In re Elaina H.

Filed 3/21/07 In re Elaina H. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Madera County. Nancy C. Staggs, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.)

Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant.

David A. Prentice, County Counsel, and Miranda Neal, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

Jose C. appeals from an order terminating his parental rights (Welf. & Inst. Code,  366.26) to his daughter Elaina H.^[1] He contends his federal due process rights were violated over the course of Elainas dependency so as to require reversal of the termination order. On review, we conclude that because the superior court never made any unfitness findings related to appellant, it could not terminate his parental rights. Accordingly, we will reverse the termination order with directions.

PROCEDURAL AND FACTUAL HISTORY

Elainas mother tested positive for methamphetamine when she gave birth to Elaina in June 2003. The mother identified appellant as Elainas father but stated she had not seen him in the preceding seven months and did not have either his address or phone number. In turn, respondent Madera County Department of Social Services/Child Welfare Services (the department) detained the newborn, as well as her numerous siblings, and initiated the underlying dependency proceedings.^[2]

Shortly thereafter, the superior court exercised dependency jurisdiction over Elaina based on her in-utero methamphetamine exposure under section 300, subdivision (b). The court did not find true an allegation under section 300, subdivision (g) that appellants whereabouts were unknown and he had left no provision for Elainas care or support. Meanwhile, the mother made some progress in addressing her drug abuse. This led the department to file a dispositional report with the superior court recommending that the court adjudge Elaina a dependent but, place her with her mother subject to family maintenance services. The departments case plan made no reference to appellant.

Appellant made his first appearance at an August 2003 dispositional hearing for Elaina. The department had telephoned him three days earlier, giving him notice of the case. Absent from the record is any proof that once appellants whereabouts became known, that the court, its clerk, or the department, ever provided appellant with notice as required by section 316.2, subdivision (b).^[3]

At the August 2003 dispositional hearing, the superior court acknowledged appellants presence in the courtroom and accepted the various attorneys submittal on the departments report and recommendation. One of those attorneys was from Madera Alternate Defense which the court had appointed to represent appellant and the alleged fathers of Elainas siblings. The court in turn followed the departments recommendation and set the case for review. No one, including the court, directed any questions or remarks to appellant nor did he address the court. No one advised him of his limited rights as an alleged father. Further, no one asked or directed appellant, pursuant to section 316.1, subdivision (a), to designate a permanent mailing address for notice purposes.

Unfortunately, the mothers progress was short-lived. In December 2003, the department redetained Elaina and filed a supplemental petition ( 387) alleging the mothers struggles and requesting foster care placement for the infant. The supplemental petition contained no allegations as to appellant.

The departments supplemental petition led to new detention, jurisdictional, and dispositional hearings, of which appellant received no notice. The department alleged appellants whereabouts were unknown. Although the superior court would find the department exercised due diligence to locate appellant, its due diligence declaration did not support such a finding. According to the departments declaration, a social worker searched only one source, MEDS, for appellants name.

Notably, at a December 2003 detention hearing, the court ordered that appellant and the other alleged fathers submit to paternity testing. There is no record that anyone ever conveyed the order for paternity testing to appellant. While an attorney from Madera Alternate Defense was present at each hearing on the supplemental petition, counsel claimed no contact with appellant and thus had nothing to offer.

At a later hearing, the court sustained the supplemental petition. Then, in February 2004, having found by clear and convincing evidence that Elaina was at substantial risk of harm in her mothers care, removed the infant from her mothers custody, authorized her placement in foster care, and ordered reunification services for the mother. It made no findings or orders as to appellant.

According to the departments service logs, appellant came to the departments office a few weeks after the courts February 2004 dispositional hearing. He asked a social worker for paternity testing and visits with Elaina. The social worker told appellant to contact another social worker on another day. The department did not report appellants inquiry to the court.^[4] Indeed, in its next review report to the court, it continued to claim appellants whereabouts were unknown.

Over the following 13 months, the court conducted two status review hearings of which appellant received no notice. At the first of those hearings, the court continued Elainas out-of-home placement and the mothers services. At the second status review hearing held in March 2005, the court found the mother made significant progress and again authorized Elainas return to her mother subject to family maintenance services. Notably, by this time, the department knew appellants whereabouts but still did not serve him with notice of the proceedings.

Once more, however, the childs placement with her mother was short-lived. In June 2005, the department filed a second supplemental petition alleging the courts previous disposition had been ineffective because Elaina had sustained bruises and abrasions for which the mother could not provide a reasonable explanation. Also, the mother had failed on numerous occasions to submit to court-ordered drug testing.

