Opinion
E068035
11-16-2017
In re N.F., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.S. et al., Defendant and Appellant.
Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and Appellant J.S. Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant S.Y. Jean-Rene Basle, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. J256155) OPINION APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Reversed with directions. Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and Appellant J.S. Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant S.Y. Jean-Rene Basle, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant, J.S. (father), challenges the juvenile court's termination of his parental rights over his daughter, N.F. Father contends the court erred because the only obstacle to placing N.F. in his care was his poverty-based lack of housing. Father maintains that the court's severance of the parent-child relationship based on poverty violated his right to due process. In addition, he argues the court misapplied the parental benefit exception to adoption by reading a requirement of day-to-day contact into the exception. Defendant and appellant, S.Y. (mother), for her part, maintains that if we reverse the termination of father's parental rights, we must also reverse the termination of her rights.
We agree with father that the court could not terminate his parental rights based solely on poverty-related housing instability. While the court properly exercised jurisdiction over N.F. based on father's drug abuse, father corrected that problem, and the court declined to place N.F. with father solely because of his inability to afford housing. Poverty-based lack of housing is an insufficient ground to deprive a parent of his or her parental rights. (In re P.C. (2008) 165 Cal.App.4th 98, 99-100 (P.C.); In re G.S.R. (2008) 159 Cal.App.4th 1202, 1212-1213 (G.S.R.).) Accordingly, we reverse the order terminating parental rights and remand for the juvenile court to determine whether a reason independent of poverty exists to show that it would be detrimental to place N.F. in father's care. If the court can make such a finding, it may reinstate the order terminating parental rights. If the court cannot make such a finding, it shall order further reunification services for father, including assistance in obtaining affordable housing.
We address the parental benefit exception to adoption in the event the court makes a current detriment finding and reinstates the order terminating parental rights on remand. We conclude the court did not misapply the exception, and we need not reverse the order terminating parental rights on this ground.
II. FACTS AND PROCEDURE
A. Detention
The family which is the subject of these proceedings had one prior referral to plaintiff and respondent, San Bernardino County Children and Family Services (CFS), in August 2010. In that case, N.F. and her half sister were detained from mother when mother tested positive for methamphetamines and marijuana at N.F.'s birth. Mother and father received family reunification services until May 2012, when the court terminated father's reunification services, returned the children to mother, and closed the case.
This case began in 2014 when N.F. was four years old. The family came to the attention of CFS in July 2014, when N.F.'s newest half sibling was born and mother tested positive for amphetamines at the boy's birth. She admitted to using methamphetamines one week before delivery.
N.F.'s half siblings are not subjects of this appeal.
Father's criminal history included charges in 2004 for use of a controlled substance (Health & Saf. Code, § 11550, subd. (a)) and unlawful sexual intercourse with a minor more than three years younger (Pen. Code, § 261.5, subd. (c)).
The petition under Welfare and Institutions Code section 300, subdivisions (b) and (g) alleged that mother had a substance abuse problem placing N.F. at risk, and father knew or reasonably should have known of mother's problem. It also alleged father's whereabouts and ability to parent N.F. were unknown. The court detained N.F. in late August 2014. B. Jurisdiction and Disposition
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
CFS interviewed father in September 2014. He and mother are not married. She did not notify him that she was delivering N.F. when N.F. was born, and he is not listed on N.F.'s birth certificate. He does not pay child support for N.F.
Father reported that he started using methamphetamines as a teenager and had last used in August 2014, but he rarely used now. He had used methamphetamines with mother in the past. His drug test was negative in September 2014. CFS filed an amended petition adding section 300, subdivision (b) allegations that father suffered from a substance abuse problem impacting his ability to provide adequate care for N.F.
Father had last talked to mother when he visited for N.F.'s birthday, which was in June 2014. He was in Mexico when mother's aunt contacted him through social media and told him about these proceedings. He was shocked to discover mother was using drugs again. He recently returned from Mexico and had been searching for a job. Beginning in late September 2014, he was attending a life skills group and a parenting class, each once per week. He requested that CFS place N.F. and her half siblings with S.M. (maternal great-aunt). CFS contacted maternal great-aunt and did, in fact, place the children with her. The court permitted father to visit N.F. once per week for two hours.
Father executed a waiver of rights and pleaded no contest to the allegations against him. Mother also executed a waiver of rights and submitted on the allegations of the amended petition. At the jurisdiction/disposition hearing in November 2014, the court found father to be N.F.'s presumed father. It also found true the section 300, subdivision (b) allegations of substance abuse against both parents, as well as the subdivision (b) allegation that father knew or should have known mother's substance abuse put N.F. at risk. It dismissed the section 300, subdivision (g) allegation that father's whereabouts and ability to parent N.F. were unknown.
