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In re L.A.

In re L.A.
06:28:2013





In re L




 

 

In re >L.A.>

 

 

 

 

 

 

 

Filed 5/24/13  In re L.A. CA2/1















>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

 

 

California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b).  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SECOND
APPELLATE DISTRICT

 

DIVISION
ONE

 

 
>










In re L.A.,
a Person Coming Under the Juvenile Court Law.


      B244441

      (Los Angeles
County

      Super. Ct.
No. CK75770)

 


 

LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,

 

            Plaintiff and Respondent,

 

            v.

 

JOSE A.,

 

            Defendant and Appellant.

 


 


 

APPEAL from an order of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County.  Marguerite D.
Downing, Judge.  Affirmed.

            Frank H. Free, under appointment by
the Court of Appeal, for Defendant and Appellant.

            John F. Krattli, County
Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Principal
Deputy County Counsel, for Plaintiff and Respondent.

_____________________

            Jose A. (Father) appeals from the September 26, 2012 order terminating his
parental rights over L.A.,
contending that the juvenile court committed reversible error by failing to
make a finding by clear and convincing
evidence
that Father was an unfit parent. 
We disagree because the court made a finding of detriment based on
substantial clear and convincing evidence. 
We affirm.

>BACKGROUND

On December 29, 2008, the href="http://www.fearnotlaw.com/">Los Angeles County Department of Children and
Family Services (DCFS) filed a petition pursuant to Welfare and
Institutions Code section
300, subdivisions (b) (failure to protect) and (g) (failure to provide) on
behalf of L.A., born in 2008, and Javier M., born in 2000.href="#_ftn1" name="_ftnref1" title="">[1]  Father is not the father of Javier M.  As amended and sustained, paragraph b-1 of
the petition alleged under section 300, subdivision (b) that Leticia C.
(Mother) caused a detrimental home environment by keeping marijuana and loaded
handguns in the home.  Also, Mother was
arrested in 2008 for a probation violation for href="http://www.fearnotlaw.com/">possession of illicit drugs and child
endangerment.  As amended and
sustained, paragraph g-1 of the petition alleged under section 300, subdivision
(g) that Javier’s father failed to provide for Javier.  The juvenile court dismissed paragraph b-2,
which had alleged under section 300, subdivision (b) that Mother caused a
detrimental home environment by allowing a gang member to reside in the home
and by permitting gang activity in the home, resulting in the house being shot
at by rival gang members.  The court
dismissed paragraph b-4, which had alleged under section 300, subdivision (b)
that Father failed to protect L.A. by failing to provide for L.A., and paragraph g-2, which
had alleged under section 300, subdivision (g) that Father failed to provide
for L.A.  Mother,
Javier, and Javier’s father are not parties to this appeal.

In December 2008, at the age of six months, L.A. was detained.  After initially being placed in a foster
home, L.A. was placed with maternal great-aunt, Guadalupe S., in
January 2009.  Father had been
arrested in October 2008 for a parole violation and was incarcerated at the
time the petition was filed.  He was
later found to be the presumed father of L.A.  On January 19, 2009, Father wrote a
letter to the juvenile court requesting permission to attend hearings and that
L.A. be placed in his custody upon his release from prison in March 2009.  The next month, Father wrote another letter
to the court requesting that a hearing be continued to after the date of his
release.

After he was released, Father told DCFS that prior to his
arrest, he had always provided for L.A. and had lived with Mother, L.A., and
his two sons by two different women.  He
gave DCFS paystubs as proof of employment. 
He stated that he had asked his family to take care of Mother and L.A.
while he was in prison, but due to a “‘big misunderstanding . . .
they (paternal relatives) didn’t help her.’” 
Father told DCFS that he was willing to participate in a case plan to
regain custody of L.A.  Father had a
lengthy criminal history, including arrests for spousal battery, shoplifting,
petty theft, and vehicle theft.  In 2004,
he had been convicted of robbery and sentenced to prison for three years.

Father appeared at the disposition hearing on March 18,
2009.  L.A. was declared a dependent
child of the juvenile court, but Father did not request custody of L.A.  The juvenile court found by clear and
convincing evidence that return of L.A. to Mother would create a substantial
risk of detriment to her physical and emotional well-being.  The allegations against Father were
dismissed.  The court ordered Father to
have unmonitored visits and DCFS to provide reunification services to Mother
and Father.  Mother was ordered to participate
in random drug testing and to complete individual counseling and parenting
classes.

