In re Z.K. CA2/6 ( 2021 )

Filed 9/22/21 In re Z.K. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
In re Z.K., a Person Coming 2d Juv. No. B310112
Under the Juvenile Court Law. (Super. Ct. No. 19JV00320)
(Santa Barbara County)
SANTA BARBARA COUNTY
DEPARTMENT OF SOCIAL
SERVICES,
Plaintiff and Respondent,
v.
S.K.,
Defendant and Appellant.
S.K. (mother) appeals the juvenile court’s order
terminating parental rights to her son, Z.K. (Welf. & Inst. Code,
§ 366.26.)1 She contends the court lacked substantial evidence to
All statutory references are to the Welfare and
1
Institutions Code.
support its ruling because it failed to ascertain the wishes of Z.K.
about his impending adoption. We affirm.
FACTS AND PROCEDURAL BACKGROUND
Santa Barbara County Child Welfare Services (CWS)
detained then-eight-year-old Z.K. in August of 2019 after police
discovered his father operating a butane honey oil lab2 in their
home’s backyard. Z.K.’s maternal great aunt and uncle took the
boy into their home three days later. The juvenile court declared
Z.K. a dependent of the court in September and continued
placement with his aunt and uncle. It ordered his parents to
participate in reunification services, including parenting
education courses and substance abuse treatment.
Mother and father participated minimally in these services.
CWS could not contact father at all during the first review period.
Mother met with child welfare workers intermittently but tested
positive for methamphetamine. At the six-month status review
hearing, the parties submitted on CWS’s recommendation that
Z.K. remain in placement while his parents received more time to
complete reunification services.
Father eventually contacted CWS by phone but failed to
complete a drug screen or enter treatment before the twelve-
month status review. Mother entered inpatient treatment but
left after one day. She opted to remain homeless and refused
offers to help arrange outpatient treatment and transportation.
Neither parent communicated regularly with CWS about their
progress.
“Honey oil” is a term for concentrated marijuana extract
2
packaged in vapor cartridges. Black market producers commonly
draw out the substance from cannabis with butane, a highly
combustible gas used to fuel barbecues and cigarette lighters.
2
The juvenile court terminated reunification services at the
twelve-month review and scheduled a section 366.26 hearing.
Mother contested CWS’s recommendation to terminate parental
rights and to select adoption as Z.K.’s permanent plan. She later
decided not to file an offer of proof after consulting with counsel
in advance of the pretrial conference. The juvenile court adopted
CWS’s recommendation. Mother timely appealed.
DISCUSSION
A. Substantial Evidence Supports the Juvenile Court’s
Adoptability Finding
Mother appeals the juvenile court’s finding that Z.K. is
adoptable under subdivision (c) of section 366.26.3 She contends
the juvenile court failed to “consider the wishes of the child” when
it selected adoption as his permanent plan. (§ 366.26, subd. (h).)
The argument is misplaced. Adoptability is based on a child’s
age, physical condition, and other characteristics that typically
determine whether the child welfare agency will find adoptive
parents within a reasonable time. (In re Sarah M. (1994) 22
Cal.App.4th 1642, 1649.) A child’s willingness to submit to
adoption is not among these. (Id. at pp. 1649-1650 [“Usually, the
fact that a prospective adoptive parent has expressed interest in
adopting the minor is evidence that the minor’s age, physical
condition, mental state, and other matters relating to the child
are not likely to dissuade individuals from adopting the minor”];
3 Mother did not object to the adoptability finding during
the juvenile court proceedings. Nevertheless, we agree she may
challenge this aspect of the judgment for the first time on appeal.
(See In re Brian P. (2002) 99 Cal.App.4th 616, 623 [when the
merits are contested, parent was not required to object to the
social service agency’s failure to carry its burden of proof on the
question of adoptability].)
3
In re Jose C. (2010) 188 Cal.App.4th 147, 158 [rejecting argument
that child’s willingness “‘to accept and submit to an adoption’”
should be a factor in determining whether child is likely to be
adopted].)
Reports prepared by CWS and Z.K.’s special advocate
confirm the boy’s aunt and uncle consistently expressed their
desire to adopt him if his parents did not complete reunification
services. This alone was clear and convincing evidence of his
adoptability. (See In re I.W. (2009) 180 Cal.App.4th 1517, 1527
[absent evidence of legal impediment, “foster parents’ interest in
adopting I.W. is sufficient to support the juvenile court’s finding
of general adoptability”], disapproved on other grounds in
Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010.)
