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Name: In re D.H.
Case #: E066818
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 08/22/2017

Juvenile court must make a finding of unfitness or detriment before terminating father’s rights to minor who was in a probate guardianship with grandparents at the time of the dependency action. The minor was in a probate guardianship with his paternal grandparents when the Department filed a dependency petition due to the grandparents’ substance abuse and neglect. Grandparents failed to reunify and a 366.26 hearing was set. Father’s whereabouts were unknown throughout the proceedings, but he appeared for the 366.26 hearing. The Department recommended termination of the guardianship, and termination of father’s parental rights, freeing the minor for adoption. The court followed the recommendation and terminated father’s parental rights. The appellate court reversed the order. Citing In Re Gladys L. (2006) 141 Cal.App.4th 845, the court held that the juvenile court must make a parental unfitness or detriment finding by clear and convincing evidence before terminating the rights of noncustodial, nonoffending fathers. Here, the minor was removed from the paternal grandparents who had been caring for him under a probate guardianship. The entire case focused on the grandparents, not father. Respondent argued that the court should depart from Gladys L. and adopt a best interest of the child standard for terminating parental rights under Probate Code section 1516.5. The court declined to do so, finding that the constitutional safeguards articulated in Gladys L. did not vanish simply because the minor was under a legal guardianship at the time of the dependency. The court reversed the order and remanded to the juvenile court to determine whether there is clear and convincing evidence of detriment based upon the facts as they currently exist.