Rather than detain Elaina, however, the department had persuaded the mother to agree to voluntarily place the child with a maternal uncle and aunt. Elaina has remained in their care ever since. The departments report to the court on this latest supplemental petition made no reference whatsoever to appellant.

According to the departments service logs, less than a week after it filed its second supplemental petition, appellant contacted the department to say he wanted to obtain custody of Elaina. A department social worker instructed appellant to go to family support court and establish paternity. Notably, the department did not inform the court of this exchange until after an attorney from Madera Alternate Defense questioned why the department had not sent appellant notice of the supplemental petition, let alone mention him in its report on the petition. Even then in an addendum report to the court, the department characterized appellants statement as merely a desire to be involved with his daughters life.

The court continued the matter to July 2005 and ordered the department to notice appellant. Once the department began serving notice on appellant, he attended every hearing thereafter in Elainas case.

At the July 2005 hearing, appellants attorney requested a contested hearing on the supplemental petition insofar as it sought to formally place Elaina in out-of-home care. When a discussion arose over the departments placement of Elaina into her relatives home, appellant spoke out How about my home? The court questioned the departments use of relative placement as very confusing in light of appellants presence. When the court asked if appellant had he done anything, appellant reported he took a DNA test the preceding week and had been trying for two years to get a hold and take care of my baby. The court concluded the July hearing by issuing detention orders and setting the case for jurisdiction on the supplemental petition.

On the continued hearing date in August 2005, the court granted appellants motion to declare him Elainas presumed father. DNA testing had established a greater than 99 percent probability that appellant was Elainas father. Also, both parents had signed a voluntary declaration of paternity regarding Elaina.^[5] Appellants attorney then asked the court to grant appellant custody of Elaina or alternatively grant him family reunification services and visitation.^[6]

The department opposed each of these requests, arguing it was too late in the proceedings and Elaina had no relationship with appellant. The court postponed ruling on each of appellants requests and, following an evidentiary hearing, sustained the departments supplemental petition. At the hearings conclusion, the court continued the case for further proceedings on appellants requests as well as disposition on the supplemental petition.

It would take the department approximately two months to prepare and serve its dispositional report. The superior court would suggest later that the departments delay could be interpreted as tactical.

Meanwhile, in September 2005 and over the departments objection, the court ordered weekly visits between appellant and Elaina to commence. Remarkably, the department did not comply with the visitation order until appellant brought the issue to the courts attention two weeks later. Sensing the departments strong opposition to any request on appellants behalf, his attorney also filed a modification petition ( 388), seeking Elainas placement with appellant or at least, services for appellant as well as visitation with Elaina. The court found the petition stated a prima facie case for relief and granted appellant a hearing to be conducted simultaneously with the disposition on the supplemental petition.

Ultimately, the department filed its dispositional report with recommendations that no further reunification services be granted to any parent and that the court set a section 366.26 hearing. The departments rationale was that time, namely the statutory maximum of 18 months for services ( 361.5, subd. (a)), had run out for reunification efforts. Even in this report, the department all but ignored appellant.

Then, in an addendum report filed October 17, 2005, two days before the actual dispositional hearing, the department disclosed that a licensed clinical social worker with the countys behavioral health services had conducted a bonding and attachment assessment on Elaina and appellant, during only their third visit. Not surprisingly, the social workers assessment was not favorable to appellant.

Because of the belated nature of the departments addendum and the perceived need for expert witness testimony favorable to appellant, appellants counsel requested a continued hearing on his section 388 petition. While the department opposed the request, appellants counsel explained he would not contest the court proceeding with its disposition on the supplemental petition provided (1) the court deem appellants section 388 petition applicable as well to whatever dispositional orders the court made, and (2) the court did not change its best interests focus from family reunification to the childs interest in permanency. Subject to these conditions, the court granted the continuance on appellants section 388 petition and proceeded with its disposition.

With regard to disposition, the court found by clear and convincing evidence there was a substantial danger to Elainas well-being if she were returned to her mothers care. Despite the departments argument otherwise, the court refused, for lack of proof, to include appellant in this finding. Because the statutory limit of 18 months for reunification services had lapsed, however, the court terminated services for the mother and ordered no services for the father. The court nevertheless continued its order for visits between appellant and Elaina. In turn, it set a section 366.26 hearing to select and implement a permanent plan for Elaina as well as set out the hearing on appellants section 388 petition. The court also gave appellant notice of his writ remedy. Appellant did not pursue writ relief.