The court declared the children dependents of the court and found clear and convincing evidence that N.F. should be removed from the parents' physical custody because there was a substantial danger to N.F.'s physical health, safety, or physical or emotional well-being without removal. It also found that placement with the noncustodial parent—father—would be detrimental to N.F.'s safety, protection, or physical or emotional well-being. The court ordered reunification services for both parents and increased visitation to three hours per week, at a minimum. Mother and father could not be under the influence of any substances during visits. Father's case plan mandated substance abuse treatment, counseling, parenting classes, and random drug testing. His service objectives included obtaining resources to provide a safe home, having and keeping a legal source of income, and obtaining and maintaining a suitable residence for N.F. C. Six-month Review
In May 2015, the social worker reported that father had demonstrated "a dedication to making changes to his lifestyle." Father reported he had been clean since September 2014. His drug tests had been negative, except for two failures to test. He had completed a substance abuse treatment program in February 2015 and 12 sessions of individual counseling. He had been attending weekly Narcotics Anonymous/Alcoholic Anonymous (AA) meetings. Father was working two to three days per week for a landscaping company. He was living with roommates, but reported that the living situation was not appropriate for N.F., and he was looking for more stable employment so that he could rent his own apartment. He had been visiting N.F. at maternal great-aunt's home, and there were no concerns about visitation. CFS had liberalized visits to twice per week, unsupervised, for two hours.
Although father had made changes in his life, the social worker still had concerns about his "substantial lack of stability and longevity regarding his sobriety." Moreover, N.F. was very bonded to her half siblings—a bond father was aware of—and these were the only constant relationships she had in her life. Thus, the social worker also had concerns for N.F.'s emotional well-being if she were to separate from her half siblings. N.F. and her half sibling had lived with maternal great-aunt during the first dependency case in 2010 to 2012. Besides N.F. and her two half siblings, who were the subjects of this case, mother had two older sons. Maternal great-aunt was the legal guardian of these two additional half siblings. She was dedicated to caring long term for all the children.
At the review hearing, the court found father had made moderate progress toward mitigating or alleviating the causes necessitating placement, while mother had made minimal progress. It found by a preponderance of the evidence that returning N.F. to the parents would create a substantial risk of detriment to her safety, protection, or physical or emotional well-being. It also continued reunification services for both parents and gave CFS authority to authorize overnight visits with father. D. Twelve-month Review
By the next review hearing, father had completed his substance abuse treatment, parenting, and counseling and was consistently visiting N.F. He had one failure to drug test and seven negative tests during the review period. Although CFS had authorized unsupervised visits, he continued to visit N.F. at maternal great-aunt's home with N.F.'s half siblings. He reportedly felt bad about taking N.F. and leaving her siblings behind.
Father's employment was not stable during the review period. He had lost the landscaping job and held a construction job for a short period after that. He had recently started working part-time as a telemarketer and was hopeful his employer would give him more hours. He did not yet have the financial means to rent his own apartment and was still living with roommates, an arrangement that he did not believe was appropriate for N.F. The social worker recommended continued out-of-home placement because father did not have an appropriate living arrangement, and the worker continued to have concerns about separating N.F. from her half siblings.
At the 12-month review hearing in October 2015, the court found by a preponderance of the evidence that returning N.F. to father would create a substantial risk of detriment to her safety, protection, or physical or emotional well-being. The court continued his reunification services for another six months. It found that he had consistently and regularly visited N.F. and had made significant progress in resolving the problems that led to N.F.'s removal. The court terminated mother's reunification services because she had made only minimal progress. E. Eighteen-month Review Hearing
In advance of the 18-month review hearing, CFS recommended that the court terminate father's reunification services and establish a planned permanent living arrangement (PPLA) with maternal great-aunt. Father was consistently visiting N.F. outside of maternal great-aunt's home. Visitation had been going well, despite N.F. initially crying from time to time. Father also continued to produce negative drug test results—he had 11 negative test results and one failure to test during the review period. He had recently found a temporary position working at a warehouse and hoped to be hired permanently, but he still did not have the financial means to provide an appropriate home for N.F. and continued to live with roommates. CFS opined that returning N.F. to father would create a substantial risk of detriment because he lacked "the appropriate finances and resources to properly care" for her.
"The Adoption and Safe Families Act of 1997 (Pub.L. No. 105-89 (Nov. 19, 1997) 111 Stat. 2115) coined the term 'planned permanent living arrangement' for any living arrangement other than reunification, adoption, legal guardianship, or placement with a relative. (See 42 U.S.C.A. § 675(5)(C).) The term was intended to replace the largely overlapping category, 'long-term foster care.'" (A.M. v. Superior Court (2015) 237 Cal.App.4th 506, 510, fn. 2.)