DCFS reported that Father voluntarily attended couples
counseling with Mother and had unmonitored visits with L.A.  Mother and Father were unable to find work or
housing.  Mother missed several drug
tests and was incarcerated on November 16, 2009, at which time Father
stopped visiting regularly with L.A.  At
the urging of maternal great-aunt, Father visited L.A. “once during Christmas.”

On January 20, 2010, Father was arrested for
assault.  At a continued hearing in June
2010, the juvenile court maintained L.A. in out-of-home care and ordered DCFS
to provide further services.  In June
2010, Father was sentenced to two years in prison.  Mother was released from incarceration in
December 2010.  On December 14,
2010, the juvenile court terminated reunification services for Father.  Mother attended some anger management
classes, but failed to complete the course and failed to show for drug
tests.  Mother did not visit L.A.
regularly.  On April 1, 2011, the
court terminated reunification services for Mother and set the matter for a
section 366.26 hearing to implement a permanent plan of adoption for L.A.

Upon his release from prison in September 2011, Father
provided DCFS with his address and parole information.  After not having visits with Father for two
years, L.A. was “very reluctant” to interact with him.  Subsequent visits between Father and L.A.
went well, although maternal great-aunt noticed that L.A. “is often ‘extra
affectionate’ and wants hugs and states ‘I love you’ more to [maternal
great-aunt] when she returns home.” 
Although initial visits were regular, Father’s visits became sporadic,
he had problems adhering to a visitation schedule, and he was disrespectful toward
maternal great-aunt.  Father did not
maintain regular contact with DCFS. 
Father was arrested on January 24, 2012 for violation of parole by
associating with another parolee and for having a gun under his bed at the home
where he resided with paternal grandmother. 
Thereafter, Father was sent to prison. 
In the meantime, maternal great-aunt provided L.A. with a safe and
secure environment, had a loving relationship with L.A. “that continues to
flourish,” and was “devoted to meeting all of [L.A.’s] needs including medical,
developmental, and emotional needs.” 
Maternal great-aunt was approved for adoption.

Father filed a section 388 petition requesting the juvenile
court to order L.A. returned to his custody because Father was a
“non-offending” parent in that a jurisdictional finding had not been sustained
against him.  He stated he had made a
plan for paternal grandmother, who was currently caring for Father’s oldest
son, to take care of L.A.  DCFS reported
that although Father was a “non offending” parent, he had not been able to
provide and care for L.A. during the case proceedings because he had been
consistently incarcerated.  Further, L.A.
did not have a strong bond with Father. 
Prior to visits with Father, L.A. often became very quiet and subdued
and did not “show expressions of happiness or [get] excited when she was told
she was going to visit with [F]ather and paternal relatives.”  After visits with Father, L.A. would cling to
maternal great-aunt and repeatedly state, “‘I love you,’” to her.  L.A. had been placed with maternal great-aunt
for the last three and one-half years, “identifies [maternal great-aunt] as
‘mom,’ and has a very strong, loving, and nurturing bond with her.  [L.A.] also identifies [maternal
great-aunt’s] biological sons as her brothers, who [L.A.] also possesses a
strong attachment to.”  L.A. was bonded
to Javier, who visited maternal great-aunt on weekends.  Maternal great-aunt reported that L.A. had
never asked to visit Father or paternal relatives, and paternal relatives had
never asked to visit or contact L.A. 
DCFS noted that Father has an extensive criminal history, had continued
the same behaviors that resulted in his incarceration, and his criminal
behaviors could make paternal grandmother’s home unsafe for L.A.  DCFS concluded that it would be “extremely
detrimental” to L.A.’s emotional well-being to remove her from maternal
great-aunt, who wished to adopt her.

