In re Z.C. CA3 ( 2022 )

Filed 9/26/22 In re Z.C. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Yolo)
----
In re Z.C., a Person Coming Under the Juvenile Court C094803
Law.
YOLO COUNTY HEALTH AND HUMAN (Super. Ct. No. JV20193243)
SERVICES AGENCY,
Plaintiff and Respondent,
v.
R.C.,
Defendant and Appellant.
In this appeal, appellant R.C. (mother) assigns error in several respects, related to
her contentions that she should have been receiving in-person and therapeutic visits. She
also contends the juvenile court misapplied the law and erred in terminating visitation
and her parental rights. In a supplemental brief, she argues we must reverse the order
terminating parental rights because Yolo County Health and Human Services Agency
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(Agency) and the juvenile court failed to comply with the inquiry requirements of the
Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). We affirm the juvenile
court’s orders.
FACTUAL AND PROCEDURAL BACKGROUND
Portions of the factual and procedural background are taken from our unpublished
opinions filed in mother’s previous appeals, In re A.C. et al. (Mar. 25, 2021, C092444),
In re A.C. et al. (May 4, 2021, C093009), and In re A.C. et al. (July 22, 2022,
C093821/C094543), the opinions and supporting records of which are included in the
instant record on appeal. Because this appeal is limited to minor Z.C., we provide
background information about siblings A.C. and A.W. only as contextually relevant.
The Petition and Detention
On October 21, 2019, the Agency filed a Welfare and Institutions Code section
300 (statutory section references that follow are to the Welfare and Institutions Code
unless otherwise stated) petition alleging A.W. (then age 17), A.C. (then age 14), and
Z.C. (then age 8) had suffered or were at substantial risk of suffering serious physical
harm caused by mother’s physical abuse of the minors (§ 300, subd. (a)). On October 16,
2019, over a dispute about the television, mother hit A.W. across the face with a hanger
(ultimately breaking it on her), threw a cup at her, and then climbed on top of her and
punched her repeatedly on the head. A.C. and Z.C. witnessed this incident. All minors
individually feared returning to mother’s home and reported that “mother routinely hits
them with a whip, a hanger, a brush, or her closed fists.” A.W. feared mother would kill
her. Marks were observed on Z.C.’s back. Mother told Z.C. to hide signs of the abuse,
which he did with clothes. Mother’s short temper and physical punishment as well as
threats of such punishment put the minors at risk of injury. Mother also withheld food as
a punishment.
Mother denied hitting the minors with a closed fist, a hanger, a whip, or a brush
and admitted only to spanking the minors. She also admitted her children were scared of
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her, but denied that any of the injuries observed on the minors were attributable to her,
instead providing ambiguous explanations that the injuries occurred at school or during
sports.
The minors were detained at the initial hearing on October 22, 2019. All minors
reported being afraid of mother at their first visitation and displayed signs of fear. The
juvenile court ordered mother receive three hours a week of supervised therapeutic visits
to begin after the minors were enrolled in therapy and after mother enrolled in anger
management and/or individual counseling. The court awarded the Agency authority to
accelerate visitation as appropriate.
Jurisdiction and Disposition
The December 19, 2019 jurisdiction and disposition report described an additional
incident wherein mother hit A.W. in the face with a pan. The social worker spoke with
Z.C., who confirmed his previous statements of mother’s physical abuse, which he said
occurred “ ‘a lot,’ ” but clarified that he had only heard his mother’s confrontation with
A.W. Z.C. told his maternal grandparents that mother hit him, and they told him to obey
mother. Z.C. was glad everyone was engaged in counseling and thought things would be
safer at home if mother received treatment for her anger. Z.C. later said that he wanted to
go home and planned to stay safe by not upsetting mother.
Mother continued to deny her abusive behavior and accuse A.W. of making up the
allegations for personal reasons. She later admitted using a hanger for discipline
approximately twice a month. A week after that, she told the social worker the minors
should be returned immediately because there was no proof supporting the allegations.
When confronted with the proof (including her own previous admissions), mother
protested that “she did not leave any marks nor injuries.” Mother refused to discuss prior
reports that she had been subject to psychiatric holds under section 5150 in 2008 and
2012 and denied that she had any current mental health problems.