The 18-month review hearing took place in April 2016. The court again found by a preponderance of the evidence that returning N.F. to father would create a substantial risk of detriment to her safety, protection, or physical or emotional well-being. It also found, based on clear and convincing evidence, a compelling reason for determining that a hearing under section 366.26 was not in N.F.'s best interest, and instead it ordered a PPLA with maternal great-aunt. It terminated father's reunification services but ordered that services be provided under the PPLA and increased his visitation to four hours per week. It scheduled a permanency planning review for six months later with the understanding that father would continue to try to obtain appropriate housing. The court stated: "I guess everybody's in agreement with PPLA and give Dad services waiting for him to get housing." It asked N.F.'s counsel whether she agreed with this, and she replied affirmatively. Father's counsel then added: "I'm submitting, your Honor." F. Permanency Planning Review
The juvenile court had to order a hearing pursuant to section 366.26, unless it determined by clear and convincing evidence "that there is a compelling reason . . . for determining that a hearing held under Section 366.26 is not in the best interests of the child because the child is not a proper subject for adoption and has no one willing to accept legal guardianship as of the hearing date . . . ." (§ 366.22, subd. (a)(3).)
In its report for the October 2016 review hearing, CFS recommended that the court set a selection and implementation hearing under section 366.26 with a goal of adoption by maternal great-aunt. CFS had concluded that father's behavior "ha[d] taken a turn." While he continued to visit N.F. frequently and visits were going well, he had lost his job and had not found another one. He had not contacted CFS since August 2016, had not returned the social worker's voice mail messages, and had not responded to messages the social worker left with maternal great-aunt. CFS had no information on his current living situation. During the review period, father had one negative drug test in April and three failures to test in September and October 2016.
At the review hearing in October 2016, the court found it was in N.F.'s best interest to set the matter for a selection and implementation hearing (§ 366.26) and consider termination of parental rights. It scheduled the selection and implementation hearing for four months later. The court reduced father's visits to once per week for two hours and ordered them to be supervised. G. Selection and Implementation Hearing
N.F. had been living with maternal great-aunt since September 29, 2014. Thus, at the time of the selection and implementation hearing on March 23, 2017, she had been living there for approximately two years six months. CFS reported that N.F. was mentally and emotionally stable in the home and had thrived under maternal great-aunt's care. N.F. and maternal great-aunt had a strong bond, and N.F. recognized maternal great-aunt as her parental figure. Maternal great-aunt loved N.F. and wanted to adopt her. Although N.F. was too young to fully understand the concept of adoption, she was happy about maternal great-aunt becoming her mother and living with her "forever." Maternal great-aunt was in the process of adopting N.F.'s half siblings. She recognized the importance of children maintaining family ties and was open to N.F. maintaining relationships with any of N.F.'s birth family members.
CFS's report in March 2017 noted that a "parent-child bond [was] evident" between N.F. and father. Father's weekly supervised visits had "gone really well" overall. He was attentive to N.F. and appropriately engaged with her. N.F. appeared to enjoy her time with father, and the two appeared to share love and affection. On one occasion in February 2017, however, the visitation monitor "was pretty sure" father was under the influence of a substance, as evidenced by his "low glazy eyes and delayed movements." Maternal great-aunt also reported that, after the October 2016 review hearing, father wanted to clarify whether he still needed to drug test, and he seemed excited about not having to test anymore.
Father testified at the selection and implementation hearing. N.F. had stayed overnight with him "quite a few times" before she was detained in 2014. The last time was in March 2014, when she stayed with him for a week or so. He cooked for her, washed her clothes, and styled her hair. She called him "[d]ad." She seemed to enjoy their unsupervised visits. Since they started supervised visits at the CFS office, there were times when she seemed "closed off." She did not cry at the end of their visits, but they embraced and told each other, "I love you." Since September 2014, father had not put her to bed, participated in parent-teacher meetings, or met any of her friends. But he felt that they had an attachment, and he wanted to continue to be a part of her life. He acknowledged that they had not always had a bond, and "[a]t first," he was "neglectful toward her." Once he started spending time with her, they developed their bond. He wanted N.F. to live with him. The social worker was unable to reach him around August 2016 because his phone was off for a brief period. He drug tested regularly until the social worker informed him that he no longer had to test.
