court properly found the Agency's search efforts for
R.H. were reasonable. Before the disposition
hearing, the mother told the Agency R.H. was the father and she believed he was
in Tijuana. The Agency initiated a
thorough search for R.H. on August 4, 2010, in the San Diego area—including
searching records of local jails, police, the Department of Justice, the
Registrar of Voters and the Department of Motor Vehicles—and completed the
search on October 18, 2010, with no results.
On October 20, 2012, a social worker contacted R.H.'s mother (the
paternal grandmother), who said R.H. was incarcerated in Tijuana. The social worker then contacted La Mesa
Penitenciaria in Tijuana to see if R.H. was there and was incorrectly informed
that he was not.
In response to R.H.'s argument that
the Agency should have used DIF to find R.H. before the disposition hearing,
the trial court reasonably found R.H. had not "made a showing that even if
DIF had been contacted [before disposition], that they would have provided
information other than the paternal grandmother's home where [R.H.] lived from
2007 until his incarceration in 2009, nor does it appear, and [R.H.] has not
shown, that having contacted the . . . liaison office, that
DIF would have been given different information than the Agency was given. [¶] So at that point in time, without the
paternal grandmother or the family members having enough of a relationship with
[R.H.] to give more information, and according to the grandmother they were
estranged, having contacted the individual prison, or jails, and then contacted
the . . . liaison [office], I don't know what else the
Agency could have done."
The court added that "it would
have been appropriate to ask or commission an official DIF parent search, but I
am satisfied on these facts that DIF would not have been provided any
additional information than the Agency had already garnered on their own from
the various incarceration facilities and the [liaison] office in Tijuana."
was "tragic from [R.H.'s] perspective[,]" R.H. had "not
established that it was unreasonable for the Agency to rely on the information
provided by official governmental entities in
the . . . country of Mexico, and the location of
Tijuana." "[T]he information
from the . . . liaison[] office is that there's absolutely
no record of [R.H.'s] being incarcerated for the 2009 to 2012 period of
time."
In short, the court reasonably
found that because of faulty record keeping by the La Mesa Penitenciaria in
Tijuana, the Agency would not have located R.H. even if it had contacted the
grandmother, the La Mesa Penitenciaria, or DIF before the disposition
hearing. We conclude the court properly
found that the Agency's efforts to locate R.H. were reasonable.
Even if we were to conclude that
the Agency did not exercise due diligence in its predisposition searches for
R.H., we would nonetheless conclude that the court properly denied the section
388 petition on the ground R.H. failed to meet his burden of establishing that
granting the petition and returning the case to the disposition phase would be
in Diego's best interests. (
188.) At the time of the hearing on the
388 petition, the court had terminated the mother's services and the focus of
the proceedings had shifted to Diego's needs for permanency and stability. (In re
Marilyn H. (1993) 5 Cal.4th 295, 309.)
Diego was thriving in his foster home and his caregivers wanted to adopt
him. Diego had been in their home for
over two years and was a part of their family and everyone in the family loved
him. He was five years old and had not
seen R.H. since he was two years old.
The social worker believed that Diego would have an extremely difficult
time adjusting to people he no longer knew who did not speak the language he
spoke and would "likely suffer a huge setback if he has to go to Mexico
and be in a home and school that speaks a language that is completely foreign
to him." The social worker opined
that placing Diego with either R.H. or the paternal grandmother would likely be
very traumatic for him and would not be in his best interests, and that any
future benefit from a relationship with R.H. did not outweigh the benefits of
adoption. The court was entitled to find
the social worker's opinion credible and to give great weight to her
assessment. (In re Casey D. (1999)
70 Cal.App.4th 38, 53.)
We conclude the court reasonably
found it would not be in Diego's best interests to trade his beneficial
placement and prospective adoption for continuation of the dependency
proceedings and placement with caregivers who spoke a language he did not
understand and with whom he was not currently bonded. As this court noted in Justice P.: "It is not
always possible to litigate a dependency case with all parties present. The law recognizes this and requires only
reasonable efforts to search for and notice missing parents. Where reasonable efforts have been made, a
dependency case properly proceeds. If a
missing parent later surfaces, it does not automatically follow that the best
interests of the child will be promoted by going back to square one and
relitigating the case. Children need
stability and permanence in their lives, not protracted legal proceedings that
prolong uncertainty for them. Further, the very nature of determining a child's
best interests calls for a case-by-case analysis, not a mechanical
rule." (Justice P., supra, 123 Cal.App.4th at p. 191.)
