In re Z.T. CA3 ( 2024 )

Filed 9/23/24 In re Z.T. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
----
In re Z.T., a Person Coming Under the Juvenile Court C100038
Law.
SAN JOAQUIN COUNTY HUMAN SERVICES (Super. Ct. No.
AGENCY, STK-JD-DP-2021-0000307)
Plaintiff and Respondent, ORDER MODIFYING
OPINION
v.
[NO CHANGE IN
C.T., JUDGMENT]
Defendant and Appellant.
THE COURT:
It is ordered that the opinion filed in this case on August 29, 2024, be modified as
follows:
1. On page 10, in the citation immediately following the second sentence of the
first full paragraph, “In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430” is
1
deleted and Ҥ 224.2, subd. (i)(2); H.A. v. Superior Court (2024)
101 Cal.App.5th 956, 961” is inserted in its place so the citation reads:
(§ 224.2, subd. (i)(2); H.A. v. Superior Court (2024) 101 Cal.App.5th 956,
961; Dezi C., supra, ___ Cal.5th at p. ___ [p. 16].)
2. On page 10, in the citation immediately following the third sentence of the first
full paragraph, “Ibid.” is changed to “Dezi C., at p. ____” so the citation reads:
(Dezi C., at p. ____ [p. 27].)
There is no change in the judgment.
BY THE COURT:
/s/
ROBIE, Acting P. J.
/s/
MAURO, J
/s/
DUARTE, J.
2
Filed 8/29/24 In re Z.T. CA3 (unmodified opinion)
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
----
In re Z.T., a Person Coming Under the Juvenile Court C100038
Law.
SAN JOAQUIN COUNTY HUMAN SERVICES (Super. Ct. No.
AGENCY, STK-JD-DP-2021-0000307)
Plaintiff and Respondent,
v.
C.T.,
Defendant and Appellant.
Appellant C.T., biological father of the minor, appeals from the juvenile court’s
orders terminating parental rights and freeing the minor for adoption. (Welf. & Inst.
Code,1 §§ 366.26, 395.) He contends the juvenile court erred by failing to properly
1 Undesignated statutory references are to the Welfare and Institutions Code.
1
consider the application of the beneficial parental relationship exception to adoption and
by failing to comply with the inquiry and notice provisions of the Indian Child Welfare
Act (ICWA). (25 U.S.C. § 1900 et seq.) We conditionally reverse for further ICWA
compliance.
FACTUAL AND PROCEDURAL BACKGROUND
The minor in this case was detained shortly after her August 2021 birth, after
mother tested positive for cocaine and opioids at the time of delivery. The minor was
experiencing withdrawal symptoms. Mother initially identified D.C. as the minor’s
father, although he had not been present at birth or signed a declaration of paternity. San
Joaquin County Human Services Agency (Agency) filed a section 300, subdivision (b)
petition on behalf of the minor based on mother’s and D.C.’s substance abuse and
criminal histories, and their lack of appropriate provisions for the minor. Neither mother
nor D.C. appeared at the detention hearing and D.C. was declared to be an alleged father.
Paternity testing for D.C. was ordered.
The juvenile court sustained the petition in September 2021. The Agency
subsequently reported that the paternity test results showed D.C. is not the minor’s
biological father. Mother was not present at the November 16, 2021 disposition hearing.
The juvenile court adjudged the minor a dependent child of the court and ordered her
removed from parental custody. D.C. was dismissed from the proceedings and mother
was provided with reunification services.
In mid-January 2022, appellant C.T. (father) contacted the Agency and indicated
mother had informed him that D.C. was not the minor’s father. On February 17, 2022,
father made his first appearance and requested genetic testing. The juvenile court granted
his request for paternity testing. The caretaker, with whom the minor had been placed
since detention, was declared a de facto parent on February 23, 2022.
In May 2022, the Agency filed its six-month review report. The Agency
recommended termination of mother’s reunification services, as she had not complied
2
with the case plan. Father’s paternity test results had revealed him to be the minor’s
biological father and he was appointed counsel. He was referred to therapy and parenting
classes. The Agency did not recommend placement with him, however, due to his
criminal history, including a conviction for a violent felony. The Agency began weekly
visits but suspended them pending a juvenile court visitation order. Two visits had taken
place. At the first visit, the minor was crying so hard the visit had to be ended early.