The social worker also testified at the hearing. She had observed two to three visits at maternal great-aunt's home in 2015. During the visits, father played a parental role, and N.F. appeared to enjoy the visits and be bonded to father. When he first began taking N.F. away from the home for unsupervised visits, she would cry and say she did not want to leave with father. She eventually "came around," however, and there did not appear to be any problems with the visits. The social worker did not personally monitor the supervised visits in the CFS office, but to her knowledge, father acted as a parent during them, and they appeared to be bonded. The supervised visits were appropriate, except the one when the monitor thought father might have been under the influence of alcohol, based on his "glaz[ed] . . . eyes," redness in the face, and his subdued interactions with N.F. The visits at the CFS office ended with an embrace between N.F. and father, but N.F. showed no emotional distress at leaving the visits. She was excited to see maternal great-aunt and her half siblings waiting for her in the lobby. Despite the bond between father and N.F., the social worker did not believe that adoption by maternal great-aunt would be detrimental to N.F. She believed the permanence of adoption and N.F.'s relationship with maternal great-aunt outweighed N.F.'s bond with father. Considering the prior dependency case in 2010 to 2012 and this case, N.F. had lived with maternal great-aunt for a majority of her life. N.F. had lived with mother in between the cases for a little less than two years. She had never lived with father.
Father argued that he had visited N.F. regularly during the case and the two had a strong bond. He asserted it would be detrimental to terminate parental rights. He asked the court to order guardianship as the permanent plan, rather than adoption, and to order that regular visitation continue. CFS acknowledged father had regularly visited N.F. over a substantial period of time but argued he had not assumed a parental role in her life. His visits were more like those of an extended family member or friend, and he never progressed beyond day visits to overnight visits. Moreover, CFS argued, N.F. was very stable in maternal great-aunt's home with her half siblings, and her bond with father was not so strong that it outweighed the benefits of permanence with maternal great-aunt.
After hearing the testimony and argument, the court observed: "It's not an easy decision. That's for sure." Ultimately the court found no "compelling reason" that termination of father's parental rights would be detrimental. The court explained: "I'm looking at the balancing factors. Obviously, the dad loves his daughter very much as the daughter has frequently visited and had a positive interaction with her and all of that, and then I balance that with what the cases say, the child's reliance upon the father for a need for care and day-to-day interaction, the doing the homework and putting to bed and brushing the teeth and going to the doctor, talking about friends, picking up clothes, the whole thing that actually involves an actual parental-figure-type bond as opposed to a person who is Father in the actual family day-to-day reliance on a father. [¶] So on the one hand I see Father who loves his daughter, but I don't see a daughter who relies on him as a father on the day-to-day interaction or has gone to the day-to-day interaction or longing for the father in that role of the day-to-day interactions."
The court also ruled father had not shown that severance of his relationship with N.F. would have a detrimental effect on her. It agreed with CFS that their relationship was more like one between extended relatives and not necessarily parent and child. The court saw "some incidental parental bond there, but based on the case law," it concluded the parental-bond exception to adoption did not apply. The court found N.F. was likely to be adopted, terminated the parental rights of both parents, and ordered adoption as the permanent plan. Father and mother both filed notices of appeal.
III. DISCUSSION
Father contends the juvenile court violated his due process rights by terminating his parental rights without clear and convincing evidence of parental unfitness. He contends the court based its detriment findings exclusively on his poverty-related housing instability, which, as a matter of law, did not establish his unfitness as a parent. He also contends the court did not properly apply the parental benefit exception to adoption. (§ 366.26, subd. (c)(1)(B)(i).) Mother argues that if we reverse the termination of father's parental rights, we must also reverse the termination of her parental rights. She raises no independent arguments. We agree with father that the court improperly based its detriment findings on his poverty-related housing instability, but disagree with respect to the parental benefit exception. We agree with mother that, because we are reinstating father's parental rights, we must also reinstate her rights, pending further action by the juvenile court. A. The Court's Termination of Father's Parental Rights Violated His Right to Due Process
As a threshold matter, CFS contends father forfeited his due process argument by failing to raise it below. A party forfeits a claim of error on appeal when the party fails to raise the objection in the juvenile court, but "'application of the forfeiture rule is not automatic.'" (In re T.G. (2013) 215 Cal.App.4th 1, 14.) When a party raises an important constitutional issue like father's due process interest in the care and custody of N.F., we may exercise our discretion to consider the argument on the merits. (Id. at pp. 13-14 [refusing to hold the father had forfeited the claim that the court violated his due process rights when it terminated his parental rights]; see also In re Frank R. (2011) 192 Cal.App.4th 532, 539 ["[W]e are reluctant to enforce the waiver rule when it conflicts with due process."].) We exercise that discretion and therefore decline CFS's invitation to bypass the issue. We review the claimed constitutional violation de novo (In re T.G., supra, at p. 14), and having considered the merits of father's argument, we conclude the court's termination of his parental rights violated his right to due process.
"Parents have a fundamental interest in the care, companionship, and custody of their children." (In re Gladys L. (2006) 141 Cal.App.4th 845, 848.) In Santosky v. Kramer (1982) 455 U.S. 745, the United States Supreme Court "establishe[d] minimal due process requirements in the context of state dependency proceedings. 'Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence.' . . . '[U]ntil the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship.'" (In re Gladys L., supra, at p. 848, quoting Santosky v. Kramer, supra, at pp. 747-748.)
