Opinion
F082668
09-21-2021
In re A.Z., a Person Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. SAMUEL Z., Defendant and Appellant.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Boze, County Counsel, and Maria Elena Ratliff, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Stanislaus County. No. JVDP-18-000226 Ann Q. Ameral, Judge.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas E. Boze, County Counsel, and Maria Elena Ratliff, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
DE SANTOS, J.
Samuel Z. (father) appeals the juvenile court's order issued at an 18-month review hearing terminating his reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to his daughter, A.Z. On appeal, father contends (1) the juvenile court abused its discretion when it denied his section 388 petition without an evidentiary hearing, and (2) the juvenile court erred when it terminated his parental rights and found the beneficial parent-child relationship exception did not apply. We find no error and affirm.
All further statutory references are to the Welfare and Institutions Code.
PROCEDURAL AND FACTUAL SUMMARY
Section 300 Petition
On December 5, 2018, the Stanislaus County Community Services Agency (the agency) filed a section 300 petition on behalf of A.Z. (born February 2012) and her half siblings. The children were removed from mother's custody two days before because she was using drugs and was medically neglecting A.Z.'s half siblings. The petition identified father as A.Z.'s presumed father and indicated his whereabouts were unknown.
Jurisdiction/Disposition
The agency's jurisdiction/disposition report indicated father first contacted the agency in January 2019. Father reported he did not have a relationship with A.Z. and lived in Idaho with his brother, but was on a waiting list for public housing in Idaho. Although father had not had contact with A.Z. in two years, he expressed a desire to reunify with her and showed a genuine concern for her well-being. The agency recommended against placing A.Z. with father because she had not seen him in two years and he did not have secure housing; however, it recommended father be offered reunification services.
On March 21, 2019, the juvenile court adjudged A.Z. a dependent of the court and ordered reunification services for mother and father, including visitation over Skype for father. Additionally, the court ordered the agency to initiate an Interstate Compact on the Placement of Children with the state of Idaho and ordered father to participate in counseling services.
Six-Month Review Hearing
The agency filed a status review report on August 30, 2019, indicating father was participating in individual counseling and his mental health clinician had reported that father worked very hard in sessions. Father had made progress by getting a job, working on relationship stability, and making wise choices about “the friends he keeps.” Additionally, father was participating in a parenting program and completed a substance abuse assessment, which indicated he did not have a substance abuse problem. Father was also participating in visitation with A.Z. via telephone and Skype at least twice a week and had visited her in person one time. The agency recommended against placing A.Z. with father because, although he was working on completing his case plan goals, the agency believed it would be premature to return her to his custody. The agency further recommended reunification services be continued as to father, but terminated as to mother because she had made minimal effort to complete her case plan goals.
At the six-month review hearing on October 7, 2019, the juvenile court terminated reunification services for mother, but continued services for father and ordered his case plan amended to allow him overnight visits leading to a trial visit at the social worker's discretion.
Twelve-Month Review Hearing
On December 17, 2019, the agency filed an application for psychotropic medication for A.Z., who was struggling to focus in school. She was diagnosed with attention deficit hyperactivity disorder (ADHD) and her psychiatrist opined she was in danger of needing a higher level of care than foster care if medication was not started immediately. A.Z. was also at risk of being held back in school due to her symptoms. The juvenile court granted the agency's application.
On January 14, 2020, the agency filed a status review report indicating father continued to make good progress on his case plan goals. He was still attending individual counseling and completed a 13-week parenting course. He was tested for drugs, and he tested negative for all substances. Father visited A.Z. daily by telephone and Skype. The agency again recommended against returning A.Z. to father's care because it would be premature to do so and recommended reunification services continue for father. The juvenile court continued father's reunification services at the 12-month review hearing.