On September 26, 2012, the juvenile court denied
Father’s section 388 petition and terminated parental rights at a contested
366.26 hearing.  After the court denied
the section 388 petition, Father’s counsel argued that his parental rights
should not be terminated because he was a nonoffending parent; he had not been
ordered to complete any programs; and there was not clear and convincing
evidence that Father was “unfit.” 
Father’s counsel cited In re Frank
R.
(2011) 192 Cal.App.4th 532 and In
re Gladys L
. (2006) 141 Cal.App.4th 845 in support of her argument that
there was not clear and convincing evidence that Father was unfit.  In response, the court stated, “The court
finds by clear and convincing evidence that [L.A.] is adoptable.  The court finds that it would be detrimental
to return [L.A.] to her father.  [¶]  In the court’s mind, [Father] may have been a
non offending father back in December of 2008, when this petition was filed,
but the court notes that [Father], at the time of disposition, did not ask for
placement with his daughter.  He was
given an opportunity to have unmonitored visitation, placement was also
considered, but [Father], when he was not in custody, was not consistent with
his visitation.  He was––he would go off
and have no contact with [L.A.] for a large period of time.  Visitation got better, but then he
disappeared again, and the court notes that he is currently incarcerated where
he’s been for the second or third time on this case, since January of 2012.”

Father appeals.

>DISCUSSION

The
juvenile court’s finding of detriment was based on substantial clear and
convincing evidence


Father contends that the juvenile court
committed reversible error by failing to make a finding by clear and convincing
evidence that Father was an unfit parent. 
We disagree because the court made a finding of detriment based on
substantial clear and convincing evidence.

“[T]he interest of a parent in
the companionship, care, custody, and management of his children is a
compelling one, ranked among the most basic of civil rights [citations]
. . . .”  (>In re B. G. (1974) 11 Cal.3d 679, 688.)  Santosky v. Kramer (1982) 455 U.S. 745 [102 S.Ct. 1388] “‘establishes minimal due process
requirements in the context of state dependency proceedings.  “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.”  (Id. at pp. 747–748.)  “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.”  (Id.
at p. 760.)  “But until the State proves
parental unfitness, the child and his parents share a vital interest in
preventing erroneous termination of their natural relationship.”  (Ibid.)’  [Citation.]

“‘California’s dependency system
comports with Santosky’s requirements
because, by the time parental rights are terminated at a section 366.26
hearing, the juvenile court must have
made prior findings that the parent was unfit. 
(Cynthia D. v. Superior Court
(1993) 5 Cal.4th 242, 254.)  “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.”  (Id.
at p. 256.)  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.” 
(5 Cal.4th at p 256.)’ 
[Citation.]

“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. 
[Citation.]”  (>In re P.A.,
supra, 155 Cal.App.4th at p. 1211.)

In
re P.A
. held that termination of parental
rights is proper if the juvenile court makes a finding supported by clear and
convincing evidence that awarding or returning custody to the parents would be
detrimental to the child.  (In re P.A., supra, 155 Cal.App.4th at p.
1212.)  In re P.A. held that the parental rights of a parent against whom a
jurisdictional finding has not been made may be terminated upon a finding of
detriment by clear and convincing evidence. 
(Ibid.)  This is so because
a jurisdictional finding is made by a preponderance of the
evidence—rather than clear and convincing evidence—and therefore cannot be used
as a basis for terminating parental rights. 
(Ibid.)  Therefore, even if a dependency petition had
alleged the unfitness of a parent, the order sustaining the petition would be
inadequate to terminate parental rights without a subsequent finding of
detriment by clear and convincing evidence. 
(Ibid.)  In >In re P.A., the father was nonoffending
because a jurisdictional finding had not been sustained against him.  But the juvenile court had made a finding of
detriment by clear and convincing evidence both at the disposition hearing and
at a hearing denying the father family reunification services.  And the Court of Appeal noted that DCFS
reported that the father “had not maintained any involvement in [the
minor’s] life, he had not provided support for the child and he had not seen
the child for two and a half years.”  (Ibid.)  The Court of Appeal affirmed the juvenile
court’s order terminating the father’s parental rights, concluding that the findings
of detriment were sufficient findings of the father’s unfitness.  (>Ibid.)

In re G.S.R. (2008)
159 Cal.App.4th 1202 agreed with the holding of In re P.A. that “findings of detriment, if supported by substantial
clear and convincing evidence, may
provide an adequate foundation for an order terminating parental rights even in
the absence of a jurisdictional finding relating specifically to a
parent.”  (In re G.S.R., >supra, 159 Cal.App.4th at p. 1214.)  The court in In re G.S.R. noted, “In In re P.A., the father’s
persistent avoidance of responsibility for his child and his failure to
maintain any involvement in her life or even to visit her for years at a time,
constituted substantial evidence of detriment and militated strongly against
placing the child in his care, notwithstanding the absence of sustained
allegations as to him . . . ,” distinguishing it from the case
before it, where DCFS failed to demonstrate sufficient detriment and the juvenile
court failed to find a legitimate basis for deeming the father unfit.  (Id.
at pp. 1214, 1215.)