"California's dependency system comports with Santosky's requirements because, by the time parental rights are terminated at a section 366.26 hearing, the juvenile court must have made prior findings that the parent was unfit." (In re Gladys L., supra, 141 Cal.App.4th at p. 848.) Our "'dependency scheme no longer uses the term "parental unfitness"'"; instead, at the disposition hearing, the juvenile court must find by clear and convincing evidence "'that awarding custody of a dependent child to a parent would be detrimental to the child.'" (In re Frank R., supra, 192 Cal.App.4th at p. 537; §§ 361, subd. (c)(1), 361.2, subd. (a).) Afterward, at the six-, 12-, and 18-month review hearings, "the juvenile court must return the child to the custody of the parent unless it determines, by a preponderance of the evidence, that return of the child would create a substantial risk of detriment to the child's physical or emotional well-being." (In re Marilyn H. (1993) 5 Cal.4th 295, 308; §§ 366.21, subds. (e)(1), (f)(1), 366.22, subd. (a)(1).) "Only if, over this entire period of time, the state continually has established that a return of custody to the parent would be detrimental to the child is the section 366.26 stage even reached." (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 253, italics added.)
Thus, by the time the court reaches the section 366.26 hearing, no additional detriment finding need occur. (Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 253.) At that point, "'the danger to the child from parental unfitness is so well established that there is no longer "reason to believe that positive, nurturing parent-child relationships exist" . . . .'" (In re R.T. (2017) 3 Cal.5th 622, 637.) "[D]ue process is satisfied if unfitness is established at an earlier stage, and parental rights terminated later based on the child's best interest." (Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1134, citing Cynthia D. v. Superior Court, supra, at p. 256 and Santosky v. Kramer, supra, 455 U.S. at p. 760.) "The number and quality of the judicial findings that are necessary preconditions to termination convey very powerfully to the fact finder the subjective certainty about parental unfitness and detriment required before the court may even consider ending the relationship between natural parent and child." (Cynthia D. v. Superior Court, supra, at p. 256.)
But judicial findings of unfitness or detriment supporting the termination of parental rights may not rest on poverty alone, particularly the inability to afford housing. The seminal cases illustrating this principle are G.S.R., supra, 159 Cal.App.4th 1202 and P.C., supra, 165 Cal.App.4th 98.
The father in G.S.R., Gerardo, was a nonoffending, noncustodial parent. (G.S.R., supra, 159 Cal.App.4th at pp. 1207, 1211.) As such, the county never alleged Gerardo was an unfit parent to his sons, and the court never found by clear and convincing evidence that placement of Gerardo's sons with him would be detrimental. (Id. at p. 1211.) The court removed his sons from their mother's care based solely on her conduct. (Ibid.) Although Gerardo admitted to previous issues with domestic violence and substance abuse, he had resolved those issues before the county filed any petition. (Id. at pp. 1206, 1211.) He always provided financial support for his sons, visited them regularly, participated in their school events, helped with their homework, and maintained contact with the county even though he lacked housing. (Id. at p. 1212.) The court terminated reunification services and set a section 366.26 hearing after Gerardo had received 12 months of services. (G.S.R., supra, at p. 1208.) Gerardo objected to the termination of his parental rights as a violation of due process because the court had never found him to be unfit. (Id. at p. 1209.) He also argued the lack of affordable family housing was the only thing preventing him from obtaining custody of his sons, and the county had never attempted to assist him with housing. (Ibid.)
The appellate court concluded: "The record strongly suggests the only reason Gerardo did not obtain custody of the boys was his inability to obtain suitable housing for financial reasons. But poverty alone, even abject poverty resulting in homelessness, is not a valid basis for assertion of juvenile court jurisdiction. . . . Put differently, indigency, by itself, does not make one an unfit parent and 'judges [and] social workers . . . have an obligation to guard against the influence of class and life style biases.'" (G.S.R., supra, 159 Cal.App.4th at p. 1212, fn. omitted.) The court criticized the county for failing to craft a plan to help Gerardo obtain affordable housing and instead recommending the termination of services and severance of the parental relationship. (Id. at p. 1213.) It also criticized the juvenile court for adopting these recommendations "without providing Gerardo notice or a meaningful opportunity to address the issue of his fitness to parent." (Ibid.) It held the juvenile court erred in terminating his parental rights "without an allegation or a finding, made by clear and convincing evidence, that he was an unfit parent." (Id. at p. 1210.)
