HOUSING AND FINANCIAL DIFFICULTIES ALONE DO NOT MARK A PARENT A RISK TO THE CHILDREN’S WELLBEING AND TERMINATION OF SERVICES CANNOT BE ORDERED BASED ON THIS FACT ALONE. TRIAL COURTS ORDERING TERMINATION OF SERVICES AND PARENTAL RIGHTS WAS A DUE PROCESS VIOLATION.
In re G.S.R. (2008) 159 Cal.App.4th 1202., the court faces the issue of whether homelessness or inability to afford housing can stand alone as clear and convincing evidence of parental unfitness. The trial court found father’s poverty clear and convincing evidence of parental unfitness despite the father’s standing as a non offending parent, bond with his children, and compliance with his case plan, and ordered that his family reunification services be terminated and a hearing pursuant to Welf and Inst Code § 366.26 be calendared. The father filed a timely appeal and the appellate court ordered a reverse and remand on the grounds that the father’s proper status and bond with his children throughout the hearing demonstrated that he was of no detriment to his children and that the department violated his due process rights by failing to show proof of sufficient detriment to the minors.
The father at the time of detention did not have proper housing but was willing to move in with family relatives to secure stable housing for his children. Upon advice from minor’s counsel he refrained from moving in as it would jeopardize their benefits. Aside from housing father demonstrated consistent involvement in his children’s lives. He engaged with their after school activities, provided for their food and educational needs, and overall maintained a strong bond with his children. At the detention hearing he was designated the non offending parent and was given limited case plan requirements. The department ordered that his visitation be liberalized at unmonitored visits each week. At the time he was living in an apartment that did not permit multiple residents thus rendering his children’s placement impermissible. He had been ordered DV classes due to past domestic violence issues but completed those classes. At the next review hearing, he requested that he be allowed to move in with the mother and requested an extension of time to complete his case plan. The juvenile court denied his request citing that their living situation would prove detrimental to the minor and ordered that services be terminated and a permanency hearing be set. The court argued that the father’s lack of housing, unstable lifestyle, and failure to raise appeal prior orders finding detriment all contributed to the overall risk of detriment to the children. The trial court found the department proffered clear and convincing evidence of father’s risk of detriment, found the minors generally adoptable, and ordered termination of parental rights. Father and minors filed timely appeals.
The court of appeals found that the department violated father’s due process right (Santoky rights) when they severed father’s parental rights without a prior finding of parental unfitness and the fact that the department found father unfit based on the single inability to secure housing. The father contends that the juvenile court erred when it found him unfit based on the single issue of housing as that issue alone did not meet the current standard of proof of determining parental unfitness; clear and convincing evidence.
Juvenile court mandates that parents are granted due process right of finding of parental unfitness before severance of rights as parents serve as key caregivers with vested interests in their children. (Santosky v. Kramer (1982) 455 U.S. 745, 758, 102 S.Ct. 1388, 71 L.Ed.2d 599). Because of this consideration, the trial must make a finding of parental fitness by clear and convincing evidence prior to termination of parental rights. The evidence presented by the department must be clear enough that any more evidence would “prejudice the interests of the adoptable child” meaning that the amount of evidence of detriment must be great enough just bordering on prejudice to the minor. (In re Gladys L., supra, 141 Cal.App.4th at p. 848, 46 Cal.Rptr.3d 434.). Should the court meet this strict burden of proof, then and only then may they severe parental rights. In the matter of this case, the father was found to be the non offending parent and ordered liberalized visitation. He had a prior incident of domestic violence that was resolved prior to the 300 petition for this case. The department did not find that this prior evidence enough to meet the burden of proof finding father a clear and convincing risk of detriment to the children. Like the father in In re Gladys L., supra, 141 Cal.App.4th at p. 848, 46 Cal.Rptr.3d 434, father may have been absent for the first few years but once he was confirmed as the father the court found he never was found unfit and placement would not endanger the children. However, the GSR court found that the father was even more compelling for the following reason:
He has been involved with his sons throughout their lives, before and during this dependency proceeding.3 He always provided financial support, visited regularly, participated in the boys' schooling by helping with homework, and attending an IEP meeting and awards ceremony, and maintained contact with DCFS even when he lacked a place to live
Because of his involvement, he demonstrated an active participant in his children’s lives rather than simply a non offending parent.
The court returns to the primary contention that father’s lack of housing as a risk of detriment to the minor. The law specifically finds that “no minor shall be found to be a person described by this subdivision solely due to the lack of an emergency shelter for the family․” Welf and Inst Code § 300 (b).
Put differently, indigency, by itself, does not make one an unfit parent and “judges [and] social workers ․ have an obligation to guard against the influence of class and life style biases.” (In re Cheryl E. (1984) 161 Cal.App.3d 587, 607, 207 Cal.Rptr. 728.)
The appellate court notes the record where there are numerous places where the social worker cites father’s inability to obtain housing as a risk of detriment. The social worker opined that his inability to gain housing was a show of lack of interest in caring for his children nor seeking placement with them. However, the record indicates that there was a conflict of interest with the father moving in with the mother for financial reasons. In addition, the department cites father’s failure to appear at several AA meetings as proof of risk of detriment. The record again indicates that father’s sobriety never played a role in the 300 petition for removal nor since. The department incorrectly cites In re P.A. (2007) 155 Cal.App.4th 1197, 66 Cal.Rptr.3d 783. Unlike the father in this case, that father failed to make many court appearances, did not request services, and make little attempts at compliance. As mentioned before, father actively was engaged in both his services, bonding with his children, and serving as a parental figure to the children. The appellate court summarized the difference as this father demonstrated that he cared for his children beyond simple parental status and his engagement was proof. The appellate opined that it was error to and a breach of due process to solely discriminate against poverty in separating the natural parent and child bond especially given that the father and children were closely bonded and cared for.
Because the trial court record reflected that father demonstrated excellent care and diligence to his children, completion of his case plan except for housing, and non offender status, the appellate court found that the trial court erred in its decision to terminate parental rights and ordered a reverse and remand of the prior decision.
Juvenile Dependency and