Here, the juvenile
court made findings at the disposition hearing by clear and convincing evidence
that returning L.A. to Mother’s custody would be detrimental.  But Father did
not request custody at the disposition hearing and the court was not required
to make findings of detriment relating to him. 
(§ 361.2, subd. (a) [if noncustodial parent requests
custody, child placed with parent unless finding of detriment].)

Nevertheless, we conclude the juvenile court made a finding of detriment
based on substantial clear and convincing evidence.  During the section
366.26 hearing, Father’s counsel argued that there was not clear and convincing evidence that
Father was unfit, adverting to In re
Frank R.
, supra, 192 Cal.App.4th
532, and In re Gladys L., >supra, 141 Cal.App.4th 845, two cases in
which the orders terminating parental rights were reversed because the juvenile
court did not make findings by clear and convincing evidence of detriment.  In response, the juvenile court here stated,
“The court finds by clear and convincing evidence that [L.A.] is
adoptable.  The court finds that it would
be detrimental to return [L.A.] to her father.” 
Although the court did not repeat the specific term “clear and
convincing evidence” in the sentence regarding its finding of detriment, as it
did in the preceding sentence, we can imply from the record that the court
found it would be detrimental to place L.A. with Father.  (In
re Z.K.
(2011) 201 Cal.App.4th 51, 67 [“To
support the termination of mother’s parental rights, the department must point
to specific evidence from which we can reasonably imply a finding by the
juvenile court that it would be detrimental to place the minor with mother.”].)

In concluding that it would be detrimental to return
L.A. to Father, the juvenile court noted that Father was nonoffending but had
not asked that L.A. be placed with him at the disposition hearing; Father had
not been consistent in his visitation, even though he had been granted
unmonitored visitation; Father did not contact L.A. for long periods of time
when not incarcerated; and Father was currently incarcerated.  The record supports the court’s finding of
detriment.  Although Father
attended the disposition hearing in March 2009, he did not request custody of
L.A.  Father’s visits to L.A. stopped
when Mother was incarcerated on November 16, 2009.  Only at the urging of maternal great-aunt did
Father visit L.A. during Christmas in 2009. 
Thereafter Father was incarcerated in January 2010 and sent to prison in
June 2010.  On Father’s release in July
2011, L.A. was reluctant to interact with him. 
L.A. did not have a strong bond with Father and did not express
happiness in learning that she was to visit him, but rather became quiet and
subdued.  Although Father initially
visited regularly, his visits became sporadic, he did not adhere to a
visitation schedule, and he did not maintain regular contact with DCFS.  Subsequently, he was arrested in January 2012
for violation of parole.  Meanwhile, L.A.
had become strongly bonded to maternal great-aunt to whom she would cling and
repeatedly tell she loved upon returning from visits with Father, and who
provided a safe and secure environment for L.A. 
In sum, there is no doubt that placement of L.A. with Father would be
detrimental to her:  Father had not had
custody of L.A. since she was an infant, had not availed himself of the
opportunity to maintain involvement in her life or visit her regularly, and had
been incarcerated for much of L.A.’s life.

We conclude that the juvenile court’s
finding of detriment was based on substantial clear and convincing evidence.

DISPOSITION

            The juvenile court’s order terminating Jose A.’s parental
rights is affirmed.

            NOT TO BE PUBLISHED.

 

                                                                                    MALLANO,
P. J.

We concur:

 

            CHANEY, J.

 

            JOHNSON, J.





id=ftn1>

href="#_ftnref1" name="_ftn1" title="">[1] Undesignated
statutory references are to the Welfare and Institutions Code.








Description Jose A. (Father) appeals from the September 26, 2012 order terminating his parental rights over L.A., contending that the juvenile court committed reversible error by failing to make a finding by clear and convincing evidence that Father was an unfit parent. We disagree because the court made a finding of detriment based on substantial clear and convincing evidence. We affirm.
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