In re Z.Y. CA1/1 ( 2022 )

Filed 4/18/22 In re Z.Y. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION ONE
In re Z.Y., a Person Coming Under
the Juvenile Court Law.
SAN FRANCISCO HUMAN
SERVICES AGENCY,
Plaintiff and Respondent, A163486
v.
(San Francisco County
A.D. et al.,
Super. Ct. No. JD20-3040)
Defendants and Appellants.
A.D. (mother) and H.Y. (father) appeal from a juvenile court order
terminating their parental rights to their son, three-year-old Z.Y. Mother
claims that the court considered improper factors in concluding she did not
establish the parental-benefit exception to termination. This exception
applies when there is “a compelling reason for determining that termination
would be detrimental to the child” because a parent has “maintained regular
visitation and contact with the child and the child would benefit from
continuing the relationship.” (Welf. & Inst. Code, § 366.26,
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subd. (c)(1)(B)(i).)1 Father argues only that if we reverse the termination of
mother’s parental rights for this reason, we must also reverse the
termination of his parental rights. We conclude that the court did not err in
finding the parental-benefit exception inapplicable to mother and therefore
affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
In early 2020, mother, father, and then 17-month-old Z.Y. were
homeless and staying with a friend in San Francisco.2 They were receiving
voluntary services due to concerns about domestic violence between mother
and father and mother’s mental health. Around 3:00 a.m. on February 1,
father called the police to report he and Z.Y. had been kidnapped. When
officers responded, father was outside on the street with Z.Y., who was under-
dressed for the cold weather. Father admitted to using methamphetamine,
and mother later admitted she had also used methamphetamine. Z.Y. was
removed from the parents, and shortly afterward mother attempted suicide
and was involuntarily hospitalized.
The San Francisco Human Services Agency (Agency) then filed a
petition alleging that the juvenile court had jurisdiction over Z.Y. under
section 300, subdivisions (b) and (c), based on both parents’ drug use, mental-
health issues, and history of domestic violence. The court ordered Z.Y.
1 All further statutory references are to the Welfare and Institutions
Code.
Mother and father were not married, but father was declared Z.Y.’s
2
presumed father after DNA testing confirmed a biological relationship.
Because father does not claim on appeal that termination of his parental
rights was independently improper, we do not discuss facts related to him
except for context.
2
detained, and he was placed in a foster home. Mother was allowed to have
supervised visits with Z.Y.
Due to the COVID-19 pandemic, the jurisdiction/disposition hearing
was not held for another five months. During that time, mother had regular
virtual visits with Z.Y. Z.Y.’s foster parents reported that he was “not excited
to see his mother,” who “was using the visitation time to share her personal
problems with [the foster parents], instead of using the time to focus on [her
son].”
In late August 2020, after both parents submitted on the issue, the
juvenile court found true amended allegations under section 300,
subdivision (b), that there was a substantial risk of harm to Z.Y. based on
both parents’ substance-abuse issues, mother’s mental-health issues, and the
parents’ “volatile relationship.” The court ordered reunification services for
mother, and father waived services. Supervised visitation was also continued
for mother.
A six-month-review report filed in January 2021 indicated that mother
continued to visit regularly with Z.Y. She still discussed her personal
problems with his foster parents, but she was also observed to be “nurturing
toward [Z.Y.] in that she hugs, kisses[,] and praises [him] for his good
behaviors.” Between August and November 2020, mother missed several
required drug tests and tested positive for methamphetamine three times,
although she had recently entered a residential treatment program. She had
not, however, started domestic-violence services or individual therapy as her
case plan required. Overall, mother had “struggled to consistently engage in
services” over the prior year, and the Agency recommended that her
reunification services be terminated.
3
Two months later, the Agency filed an addendum report that observed
mother had “minimally engaged in Case Plan services” since the previous
update. She had begun domestic-violence services, but she failed to follow
through on individual therapy. In addition, in mid-January 2021 she was
discharged from the residential treatment program because she was using
drugs, although she had recently been readmitted. As for visitation, mother
continued to see Z.Y. both in person and virtually, but she missed several
visits, appeared sleepy during others, and “struggle[d] [to have] age[-]
appropriate conversations with [her son].” The Agency continued to
recommend that mother’s reunification services be terminated.
At the six-month-review hearing in April 2021, the juvenile court found
that mother’s progress toward mitigating the causes of Z.Y.’s out-of-home
placement was “minimal.” The court terminated her reunification services
and set a selection-and-implementation hearing under section 366.26.
Mother was permitted to continue virtual visits with Z.Y.