B. The Juvenile Court Adequately Considered Z.K.’s Wishes
Mother argues Z.K.’s wishes about adoption were not
considered by the juvenile court. She waived the issue when she
did not raise it below. (See In re Jose C., supra, 188 Cal.App.4th
at p. 161 [“parties cannot assert error on appeal when they failed
to raise the issue with the juvenile court”].) Were it not waived,
we would still affirm.
Mother’s argument derives from the court-appointed
advocate’s concern about how Z.K. still believed his placement
was temporary because mother visited regularly. The advocate’s
366.26 report recommended “counseling or therapy to help him
with his emotions and the reality that he will live permanently
with [his aunt and uncle].” Mother characterizes these
sentiments as showing caregivers and child welfare workers kept
Z.K. in the dark about their plans for him. This resulted in the
juvenile court “foisting” adoption on an older child who might
have objected to the decision if he were fully apprised of its legal
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ramifications, i.e., the “severing all ties to the people he cared
about.”
One must view the advocate’s statement in context with the
record before the juvenile court. Despite her concern, the
advocate still recommended “parental rights be terminated, and
adoption be the permanent plan for [Z.K.].” Her report confirmed
Z.K. would continue to receive counseling and therapy to learn
coping skills and treat trauma. CWS’s 366.26 report stated his
aunt and uncle had recently broached the topic of adoption and
would “utilize a therapist to help him process his feelings” on the
subject. They remained open to continued contact with mother
after adoption. In the meantime, Z.K. told his CWS case worker
he felt good about staying in the home permanently and did not
have worries or concerns about it. We find nothing in the record
indicating the juvenile court gave short shrift to Z.K.’s wishes or
tacitly permitted case workers to mislead him about the
trajectory of his placement.
C. The Juvenile Court Need Not Have Considered
Legal Guardianship as an Alternative to Adoption
Mother contends the juvenile court should have considered
legal guardianship because it would have provided Z.K. structure
and stability without the “future trauma” adoption would cause.
Again, she waived the issue by not raising it below. And again,
we would reject the argument had she raised it.
The “trauma” described by mother is her paraphrasing of
the CASA advocate’s above-mentioned caveat about Z.K.’s
potential reaction to his adoption. The juvenile court stated it
read and considered this report. Mother identifies no other
evidence suggesting legal guardianship would provide Z.K. with a
healthier or stabler home environment. (See In re Helen W.
5
(2007) 150 Cal.App.4th 71, 80 [“[a]fter a child is found adoptable,
the termination of parental rights and adoption is considered the
best mechanism to ensure the child has ‘a placement that is
stable, permanent, and that allows the caretaker to make a full
emotional commitment to the child’”].) In addition, CWS’s 366.26
report confirmed Z.K.’s aunt and uncle preferred adoption over
guardianship.
D. The Beneficial Relationship Exception
Does Not Apply to This Appeal
We granted Mother’s request to supplement her briefing to
address In re Caden C. (2021) 11 Cal.5th 614 (Caden C.), which
addressed the “beneficial relationship exception”4 to the general
rule favoring adoption as a minor’s permanent plan when
parental reunification services are terminated. (§ 366.26, subd.
(c)(1)(B).) The exception applies when terminating parental
rights “would be detrimental to the child.” (Ibid.) Parents must
show they 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), italics added.)
We find no occasion to visit Caden C. where, as here,
neither parent invoked the beneficial relationship exception
during permanency proceedings. Entertaining the exception in
these circumstances would require us to engage in the “subtle
enterprise” of severing the relationship between natural parents
and their children. (Caden C., supra, 11 Cal.5th at p. 634.) The
juvenile courts are best positioned to weigh the benefits of
maintaining this relationship against those placing the child in
4 Alternate labels for the exception include “parental-
benefit exception” and “beneficial parental relationship
exception.”
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an adoptive home. We as the reviewing court remain just that: a
body tasked with reviewing the lower court’s findings using
hybrid substantial evidence/abuse of discretion standards. (See
id. at p. 641, quoting In re Zeth S. (2003) 31 Cal.4th 396, 410
[“the hybrid standard we now endorse simply embodies the
principle that ‘[t]he statutory scheme does not authorize a
reviewing court to substitute its own judgment as to what is in
the child’s best interests for the trial court’s determination in
that regard, reached pursuant to the statutory scheme’s
comprehensive and controlling provisions’”].)
DISPOSITION
The judgment (order terminating parental rights and
selecting adoption as the permanent plan) is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
TANGEMAN, J.
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Arthur A. Garcia, Judge
Superior Court County of Santa Barbara
______________________________
Aida Aslanian, under appointment by the Court of Appeal,
for Defendant and Appellant S.K.
Michael C. Ghizzoni, County Counsel, Lisa A. Rothstein,
Senior Deputy County Counsel, for Plaintiff and Respondent
Santa Barbara County Department of Social Services.
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