Riverside Cnty. Dep't of Pub. Soc. Servs. v. D.H. (In re D.H.)

*722 "Principles of due process require that the juvenile court not terminate a presumed father's parental rights without first finding, by clear and convincing evidence, that the father is unfit." ( In re G.S.R. (2008) 159 Cal.App.4th 1202 , 1205, 72 Cal.Rptr.3d 398 ( G.S.R. ).) In this dependency appeal, D.H., Sr. (father), the presumed father of D.H., argues the juvenile court violated due process by terminating his parental rights without making an unfitness or detriment finding against him by clear and convincing evidence at any point in the proceedings.

Beginning with In re Gladys L. (2006) 141 Cal.App.4th 845 , 46 Cal.Rptr.3d 434 ( Gladys L. ), appellate courts have held juvenile courts must make a parental unfitness or detriment finding by clear and convincing evidence before terminating the rights of noncustodial, nonoffending fathers. As we explain post , the court's termination of father's rights violated this important constitutional safeguard because at no point in this dependency was it either "alleged [ ]or proven that [he] was an unfit parent." ( Id . at p. 847, 46 Cal.Rptr.3d 434 .) Here, D.H. was removed from, and failed to reunify with, his paternal…

Today my colleagues hold that the juvenile court erred by terminating parental rights of D.H., Sr., a noncustodial father, because no unfitness or detriment finding had been made as to him prior to severing the familial relationship. I agree that the juvenile court erred, but I dissent from the majority's assumption that no finding of detriment had ever been made and that father's noncustodial status had not been interrupted by a removal of custody, when the record is incomplete. In my view, remand should be ordered to direct the juvenile court to review the probate guardianship file to determine the nature of the factual findings made in that proceeding, where, as a matter of law, custody was removed from both parents.

DISCUSSION

The majority concludes that reversal of the termination of parental rights is required because there was never a finding of detriment against father, nor was there a removal of custody from him. This is a bold statement given that at no time has this court, nor the trial court, nor any of the parties sought to review the guardianship file.

Because the appointment of a guardian involves an award of custody to a nonparent, there was necessarily a…