The section 366.26 report filed in July 2021 recommended that
mother’s and father’s parental rights be terminated and adoption be Z.Y.’s
permanent plan. The foster parents wished to adopt Z.Y., who had been in
their care for over a year and “regard[ed] them as his parents.” Mother
continued to have visits with her son, which he “seemed to enjoy,” and the
report noted that he “appear[ed] to have a relationship with . . . mother and
benefit[ed] from having consistent contact with [her].”
The following month, a contested section 366.26 hearing was held. A
social worker, the only witness at the hearing, testified that based on her
review of “the visitation documentation,” mother’s visits with Z.Y. generally
“went well.” Mother could be “very loving, very caring” toward Z.Y., and he
generally was “glad to see [her]” and sometimes called her his mother. The
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social worker agreed that it would be beneficial for Z.Y. to continue a
relationship with mother “[i]n some capacity,” and his foster parents were
open to reaching a post-adoption contact agreement under which she could
still have contact with him. The social worker opined that nonetheless, the
benefits to Z.Y. of “continuity and permanency” outweighed those of
preserving the parental relationship.
Mother’s counsel then argued that the parental-benefit exception to
termination applied. Noting that the social worker had described an
“important and beneficial” relationship between mother and Z.Y., counsel
contended it would be “improper for the [juvenile c]ourt to terminate parental
rights” absent an “enforceable agreement” preserving the relationship. The
Agency’s counsel responded that mother needed to demonstrate not just a
positive relationship “but a parent-child relationship, which requires expert
testimony and an expert opinion.” The Agency’s counsel also argued that
even if the requisite relationship had been proven, the benefits of continuing
it were clearly outweighed by the benefits of adoption.
The juvenile court found by clear and convincing evidence that Z.Y. was
adoptable, which neither parent disputed. The court ruled that the parental-
benefit exception to termination did not apply, explaining as follows:
“The Court finds that . . . in regards to the benefit of the
relationship, there is a benefit, but I agree with [the Agency’s
counsel] that it is not a parental-bond exception benefit.
“ . . . I will find that [mother’s] visits are regular and they
have been going well, but I don’t believe that it reaches the level
of a parental-bond exception, which is a parental role in regards
to the child.
[¶] . . . [¶]
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“In regards to [mother], the first part has been met, but I
don’t find that the relationship created by the visitation is such
that it mandates a parental-bond exception—well, that is not a
parental-bond exception.
“I find in regards to what the child is looking at and in
regards to what the child is facing that it seems to me that the
current caregivers in regards to their availability are of such a
nature that it exceeds the benefit that is derived from visits by
[mother.]
“I hope that the [post-adoption contact agreement] does go
forward and creates an ongoing visitation, but at this point I
don’t find that [the] exception has been met.”
The court then terminated mother’s and father’s parental rights.
II.
DISCUSSION
Mother claims the juvenile court erred by terminating her parental
rights to Z.Y. because it relied on improper factors to conclude the parental-
benefit exception did not apply.3 We are not persuaded.
A. General Legal Standards
After a juvenile court determines that a child is adoptable, it must
“terminate parental rights and order the child placed for adoption” unless a
statutory exception applies. (§ 366.26, subd. (c)(1).) One such exception is
the “parental-benefit exception,” whose scope the Supreme Court recently
clarified in In re Caden C. (2021) 11 Cal.5th 614 (Caden C.). To establish the
exception, a parent must demonstrate: “(1) regular visitation and contact,
3 As previously noted, father joins this claim on the basis that if we
reverse the termination of mother’s parental rights, we must reverse the
termination of his parental rights as well. (See Cal. Rules of Court,
rule 5.725(a)(1) [prohibiting termination of parental rights of only one parent
except in limited circumstances].)
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and (2) a relationship, the continuation of which would benefit the child such
that (3) the termination of parental rights would be detrimental to the child.”
(Id. at p. 631, italics omitted.) As mentioned above, the juvenile court found
mother maintained regulation visitation, and that element is not at issue.
Mother argues that reversal is required because the juvenile court used
an incorrect legal standard to assess the second element of the parental-
benefit exception, whether she and Z.Y. “had a beneficial relationship as
defined by Caden C.” Caden C. explained that to establish the second
element, “the parent must show that the child has a substantial, positive,
emotional attachment to the parent—the kind of attachment implying that
the child would benefit from continuing the relationship.” (Caden C., supra,
11 Cal.5th at p. 636.) In evaluating this element, “the focus is the child. And
the relationship may be shaped by a slew of factors, such as ‘[t]he age of the
child, the portion of the child’s life spent in the parent’s custody, the
“positive” or “negative” effect of interaction between parent and child, and the
child’s particular needs.’ ” (Id. at p. 632.) The Supreme Court emphasized
that “rarely do ‘[p]arent-child relationships’ conform to an entirely consistent
pattern,” and “it is not necessary—even if it were possible—to calibrate a
precise ‘quantitative measurement of the specific amount of “comfort,
nourishment[,] or physical care” [the parent] provided during . . . visits.’ ”
(Ibid.)
