In re C.R. CA2/5 ( 2022 )

Filed 10/19/22 In re C.R. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
In re C.R., a Person Coming B319264
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct.
AND FAMILY SERVICES, No. 18LJJP00474C)
Plaintiff and Respondent,
v.
R.R.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Marguerite D. Downing, Judge. Conditionally
reversed with directions.
Janette Freeman Cochran, under appointment by the Court
of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Veronica Randazzo, Deputy
County Counsel, for Plaintiff and Respondent.
——————————
Father appeals from the order terminating his parental
rights under Welfare and Institutions Code section 366.261 as to
C.R. (minor). Father contends the court erred when it denied
application of the parental relationship exception to termination
of parental rights under section 366.26, subdivision (c)(1)(B)(i).
He further contends the court erroneously failed to ensure
compliance with the inquiry and notice requirements of the
Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et
seq.) and related California statutes (Welf. & Inst. Code, § 224 et
seq.).
Los Angeles County Department of Children and Family
Services (the Department) contends father forfeited any
contention of error with respect to the parental relationship
exception, and alternatively, the court did not err. The
Department concedes that neither the Department nor the court
asked paternal relatives about minor’s possible Indian ancestry.
We find no error in the juvenile court’s implied ruling that
the parental relationship exception to termination does not apply
to the termination; however, we conditionally reverse and
remand the matter solely for the juvenile court to ensure
compliance with ICWA and related California statutes.
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2
FACTUAL AND PROCEDURAL BACKGROUND
Prior Child Welfare History
Father and mother have three children: minor (born
December 2008), older sister (born February 2003), and older
brother (born September 2001).2 Parents were involved in two
prior dependency cases before the current petition was filed. The
first case began in 2004 and involved minor’s siblings, before
minor was born, based on mother’s substance abuse and domestic
violence between mother and father. In March 2007, the juvenile
court terminated jurisdiction with an order awarding custody of
minor’s siblings to mother. In 2014, the court sustained a second
petition based on father’s physical abuse of minor, then five years
old, and the parents’ domestic violence and substance abuse.
Father was denied reunification services due to the length of his
incarceration, but in April 2017, the court terminated jurisdiction
and awarded custody of all three children to father.
Current Dependency Case
The current dependency case began in July 2018, during a
police investigation into a domestic violence incident that led to
father being arrested and charged with attempted murder,
dissuading a witness, and child endangerment. All three
children, then ages 9, 15, and 16, were removed from parental
2 Mother is not a party to this appeal, and the older siblings
are not the subject of father’s appeal. Father also has another
child, minor’s half-sibling, who is not the subject of this appeal.
3
custody, and father has remained incarcerated throughout the
dependency.
During August 2018, the juvenile court found father to be a
presumed father, and ordered the Department to assess various
paternal relatives and nonrelated extended family members
(NREFMs), J.R. and N.R., for placement and as monitors for
sibling visits. In October 2018, the court denied minor’s request
for a long-term visit with N.R. after paternal relatives had moved
to Las Vegas. The court gave the Department discretion to place
minor with any approved caregiver and allow visits.
In December 2018, the juvenile court sustained the petition
allegations based on father’s history of violent conduct and
substance abuse, declaring minor and his siblings dependents.
Father’s reunification services included a full drug/alcohol
program with after care, random or on-demand drug and alcohol
testing, a 12-step program with court care and sponsor, a 52-
week certified domestic violence program for domestic violence
offenders, a parenting program, individual counseling, and
monitored visits.
The Department’s six-month review report indicated minor
initially had behavioral issues in his foster home and at school.
Minor’s behavior improved after he was placed in a different
foster home and started taking a psychotropic medication. Minor
had visits with his siblings, paternal aunt, and NREFM N.R.
Minor’s oldest brother had one visit with father, but there is no
information in the report about any efforts or requests for visits
between minor and father. During older brother’s visit, father
told the social worker he was not enrolled in any programs.
