Filed 2/6/14 In re K.W. CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




In re K.W. et al., Persons Coming Under the Juvenile                                         C073743
Court Law.

SACRAMENTO COUNTY DEPARTMENT OF                                                (Super. Ct. Nos. JD229602 &
HEALTH AND HUMAN SERVICES,                                                              JD229603)

                   Plaintiff and Respondent,

         v.

A.W.,

                   Defendant and Appellant.




         Adrian W., presumed father of minors K.W. and J.W., appeals from the juvenile
court’s orders terminating parental rights. (Welf. & Inst. Code, 1 § 366.26, 395.) He
contends the juvenile court erred by terminating his parental rights without finding



1   Further undesignated statutory references are to the Welfare and Institutions Code.

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detriment by clear and convincing evidence, or, using alternative terminology, without
finding him “an unfit parent.” As we will explain, because we agree that the required
finding of detriment by clear and convincing evidence does not appear in the record, we
must reverse and remand for the juvenile court to make the appropriate finding.
                                    BACKGROUND
       This is father’s third appeal in his children’s dependency case. Respondent
Sacramento County Department of Health and Human Services (“DHHS”) has asked us
to take judicial notice of our unpublished opinion affirming the juvenile court’s orders
denying father’s petitions for modification, In re K.W. (June 26, 2013, C071770)
[nonpub. opn.]. Father did not oppose the request; we treat the request as a motion to
augment the record and grant the motion.2 Father’s remaining appeal (case No.
C072101) is currently pending in this court.
       From our earlier opinion, we glean the following pertinent facts: In 2009, after
DHHS filed a section 300 petition against J.W. and K.W., the juvenile court found father
presumed. Father was incarcerated. When he initially appeared, he indicated through
counsel that he was not seeking placement or services, and the court designated him a
Robert L. father--a “non-offending, non-custodial parent not seeking services or
placement of the children.”3 The court found visitation with father would jeopardize the
minors’ safety.



2 We do the same with the reporter’s transcript of the January 14, 2010 juvenile court
hearing and the social worker’s April 15, 2011 progress report (from the clerk’s transcript
in In re K.W., supra, C071770), both also subjects of DHHS’s request. We previously
granted father’s request to take judicial notice of both parties’ briefing in the second of
father’s three appeals, case No. C072101.
3 See Robert L. v. Superior Court (1996) 45 Cal.App.4th 619 (Robert L.). We note that
father did not, however, execute the written waiver of reunification services (JV-195), as
required for a valid waiver by section 361.5, subdivision (b)(14). Accordingly, we do not
address whether the advisements contained in the written waiver form would have

                                               2
       In January 2010, father’s counsel inquired about reunification services and
requested visitation. The juvenile court reaffirmed its previous orders and noted any
change to those orders would require that father file a petition for modification.
       Father was briefly released from custody in January 2011 and asked to visit the
minors, who were by then in foster care. The juvenile court ordered continued letter
contact only. In April, the court held a progress hearing to address visits for father. By
then, father was back in custody, and the court ordered no change to the current orders.
       In May, father was released from custody and, again, requested visitation. He
reported he was employed as a painter and provided proof of attendance of several
classes he took while incarcerated, including anger management and domestic violence,
substance abuse, and parenting. DHHS recommended supervised visits and filed a
modification petition, but later withdrew the request.
       In August 2011, father filed petitions to modify requesting reunification services
and a general visitation order. In support of his petitions, he stated in pertinent part:
“The father’s position is that having a goal of return home to his care is the best
permanent plan for the children. Similarly, it is in the best interest of the children to see
and have a relationship with their father.” The juvenile court denied the petitions without
a hearing, finding they did not state new evidence or a change of circumstances and did
not promote the minors’ best interests.
       In August 2012, father filed new petitions to modify requesting reunification
services and visitation, and a hearing. He stated in pertinent part: “At the time no
reunification services were ordered, [he] was incarcerated. While incarcerated, he
participated successfully in many services. [] Since he has been released, he has worked




satisfied due process requirements or, if not, at least rendered the finding’s omission
harmless beyond a reasonable doubt.