In time, a new attorney from Madera Alternate Defense appeared on behalf of appellant and, at a January 2006 hearing, withdrew his section 388 petition for placement or reunification services. Appellants expert witness was unavailable to testify and county counsel, on behalf of the department, objected to another continuance. With the section 366.26 hearing set for the following month, appellants counsel proposed to save our contest for [when] the department recommends that the minor be adopted. Counsel believed it was the departments burden to show by clear and convincing evidence that termination of parental rights was in Elainas best interests. He reasoned by withdrawing the section 388 petition appellant would not have the burden of proving placement with him was in Elainas best interests. He also asked that the court increase appellants visitation rights and order a new bonding study between appellant and Elaina. Once again, the department objected to appellants requests.

This time the court agreed with appellant. It noted with regard to the bonding study request: since weve even had trouble with the department complying, apparently, with producing this child one hour a week for the father to see, I want to know whats going on in this case.^[7] In ordering the bonding study, the court expressly denied the departments request to include the maternal uncle and aunt, who were Elainas caregivers. As to visitation, the court found the departments position to be recalcitrant so as to require the courts hypervigilan[ce]. It increased the length of appellants visits with Elaina from one to two hours a week.

As the January 2006 hearing came to a close, appellants counsel questioned whether the visits needed to be supervised. The court offered these candid remarks in denying this request:

Im still concerned because I dont know whats going on in the matter and I think that its better for you to have supervised visits, and I dont mean that in that I think that you pose any risk to her, but anyone else could suggest that something else is going on, or that youre not being able to conduct yourself properly with your child. So its more of a protection for you to be totally honest with you, than I think you pose any danger to the child.

The section 366.26 hearing, which appellants attorney believed would occur the following month, did not commence until months later. In the meantime, the department submitted its report recommending that the court find Elaina adoptable and terminate parental rights. Elainas relative caregivers wished to adopt her. They also claimed Elaina had become resistant to visiting with appellant.

For his part, appellant filed a new section 388 petition requesting that the court either outright place Elaina with him, order a six-month plan to increase his contact with the child, so that by the end of six months, she would be essentially in his full-time care, or order reunification services for him. Once again, the court found appellant had made a prima facie case for relief and set the petition for hearing concurrent with the section 366.26 hearing.

The psychologist retained to conduct the new bonding study also submitted her evaluation. Despite the courts order that the study not include an assessment of the relationship between Elaina and her relative caregivers, the expert did include those caregivers in her analysis and did devote roughly one-half of her report to them. The department had arranged for the relatives to be present and never revealed to the psychologist the courts specific order against their participation.

The court would eventually admit only those portions of the bonding study pertaining to appellant and Elaina. The court explained it did not need an expert to inform it that Elaina would share a greater bond with the relatives, than with appellant. The problem, in the courts estimation, was that the department had placed Elaina with those relatives without ever looking into whether appellant was a viable placement for Elaina.

The admitted portion of the bonding study revealed:

Elaina presents as a child who has some confusion regarding healthy attachments and relationships. The parenting she received from her biological mother was inconsistent, sporadic, and may have been abusive. . . . Elainas relationship with her biological father is similar to that expected of a child and an uncle or older cousin. Although she appears to be increasingly comfortable in his presence, she does not rely on him to care for her or meet her basic needs. . . . She would have significant difficulty making the transition to the permanent care of her biological father at this time, as she has not had time to develop a close relationship with him, and does not have a child-parent bond with him. If Elaina is to develop and maintain a relationship with her father, it is best that it is done slowly and with the support of her primary caregivers, Mr. and Mrs. H. . . . Elaina would benefit from psychological counseling services to address any attachment issues and concerns that may develop over time.

The evidentiary hearing on appellants section 388 petition spread out over two months. During its course, the court heard testimony from appellant and several witnesses for the department.

Appellant testified he had a relationship with the mother about four years earlier and that it lasted about two months. He was 19 years old at the time, the mother was 23. The mother told appellant she was pregnant during the second month of their relationship, but he was not sure at that time that the baby was his. He learned the mother had given birth around the time he first came to court. He spoke to the department social worker Gomes about trying to get custody of Elaina. Gomes told appellant to go to court. When appellant went to court in 2003, his Madera Alternative Defense attorney told him that he was an alleged father and had no rights and Elaina was going back to the mother. When appellant asked his attorney what he should do, the attorney told him that if the department does not call him, he should just drop it.