At a contested review hearing in August 2019, the juvenile
court found father was not in substantial compliance with his
4
case plan, noting that father was incarcerated, and that three of
the four reunification programs ordered were not available to
him. Father’s counsel requested a no reasonable services finding
and six additional months of reunification services, but the court
found the Department had made reasonable efforts. Because the
children had been out of parental custody for twelve months, the
court set the matter for a hearing under section 366.26 for
selection of a permanent plan.
In August 2019, minor and his older sister were placed
with Ms. S. Minor did well in the new placement. His behavior
at home and in school improved; he adjusted to Ms. S. well,
calling her mom and expressing a desire to be adopted by her.
Ms. S. wanted to provide a stable and permanent home for minor
and older sister. She acknowledged the bond between minor and
father, and planned to foster and maintain that bond, as she
believed breaking it would be detrimental. The Department
recommended adoption by Ms. S. as the permanent plan for
minor.
The only references to in-person visits between minor and
father appear in a status review report filed February 10, 2020.
The Department reported that in addition to visiting with his
siblings twice a month, minor also visited father “approximately
once a month.” Describing a visit on February 1, 2020, the social
worker transported all three children to the jail, where father
thanked the social worker “for always transporting the children
to visit him at the jail.” The children were given extra time to
talk with father; they “took turns to speak with their father and
were very happy that they were given enough time to have
quality contact with father.” Father’s birthday was the previous
5
day, and so the children took turns to wish father happy
birthday.
In December 2020, a dependency investigator working with
the Department’s adoptions unit met with minor to discuss
permanency. Minor was able to explain the difference between
guardianship and adoption, and he wanted to be adopted by
Ms. S. She considered him to be a son, and he considered her to
be a mom. Minor wanted to remain in Ms. S’s home and live a
normal life. According to the report, minor said he did not want
to have social workers always coming to his home, nor did he
want to be bounced around from home to home. Minor loved
father and felt a strong connection, but he also understood that
father would be incarcerated for a long time. In terms of minor’s
desire to maintain a relationship with father even after adoption,
minor was open to maintaining contact with father through
written letters.
In a January 2021 report, the CSW reported that Ms. S.
reported that minor’s behavioral issues had resolved, and he no
longer needed medication or mental health services. He
continued to do well in Ms. S’s home.
On March 15, 2021, the juvenile court continued the section
366.26 hearing. Father’s counsel raised an issue with respect to
telephonic visits, explaining that father had not been provided
with the phone number for the foster home. Counsel also
explained that father had written a letter to minor but was
unsure if it had been forwarded to minor. The court authorized
father to have phone calls with minor. With respect to letters,
the court specified that father’s letters were to be reviewed by a
social worker or therapist before being delivered to minor. The
6
court ordered the Department to provide minor with stamps and
envelopes if he wanted to write to father.
On July 13, 2021, the juvenile court denied father’s request
for a supplemental report about the Department’s “efforts to
allow . . . father to write” to minor.
In the fall of 2021, minor continued to be well-bonded to
Ms. S., who still wanted to adopt minor. Visits with father were
no longer taking place.
At the section 366.26 hearing on January 19, 2022, father
objected to adoption. According to father’s attorney, father had
been writing to minor and believed the letters would help minor’s
decisions about adoption, but father was unsure whether minor
received any of the letters. In addition, father believed he would
be released from jail shortly, where he was awaiting trial. Father
asked the court not to order adoption, or alternatively to grant a
continuance. The Department argued no exception to adoption
applied, as father had not been in a parental role and did not
have regular contact with minor.
When the juvenile court noted that minor was old enough
to object, and he wanted to maintain a relationship with father
but also wanted adoption, father interjected, asking to address
the court. Father claimed he had written letters that were never
given to his children. Minor wanted adoption, but he did not
have all the information.
The juvenile court ordered mother and father’s parental
rights as to minor terminated, finding by clear and convincing
evidence that minor was adoptable and that no exception to
termination applied. Later, the court acknowledged that minor
wanted to maintain a relationship with father, and that minor
did not receive any letters from father. The court did not revisit
7
its termination of parental rights; however, the court ordered the
Department to follow up on what happened.