Whether the second element of the parental-benefit exception is met
requires a juvenile court to make a factual determination that we review for
substantial evidence. (Caden C., supra, 11 Cal.5th at pp. 639–640.) The
third element, “whether termination of parental rights would be detrimental
to the child,” also requires “a series of factual determinations” that we review
for substantial evidence. (Id. at p. 640.) But “the ultimate decision—whether
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termination of parental rights would be detrimental to the child due to the
child’s relationship with [the] parent—is discretionary and properly reviewed
for abuse of discretion.” (Ibid.)
B. The Juvenile Court Did Not Err in Assessing the Second Element
of the Parental-benefit Exception.
Mother claims the juvenile court improperly evaluated the statutory
exception’s second element because the court (1) “considered whether there
was a ‘parental-bond’ between [her] and Z.Y., including whether expert
testimony was required to show a beneficial relationship”; and (2) “analyzed
Z.Y.[’s] relationship with his then current caregivers.” We consider these
points in turn.
1. The description of the required relationship as “parental”
Before Caden C., courts generally required parents to show they
“ ‘occupie[d] a parental role in the child’s life, resulting in a significant,
positive, emotional attachment from child to parent,’ ” but “Caden C. did not
use the words ‘parental role’ in its analysis.” (In re L.A.-O. (2021)
73 Cal.App.5th 197, 209–210 (L.A.-O.), italics added.) As L.A.-O. explained,
“the words ‘parental role,’ standing alone, can have several different
meanings” that may be inconsistent with Caden C. (L.A.-O., at p. 210; see In
re J.D. (2021) 70 Cal.App.5th 833, 864 (J.D.) [the word “ ‘parental’ . . . is
vague and unhelpful in this context”].) For example, the phrase “can mean
being the person whom the child regards as his or her parent (or at least as
more his or her parent than any caregiver),” but “the parental-benefit
exception does not require that the parent be the child’s primary
attachment.” (L.A.-O., at p. 210; see J.D., at p. 865; In re B.D. (2021)
66 Cal.App.5th 1218, 1229–1230 (B.D.).) The phrase “can mean being a good
parent—nurturing, supporting, and guiding,” but under Caden C. a parent
need not “have overcome the struggles that led to the dependency” or “be
8
capable of resuming custody” for the exception to apply. (L.A.-O., at p. 210.)
And finally, although the phrase “can also mean giving parental care, such as
changing diapers, providing toys and food, and helping with homework,” this
interpretation may conflict “with Caden C.’s warning that ‘rarely do
“[p]arent-child relationships” conform to an entirely consistent pattern.’ ”
(Ibid.; see In re D.M. (2021) 71 Cal.App.5th 261, 270 (D.M.); J.D., at p. 865.)
Based on the tension between the concept of a parental relationship
and Caden C.’s discussion of the required beneficial relationship, several
post-Caden C. decisions have reversed orders terminating parental rights and
remanded for reconsideration where the juvenile court focused on the lack of
a “parental bond” or “parental role” in determining the statutory exception
was not met. (L.A.-O., supra, 73 Cal.App.5th at pp. 210–211; D.M., supra,
71 Cal.App.5th at pp. 270–271; J.D., supra, 70 Cal.App.5th at pp. 863–865;
B.D., supra, 66 Cal.App.5th at pp. 1229–1230.) In each case, either the
juvenile court explicitly relied on improper factors (D.M., at p. 270; B.D., at
p. 1228), or the Court of Appeal could not be sure that the lower court applied
the correct legal standard when concluding a “parental” relationship did not
exist (L.A.-O., at pp. 211–212; J.D., at p. 865).
Initially, although mother complains about the juvenile court’s use of
both the phrases “parental-bond” and “parental role,” we focus our discussion
on the latter phrase. In ruling that mother did not meet the second element
of the parental-benefit exception, the juvenile court used “parental-bond” only
as an adjective in the phrase “parental-bond exception,” and the court never
stated that a “parental bond” was required. Viewed in context, these
references to the “parental-bond exception” do not imply that the court
believed a “parental bond” was necessary. Caden C. repeatedly referred to
the “parental-benefit exception,” wording that arguably also suggests a
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parental relationship is required, but the Supreme Court emphasized that
such labels “[did] not reflect any substantive determination about the
requirements to prove the exception.” (Caden C., supra, 11 Cal.5th at p. 625,
fn. 2.) Similarly, we will not ascribe any particular significance to the
juvenile court’s labeling of the exception.