Finally, we
conclude that to the extent the court and Agency erred by not providing R.H.
earlier notice of the dependency proceedings, the error was not prejudicial. "Unless there is no attempt to serve
notice [of dependency proceedings] on a parent . . . ,
errors in notice do not automatically require reversal but are subject to the
harmless beyond a reasonable doubt standard of prejudice." (In re
J.H. (2007) 158 Cal.App.4th 174, 183.)
Because R.H. was incarcerated and could not be located during most of
the dependency proceedings, he could not have obtained custody of Diego and
developed a parent-child relationship with him.
Although R.H. knew the maternal grandmother was taking Diego back to
California, he never asked for her address or telephone number. The social worker viewed R.H.'s failure to
seek the maternal grandmother's contact information as abandonment of Diego. Because we cannot say R.H. would have obtained
a different or more favorable result had he been located and provided notice of
the proceedings before the jurisdiction/disposition hearing, any error in not
giving him earlier notice was harmless beyond a reasonable doubt. The court did not abuse its discretion in
denying R.H.'s section 388 petition.
II. Adoptability
Finding
We reject R.H.'s contention that
there is insufficient evidence to support the court's finding that Diego is
adoptable. "A finding of
adoptability requires 'clear and convincing evidence of the likelihood that
adoption will be realized within a reasonable time.' [Citation.]
The question of adoptability usually focuses on whether the child's age,
physical condition and emotional health make it difficult to find a person
willing to adopt that child." (
1231.) The fact that a prospective
adoptive parent has expressed interest in adopting a child is usually
"evidence that the minor's age, physical condition, mental state, and
other matters relating to the child are not likely to dissuade individuals from
adopting the minor. In other words, a
prospective adoptive parent's willingness to adopt generally indicates the
minor is likely to be adopted within a reasonable time either by the prospective
adoptive parent or by some other family." (In re
Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650.) "Since it is not even necessary that one
prospective adoptive home be identified before a child may be found adoptable,
a fortiori, [when a qualified prospective adoptive parent is willing to adopt]
it is not necessary that backup families be identified." (In re
I.I. (2008) 168 Cal.App.4th 857, 870.)
We review the juvenile court's
finding of adoptability under the substantial evidence standard. "[W]e view the evidence in the light
most favorable to the trial court's order, drawing every reasonable inference
and resolving all conflicts in support of the judgment." (In re
Marina S. (2005) 132 Cal.App.4th 158, 165; In re B.D., supra, 159 Cal.App.4th at p. 1232.) It is R.H.'s burden to establish that there
is insufficient evidence to support the adoptability finding. (In re
R.C. (2008) 169 Cal.App.4th 486, 491.)
Shortly
before the section 366.26 hearing in this case, the Agency reported that
Diego's foster family was committed to adopting him, their adoption home study
was in progress, and it was expected the family would be approved within the
next 30 to 60 days. In addition, the
Agency reported, and the court found, that there were 65 families with approved
adoption home studies that had requested a child matching Diego's
characteristics. The evidence that
Diego's foster family was willing to adopt him was itself sufficient to support
the court's adoptability finding. (
convincing evidence that it was likely Diego would be adopted.
III. Finding
of Unfitness
R.H. contends the court violated
his right to due process by terminating his parental rights without a finding
of parental unfitness. The Agency
contends R.H. forfeited this assignment of error by failing to raise the issue
in the trial court. We agree.
As this court explained in
212, 221-222 (Dakota H.),
"[a] party forfeits the right to claim error as grounds for reversal on
appeal when he or she fails to raise the objection in the trial court. [Citations.]
Forfeiture, also referred to as 'waiver,' applies in juvenile dependency
litigation and is intended to prevent a party from standing by silently until
the conclusion of the proceedings."
R.H. did not assert in the trial court that due process required the
court to find he was unfit to parent Diego before terminating his parental
rights. Had he done so, "the court
could have considered [his] claim and, if it found [the] due process argument
meritorious, determined and applied the appropriate legal standard. A party may not assert theories on appeal
which were not raised in the trial court."
(Id. at p. 222.)
Even if the forfeiture rule did not
apply, we would reject R.H.'s contention that the court committed reversible
error by failing to make a finding of unfitness. "A parent's interest in the
companionship, care, custody and management of his or her children is a fundamental
civil right." (In re P.A. (2007) 155 Cal.App.4th 1197, 1210 (P.A.).) In
the United States Supreme Court held that before a state severs that right, it
must find parental unfitness by clear and convincing evidence. (Id. at
pp. 747-748.) California's dependency
system satisfies that requirement because by the time parental rights are
terminated, the juvenile court has made multiple prior findings of unfitness.