Father was present on June 16, 2022, when the matter was set for an August 31,
2022 contested hearing. His counsel informed the juvenile court that father wished to
establish a relationship with the minor and was requesting visitation. The juvenile court
ordered weekly monitored visitation for father.
Father did well at the supervised visits by interacting with and attempting to
console the minor, but initially, the minor was not put at ease. The minor continued to
cry throughout the initial visits, although visits had improved since the first visit at which
the minor cried for 45 minutes nonstop. The social worker reported that the minor still
appeared uneasy during the visits with father. Father had already completed parenting
classes and four sessions of individual counseling, but the Agency recommended he be
bypassed for reunification services. The Agency did not believe reunification services
would benefit the minor and noted that, had father been declared a presumed father, it
would be recommending bypass due to his violent felony conviction. (§ 361.5, subd.
(b)(12).) The juvenile court ordered reunification services, including drug court, for
father at the August 31, 2022 hearing. Mother’s reunification services were terminated.
Father was admitted to an intensive outpatient treatment program in October 2022.
On November 17, 2022, the juvenile court ordered father have unsupervised visits,
including visits in the community and extended visits. By January 2023, it was reported
father was having three-hour community visits twice weekly. No problems were noted.
The Agency’s February 2023 report, however, noted father had multiple positive drug
tests indicating cocaine use, although father denied using cocaine. A sober living facility
3
was recommended but father did not follow through with the recommendation. In April
2023, the Agency reported that, after a period of testing clean, father was terminated from
the intensive outpatient treatment program and drug court due to multiple positive tests
for cocaine. Father’s visitation was returned to supervised and, on May 2, 2023, his
reunification services were terminated.
The section 366.26 selection and implementation hearing took place on
November 27, 2023. The Agency recommended termination of parental rights. Father
testified at the hearing about the quality of his visits with the minor, reporting the minor
enjoyed playing at the visits and sometimes was sad when she left. After argument
relating to the application of the beneficial parental relationship exception to adoption,
the juvenile court found the exception inapplicable and terminated parental rights.
Father appeals. Additional facts are included in our discussion of the issues.
DISCUSSION
I
Beneficial Parental Relationship Exception To Adoption
Father claims the juvenile court erred in finding the beneficial parental
relationship exception did not apply because it failed to engage in the analysis required
by In re Caden C. (2021) 11 Cal.5th 614, 629 (Caden C.). We find no error.
At the section 366.26 selection and implementation hearing, a juvenile court must
choose one of the several “ ‘possible alternative permanent plans for a minor child. . . .
The permanent plan preferred by the Legislature is adoption. [Citation.]’
[Citations.] If the court finds the child is adoptable, it must terminate parental rights
absent circumstances under which it would be detrimental to the child.” (In re Ronell A.
(1996) 44 Cal.App.4th 1352, 1368.) There are only limited circumstances that permit the
court to find a “compelling reason for determining that termination [of parental rights]
would be detrimental to the child.” (§ 366.26, subd. (c)(1)(B).) Such circumstances
include when the parents have maintained regular visitation and contact with the child,
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the child would benefit from continuing the relationship, and termination of parental
rights would be detrimental to the child. (§ 366.26, subd. (c)(1)(B)(i) [beneficial parental
relationship exception]; Caden C., supra, 11 Cal.5th at p. 629.)
The party claiming the exception has the burden of establishing the existence of
any circumstances that constitute an exception to termination of parental rights.
(Caden C., supra, 11 Cal.5th at pp. 636-637; In re Melvin A. (2000) 82 Cal.App.4th 1243,
1252; Cal. Rules of Court, rule 5.725(d)(2).) For the beneficial parental relationship
exception to apply, “[t]he parent must show regular visitation and contact with the child,
taking into account the extent of visitation permitted. Moreover, 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. And
the parent must show that terminating that attachment would be detrimental to the child
even when balanced against the countervailing benefit of a new, adoptive home.”
(Caden C., at p. 636.) The factual predicates of the exception must be supported by
substantial evidence, but the juvenile court exercises its discretion in weighing that
evidence and determining detriment. (Id. at pp. 639-640.)