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The social worker worked diligently to secure a therapist for Z.C. and to initiate
therapy so his clinician would be able to make recommendations regarding therapeutic
visitation. This process was difficult and complicated by Z.C.’s escalating behaviors,
necessitating Z.C.’s enrollment in WRAP services. Z.C. had also been placed at Progress
Ranch after four failed placements due to his anger, acting out and physical aggression.
The Agency referred mother for counseling, anger management, and parenting
classes, which mother had started. According to the head of mother’s anger management
program, mother denied abusing her children and portrayed herself as a victim.
“[M]other appears to have deep denial about her anger issues, struggles with managing
anger and has not admitted any behaviors or issues where she has struggled with
managing her anger or frustration.” Mother was engaged in weekly therapy with Melissa
King, MFTI, but the social worker had not been able to communicate with King
regarding mother’s progress. The Agency further recommended that mother undergo a
psychological assessment given her “denial and current decision-making.”
At the January 13, 2020 contested jurisdiction and disposition hearing, mother
waived her right to testify and present evidence, electing to submit the matter on the
petition. The court took jurisdiction and ordered Z.C. (as well as his siblings) dependents
of the court and removed Z.C., as well as his sibling, A.C., from mother’s custody. The
juvenile court ordered reunification services for mother. Mother’s case plan directed her
to obtain a psychological assessment to determine which mental health services would
best benefit her. The plan also directed mother to participate in individual counseling to
identify what may be impairing her ability to safely parent. This included that mother
“develop an understanding of what constitutes physical and emotional abuse, identify
how her past behaviors have impacted her children’s physical and emotional health and
safety, and coping skills to effectively manage frustration and anger in a healthy,
nonthreatening, [and] positive manner.” Mother was directed to openly and honestly
participate in an anger management/domestic violence program for the same reason.
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Finally, mother was directed to participate in parent education classes to obtain the skills
necessary to parent without being physically and emotionally abusive. Mother’s
visitation order remained the same following the contested jurisdiction and disposition
hearing (three hours per week supervised).
Six-Month Review
Mother made minimal progress in her services by the time of the six-month review
hearing, held on August 3, 2020, and needed to continue taking classes to “to work on
accountability, taking responsibility, gain insight as to her issues and why her children
were removed from her care.” While she attended classes with limited participation, she
continued to deny she physically abused her children and accused her daughter of lying.
Mother stated she would not complete her psychological evaluation with the referred
provider, although she would not say why. Mother refused assistance in locating another
provider. She then hired her own psychologist, but would not sign a release of
information so that the psychologist could provide information to the Agency.
Initially, the social worker had received reports that visits between Z.C. and
mother went well. Around March or April 2020, visits were changed from in-person to
virtual video due to the COVID-19 pandemic. In May 2020, group home staff reported
that Z.C. was very resistant to talking to mother during virtual video visits. Z.C. said he
had been willing to visit in person because mother had brought snacks to the visits. Z.C.
also reported he was afraid to tell mother he did not want to visit, and mother was
observed to ignore Z.C. when he would tell her he did not want to talk.
Z.C. had begun individual therapy in December 2019, had successfully completed
WRAP services, was doing better in school, and his behavioral issues (including tantrums
wherein Z.C. kicked/hit others and/or destroyed others’ property) were decreasing. In
light of these improvements, Z.C.’s therapist indicated he was ready to step down to a
therapeutic foster home but needed one with a lot of experience with children who had
suffered trauma and as a result, had challenging behaviors. After several foster homes
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“fell through,” the Agency was finally able to locate an intensive treatment foster home
in Shasta County. Z.C. was moved from the group home to the therapeutic foster home
in Shasta County on June 22, 2020.
In July 2020, Z.C. began opening up to his foster parents about additional
incidents of mother’s physical abuse, some of which he had previously disclosed to his
therapist, as well as group home staff. Z.C. was diagnosed with posttraumatic stress
disorder and mild oppositional defiant disorder. He suffered from nightmares, negative
moods, and a refusal to forgive unless the offending individual was first punished. Z.C.’s
therapist discussed his reports of abuse with mother, who denied the abuse, accused Z.C.
of lying, and demanded to question him about his reports. Z.C. volunteered a preference
to live with the maternal grandparents, rather than mother. Z.C. continued reporting
mother’s abuse and expressed fear that if he was returned home, the abuse would resume,
and mother would hide it so that no one would know. He reported he loved and missed
her but did not want to go home for fear of what mother might do to him.