In contrast, when the juvenile court indicated that mother did not meet
the second element of the statutory exception—a relationship that would
benefit the child if continued—because she did not occupy a “parental role,”
this reflected the court’s substantive determination about the exception’s
requirements. We agree with the Agency that, as mother concedes, L.A.-O.
and the other cases cited above do not hold that “consideration of whether the
parent has acted in a ‘parental role’ is per se reversible error when declining
to apply the [parental-benefit] exception.” As L.A.-O. explained, in the pre-
Caden C. case law “a ‘parental role’ is defined largely in terms of what it is
not. It is not merely frequent and loving contact; it is not merely pleasant
visits; it is not being merely a friendly visitor; and it is not merely an
emotional bond (as opposed to a significant, positive, emotional attachment).
This list of ‘nots’ is consistent with Caden C.” (L.A.-O., supra, 73 Cal.App.5th
at pp. 210–211, italics added.) Thus, while it may be “better not to use the
words ‘parental role’ at all” because of their ambiguity (id. at p. 211), whether
a juvenile court has improperly relied on the concept of a “parental role” to
require something more than “a substantial, positive, emotional attachment
to the parent” (Caden C., supra, 11 Cal.5th at p. 636) must be judged in
context.
A more recent decision, In re A.L. (2022) 73 Cal.App.5th 1131 (A.L.),
illustrates this principle. In A.L., the juvenile court determined that the
child’s father had a positive attachment to the child “from which she
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benefited” and “that severing the minor’s relationship with [the] father would
be ‘a loss.’ ” (Id. at p. 1149.) Nonetheless, the court concluded the parental-
benefit exception did not apply, finding that the loss of this relationship “was
one ‘[the minor] would be able to adjust to’ ” and “not[ing] that [her]
caregivers had ‘occupied the parental role’ for the past one and one-half years
of the minor’s life.” (Ibid.)
On appeal, the A.L. father claimed the juvenile court improperly
considered whether he occupied a “ ‘parental role’ . . . in determining whether
there was a beneficial relationship between [him] and [his] child.” (A.L.,
supra, 73 Cal.App.5th at p. 1154.) The Sixth District Court of Appeal
disagreed, “conclud[ing] that the juvenile court—contrary to [the] father’s
contention—held that [he] in fact had satisfied the second [element] of the
parental-benefit exception.” (Id. at p. 1155.) Even though the lower court
had mentioned the concept of a “parental role,” its recognition of the pair’s
positive relationship demonstrated it had “made a finding that the minor
would . . . benefit from continuing the relationship with [her] father.”4 (Ibid.)
Here, we similarly conclude that the juvenile court’s reference to a
“parental role” does not require reversal after considering the reference in
context. To begin with, the juvenile court did not explicitly rely on improper
factors, as did the lower courts in B.D. and D.M. In suggesting otherwise,
mother claims only that the court erroneously “considered . . . whether expert
testimony was required to show a beneficial relationship.” We agree that
4At oral argument, mother contended that A.L. is inapposite because it
concerned the third element of the parental-benefit exception. Although the
juvenile court in that case mentioned the foster parents’ “parental role” when
addressing the third element, the father argued that the court’s language
showed it faulted him for not occupying a parental role for purposes of the
second element. (A.L., supra, 73 Cal.App.5th at pp. 1149, 1155.)
11
such evidence, while often highly relevant, “is not required as a matter of
law” (J.D., supra, 70 Cal.App.5th at p. 862), and the Agency’s counsel
incorrectly argued below that it was. But while the juvenile court “agree[d]
with [counsel] that [the benefit of the relationship] is not a parental-bond
exception benefit,” it did not thereby indicate it accepted counsel’s specific
point about expert testimony. Nor did the court otherwise suggest its
decision was based on the lack of such evidence.