Eighteen-Month Review Hearing
On May 12, 2020, the agency filed a status review report indicating father had continued to make good progress on his case plan goals. Father had moved out of the apartment he shared with his brother and was living with a friend. He was working on securing stable housing; however, due to limited housing options and the COVID-19 pandemic, he was limited as to what he could do to improve his housing situation. Father's housing situation and COVID-19 had been barriers to starting a trial visit. In light of these barriers, the agency recommended a 90-day continuance of the 18-month review hearing. It further recommended that father's reunification services continue. The juvenile court granted the continuance and continued services for father.
On August 7, 2020, the agency filed another status review report stating that although father had made good progress with his case plan goals, it would be premature to return A.Z. to his custody because a trial visit had not occurred. Father had been unable to secure appropriate housing to begin trial visits. The agency noted reunification time limits had been exhausted and reunification was unlikely. As a result, it recommended father's reunification services be terminated and a permanent plan be established.
On September 23, 2020, the agency submitted an addendum report stating father completed most of his case plan requirements, but was still not in a position to have A.Z. in his care because he had been unable to secure stable housing to allow him to have a trial visit. Meanwhile, A.Z. had been in foster care for almost two years and was considered a high needs child. She had an individualized learning plan, was diagnosed with ADHD, and was taking psychotropic medication. She also required the additional support of her care provider for distance learning and ongoing counseling services. The agency did not know if father would be able to provide her with the level of care she required. Additionally, A.Z. was very connected to and content with her foster family. She told both her social worker and father she wanted to remain in her foster family's home. The agency believed A.Z.'s best chance at permanency was to remain in her foster family's home. The agency recommended the juvenile court terminate father's reunification services and set a section 366.26 hearing to implement a permanent plan of adoption.
At the 18-month review hearing on October 23, 2020, father testified he had been unemployed for about a year. Three weeks prior to the hearing, he moved into public housing, which he had applied for three years before. His apartment had two bedrooms and two bathrooms. He had a furnished room for A.Z. and said he could afford to support her. He knew she had been diagnosed with ADHD and had a learning disability. He believed he could manage her needs because his oldest daughter had ADHD and he had taken care of her for a time. He also cared for his ex-fiancée's two children for a period of three years prior to these proceedings. Both children had special needs. One child had Asperger's syndrome, posttraumatic stress disorder, and ADHD. The other child had ADHD.
Father further testified he lived with A.Z. during the first year of her life when he lived in California and since then had only visited her two times in person. He said he did not speak to her or know much about her and was “pretty much a stranger to her.” Recently, however, he spoke to her every day and was getting to know her. He believed she wanted a trial visit with him, but she also told him she wanted to be adopted by her foster parents. Father believed she was happy in her current placement.
Father's counsel argued the only impediment to reunifying father with A.Z. was his poverty and lack of housing, which the agency did not assist him in obtaining. Counsel argued it would be unjustified to terminate reunification services under those circumstances.
The juvenile court found it would be detrimental to A.Z. to place her with father because he had not been in her life for most of her childhood and they did not have a substantial relationship. Additionally, the court took into consideration that A.Z. was very happy in her current placement. The court found father had been provided reasonable reunification services and ordered them terminated. It further ordered visitation twice a month and set a section 366.26 hearing for February 22, 2021, which was later continued to April 2, 2021.
Father filed an extraordinary writ with this court seeking relief from the juvenile court's order issued at the 18-month review hearing, asserting the juvenile court's reasonable services and detrimental findings were made in error. The writ petition was denied. (See S.Z. v. Superior Court (Jan. 8, 2021, F081951) [nonpub. opn.].)
Section 366.26 Report
On February 10, 2021, the agency filed a section 366.26 report indicating A.Z. was very vocal about wanting to remain permanently with her foster family. A.Z. did not want to reunify with father because she did not know him and did not feel he was her family. She felt obligated to visit with him. A.Z. was healthy, happy, and had established a strong bond with her foster family. The agency believed it would be in A.Z.'s best interest to remain with her “chosen family” and there would be a risk of detriment if she were returned to father's care as there was no indication he could meet her high needs on his own. Thus, the agency recommended father's and mother's parental rights be terminated and that a permanent plan of adoption be established with her foster parents. The agency later filed an addendum report making the same recommendation.