As a preliminary matter, we note that, although not raised by either party, it is not
clear that father, as a mere biological father, can raise the beneficial parental relationship
exception to adoption. “This court has consistently held that a biological father’s rights
are limited to establishing his right to presumed father status, and the court does not err
by terminating a biological father’s parental rights when he has had the opportunity to
show presumed father status and has not done so.” (In re A.S. (2009) 180 Cal.App.4th
351, 362; see also In re Jason J. (2009) 175 Cal.App.4th 922, 933-934 [“ ‘the mere
biological father . . . may be terminated based solely upon the child’s best interest and
without any requirement for a finding of detriment or unfitness’ ”].) However, because
neither party addressed this issue, we will address the merits of father’s contention of
error.
5
Father complains the juvenile court failed to state, on the record, its reasons and
findings in denying application of the beneficial parental relationship exception. He
argues that the failure to state its reasons on the record establishes the court did not
consider the application of the exception as required by Caden C. We reject this
supposition. The juvenile court is not required to make those findings on the record and
its failure to do so does not establish it did not engage in the analysis required by
Caden C. (In re A.L. (2022) 73 Cal.App.5th 1131, 1156, 1161 [no requirement that
juvenile court make specific findings when it finds beneficial parental relationship
exception does not apply].) The parties fully argued their positions on the application of
the exception citing the Caden C. elements. The Agency acknowledged that father had
been visiting regularly but argued the minor would not benefit from continuing the
relationship and the relationship did not promote the well-being of the minor to such a
degree as to outweigh the benefits of a permanent home. The Agency went on to argue
that father had not shown a significant bond and that the minor would be greatly harmed
if the relationship were severed. Minor’s counsel emphasized that minor had not even
met father until she was eight months old and the minor cried at most visits when she first
saw father. Minor’s counsel argued that there was no detriment to the minor in
terminating parental rights. Father’s counsel argued father had tried his best to complete
his services and form a relationship with the minor. Counsel argued that, although father
had relapsed and had his services terminated, he had consistently visited. So, the
question was whether the minor would “benefit from the continued relationship versus
adoption” and argued that, while the minor is very young, father believed she would
benefit and he hoped he would be able to assume custody someday. The Agency
responded that father’s compliance with the case plan was not at issue at this stage in the
proceedings. The juvenile court then declined to apply the exception and terminated
parental rights.
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We will not presume, based on the juvenile court’s decision not to provide a
statement of reasons or findings, that it ignored the arguments presented, as well as the
law on the subject and, as argued by appellant, “completely overlooked its responsibility
to determine whether [the minor] would benefit from continuing the relationship with
[f]ather,” “unequivocally chose not to engage in” the Caden C. analysis or “ ‘sift
through’ ” the facts, and did not consider the impact to the minor’s well-being of
terminating the parental relationship. The presumption is that the juvenile court knew
and properly applied the law. (Evid. Code, § 664; People v. Woods (1993)
12 Cal.App.4th 1139, 1152.) “It is an appellant’s burden to overcome the regularity
presumption by an affirmative showing.” (Woods, at p. 1152; see also Ross v. Superior
Court (1977) 19 Cal.3d 899, 913 [“scores of appellate decisions, relying on this provision
[Evid. Code, § 664], have held that ‘in the absence of any contrary evidence, we are
entitled to presume that the trial court . . . properly followed established law’ ”];
In re Marriage of Winternitz (2015) 235 Cal.App.4th 644, 653-654 [“ ‘[w]e must
presume that the court knew and applied the correct statutory and case law’ and applied
them to the facts in this case”].) Father has failed to carry his burden of overcoming the
presumption that the juvenile court properly considered the application of the beneficial
parental relationship exception to adoption.
Father also complains at length that the Agency’s reports did not provide what he
believes to be sufficient information regarding the nature and quality of the minor’s
relationship with him. Although father’s argument is not clear, he appears to concede that
the relevant information was contained in the logs and exhibits to the Agency’s reports,
but complains that information was not sufficiently summarized or analyzed in the body
of the reports. The lack of clarity surrounding his argument is exacerbated by his failure
to raise it in a distinct argument “under a separate heading or subheading summarizing
the point,” as required under California Rules of Court, rule 8.204(a)(1)(B). Had he done
so, it may have clarified his contention. Because he failed to do so, however, we find he
7
forfeited this argument. (Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th
1826, 1830, fn. 4.)