Moreover, the court held, the record did not support the findings of detriment at the six- and 12-month review hearings. (G.S.R., supra, 159 Cal.App.4th at pp. 1207-1208, 1213.) The juvenile court had based those findings on Gerardo's failure to attend AA meetings and lack of housing. (Id. at p. 1213.) Gerardo had attended AA meetings for 20 weeks because the court had ordered it, stopped attending for several months, and then resumed. (Id. at p. 1207.) The appellate court observed that Gerardo's sobriety was never in issue during the case, and there was no evidence his failure to attend meetings posed a danger to his sons. (Id. at p. 1213.) As for Gerardo's lack of housing, the court explained the county could "not bootstrap the fact that Gerardo was too poor to afford housing, which would not have served as a legitimate ground for removing the boys in the first place, to support findings of detriment, all of which flow directly from the circumstances of Gerardo's poverty . . . . This is particularly so when [the county] might have assisted Gerardo to obtain affordable housing, but made no effort to do so." (Ibid.) The court determined "Gerardo's due process rights were denied by [the county's] failure to demonstrate sufficient detriment and the juvenile court's failure to find a legitimate basis for deeming him unfit." (Id. at p. 1215.) It remanded the matter for the juvenile court to determine whether placement with Gerardo would be detrimental to the children, based on currently existing and legally sufficient grounds independent from poverty. (Id. at p. 1216.)
Six months after G.S.R., the court in P.C. asked: "Is poverty alone—even when it results in homelessness or less than ideal housing arrangements—a sufficient ground to deprive a mother of parental rights to her children?" (P.C., supra, 165 Cal.App.4th at p. 99.) The court concluded it was not, relying on G.S.R. (P.C., supra, at p. 100.) P.C. differed from G.S.R. in that the mother, unlike Gerardo, was an offending parent. (P.C., supra, at p. 105.) The juvenile court had sustained allegations of physical abuse against the mother. (Id. at p. 100.) She received 18 months of reunification services. (Id. at p. 101.) At the 18-month review hearing, the social worker testified the mother had completed all the services required by her case plan and the only thing preventing return of the children was her lack of housing. (Ibid.) The juvenile court terminated reunification services and set the matter for a section 366.26 hearing. (P.C., supra, at p. 102.) At the section 366.26 hearing, the social worker testified she failed to obtain the mother's signature on a form that could have put her higher on a waiting list for low-income housing, and she simply recommended the mother look in the Pennysaver for housing. (P.C., supra, at p. 106)
Based on these facts, the appellate court reversed the termination of the mother's parental rights. (P.C., supra, 165 Cal.App.4th at p. 107.) If the mother had not completed her case plan, the court would have agreed that the juvenile court's continued findings of detriment at the review hearings were tantamount to a finding of parental unfitness. (Id. at p. 106.) But because the mother had resolved the problems that led to intervention by the dependency system, the juvenile court had based the later findings of detriment solely on her inability to find suitable housing. (Ibid.) Additionally, the social worker's testimony established the county did not provide reasonable services with respect to housing. (Ibid.) The court followed the disposition in G.S.R. and remanded for the juvenile court to determine "whether legally sufficient grounds independent of [the] mother's poverty and lack of stable, suitable housing currently exist such that it would be detrimental to place the children" in her care. (P.C., supra, at p. 107.) If the juvenile court could make this detriment finding, it could reinstate the order terminating parental rights. (Id. at p. 108.) If it could not make this detriment finding, the court had to renew reunification services, including assistance in obtaining suitable housing, for six months. (Ibid.) Only if these renewed efforts failed could the court terminate the mother's parental rights. (Ibid.)
P.C. is closely analogous to the case at hand. Father was an offending parent, and the court made a finding of detriment based on the sustained allegations of drug abuse at the disposition hearing. But the record is clear that, by the time of the 12-month review hearing, father had satisfactorily completed the components of his case plan calling for substance abuse treatment, counseling, parenting classes, and drug testing. Like the mother in P.C., he had "corrected all the problems that led to the juvenile court's assertion of jurisdiction over the children." (P.C., supra, 165 Cal.App.4th at p. 105.) At the 12- and 18-month review hearings, the only apparent obstacle to placing N.F. in father's care was his inability to afford suitable housing. Accordingly, the court based its later findings of detriment solely on father's inability to afford housing. The court's comments at the 18-month review hearing underscore this conclusion—it indicated that it was placing N.F. in a PPLA to wait for father to obtain housing. It is unclear from the record, however, what services, if any, father had received to support his search for affordable housing.
These poverty-based detriment findings did not establish parental unfitness, and given that father had corrected his behavior, we cannot say his parental unfitness was so "'well established'" that due process was satisfied by the time the court terminated his parental rights. (In re R.T., supra, 3 Cal.5th at p. 637; P.C., supra, 165 Cal.App.4th at p. 106; G.S.R., supra, 159 Cal.App.4th at p. 1213.)