Section 388 Petition
On February 19, 2021, father filed a section 388 petition requesting to change the prior juvenile court's order for termination of reunification services. Father requested reunification services be resumed so trial visits could take place because “[t]here was no evidence that [he was] an unfit parent, nor that return of [A.Z.] to his care and custody would be detrimental to [A.Z.]” and “[t]he Agency [had] taken no steps to allow [him] adequate visitation with [A.Z.]” He noted he complied with all requirements imposed by the agency, except he had been unable to obtain housing due to his poverty. He claimed resuming reunification services would be in A.Z.'s best interest because “there is a benefit to having children raised by their biological parents.” The juvenile court ordered a hearing on March 26, 2021, to determine if it should grant or deny an evidentiary hearing.
At the hearing on March 26, 2021, father's counsel argued father had complied with the case plan and his housing situation had changed. Father obtained an apartment in which he had been living since October 2020. The agency objected to an evidentiary hearing, arguing the petition came too late and father offered no evidence as to how he would care for A.Z. A.Z.'s counsel added that A.Z. expressed she would be very sad if she were asked to move. The juvenile court found it was not in A.Z.'s best interest to grant an evidentiary hearing because A.Z. had been in foster care for 27 months and deserved permanency.
Section 366.26 Hearing
At the section 366.26 hearing on April 2, 2021, the juvenile court found by clear and convincing evidence that A.Z. was adoptable and that father did not meet the beneficial parent-child relationship exception. Accordingly, mother's and father's parental rights were terminated.
On April 15, 2021, father filed a notice of appeal.
DISCUSSION
I. Section 388 Petition
Father contends the juvenile court abused its discretion when it denied his section 388 petition without an evidentiary hearing. We disagree.
A. Applicable Law
Section 388 allows a parent to petition the juvenile court to “change, modify, or set aside any order of court previously made.” (§ 388, subd. (a)(1).) “The petitioning party has the burden to show, by a preponderance of the evidence, there is a change of circumstances or new evidence, and the proposed modification is in the child's best interest.” (In re A.S. (2009) 180 Cal.App.4th 351, 357.) “ ‘The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing.' ” (Id. at pp. 357-358.) “ ‘A prima facie case is made if the allegations demonstrate that these two elements are supported by probable cause. [Citations.] It is not made, however, if the allegations would fail to sustain a favorable decision even if they were found to be true at a hearing. [Citations.] While the petition must be liberally construed in favor of its sufficiency [citations], the allegations must nonetheless describe specifically how the petition will advance the child's best interests.' ” (In re K.L. (2016) 248 Cal.App.4th 52, 61-62.) “In determining whether the petition makes the required showing, the court may consider the entire factual and procedural history of the case.” (Id. at p. 62.) “Successful petitions have included declarations or other attachments which demonstrate the showing the petitioner will make at a hearing of the change in circumstances or new evidence.” (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)
“After the termination of reunification services …, the goal of family reunification is no longer paramount, and ‘ “the focus shifts to the needs of the child for permanency and stability” [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. [Citation.] A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child.' ” (In re K.L., supra, 248 Cal.App.4th at p. 62.)
“We review a juvenile court's decision to deny a section 388 petition without an evidentiary hearing for abuse of discretion.” (In re K.L., supra, 248 Cal.App.4th at p. 62.)