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consistently and led a stable lifestyle.” He added that he was willing and able to “parent”
the minors, and that he was “able to provide care” for them.
          The juvenile court (Peterson, J.) denied the petitions without a hearing. We
affirmed that order, holding (in summary) that the juvenile court did not abuse its
discretion in finding the petition did not allege changed circumstances and that the
modification father sought was not in the minors’ best interests. (In re K.W., supra,
C071770, slip opn. at pp. 6-8.)
          In August 2012, DHHS again recommended visits for father. After a hearing, the
juvenile court denied father’s request for visits and maintained the no-contact order,
finding as to J.W. that “it would be detrimental for [J.W.] to reestablish a relationship
only then to be looking at terminating the relationship.” The court set a selection and
implementation hearing. Father appealed the court’s order denying him visits; that
appeal is currently pending in this court, case No. C072101.
          After multiple continuances, a contested selection and implementation hearing for
K.W. and J.W. commenced in April 2013. Father joined in mother’s assertion of the
beneficial parent-child relationship exception to adoption and in a third sibling’s
relationship exception to adoption. He also renewed his objection to the no-contact
orders.
          On May 2, 2013, the juvenile court found the minors adoptable, found no
exception to adoption applied, and terminated parental rights as to both minors. Father
filed a timely notice of appeal.
                                        DISCUSSION
          Father contends the juvenile court erred by terminating his parental rights without
finding detriment by clear and convincing evidence. DHHS responds first by arguing the
finding was not required, and then by attempting to argue the finding was made--first
expressly, then impliedly--and that any omission was harmless error. Finally, DHHS
asserts forfeiture and labels father’s appeal as untimely. As we explain post, the claim is

                                               4
not forfeited and it is timely; further, the finding is constitutionally required and is not
apparent from the record before us. Accordingly, we are compelled to reverse and
remand.
                                               I
                                  Forfeiture and Timeliness
       DHHS contends that father forfeited the issue by failing to raise it in the juvenile
court. Although DHHS makes this argument at the end of its briefing, we address it first
and disagree.
       The petition did not name father, and the children were never removed from his
care. He neither sought services, nor was he bypassed from receiving them. Although
his later requests for services, made in petitions to modify, were denied, the findings
made pursuant to those (§ 388) proceedings were completely different from those
required to remove his children from his custody or to terminate services or deny services
at the outset.
       In completing the relevant forms JV-320, on J.W.’s form the juvenile court
indicated by checking the applicable box that as to father as well as mother: “the court
previously made a finding denying or terminating reunification services under W&I
section 361.5, 366.21, 366.22, 366.25, 727.2, or 727.3.” But because father was
designated Robert L., and only sought services later through section 388 petitions, there
was never a finding made as to him under these sections, which require a finding of
detriment by clear and convincing evidence.4
       Although father had filed petitions for modification, seeking visitation and
services, these petitions were denied without evidentiary hearings, as set forth ante.
DHHS never made allegations regarding father’s parental fitness, thus father never had



4 Father’s name does not even appear on K.W.’s JV-320 and no findings are made
specifically as to him on that form.

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notice of precisely which facts DHHS would rely on to show detriment by clear and
convincing evidence or the opportunity to present evidence regarding those facts. “[W]e
are reluctant to enforce the waiver rule when it conflicts with due process.” (In re Frank
R. (2011) 192 Cal.App.4th 532, 539.)
       DHHS adds that father’s appeal is untimely because he did not appeal the
dispositional order. But we have already held that the claim father now raises was not
ripe until the juvenile court terminated his parental rights--in fact, we declined to hear it
earlier. (In re K.W., supra, C071770, slip opn. at p. 9.)
       We therefore proceed to the merits of father’s claim.
                                              II
                                   Statutory Requirements
       Section 361.2, subdivision (a) provides: “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.” In order to deny
placement, the court must find detriment by clear and convincing evidence. (In re Abram
L. (2013) 219 Cal.App.4th 452, 461.)
       Father is a non-custodial, non-offending parent. Had he sought custody of his
children at any point in the proceedings, the juvenile court, in applying section 361.2,
would have been required to find detriment to the minors, by clear and convincing
evidence, in order to avoid placing them with him.5 We agree with DHHS that father at



5 According to reports prepared by social workers, father has a significant criminal
history that includes violence against the minors’ mother and multiple felony and

                                              6
no time sought custody, despite his attempts on appeal to characterize his requests for
services and visits as the equivalent.
       DHHS argues that section 361.2 requires a detriment finding for non-custodial
parents only when the non-custodial parent seeks custody. While technically true, this
argument ignores the constitutional requirements. As we discuss immediately post,
section 361.2 does not supersede, circumvent, or in any way diminish the due process
requirement that the court find detriment by clear and convincing evidence at some point
before terminating parental rights, regardless of whether the parent seeks custody.
                                              III
                                 Due Process Requirements
       A. The Law
       “Parents have a fundamental interest in the care, companionship, and custody of
their children. (Santosky v. Kramer (1982) 455 U.S. 745, 758 [71 L.Ed.2d 599]
(Santosky).) Santosky 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.’ [Citation.] ‘After the State has
established parental unfitness at that initial proceeding, the court may assume at the
dispositional stage that the interests of the child and the natural parents do diverge.’
[Citation.] ‘But until the State proves parental unfitness, the child and his parents share a
vital interest in preventing erroneous termination of their natural relationship.’ [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



misdemeanor convictions, and is required by Penal Code section 290 to register as a sex
offender for a 1981 rape conviction.