Like the court in P.C., we recognize there is no "perfect 'fix'" at this point in the proceedings, and we are loathe to upset N.F.'s stability. (P.C., supra, 165 Cal.App.4th at p. 107.) Nevertheless, we cannot permit the juvenile court to terminate father's parental rights under these circumstances. We agree with the framework on remand set forth in P.C. (Id. at pp. 107-108.) We will reverse the order terminating father's parental rights and remand for the court to determine whether legally sufficient grounds independent of father's poverty and lack of housing currently exist, such that it would be detrimental to place N.F. in his care. (Ibid.) If these grounds exist, the court may reinstate its order terminating parental rights. (Ibid.) If these grounds do not currently exist, we shall direct the court to restart reunification services and related efforts, including assistance in obtaining stable, suitable housing, for six more months. (Ibid.) Only after these renewed efforts have failed may the court proceed to terminate parental rights. (Ibid.)
CFS disagrees that remand is appropriate in this case and contends the juvenile court did not base its findings of parental unfitness and detriment solely on father's lack of housing. CFS asserts the court also based its detriment findings on the emotional harm to N.F. of separating from her siblings, father's unstable employment, his failure to maintain contact with CFS for several months around August through October 2016, and his three missed drug tests during that same period. Father's unstable employment is not for lack of trying. More importantly, his unstable employment is inseparable from his lack of housing for our purposes—the former is what led to the latter. Either one amounts to a poverty-based reason for finding detriment, which does not establish parental unfitness. We also reject the argument that separation from N.F.'s siblings may support the termination of father's parental rights. Sibling relationships are relevant to placement decisions, and the emotional harm arising from the loss of these relationships may support a finding that placement with a noncustodial parent would be detrimental to a child. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1425.) But we are concerned with the independent question of whether such detriment findings may support the termination of parental rights as a matter of due process. Due process requires the county to prove parental unfitness before the court may sever the parent-child relationship. (Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 256.) A detriment based solely on harm caused by the loss of sibling relationships may not prove parental unfitness any more than detriment based solely on the parent's poverty.
Father's alleged failure to maintain contact with CFS and three missed drug tests are another matter. These assertions do not persuade us due process has been satisfied here. This is because the court never made any detriment findings, whether express or implied, based on this evidence. This evidence arose after the court had implemented a PPLA and scheduled a review hearing under section 366.3. The court had to order a section 366.26 hearing unless it found, by clear and convincing evidence, a compelling reason that the section 366.26 hearing was "not in the best interest of the child because the child is being returned to the home of the parent, the child is not a proper subject for adoption, or no one is willing to accept legal guardianship as of the hearing date." (§ 366.3, subd. (h)(1).) The court did not make this finding and instead found it was in N.F.'s best interest to set the section 366.26 hearing and consider termination of parental rights. This was not a six-, 12-, or 18-month review hearing at which the statutory scheme required the court to make a detriment finding. We refuse to infer a detriment finding when neither the court nor the parties operated as though such a finding was required. For the same reason, we cannot infer a detriment finding from the section 366.26 hearing. Our Supreme Court has made clear that, at the section 366.26 hearing, the statutory scheme does not require a detriment finding (Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 253), and the court did not make such a finding at the section 366.26 hearing in this case.
In short, while father's alleged loss of contact and missed drug tests may be valid bases for finding parental unfitness or detriment, the juvenile court never made that finding. These issues of fact and the credibility of evidence are the province of the lower court (In re R.T., supra, 3 Cal.5th at p. 633), and we will not act as fact finder in the first instance (In re Frank R., supra, 192 Cal.App.4th at p. 539). The juvenile court is the appropriate tribunal to judge, for example, father's credibility when he asserts the social worker told him not to drug test. Our directions for the juvenile court to conduct a detriment hearing on remand will give the court an opportunity to do this and the parties notice that the court will resolve the issue of parental unfitness.
Finally, given that we are reversing the termination of father's parental rights, we must also reverse the termination of mother's rights. The purpose of terminating parental rights "is to free the child for adoption." (Cal. Rules of Court, rule 5.725(g).) With some exceptions not present here, the court must not terminate the rights of only one parent. (Ibid.) When a Court of Appeal reinstates one parent's rights pending further proceedings, the purpose of freeing the child for adoption is not attainable. (In re A.L. (2010) 190 Cal.App.4th 75, 80; In re DeJohn B. (2000) 84 Cal.App.4th 100, 110.) No one knows at this time whether N.F. will be adopted or returned to father, and N.F.'s best interests are served by also reinstating mother's parental rights until this may be determined. (In re A.L., supra, at p. 80; In re DeJohn B., supra, at p. 110.) If the court makes the requisite detriment finding on remand and reinstates the order terminating father's parental rights, it may also reinstate the order terminating mother's parental rights. B. The Court Did Not Err in Analyzing the Parental Benefit Exception to Adoption
We turn now to father's alternative argument for reversing the termination of his parental rights. Father contends the court improperly applied the parental benefit exception to adoption by reading a requirement of day-to-day contact into the exception. (§ 366.26, subd. (c)(1)(B)(i).) We address this argument in the interest of judicial economy. On remand, the court may find current evidence of parental unfitness or detriment and reinstate the order terminating parental rights. To forestall an appeal from that reinstated order that argues the court somehow misunderstood or misapplied the parental benefit exception, we answer that question now. When we examine the court's ruling, we see no misunderstanding of the law.