B. Analysis
In this case, father's section 388 petition, which was unsupported by declarations or other evidence, did not make a prima facie showing requiring the juvenile court to hold an evidentiary hearing. Father did not allege any changed circumstances or new evidence in his section 388 petition. Rather, he alleged that “[t]here was no evidence that [he was] an unfit parent, nor that return of [A.Z.] to his care and custody would be detrimental to [A.Z.]” and that “[t]he Agency [had] taken no steps to allow [him] adequate visitation with [A.Z.]” This was not a change in circumstances or an offer of new evidence. At the hearing to determine whether the juvenile court would grant an evidentiary hearing on father's section 388 petition, father's counsel informed the court that his housing situation had changed. He said father had secured an apartment, which he had been living in since October 2020. However, even taking into consideration father's new housing situation, father did not make the requisite showing that resuming reunification services would be in A.Z.'s best interest. Father merely claimed “there is a benefit to having children raised by their biological parents.” This was nothing but a conclusory claim that did not support the need for an evidentiary hearing. Although we recognize that allegations in a petition are to be liberally construed, “conclusory claims are insufficient to require a hearing.” (In re Ramone R. (2005) 132 Cal.App.4th 1339, 1348.) Father's generic statement failed to provide any details as to how A.Z., specifically, would benefit from continuing reunification services.
Thus, we conclude the juvenile court did not abuse its discretion when it denied father's request for an evidentiary hearing on his section 388 petition.
II. Beneficial Parent-Child Relationship Exception
Father further contends the juvenile court erred when it terminated his parental rights and found the beneficial parent-child exception under section 366.26, subdivision (c)(1)(B)(i) did not apply. We disagree.
A. Applicable Law
When the juvenile court finds by clear and convincing evidence the child is adoptable at a section 366.26 hearing, the court is generally required to terminate parental rights and order the child placed for adoption unless an exception applies. (§ 366.26, subd. (c)(1).) Thus, “[e]ven if a court finds by clear and convincing evidence that the child is likely to be adopted, the parent may avoid termination of parental rights by establishing at least one of a series of enumerated exceptions. If the parent establishes that an exception applies, the statute sets out additional steps for selecting a permanent plan for the child that preserves parental rights.” (In re Caden C. (2021) 11 Cal.5th 614, 625 (Caden C.).) One such exception is the beneficial parent-child relationship exception. (§ 366.26, subd. (c)(1)(B)(i).)
The beneficial parent-child relationship exception applies where “[t]he court finds a compelling reason for determining that termination would be detrimental” because “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) “From the statute, we readily discern three elements the parent must prove to establish the exception: (1) regular visitation and contact, 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.” (Caden C., supra, 11 Cal.5th at p. 631.)
“The first element-regular visitation and contact-is straightforward. The question is just whether ‘parents visit consistently,' taking into account ‘the extent permitted by court orders.' ” (Caden C., supra, 11 Cal.5th at p. 632.) Courts need only consider whether a parent “maintained regular visitation and contact with the child.” (§ 366.26, subd. (c)(1)(B)(i).)
“As to the second element, courts assess whether ‘the child would benefit from continuing the relationship.' ” (Caden C., supra, 11 Cal.5th at p. 632; § 366.26, subd. (c)(1)(B)(i).) “The factors to be considered when looking for whether a relationship is important and beneficial are: (1) the age of the child, (2) the portion of the child's life spent in the parent's custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the child's particular needs.” (In re Angel B. (2002) 97 Cal.App.4th 454, 467, fn. omitted.) “[C]ourts often consider how children feel about, interact with, look to, or talk about their parents.” (Caden C., at p. 632.) “Doing so properly focuses the inquiry on the child.” (Ibid.)
“Concerning the third element-whether ‘termination would be detrimental to the child due to' the relationship-the court must decide whether it would be harmful to the child to sever the relationship and choose adoption.” (Caden C., supra, 11 Cal.5th at p. 633; § 366.26, subd. (c)(1)(B).) “What courts need to determine, therefore, is how the child would be affected by losing the parental relationship-in effect, what life would be like for the child in an adoptive home without the parent in the child's life.” (Caden C., at p. 633.)
In each case, “the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) “When it weighs whether termination would be detrimental, the court is not comparing the parent's attributes as custodial caregiver relative to those of any potential adoptive parent(s).” (Caden C., supra, 11 Cal.5th at p. 634.) “[C]ourts should not look to whether the parent can provide a home for the child; the question is just whether losing the relationship with the parent would harm the child to an extent not outweighed, on balance, by the security of a new, adoptive home.” (Ibid.) “Even where it may never make sense to permit the child to live with the parent, termination may be detrimental.” (Ibid.) “[T]he section 366.26 hearing is decidedly not a contest of who would be the better custodial caregiver.” (Ibid.)