Appellant denied the departments charge that he simply walked away in 2003. Appellant explained I didnt walk away. It seemed like the court walked away from me. I never received papers. I dont know how to respond to that.

From 2003 to 2005, appellant thought that Elaina was with her mother. During those two years, appellant never received any notices from the department. In the summer of 2005, appellant found out from a friend, who was related to the mother, that he had seen Elaina and she had many of appellants features. Also, the friend reported Elaina may have been removed from the mother again and might be back in the court system. Less than a day later, appellant and his fianc went to the court to check the superior court file and discovered that Elaina was back in the court system. Appellant contacted the department social worker Gomes, who told him that Elaina was already taken care of and there was no way appellant could be involved. Gomes never explained to appellant his paternity status. Appellant then went to see his defense attorney. It was at that time appellant tested for paternity.

Appellant tried to contact the mother numerous times about Elaina. He wanted to be a part of Elainas life. However, the mother rebuffed him, calling him a wetback, and telling him to stop calling.

Since September 2005, appellant had been visiting Elaina weekly, bringing food, changing her diapers, and playing with her. He had a bedroom set up for her at his home with her own bed. He was also paying child support, having admitted financial liability for her.

The departments witnesses included the licensed clinical social worker who had assessed appellant and Elainas interaction during their third visit in October 2005 as poor. The witness, however, acknowledged her assessment did not preclude appellant from doing well as a parent in the future.

In addition, another licensed clinical social worker, Julie Woesner, the departments social worker, John Gomes, and Elainas relative caregivers testified.

Woesner had been observing Elaina since the start of 2005. It was then that the clinician determined Elaina had a very impaired bond with her mother and, as a consequence, an attachment disorder. As of the time of trial, Woesner believed Elaina had an impaired attachment in that she had developed a bond with her primary caregivers but she continued to seek comfort from strangers and approached them in an inappropriate fashion.

The clinician added it would be very difficult for Elaina to transition into a home with which she was unfamiliar. Further, appellant and Elaina did not have a parent/child relationship which Elaina could use to develop trust and relationships with the rest of appellants family. Developing a parent/child relationship could not be done through visitation.

On cross-examination, Woesner testified there were services available to help Elaina with a transition into appellants home. Woesner had in fact written social worker Gomes in December 2005, volunteering her suggestions as to those services which could help the transition. Gomes did not respond to her letter. She made five recommendations: infant mental health and attachment-based treatment for Elaina, appellant and his fianc; an attachment-based parenting program for appellant and his fianc to help them develop a healthy relationship with Elaina and gaining insight regarding her special needs; a developmental play group for appellant and Elaina, mediation between appellant and Elainas relative caregivers to aid them in developing a plan enabling Elaina to maintain a relationship with her maternal family; and taking great care in slowly transitioning Elaina from her relative caregivers home to appellants home. She added that appellants recent visits with Elaina were going well.

It was during the testimony of social worker Gomes that portions of the departments earlier service logs came to light and were admitted into evidence. Gomes also testified his first contact with appellant was in late June 2005 after appellant received notice of the July 2005 hearing on the departments second supplemental petition. According to Gomes, appellant expressed his desire for custody of Elaina. He explained he lived in Fresno, worked on weekends and was enrolling in school. The social worker advised appellant to go to Family Support Court to seek a paternity test. The social worker also testified that the department had not authorized him to pursue any of the recommendations that Woesner, Elainas clinician, had made for services.

Finally, the department called each of Elainas relative caregivers to testify. In particular, her maternal uncle testified there had been probably five times over the preceding three months when Elaina showed any reluctance to go to visit with appellant.

In rebuttal, appellants counsel recalled appellant to testify regarding the departments service log which disclosed he visited the department and spoke with a social worker in February 2004. While appellant then recollected the visit, he did not recall much else.

What he did remember was that the following day, he went to the offices of Madera Alternate Defense and spoke with an attorney. Documentary proof of appellants visit, in the form of a revenue services division form which appellant had signed and dated the day of his visit was admitted into evidence. The attorney advised appellant to wait for a court date. If I dont hear nothing, just dont go. In addition, appellant testified about documentation, offered into evidence, regarding an 18-week child parenting course he completed at Fresno City College in December 2005. He testified he took the course to be more prepared for his visits with Elaina. He also completed first aid and CPR training in a child development course.