DISCUSSION
Parental relationship exception
Father contends on appeal that the juvenile court erred
when it found no exception to adoption applied, because the court
should have applied the parental relationship exception. The
Department contends father’s claim is forfeited because he did
not raise it below, and even if the claim is not forfeited, father
failed to meet the requirements for the parental relationship
exception. We agree with the Department that father failed to
adequately raise the parental relationship exception to adoption.
Nevertheless, even assuming the issue was not forfeited, we
conclude the juvenile court did not err in impliedly rejecting the
parental relationship exception.
Forfeiture
The failure to raise the parental relationship exception in
the juvenile court forfeits it as an issue on appeal. (See In re
Rachel M. (2003) 113 Cal.App.4th 1289, 1295 [relative caregiver
exception; the “juvenile court does not have a sua sponte duty to
determine whether an exception to adoption applies”]; see also In
re Daisy D. (2006) 144 Cal.App.4th 287, 292 [same, with regard to
beneficial sibling relationship exception].)
At the section 366.26 hearing, father’s counsel did not
argue the parental relationship exception to termination of
8
parental rights applied, nor did father or his counsel provide any
evidence to support application of the parental relationship
exception. Therefore, father forfeited his contention.
Even if we were to find no forfeiture, father cannot show
the court erred in impliedly finding the exception inapplicable
here.
Relevant law and standard of review
The express purpose of a section 366.26 hearing is “to
provide stable, permanent homes” for dependent children.
(§ 366.26, subd. (b).) Once the juvenile court has decided to end
parent-child reunification services, the legislative preference is
for adoption. (§ 366.26, subd. (b)(1); In re S.B. (2009) 46 Cal.4th
529, 532 [if “adoption is likely, the court is required to terminate
parental rights, unless specified circumstances compel a finding
that termination would be detrimental to the child”].)
Section 366.26 requires the juvenile court to conduct a two-
part inquiry at the selection and implementation hearing. First,
it determines whether there is clear and convincing evidence the
child is likely to be adopted within a reasonable time. (In re J.W.
(2018) 26 Cal.App.5th 263, 266; In re Caden C. (2021) 11 Cal.5th
614, 630 (Caden C.); Cynthia D. v. Superior Court (1993)
5 Cal.4th 242, 249–250.) Then, if the court finds by clear and
convincing evidence the child is likely to be adopted, the statute
mandates judicial termination of parental rights unless the
parent opposing termination can demonstrate one of the
enumerated statutory exceptions applies. (§ 366.26,
subd. (c)(1)(A) & (B); see Caden C., at p. 630.)
9
One of the statutory exceptions to termination is the
parental relationship exception, contained in section 366.26,
subdivision (c)(1)(B)(i), which permits the juvenile court to order
some other permanent plan if “[t]he parents have maintained
regular visitation and contact with the child and the child would
benefit from continuing the relationship.” As the Supreme Court
explained in Caden C., supra, 11 Cal.5th 614, at page 636, the
exception requires the parent to establish, by a preponderance of
the evidence, (1) the parent has maintained regular visitation
and contact with the child, “taking into account the extent of
visitation permitted”; (2) the child has a substantial, positive,
emotional attachment to the parent such that the child would
benefit from continuing the relationship; and (3) terminating the
relationship “would be detrimental to the child even when
balanced against the countervailing benefit of a new, adoptive
home.” (See id. at p. 630 [the “language of this exception, along
with its history and place in the larger dependency scheme, show
that the exception applies in situations where a child cannot be in
a parent’s custody but where severing the child’s relationship
with the parent, even when balanced against the benefits of a
new adoptive home, would be harmful for the child”].) When the
benefits of a stable, adoptive, permanent home outweigh the
harm the child would experience from the loss of a continued
parent-child relationship, the court should order adoption. (Id. at
p. 634.) However, “ ‘[i]f severing the natural parent/child
relationship would deprive the child of a substantial, positive
emotional attachment such that,’ even considering the benefits of
a new adoptive home, termination would ‘harm[ ]’ the child, the
court should not terminate parental rights.” (Id. at p. 633.)