Moreover, “[a] parent's continued struggles with the issues leading to dependency are not a categorical bar to applying the exception.” (Caden C., supra, 11 Cal.5th at p. 637.) “[M]aking a parent's continued struggles with the issues leading to dependency, standing alone, a bar to the exception would effectively write the exception out of the statute.” (Ibid.) “[W]hen the court holds a section 366.26 hearing, it all but presupposes that the parent has not been successful in maintaining the reunification plan meant to address the problems leading to dependency.” (Ibid.) “The parental-benefit exception can therefore only apply when the parent has presumptively not made sufficient progress in addressing the problems that led to dependency.” (Ibid.) However, the parent's continued struggles with the issues leading to dependency “could be directly relevant to a juvenile court's analysis in deciding whether termination would be detrimental.” (Id. at p. 639.)
When the parent has shown these elements by a preponderance of the evidence, “the parental-benefit exception applies such that it would not be in the best interest of the child to terminate parental rights, and the court should select a permanent plan other than adoption.” (Caden C., supra, 11 Cal.5th at pp. 636-637.)
On appeal, we review the first two elements-which require the trial court to make factual determinations-for substantial evidence. (Caden C., supra, 11 Cal.5th at p. 639.) The third element-which requires the trial court to “engage in a delicate balancing of these [factual] determinations, ” of harms versus benefits, to come to its “ultimate decision [of] whether termination of parental rights would be detrimental to the child due to the child's relationship with [her] parent”-we review for abuse of discretion. (Id. at p. 640.)
B. Analysis
Here, the juvenile court found by clear and convincing evidence that A.Z. was adoptable, but it did not find that a beneficial parent-child relationship existed between father and A.Z., who had been in foster care for 28 months and was bonded with her foster family. We turn to the three elements.
As to the first element-whether the parent maintained regular visitation and contact-the evidence indicated father maintained regular visitation and contact with A.Z. Father's proposed testimony acknowledged he missed two visits in February 2021. But despite these missed visits, substantial evidence supported the conclusion that father maintained regular visitation and contact with A.Z.
In regard to the second element-whether the child would benefit from continuing the relationship with the parent-the evidence did not show that A.Z. would benefit from continuing her relationship with father. A.Z. was nine years old at the time of the section 366.26 hearing. Father had not lived with her since she was one year old and had only visited her twice before the dependency proceedings commenced. He said he was “pretty much a stranger to her.” Although he began having regular telephonic visits with her as a result of the court ordered visitation, which helped them develop a relationship, father could not even say what grade A.Z. was in at the 18-month review hearing. Moreover, A.Z. expressed she wanted to be adopted by her caregivers. In its section 366.26 report, the agency reported A.Z. was very vocal about wanting to remain permanently with her foster family. In fact, A.Z. did not want to reunify with father because she did not know him and did not feel he was her family. She felt obligated to visit with him because she had been told she had to and also did not want to make him mad. Overall, the record did not contain substantial evidence that A.Z. would benefit from a continued relationship with father.
Finally, as to the third element-whether termination of parental rights would be detrimental to the child-we conclude the juvenile court did not abuse its discretion when it found A.Z. would not suffer detriment. Father did not play a significant role in A.Z.'s life and there was no indication she relied on him for support of any kind or was attached to him. In fact, she felt forced to maintain a relationship with him. Accordingly, it cannot be said she would suffer detriment as a result of terminating father's parental rights.
We conclude the juvenile court did not abuse its discretion when it determined that father had not carried his burden of proving the beneficial parent-child relationship exception.
DISPOSITION
The orders of the juvenile court are affirmed.
WE CONCUR: SMITH, ACTING P. J., MEEHAN, J.