As the evidentiary phase of the hearing came to a close, the court focused on a recent appellate decision, In re Baby Boy V. (2006) 140 Cal.App.4th 1108 (Baby Boy V.), brought to its attention by appellants counsel. As the opinions introductory paragraph explained,

A baby born to a drug addicted mother and an identity unknown father became a dependent of the juvenile court and was placed in foster care. Eight months later, the alleged father learned of the baby's existence, went to see the social worker, appeared in court [at the section 366.26 hearing] as directed, asked for a paternity test, and stated his desire to support and care for the child he believes is his. The dependency court, determined to proceed as planned before the man's appearance, denied the request for a paternity test and terminated parental rights as to the identity unknown father as well as the man who appeared in court. (In re Baby Boy V., supra, 140 Cal.App.4that p. 1110.)

In reversing the termination order, the Baby Boy V. court was critical of both the social services department and the trial court. The departments social worker was wrong in not arranging an immediate court appearance for the alleged father and instead telling him only to appear at the next hearing which was scheduled for more than a month away. The trial court erred by refusing to order the paternity test, if not by denying him presumed father status.

The superior court in the present case expressed its concern that Elainas dependency involved very similar facts. In particular, the superior court read aloud the following passage from Baby Boy V.:

If a man appears in a hearing or a dependency matter or requests signing a paternity form JV505 in a dependency matter, the Court shall determine whether or not he is the biological father of the child. This is a mandatory, not discretionary rule. (In re Baby Boy V., supra, 140 Cal.App.4that p. 1118.)

The superior court also took note of Baby Boy V.s caution about terminating parental rights absent a showing of the fathers unfitness as a parent (Baby Boy V., supra, 140 Cal.App.4th pp. 1117-1118) and observed I simply dont have any information to show that he is unfit. The court offered the parties to brief the opinion for closing argument purposes.

The court reconvened on a later date for closing arguments. Except for county counsel, the attorneys did not take advantage of the offer to formally brief Baby Boy V. Even county counsels brief was filed beyond a deadline the court had set and offered the court little guidance. Notably, the department argued appellant was not entitled to relief because, in its estimation, he waited for two years before coming forward to assume any parental responsibility and therefore should not be considered a Kelsey S. father.^[8] After lengthy closing arguments, the court took the case under submission and continued the hearing to early August 2006 for its decision.

On the continued hearing date, the superior court commenced its decision with certain findings. The superior court found appellant did what he could considering the lack of solid and appropriate direction that he received for over two years and the strong resistance from the department. Not only the department, but

the Madera Alternate Defense . . . failed the father in the early stages of the case with either bad or absolutely no legal advice. Obviously the department cant give legal advice but they certainly could have done more to have this man, who came forward in 2003, to become elevated to a presumed father status, and they didnt.

[I]n this case, again, I have a father who wants this child and the department continuously resists, strongly resists, and not only resists but absolutely and adamantly refuses to offer the services to this father during a time when he would have qualified to become a Kelsey S. father. I dont think that he has become a Kelsey S. father under the ruling of that particular case, but it certainly wasnt for lack of trying but for stone walls essentially that were put up in front of him because any services that would have been provided to him would have interfered with the parenting plan that the department had already put in place.

The father has established a significant interest in serving as a parent to Elaina and he has Constitutional rights that need to be protected and weighed in this case. Those rights have to be protected and weighed against the rights of Elaina also. Those rights of Elaina are to have a stable and consistent home and relationship.

It pains me significantly to do this because I feel that the department is being rewarded for the harm that they have caused [appellant]. . . . I am going to grant the [section ]366.26 and terminate the parental rights of the father.

DISCUSSION

Introduction

Appellant contends the termination order violated his due process rights in that: (1) the superior court failed to advise him of his right to elevate his paternity status to that of presumed father at his first court appearance; (2) the department improperly prevented him from attaining presumed father status earlier in the proceedings; (3) there was never any finding of his unfitness as a parent; and (4) the court incorrectly applied a best interests standard in denying his section 388 petition which sought, if not placement, at least family reunification services.

To each of these claims, the department essentially responds that appellant was and is too late, that is, he was too late to assert any rights in the superior court, and he is too late to complain to this court. As it argued to the superior court, the department claims appellant did nothing to look after his own rights for over two years and therefore is in no position to complain.

The appellate record, as detailed above, is replete with errors made by virtually all concerned. We agree no effort was made by the court or the department to notify appellant at the outset of Elainas dependency in 2003 of his right to assert paternity ( 316.2) and seek presumed father status. Also, once it became necessary to remove Elaina from her mothers custody in the fall of 2003, the department made no effort to notify appellant of either the supplemental proceedings or to inform him, when he contacted them, about the courts order for paternity testing. Indeed, the department neglected to advise the court that appellant had contacted the department in February 2004 seeking paternity testing and visits with Elaina. However, the related issues appellant raises are arguably moot (City of Los Angeles v. County of Los Angeles (1983) 147 Cal.App.3d 952, 958) because the superior court subsequently granted him presumed father status.

