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A Nonoffending Parent Does Not Lose Parental Rights...

…But you can sure lose your parental rights for other reasons!

Mother [M] and Father [F] never married but they had a son [S] together. M struggled with drug abuse (specifically methamphetamine) and gave up S to F’s parents to raise him.

F’s parents [GM] and [GF] raised S for many years while F and his new girlfriend lived in in their garage. S spent time with F when F was around, but for long periods of time (months to a year) F had no contact with S.

In March of 2014, neighbors made anonymous calls to the Department of Public Social Services [DPSS], alleging that S was being neglected. A social worker investigated the allegations, and found F living in the garage with his girlfriend and abusing drugs. The social worker also found GM had been taking drugs with F’s girlfriend and GF was not protecting S from his family’s behavior.

DPSS petitioned the Juvenile Court to take custody of S and put him in foster care for his safety. The court agreed with DPSS, and placed S in foster care. The court also put GM and GF on a DPSS monitored plan for the return of S’s custody. The plan included monitored visitations for GM and GF with S, drug testing of GM, and F and his girlfriend could not live with them.

At the six-month hearing, DPSS informed the court that GM and GF were following the plan, and that F no longer lived with them. The court increased visitation to include over-night visits by S. At the twelve-month hearing, however, DPSS informed the court that F was now living in the garage and that GM and GF were allowing him to take S places without their supervision.

DPSS recommended that GM and GF lose all custodial rights to S, and that S be placed in a foster home so he could be adopted. A social worker was able to contact F and let him know of the hearing date to permanently remove custodial rights to S. F asked if he could reclaim his parental rights and get custody of S. The social worker suggested he attend get a lawyer and attend the hearing. F did so.

At the hearing, the court removed all custodial rights from S’s grandparents and made S available for adoption. F requested that he be granted custody and the court refused calling him a “non-offending” parent, but he had no parental rights to S.

A “nonoffending” parent is one who has not been the subject of a jurisdictional finding under Welfare and Institutions Code section 300. F is nonoffending because the court never included him in the actions regarding S and his grandparents.

F appealed, and the Appellate Court agreed with F: “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.” Since F was never a party to S’s custodial matters, he could not be considered unfit. (However, DPSS could still investigate F to determine if he were an unfit parent.)