The Legislature has designated adoption as the preferred permanent plan when possible. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) If the court finds a child is likely to be adopted, it must terminate parental rights and select adoption as the permanent plan unless it finds one of several exceptions applies. (§ 366.26, subd. (c)(1); In re L.Y.L., supra, at p. 947.) "[I]t is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
The parental benefit exception requires the court to find "a compelling reason for determining that termination would be detrimental to the child" because the parent has "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) "[T]he 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.)
Over 20 years ago, the court in Autumn H. described the requisite parent-child relationship in this way: "Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult's attention to the child's needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Since Autumn H., the same court that decided the case has clarified that day-to-day contact is not necessarily required, but a significant parent-child "relationship typically arises from day-to-day interaction" before removal, "and [it] may be continued or developed by consistent and regular visitation after the child has been removed from parental custody." (In re S.B. (2008) 164 Cal.App.4th 289, 299, first italics added.) The court also held the parent need not show the child has a "'primary attachment'" to the parent. (Ibid.)
Simply stated, Autumn H. did not narrowly define the type of relationship required to establish the exception. (In re S.B., supra, 164 Cal.App.4th at p. 299.) "Parent-child relationships do not necessarily conform to a particular pattern. The juvenile court should be concerned not with finding a certain type of parental relationship but with the interests of the particular child or children before it, and whether there is a compelling reason not to terminate parental rights." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) But "a parental relationship is necessary for the exception to apply, not merely a friendly or familiar one. [Citations.] 'While friendships are important, a child needs at least one parent. Where a biological parent . . . is incapable of functioning in that role, the child should be given every opportunity to bond with an individual who will assume the role of a parent.' [Citation.] Thus, a child should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree but does not meet the child's need for a parent." (Ibid.)
Courts must examine the exception on a case-by-case basis and consider the myriad of variables affecting the parent-child bond, including "[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 . . . ." (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) "The juvenile court may reject the parent's claim simply by finding that the relationship maintained during visitation does not benefit the child significantly enough to outweigh the strong preference for adoption." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
The parent bears the burden of showing the parental benefit exception applies. (In re S.B., supra, 164 Cal.App.4th at p. 297.) We review the juvenile court's determination on whether a beneficial parental relationship exists for substantial evidence. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1315.) We review for abuse of discretion the court's determination on whether the relationship provides a compelling reason for finding termination of parental rights would be detrimental to the child. (Ibid.)
Here, father contends the court "was apparently operating under the mistaken impression that day-to-day contact and a primary relationship were predicates" for the parental benefit exception to apply, and it therefore did not properly consider N.F.'s substantial, positive emotional attachment to father. He asserts this purported misunderstanding of the law requires a new selection and implementation hearing, at which the court should apply the correct law.
We do not read the court's ruling the same way, nor do we read the law as prohibiting any consideration of day-to-day interactions. Even if day-to-day contact is not required to show the applicability of the exception, it is still relevant, particularly to the extent it occurred before the child's out-of-home placement. The court was not wrong to consider whether father and N.F. had ever enjoyed the day-to-day interactions that typically give rise to a significant parent-child relationship. They had not. He had never lived with N.F. and he had never cared for her on a full-time basis. By father's own admission, he was neglectful toward N.F. before these proceedings and his regular visitation began. She had never regularly relied on him for seemingly routine parental duties, such as helping with homework or attending parent-teacher conferences. The extent of his day-to-day involvement in her life was pertinent to whether they had a strong foundation that they could maintain or build on through regular visitation. Far from reversible error, the court's consideration of these circumstances was entirely appropriate. We decline to reverse for a new selection and implementation hearing when father has not shown any error the first time around.
IV. DISPOSITION
The order terminating father's and mother's parental rights is reversed. On remand, the juvenile court shall conduct a hearing to determine whether legally sufficient grounds independent of father's poverty and lack of housing currently exist such that it would be detrimental to place N.F. in his care. If these grounds exist, the court may reinstate its order terminating both parents' rights. If these grounds do not currently exist, the court shall order CFS to restart reunification services and related efforts, including assistance in obtaining stable, suitable housing, for six more months. Only after these renewed efforts have failed may the court proceed to terminate father's and mother's parental rights.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. SLOUGH
J.