We instead focus our analysis on appellants remaining contentions: that termination of his rights was erroneous because there was never any finding of his unfitness as a parent; and that the court applied an incorrect standard in denying his section 388 petition. As discussed below, we agree with appellant.

The Lack of Unfitness Findings as to Appellant

Because parents have a fundamental interest in the care, companionship, and custody of their children, they are entitled to certain due process protections in state dependency proceedings. (Santosky v. Kramer (1982) 455 U.S. 745, 758 (Santosky).) In particular, 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.) Once a state has established parental unfitness, the court may assume that the interests of the child and the natural parents diverge. (Id. at p. 760.) However, until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship. (Ibid.)

Californias dependency system comports with Santoskys requirements because, by the time parental rights are terminated at a section 366.26 hearing, the juvenile court shouldhave made prior findings that the parent was unfit. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254 (Cynthia D.); In re Gladys L. (2006) 141 Cal.App.4th 845, 848.)

Except for a temporary period, the grounds for initial removal of the child from parental custody have been established under a clear and convincing standard (see 361, subd. (b)); in addition, there have been a series of hearings involving ongoing reunification efforts and, at each hearing, there was a statutory presumption that the child should be returned to the custody of the parent. ( 366.21, subds. (e), (f), 366.22, subd. (a).) Only if, over this entire period of time, the state continually has established that a return of custody to the parent would be detrimental to the child is the section 366.26 stage even reached. (Cynthia D., supra, 5 Cal.4th at p. 253.)

As the Cynthia D. court reasoned,

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. (Cynthia D., supra, 5 Cal.4th at p. 256.)

In this case, no such judicial findings of parental unfitness were ever made as to appellant.^[9] Instead, the superior court:

- exercised its dependency jurisdiction based on the mothers substance abuse-related neglect,

- twice found clear and convincing evidence of detriment to remove Elaina from the mothers custody, and

- despite reasonable services for the mother, found, more than once, that to return custody of Elaina to the mother would be detrimental to the child.

Therefore, as a matter of due process, the superior court was prohibited from terminating appellants rights. (Santosky, supra, 455 U.S. at pp. 747-748; Cynthia D., supra, 5 Cal.4th at 254.) Appellant is entitled to our reversal of the termination order.

Similarly, the superior court erred in denying appellants request for either placement or services. The court assumed that because Elainas case had reached the section 366.26 stage, it was in her interest to have a stable and consistent home and relationship. In turn, the superior court ruled that Elainas interests prevailed over appellants interests. Ordinarily, such a balancing would be appropriate at the permanency stage.

After the termination of reunification services, the parents interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point the focus shifts to the needs of the child for permanency and stability (In re Marilyn H. [1993] 5 Cal.4th 295, 309), and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. (Id. at p. 302.) A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)

However, this was, by no means, an ordinary case. Because there were never any unfitness findings made regarding appellant, his interest in the care, custody and companionship of the child remained paramount (ibid.). Moreover, Elaina and appellant shared the same vital interest in preventing erroneous termination of their natural relationship. (Santosky, supra, 455 U.S. at p. 760.) At a minimum, the superior court should have granted appellant reunification services, if not crafted a case plan for transitioning Elaina to appellants custody along the lines recommended by the clinician Woesner.

Under these circumstances, we need not further address appellants section 388 petitions except to express concern over whether such a motion was necessary -- in light of section 361.2 provisions for non-custodial/non-offending parents -- or appropriate given the very unique procedural stance of this case. Resorting to section 388 placed the evidentiary burden on appellant to essentially prove his fitness, rather than on the department to establish any factual basis for denying him the relief he sought.

The department offers multiple arguments to overcome the lack of unfitness findings against appellant. However, as discussed below, none of them is persuasive.

First, the department claims appellant waived his due process claim by not raising it earlier through an appeal or writ petition. However, application of the waiver doctrine in dependency appeals assumes all the safeguards built into California dependency systems have been met. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1154-1155.) It cannot be enforced where the decision conflicts with due process, as is the case here. (Ibid.; see also In re Gladys L., supra, 141 Cal.App.4th at p. 849.)