D. v. Superior Court (1993) 5 Cal.4th 242, 254, 256.)
In P.A., the Court of Appeal decided the juvenile court's failure to
find a father was unfit as a parent did not preclude termination of parental
rights. The P.A. court concluded the juvenile court had sufficiently found that
return of the child to the father and mother would be detrimental to the child
when it found at disposition hearing by " 'clear and convincing
evidence that there exists a substantial danger to the children and there's no
reasonable means to protect them without removal from the parents' custody.' "
(P.A., supra, 155 Cal.App.4th
at p. 1212.) The P.A. court concluded the juvenile court made a second finding of
detriment when it denied the father reunification services because his
whereabouts were unknown. (
Here, the court similarly found by
clear and convincing evidence at the disposition hearing that there would be
"a substantial danger to the physical health of the
child . . . if the child were returned home, and there are
no reasonable means by which the child's physical health can be prevented
without removing the child from the physical custody of the child's
judgment of nonpaternity as to Robert and found that reasonable search efforts
had been made to locate and notify R.H., which amounted to a finding that
R.H.'s whereabouts were unknown. As the
denial of reunification services to a father based on his whereabouts being
unknown as a detriment finding, evidence that a parent's whereabouts are
unknown and the parent has been absent from the child's life is sufficient to
support a finding that return of the child to the parent would be detrimental
to the child. (P.A., supra, 155 Cal.App.4th at p. 1212.)
At the combined section 388 and
section 366.26 hearing, the court again effectively found that placing Diego in
R.H.'s custody would be detrimental to Diego.
court found that "it would not be in the best interests of [Diego] to go
back to the dispositional date. Again
[R.H.] had very little, if any, contact with his child in the time he was
incarcerated in May of 2009 until the present.
The [paternal grandmother's] home evaluation appears to be positive, but
he has not established a relationship.
They do not share a common language at this point, so I do not find it
would be in the child's best interests."
At the section 366.26 phase of the
hearing, the court found that termination of the mother and R.H.'s parental
rights "would not be detrimental to
Diego . . . ."
The court stated:
"Specifically, the court finds that neither mother nor [R.H.] have
maintained regular or consistent contact or visits with Diego. And further, it would not be in Diego's `best
interests to promote or facilitate either a mother-child or father-child
relationship. [¶] The court does find
that whatever benefit may have been conferred upon Diego by the time he has
spent with each and both of his parents is greatly outweighed by the need for
stability and placement, which can only be achieved through adoptive
placement." These findings
essentially constitute a determination as to both parents that placing Diego in
parental custody would be detrimental to him.
Although the court's findings were phrased in terms of Diego's best
interests, " '[t]he two standards [best interest and detriment] are
basically two sides of the same coin.
What is in the best interests of the child is essentially the same as
that which is not detrimental to the child.' " (In re
Jacob P. (2007) 157 Cal.App.4th 819, 829.)
The court's detriment finding as to
R.H. is supported by the Agency's reports and other evidence supporting the
court's determination that granting R.H.'s section 388 petition would not be in
Diego's best interests. In considering
whether the record supports the court's detriment finding, we draw every
reasonable inference and resolve all conflicts in favor of that finding. (In re
Misako R. (1991) 2 Cal.App.4th 538, 545.)
The record indicates R.H. had a history of abusing drugs and
alcohol. As discussed above, the Agency
reported that R.H. was incarcerated for robbery when his whereabouts were
unknown and he made no effort to search for Diego after he was released. The social worker opined that placing Diego
with either R.H. or the paternal grandmother would be traumatic for him, and
the benefits of adoption outweighed any benefit he might realize from
developing a relationship with R.H. R.H.
had not requested that he be given
custody of Diego, and the paternal grandmother had not personally requested
custody. Diego was five years old and
had not seen R.H. since he was two years old.
In the social worker's view, R.H. abandoned Diego after the maternal
grandmother took him back to California, and it would now be extremely
difficult for Diego to adjust to people he no longer knew who did not speak the
same language he spoke. The order
terminating R.H.'s parental rights is sufficiently supported by evidence that
awarding custody of Diego to R.H. would be detrimental to Diego.
DISPOSITION
The order denying R.H.'s section
388 petition is affirmed. The order
terminating parental rights and selecting adoption as the permanent plan for
Diego is affirmed.
NARES, J.
WE CONCUR:
BENKE, Acting P. J.
HALLER, J.
name="_ftn1" title="">[1] All statutory references are to the Welfare and Institutions
Code.
to her as Joanne L., due either to inadvertence or some other reason not
revealed by the record.