We also conclude that the finding that mother did not occupy a
“parental role” does not, when considered in context, raise a significant
concern that the juvenile court applied an improper legal standard. Mother
claims that the court’s ruling was “terse,” like those at issue in L.A.-O. and
J.D., meaning we should follow those cases and remand to ensure the correct
law is applied. (See L.A.-O., supra, 73 Cal.App.5th at p. 211; J.D., supra,
70 Cal.App.5th at pp. 864–865; see also In re D.P. (2022) 76 Cal.App.5th 153,
166 [reversing under Caden C. where juvenile court “performed no specific
analysis on the [parental-benefit] exception, instead finding only that the
parents presented inadequate evidence to justify any exception”]; In re
Katherine J. (2022) 75 Cal.App.5th 303, 319 [juvenile court must “do more
than summarily state that a parent has not occupied a parental role”].) But
in our view, this disposition would transgress the basic principle that “ ‘ “[w]e
must indulge in every presumption to uphold a judgment, and it is
[appellant’s] burden on appeal to affirmatively demonstrate error—it will not
be presumed.” ’ ” (A.L., supra, 73 Cal.App.5th at p. 1161.) In particular, we
normally assume that the lower court “ ‘kn[ew] and applied the correct
statutory and case law in the exercise of its official duties.’ ” (People v.
Bankers Ins. Co. (2020) 57 Cal.App.5th 418, 425.) And as A.L. explained, a
court is “not required to state its findings in concluding that the parental-
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benefit exception [does] not apply.” (A.L., at pp. 1156, 1161.) Thus, absent
any affirmative indication that the court erred, we will not presume that it
did so based merely on the ruling’s brevity, which was understandable given
the factual record. Mother did not testify, and there was a dearth of other
evidence to support her position that the parental-benefit exception applied.
This record further allays any concern we might have about whether the
court applied the proper legal standard.
We acknowledge that there is some tension between our holding and
J.D. and L.A.-O. But crucially, neither of those two decisions applied the
presumption of validity to the challenged rulings, although the failure to do
was understandable given the cases’ procedural posture. The ruling being
reviewed in J.D. predated Caden C., which issued on May 27, 2021 (see J.D.,
supra, 70 Cal.App.5th at p. 849), and the ruling at issue in L.A.-O. was made
shortly after Caden C. (see L.A.-O., supra, 73 Cal.App.5th at p. 203). Thus,
the juvenile courts in J.D. and L.A.-O. did not have the benefit of Caden C.’s
clarified legal standard when they referred to a “parental role.” In contrast,
the juvenile court’s ruling here was entered two months after Caden C., and
other than the court’s reference to a “parental role”—which is not legal error
per se—there is no reason to assume the court was unaware of the Supreme
Court’s decision. Under these circumstances, the juvenile court’s ruling is
entitled to a presumption of correctness, and remand is unwarranted.
2. Consideration of Z.Y.’s relationship with his foster parents
We more quickly dispose of the other aspect of mother’s claim, that the
juvenile court improperly evaluated the second element of the parental-
benefit exception because it “analyzed Z.Y.[’s] relationship with his then
current caregivers.” Mother is correct that in assessing whether a parent has
shown the requisite beneficial relationship, a juvenile court should not
13
“consider the suitability of [a child’s] current placement.” (J.D., supra,
70 Cal.App.5th at p. 864.) Rather, the only question is whether “the child has
a substantial, positive, emotional attachment to the parent” such that “the
child would benefit from continuing the relationship.” (Caden C., supra,
11 Cal.5th at p. 636, italics added.)
Here, however, the juvenile court referred to Z.Y.’s foster parents in
ruling on the parental-benefit exception’s third element, not the second
element. The third element requires a juvenile court to determine “whether
the harm of severing the relationship [with the parent] outweighs ‘the
security and the sense of belonging a new family would confer.’ [Citation.] ‘If
severing the natural parent/child relationship would deprive the child of a
substantial, positive emotional attachment such that,’ even considering the
benefits of a new adoptive home, termination would ‘harm[]’ the child, the
court should not terminate parental rights.” (Caden C., supra, 11 Cal.5th at
p. 633.) The court mentioned Z.Y.’s foster parents when ruling on the
statutory exception only as follows: “I find in regards to what the child is
looking at and in regards to what the child is facing that it seems to me that
the current caregivers in regards to their availability are of such a nature
that it exceeds the benefit that is derived from visits by [mother].” This
comparison of the benefit to Z.Y. from continuing his relationship with
mother to the benefit of staying in his foster parents’ care is precisely what
the third element requires. Moreover, although Caden C. cautioned that this
analysis is “not a contest of who would be the better custodial caregiver” since
a child cannot be returned to the parent’s custody at a section 366.26 hearing
(id. at pp. 630, 634), the court here said nothing to suggest it was comparing
mother’s parenting abilities to the foster parents’. In short, the court’s
reference to the foster parents was proper.
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III.
DISPOSITION
The order terminating mother’s and father’s parental rights to Z.Y. is
affirmed.
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_________________________
Humes, P.J.
WE CONCUR:
_________________________
Margulies, J.
_________________________
Banke, J.
In re Z.Y. A163486
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