Second, the department contends a published decision, In re Gladys L., supra, relied upon by appellant, is factually distinct and therefore inapplicable. With this contention, the department seeks to figuratively split hairs. In In re Gladys L., as here, a superior court terminated a presumed fathers rights despite the absence of any finding over the course of his daughters dependency that the father was unfit. The court of appeal reversed in reliance upon Santosky and Cynthia D., as do we.^[10]

The department perceives a critical difference between In re Gladys L. and the present case in the fact that the father in Gladys L. attended the detention hearing at the outset of his daughters dependency and was found by the trial court to be the childs presumed father while, in the departments words, appellant did not attempt to obtain presumed father status for over two years. However, the department ignores its own role, as well as that of appellants earlier attorneys, in the delay. In any event, the fact remains, as the superior court repeatedly observed, there was never any finding of appellants unfitness over the course of Elainas dependency.

Third, the department argues the superior courts denial of appellants section 388 petition amounted to a finding of unfitness. As the department sees it, appellant was unfit in that it would be detrimental to Elaina to allow him to prevail on his request for placement. The departments argument borders on nonsense. One, the superior court did not make a detriment finding against appellant, let alone one by clear and convincing evidence. Two, as explained above, the superior court misapprehended Elainas interest in denying appellants section 388 petition. Three, the department ignores the law, both statutory and constitutional, which places the evidentiary burden on the department to establish a parents unfitness. (Santosky, supra, 455 U.S. at pp. 747-748; Cynthia D., supra, 5 Cal.4th at p. 253.)

Finally, the department urges a finding of appellants unfitness was not required because, according to the departments view of the evidence, appellant did not come forward in a timely fashion to grasp his parental responsibilities and therefore the superior court was entitled to focus solely on Elainas best interests. The department relies on Kelsey S. (ante, fn. 10) and In re Sarah C. (1992) 8 Cal.App.4th 964 (Sarah C.) to make its case. As discussed below, neither the record nor these decisions support the departments position. The departments argument fails, if for no other reason, because it ignores the fact the court in 2005 declared appellant to be Elainas presumed father.

Kelsey S. involved a federal constitutional challenge to Californias presumed father statute, former Civil Code section 7004, subdivision (a) (now Fam. Code,  7611) and the related parentage statutory scheme. The precise issue was whether an unwed fathers federal equal protection and due process rights were violated if his childs mother was allowed to unilaterally preclude him from obtaining the same legal right as a presumed father to withhold his consent to his child's adoption by third parties. (Kelsey S., supra, 1 Cal.4th at p. 830.) As alluded to in our earlier footnote, the Kelsey S. court held the statutory scheme did violate federal constitutional guarantees for unwed fathers to the extent that a mother could unilaterally preclude her childs biological father from becoming a presumed father, through receiving the child into his home and openly holding out the child as his own, and thereby allowing the state to terminate his parental rights on nothing more than a showing of the childs best interests. (Id. at p. 849.) The state Supreme Court added:

If an unwed father promptly comes forward and demonstrates a full commitment to his parental responsibilities -- emotional, financial, and otherwise -- his federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent. Absent such a showing, the child's well-being is presumptively best served by continuation of the father's parental relationship. Similarly, when the father has come forward to grasp his parental responsibilities, his parental rights are entitled to equal protection as those of the mother. (Kelsey S., supra, 1 Cal.4th at p. 849.)

Consequently, a Kelsey S. father is entitled to the same constitutional protections as any statutorily-presumed father, so that a court may not terminate a Kelsey S. fathers rights absent a showing of his unfitness as a parent.

The departments reliance on Kelsey S. to serve its purposes is, at best, ill-conceived. To use Kelsey S.srecognition of the constitutional rights of a father who could not achieve presumed father status under Californias statutory scheme to negate the constitutional rights of appellant who was statutorily entitled to (Fam. Code,  7573) and was granted presumed father status is simply wrong and makes no sense. If nothing else, we would remind the department that there is a compelling state interest in establishing paternity for all children. (Fam. Code,  7570, subd. (a).) Moreover, the department loses sight of its very significant role in the delay it attributes to appellant. As the superior court expressly found, appellant did what he could, considering the lack of solid and appropriate direction that he received for over two years and the strong resistance from the department. Indeed, as the superior court added,

It certainly wasnt for lack of trying [on appellants part] but for stone walls essentially that were put up in front of him because any services that would have been provided to him would have interfered with the parenting plan that the department had already put in place.

It is for the same reason that the departments refrain that the time had passed -- i.e. the18-months for reunification had elapsed -- rings hollow.