Additionally, father never called into question the adequacy of the Agency’s
reports, nor did he object to the juvenile court’s reliance on those reports. As such, he
has, again, forfeited any such claim on appeal in that regard. (See In re Aaron B. (1996)
46 Cal.App.4th 843, 846 [failure to object to adequacy of adoption assessment];
In re Crystal J. (1993) 12 Cal.App.4th 407, 411-412 [failure to object to inadequacy of
adoption assessment]; In re Dakota S. (2000) 85 Cal.App.4th 494, 502 [failure to object
to lack of preliminary assessment of prospective guardian]; In re Lorenzo C. (1997)
54 Cal.App.4th 1330, 1338-1339 [failure to object to lack of bonding study].)
Finally, we note that father fails to explain how he was prejudiced by the lack of
analysis in the reports, since he appears to concede that the relevant information and
materials were attached to the reports, the juvenile court was able to review and consider
those materials he claims support his position, and he had the opportunity to explore the
topic at the contested hearing. While the Agency is tasked with including in its report,
inter alia, a review of the amount of and nature of any contact between the child and his
or her parents since the time of placement,2 it was father’s burden to establish the
beneficial parental relationship exception to adoption. (§ 366.22, subd. (c)(1)(B).) He
failed to meet that burden.
2 The Agency is also to include in the report: “The relationship of the child to any
identified prospective adoptive parent or legal guardian, the duration and character of the
relationship, the degree of attachment of the child to the prospective relative guardian or
adoptive parent, the relative’s or adoptive parent’s strong commitment to caring
permanently for the child, the motivation for seeking adoption or legal guardianship, a
statement from the child concerning placement and the adoption or legal guardianship,
and whether the child, if over 12 years of age, has been consulted about the proposed
relative guardianship arrangements, unless the child’s age or physical, emotional, or other
condition precludes their meaningful response, and if so, a description of the condition.”
(§ 366.22, subd. (c)(1)(E).)
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II
The ICWA
Father also contends the Agency erred in failing to comply with the ICWA’s
affirmative and continuing duty of inquiry by failing to further inquire into possible
Choctaw ancestry identified by the paternal aunt, and the juvenile court erred in failing to
make a finding on the adequacy of the Agency’s ICWA compliance and on the
applicability of the ICWA. The Agency agrees that it did not fully and properly inquire of
the minor’s family and agrees that remand for ICWA compliance is necessary.
“The ICWA protects the interests of Indian children and promotes the stability and
security of Indian tribes by establishing minimum standards for removal of Indian
children from their families, and by permitting tribal participation in dependency
proceedings. [Citations.] A major purpose of the ICWA is to protect ‘Indian children
who are members of or are eligible for membership in an Indian tribe.’ ” (In re A.W.
(2019) 38 Cal.App.5th 655, 662.) The ICWA defines an “ ‘Indian child’ ” as a child who
“is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian
tribe and is the biological child of a member of an Indian tribe.” (25 U.S.C. § 1903(4).)
“Under [the] ICWA’s state analogue, the California Indian Child Welfare Act (Cal-
ICWA), courts and child welfare agencies are charged with ‘an affirmative and
continuing duty to inquiry whether a child . . . is or may be an Indian child’ in
dependency cases.” (In re Dezi C. (Aug. 19, 2024, S275578) ___ Cal.5th ___ [p. 1]
(Dezi C.); see § 224.2, subd. (a); Cal. Rules of Court, rule 5.481(a).)
Section 224.2 creates three distinct duties regarding the ICWA in dependency
proceedings. The first is relevant here. “First, from the Agency’s initial contact with a
minor and his [or her] family, the statute imposes a duty of inquiry to ask all involved
persons whether the child may be an Indian child. (§ 224.2, subds. (a), (b).)” (In re D.S.
(2020) 46 Cal.App.5th 1041, 1052.) “Inquiry includes, but is not limited to, asking the
child, parents, legal guardian, Indian custodian, extended family members, others who
9
have an interest in the child, and the party reporting child abuse or neglect, whether the
child is, or may be, an Indian child and where the child, the parents, or Indian custodian
is domiciled.” (§ 224.2, subd. (b).)