10
We review the juvenile court’s findings as to whether the
parent has maintained regular visitation and contact with the
child and the existence of a parental relationship for substantial
evidence. (Caden C., supra, 11 Cal.5th at pp. 639–640; cf. In re
R.V. (2015) 61 Cal.4th 181, 200–201 [“[t]here is, however, no
single formulation of the substantial evidence test for all its
applications”; where a party fails to meet its burden on an issue
in the juvenile court, “the inquiry on appeal is whether the
weight and character of the evidence . . . was such that the
juvenile court could not reasonably reject it”].) We review the
third step—whether termination of parental rights would be
detrimental to the child due to the child’s relationship with his or
her parent—for abuse of discretion. (Caden C., at p. 640.)
Analysis
Even assuming father met the first two elements—regular
visits and a beneficial relationship—he cannot show the juvenile
court abused its discretion in impliedly finding the parental
relationship inapplicable, because there was little to no evidence
that terminating father’s parental rights would be detrimental to
minor.
In other words, the ultimate question is not simply how
consistently minor visited with father, or whether they had a
positive relationship despite father’s incarceration, but whether
the benefits of stability and permanence through adoption by
Ms. S.—with whom minor had been living for more than two
years, where he had achieved stability in terms of his mental
health, and where he considered Ms. S. as a mother—was
outweighed by the harm that would be caused by severing the
11
legal relationship between father and minor. The juvenile court
impliedly found no such detriment in terminating parental
rights.
Father disputes that finding, but he has not demonstrated
the juvenile court’s conclusion was arbitrary or irrational, let
alone that this case presents the type of “ ‘exceptional
circumstance’ ” that would warrant departure from the norm of
adoption. (Caden C., supra, 11 Cal.5th at p. 631 [the parent-child
exception, like other statutory exceptions to termination parental
rights, is departure from “ ‘the norm’ ” of adoption and applies
only in “ ‘exceptional circumstances’ ”]; accord, In re Celine R.
(2003) 31 Cal.4th 45, 53.) To the contrary, given the minimal
evidence of any meaningful relationship between father and
minor, that decision was well within the court’s discretion.
ICWA
Father contends that reversal is required because the
inquiry requirements of ICWA and related California law were
not satisfied in this case.
ICWA Facts
In the current case, the Department was initially unable to
contact mother or father, so neither parent was asked about
possible Indian ancestry at the beginning of the case.3 A number
3 The Department asks us to take judicial notice of minute
orders from the 2013 and 2014 prior dependency hearings,
finding that ICWA did not apply. Because the state statutory
inquiry requirements were revised in 2018, we deny the request
12
of relatives appeared both at the initial hearing on July 27, 2018
and at father’s arraignment on August 7, 2018, including minor’s
adult sibling, paternal aunt, paternal grandfather, and NREFM
N.R. Neither the court nor the Department asked any of those
relatives if they had any reason to believe minor was an Indian
child, despite an extensive discussion about placement on
August 7, 2018.
In August 2018, father filed an ICWA-020 notification of
Indian status form stating he had no Indian ancestry as far as he
knew. Subsequent minute orders and reports stated either that
there was no reason to know minor was an Indian child, or that
ICWA did not apply.
Relevant Law and Standard of Review
“Congress enacted ICWA in 1978 in response to ‘rising
concern in the mid-1970’s over the consequences to Indian
children, Indian families, and Indian tribes of abusive child
welfare practices that resulted in the separation of large numbers
of Indian children from their families and tribes through
adoption or foster care placement, usually in non-Indian homes.’ ”
(In re Isaiah W. (2016) 1 Cal.5th 1, 7.) Both ICWA and California
law define an “ ‘Indian child’ ” as a child who is either a member
of an Indian tribe or 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); § 224.1, subds. (a) & (b); see In re
Elizabeth M. (2018) 19 Cal.App.5th 768, 783.)
for judicial notice filed on June 23, 2022. Any prior ICWA
findings are irrelevant to the issue raised in the current appeal.