The other case cited by the department, Sarah C.,was an appeal from a parental rights termination brought by a biological father who did not meet the definition of either a statutorily-presumed father or a Kelsey S. father.The Sarah C. court upheld the decision denying appellant presumed father status. It further ruled, given the mans status as merely a biological father and the fact that he did not come forward until after the case was set for permanency planning, the court was not required to make a particularized finding that he was unfit and instead was entitled to focus on the childs best interests in deciding to terminate parental rights. (Sarah C., supra, 8 Cal.App.4that p. 981.)

Once again, the department ignores the fact that appellant was a statutorily-presumed parent and he came forward well before Elainas case reached the permanency planning phase. Thus, we fail to perceive any connection between Sarah C. and the record before this case.

Given the absence of any unfitness findings, as mandated by Santosky and Cynthia D., and thus the need to reverse the termination order, we are left to fashion a proper remand under the unique circumstances of this case which belie the normal dependency statutory scheme. Our reversal is not meant to be a hollow victory for appellant. The remand is not intended as a vehicle for the department to now attempt to prove appellants parental unfitness. Rather, our remand is intended to afford appellant a legitimate opportunity, through services such as those articulated by clinician Woesner, to build a relationship with and become a full-time parent to Elaina such that the need for dependency jurisdiction disappears.

DISPOSITION

The order terminating parental rights is reversed. On remand, the superior court shall conduct a new hearing, consistent with section 361.2, subdivisions (a) through (c) and taking into account the facts and circumstances as they currently exist.

In the event the superior court does not place Elaina with appellant pursuant to section 361.2, subdivision (a), the superior court nevertheless shall order reunification services designed to build a parent/child relationship between appellant and Elaina and transition the child into appellants care and custody. Thereafter, the court shall conduct a status review consistent with section 366.21, subdivision (e) as though the case were at the six-month review stage ( 366.21, subd. (e)) and proceed accordingly.

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^*Before Vartabedian, Acting P.J., Harris, J., and Cornell, J.

^[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] The department alleged other men had fathered the siblings.

^[3] Section 316.2, subdivision (b) both then and now provides in relevant part:

If, after the court inquiry, one or more men are identified as an alleged father, each alleged father shall be provided notice at his last and usual place of abode by certified mail return receipt requested alleging that he is or could be the father of the child. The notice shall state that the child is the subject of proceedings under Section 300 and that the proceedings could result in the termination of parental rights and adoption of the child. Judicial Council form Paternity-Waiver of Rights (JV-505) shall be included with the notice.

The JV-505 form, in effect in 2003, included the following notice:

To alleged father of the child:

As an alleged father of the child, you are not automatically entitled to services to reunify with the child or have the child placed with you or one of your relatives. If the court determines that you are the father of the child and issues a judgment of paternity, the court may order services but is not required to do so. If you deny that you are the father of the child and do not consent to scientific tests to indicate the probability or lack of probability that you are the father, and do not wish to participate in services that may be provided, you may so indicate on this form and voluntarily withdraw from the case concerning this child. You have the right to a court trial to determine paternity, at which you will have the right to be represented by an attorney. If you cannot afford an attorney, the court may appoint one for you. At a trial you have the right to cross-examine witnesses and to present evidence on your behalf. If you wish the court to determine paternity or if you wish to admit that you are the father of the child, complete this form according to your intentions.

^[4] The departments service logs containing this information did not come to light until the 2006 termination proceedings from which appellant has appealed.

^[5] According to Family Code section 7573, a completed voluntary declaration of paternity filed with the Department of Child Support Services shall establish the paternity of a child and shall have the same force and effect as a judgment for paternity issued by a court of competent jurisdiction. In addition, the voluntary declaration is entitled to recognition as a basis for the establishment of a child custody, visitation or support order.

^[6] Counsel made his request based upon section 361.2 which provides in subdivisions (a) as follows:

When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.

^[7] Once again, the department had failed to produce Elaina for two recent visits.

^[8] This was an apparent reference to Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.). In Kelsey S., the state Supreme Court held an unwed father who promptly comes forward and demonstrates a full commitment to his parental responsibilities -- emotional, financial, and otherwise is entitled to federal constitutional protections despite the fact that he could not qualify for presumed father status under the states statutory scheme. (Id. at p. 849.)

^[9] This is not surprising considering the department never made any showing of unfitness on appellants part.

^[10] Ironically, Gladys L. was published one week before the superior court issued its decision here.