Due to changes in California law, agencies now have broader duties of inquiry and
documentation (§ 224.2, subd. (b); Cal. Rules of Court, rule 5.481(a)(5)), and courts have
been tasked with determining how to assess error when an agency fails to discharge those
duties. We review claims of inadequate inquiry into a child’s Indian ancestry for
substantial evidence. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430; Dezi C.,
supra, ___ Cal.5th at p. ___ [p. 16].) “[T]he juvenile court’s fact-specific determination
that an inquiry is adequate, proper, and duly diligent is ‘a quintessentially discretionary
function’ [citation] subject to a deferential standard of review.” (Ibid. [p. 27].) “ ‘On a
well-developed record, the court has relatively broad discretion to determine whether the
agency’s inquiry was proper, adequate, and duly diligent on the specific facts of the case.
However, the less developed the record, the more limited that discretion necessarily
becomes.’ ” (In re Kenneth D. (Aug. 19, 2024, S276649) ___ Cal.5th ___ [p. 13].) The
California Supreme Court has recently held that “an inadequate initial Cal-ICWA inquiry
requires conditional reversal with directions for the child welfare agency to comply with
the inquiry requirement of section 224.2, document its inquiry in compliance with
[California Rules of Court,] rule 5.481(a)(5), and when necessary, comply with the notice
provision of section 224.3.” (Dezi C., at p. ___ [p. 20].)
Here, the Agency concedes that it failed to fulfill its duty to inquire and thus
provided an inadequate record, and that a more complete inquiry should have been
undertaken. Although both parents, the maternal grandmother, and the maternal aunt
denied Native American ancestry, father’s paternal aunt reported that she had Choctaw
ancestry—and that the minor’s paternal grandfather was her brother. The Agency
provided the paternal aunt with a parental notification of Indian status form (ICWA-020)
but it does not appear the Agency ever received the completed form, made further contact
10
with the paternal aunt, or otherwise made further ICWA inquiry in connection with the
claim of possible Choctaw ancestry. In addition to conceding its own error, the Agency
concedes the juvenile court erred in failing to make a finding on the applicability of the
ICWA.
We agree that remand is necessary. The juvenile court was required to make
findings as to the applicability of the ICWA and its failure to do so here was error.
(In re Jennifer A. (2002) 103 Cal.App.4th 692, 704-705, 709.) Because the juvenile court
did not make the requisite findings and orders that ICWA inquiry and notice were
sufficient and that the ICWA does not apply, we have no ICWA findings and orders to
review and any remarks we would make on the adequacy of the Agency’s inquiry, despite
the Agency’s concession it was lacking, would be advisory. (See People v. Buza (2018)
4 Cal.5th 658, 693 [“We . . . abide by . . . a ‘ “cardinal principle of judicial restraint—if it
is not necessary to decide more, it is necessary not to decide more” ’ ”].) Accordingly,
we conditionally reverse and remand the case to the juvenile court for further
proceedings. The Agency is to “make additional inquiry and documentation efforts
consistent with its duties and the [juvenile] court shall hold a hearing thereafter to
determine whether, in light of the outcome of the inquiry as documented, [the] ICWA
applies. If the juvenile court determines the inquiry is proper, adequate, and duly diligent
and concludes that . . . [the] ICWA does not apply, any inquiry error is cured, and the
judgment [shall] be reinstated. [Citation.] In contrast, if the inquiry reveals a reason to
know the [minor] is an Indian child, the tribe has been notified [citations], and the tribe
determines the child is a member or citizen, or eligible for membership or citizenship, of
an Indian tribe [citations], [the] ICWA applies” and the juvenile court must proceed in
accordance with the ICWA. (Dezi C., supra, ___ Cal.5th at p. ___ [p. 22].)
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DISPOSITION
The orders terminating parental rights are conditionally reversed and the matter is
remanded for the limited purpose of complying with the inquiry and notice provisions of
the ICWA, as well as the requirements of sections 224.2 and 224.3 and the documentation
provisions of California Rules of Court, rule 5.481(a)(5). If the juvenile court thereafter
finds a further inquiry was proper and adequate, due diligence has been conducted, and
the ICWA does not apply, the orders shall be reinstated. If, however, the juvenile court
finds the ICWA applies, the juvenile court is ordered to conduct a new section 366.26
hearing and proceed in accordance with the ICWA and California implementing
provisions, including considering any petition filed to invalidate prior orders. (§ 224,
subd. (e).)
/s/
ROBIE, Acting P. J.
We concur:
/s/
MAURO, J.
/s/ ,
DUARTE J.
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