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(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.’ [Citation.] The
linchpin to the constitutionality of the section 366.26 hearing is that prior determinations
ensure ‘the evidence of detriment is already so clear and convincing that more cannot be
required without prejudice to the interests of the adoptable child, with which the state
must align itself.’” (In re Gladys L. (2006) 141 Cal.App.4th 845, 848, some italics
added; accord, In re Frank R., supra 192 Cal.App.4th at p. 537.)
       California’s dependency scheme does not use the term “parental unfitness,”
requiring instead that the juvenile court find that awarding custody of a dependent child
to a parent would be “detrimental to the child.” (In re Dakota H. (2005) 132 Cal.App.4th
212, 224, fn. 3.)
       B. Analysis
       Presumably because father sought neither custody nor services at the beginning of
the dependency case, did not request anything other than visitation until the case was well
underway, and never did seek custody, the juvenile court did not double back at some
point before terminating his parental rights and make the necessary finding of detriment
by clear and convincing evidence. Nor did the juvenile court have any occasion to take
evidence on father’s parental fitness or lack of fitness, as father was not named in the
petition and his motions to modify were denied without evidentiary hearing. Thus
father’s parental rights were terminated without the benefit of specific allegations of
parental unfitness, the chance to rebut the allegations, or the requisite finding.
       In In re Frank R., supra, 192 Cal.App.4th 532, the appellate court held the failure
to find detriment by clear and convincing evidence was reversible error. There, like here,
the children were removed from mother’s custody and the presumed father was found
non-offending. (In re Frank R., supra 192 Cal.App.4th at p. 535). Father did not seek

                                              8
custody or services, and was awarded visitation but visited only sporadically. (In re
Frank R., supra, at pp. 535-336.) In reversing the termination of his parental rights, the
court observed that “although there may be valid bases for the juvenile court to make a
finding of father’s unfitness, the court never made that finding, let alone by the required
clear and convincing standard. We may not make that finding here or infer such a
finding.” (Id. at p. 539.) Although DHHS attempts to distinguish In re Frank R., and
then questions its rationale, we find it on point and persuasive.
       Here, although DHHS argues that the requisite finding was, in fact, made as to
father “at three review hearings” where the court used the plural “parents,” it admits that
the juvenile court did not specify that it was applying the clear and convincing standard
of proof. Setting aside the fact that DHHS admits the findings were regarding potential
return of the child to parental (mother’s) custody and (mother’s) progress in services--as
custody and services were two things father never had--we see no reason why the
juvenile court would apply this higher standard at these review hearings, let alone any
evidence that it did. Alarmingly, DHHS asks that we infer that the findings were by clear
and convincing evidence from the fact that the court made the findings three different
times. This we cannot do.
       DHHS adds that “an implied finding of risk of detriment is virtually compelled by
the record in this case,” conflating its argument for an implied finding with an argument
for harmless error. Although we do not disagree that father may have an uphill battle in
establishing parental fitness, we do not function as the petitioner, nor as the fact-finder.
Father was neither accused of parental unfitness in the juvenile court, nor was he afforded
a chance to demonstrate his fitness, if he could. As we have touched on ante, finding
father unfit at this juncture would deny him notice of, and an opportunity to respond to,
specific charges against him.
       For this same reason, we decline DHHS’s invitation to find the failure to make the
requisite finding “clearly harmless.” Although DHHS argues that “it is highly

                                              9
improbable that a more favorable result would have been reached in the absence of
error,” it applies the wrong standard. Harmlessness in constitutional errors such as this
one necessitates a showing beyond a reasonable doubt. (See Chapman v. California
(1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711.]) Here, because of the lack of any
accusation as well as opportunity to rebut the proof supporting it, we cannot say the error
was harmless beyond a reasonable doubt.
                                     DISPOSITION
       The orders terminating parental rights are reversed. The matter is remanded for
hearing in the juvenile court. If the juvenile court determines, by clear and convincing
evidence, that awarding custody of the minors to father would be detrimental to the
minors, the orders shall be reinstated. If a different determination is made, the orders
shall remain vacated and the juvenile court shall proceed accordingly.



                                                        DUARTE                , J.



We concur:

s

      BLEASE                , Acting P. J.



      NICHOLSON             , J.




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