13
California statutory law incorporates the requirements of
ICWA, and imposes some additional requirements as well. (In re
Abbigail A. (2016) 1 Cal.5th 83, 91; In re Benjamin M. (2021)
70 Cal.App.5th 735, 741–742.) State and federal law require the
juvenile court to ask parties and participants at the outset of an
involuntary child custody proceeding whether they have reason to
know a minor is an Indian child, and to “instruct the parties to
inform the court if they subsequently receive information that
provides reason to know the child is an Indian child.” (25 C.F.R
§ 23.107(a) (2020); § 224.2, subd. (c); see Benjamin M., at p. 741.)
“The Department’s first-step inquiry duty under ICWA and
state law was broader [than what is required of a court making
inquiry under federal law], requiring it also to interview, among
others, extended family members and others who had an interest
in the child.” (In re H.V. (2022) 75 Cal.App.5th 433, 438; see
§ 224.2, subd. (b).) Federal regulations explain that the term
“extended family member is defined by the law or custom of the
Indian child’s Tribe or, in the absence of such law or custom, is a
person who has reached age 18 and who is the Indian child’s
grandparent, aunt or uncle, brother or sister, brother-in-law or
sister-in-law, niece or nephew, first or second cousin, or
stepparent.” (25 C.F.R. § 23.2 (2017).) When there is “reason to
believe that an Indian child is involved in a proceeding,” further
inquiry is required. (§ 224.2, subd. (e); In re T.G. (2020)
58 Cal.App.5th 275, 290, fn. 14.)
“We review claims of inadequate inquiry into a child’s
Indian ancestry for substantial evidence.” (In re H.V., supra,
75 Cal.App.5th at p. 438.)
14
Analysis
The juvenile court never asked the family members present
at the initial hearing on July 27, 2018 and father’s August 7,
2018 arraignment about possible Indian ancestry. In addition,
the Department concedes that it did not ask all available
extended paternal family members whether minor had Indian
ancestry. The court erred in finding ICWA inapplicable in the
absence of any evidence that the court or the Department asked
available extended family members about the possibility of
Indian ancestry. (In re H.V., supra, 75 Cal.App.5th at p. 438
[prejudicial error when Department fails to discharge its first
step duty of inquiry]; In re Benjamin M., supra, 70 Cal.App.5th at
p. 741 [court must ask each participant in child custody
proceeding].)
15
DISPOSITION
The juvenile court’s January 19, 2022, order terminating
parental rights under Welfare and Institutions Code section
366.26 is conditionally reversed and remanded for proceedings
required by this opinion. The court shall order the Department
to make reasonable efforts to interview available extended
paternal relatives about the possibility of minor’s Indian ancestry
and to report on the results of the Department’s investigation.
Nothing in this disposition precludes the court from ordering
additional inquiry of others having an interest in the children.
Based on the information reported, if the court determines that
no additional inquiry or notice to tribes is necessary, the order
terminating parental rights is to be reinstated. If additional
inquiry or notice is warranted, the court shall make all necessary
orders to ensure compliance with ICWA and related California
law.
NOT TO BE PUBLISHED.
MOOR, J.
I concur:
KIM, J.
16
In re C.R.
B319264
BAKER, Acting P.J., Concurring
I agree the parental benefit exception (Welf. & Inst. Code,
§ 366.26, subd. (c)(1)(B)(i)) does not apply on these facts. I also
agree that a conditional reversal of the parental rights
termination order is required because the juvenile court did not
comply with federal regulations that require a court to ask
participants in a child custody proceeding—at the commencement
of the proceeding—whether the participant knows or has reason
to know the minor in question is an Indian child. (25 C.F.R.
§ 23.107(a).) I do not agree, however, with the majority’s broadly
worded direction to interview “available extended paternal
relatives.” I would instead remand with directions that require
inquiry of only those extended family members present at the
initial dependency hearing (though the juvenile court would of
course be free to order any additional inquiry it deems
appropriate).
BAKER, Acting P.J.