Mother diligently visited Z.C. but he struggled with remote video visits on Zoom
with mother, often having tantrums after being told it was almost time for visits. Video
chats were up to three hours once a week but had to be reduced to one hour a week after
Z.C. complained that he was “overwhelmed with all the video telephone call visitations.”
Z.C. was displaying signs of anxiety and acting out. He sometimes shut down during
visits and refused to participate. On one occasion, mother became upset when Z.C. tried
to end a video call early to go to the park. Mother called the police complaining that Z.C.
was in danger due to coronavirus, resulting in Z.C.’s exclusion from park outings. Z.C.
requested help informing his mother that he wanted shorter visits. He was afraid to tell
mother he did not want to visit, and when Z.C. attempted to cut visits short, mother
ignored his efforts. The reduction in video visits also applied to his grandparents and
siblings, which could be increased upon Z.C.’s request.
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Mother’s counsel complained that the real problem with Z.C.’s visits with mother
was the Zoom medium, not mother herself, and that he should be immediately returned to
her custody so that she could demonstrate what she learned from her services. Z.C.’s
counsel vehemently objected to his being returned to mother, highlighting that mother
still denied the abuse occurred and had avoided meaningful progress in her court-ordered
services. The Agency argued it was unquestionable that there would be a risk to Z.C. if
returned to mother, that mother had not meaningfully participated in services, and that
mother should be ordered to participate in a psychological evaluation with Dr. Jayson
Wilkenfield.
The juvenile court found by clear and convincing evidence that returning the
minors to “mother would create a substantial risk of detriment to their safety, protection,
or physical or emotional well-being,” that the Agency had complied with the case plan
and made reasonable efforts to return the minors, but that mother had “only made
minimal progress towards alleviating and mitigating the causes necessitating placement.”
The court found that even though mother was taking classes, she made minimal progress
because she failed to take responsibility for her actions and continued asserting that the
minors (who feared her) were lying. The court ordered mother to comply with her case
plan, including the execution of all necessary releases of information and that mother
participate in the psychological evaluation with Dr. Wilkenfield, and set a 12-month
review hearing for December 22, 2020.
Petition for Modification
On September 28, 2020, mother filed a section 388 petition seeking to modify the
court’s previous order that visitation would be “at the discretion” of Z.C. Mother
requested therapeutic visits and a minimum of three hours of supervised visitation per
week. She argued that Z.C. had engaged in only three visits in the past two months and
that the current visitation order thwarted reunification, was contrary to the best interests
of Z.C. and did not provide “reasonable services.” As support for her motion, mother
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attached an e-mail from the social worker detailing the five dates that Z.C. refused to visit
and the three dates where visitation occurred. The court ordered the parties to appear on
October 26, 2020, to discuss whether there should be an evidentiary hearing on mother’s
motion to modify the visitation order.
At the October 26, 2020 hearing, Z.C.’s counsel indicated that the visitation order
needed rewording, but that the existing order had been positive in allowing Z.C. to
determine when he was ready to visit with mother. Z.C.’s counsel relayed that Z.C. had
been having visits with mother lasting between 15 and 45 minutes and that having some
control over whether to have the visits had been positive for him therapeutically.
Recognizing mother’s desire for consistency in those visits, Z.C.’s counsel recommended
one hour of visitation per week to take place over Zoom. Zoom visitation was
necessitated by the fact that the foster parents had an ailing parent living in the home,
underscoring the importance of following COVID-19 restrictions. Z.C.’s counsel
recommended that the court order discretion to transition to in-person visits if they could
be done safely, and in coordination with Z.C.’s therapist to assure his emotional well-
being. Z.C.’s court-appointed special advocate (CASA) worker added that Z.C. would
like to visit with his siblings more frequently, but he had not discussed his wishes for
visitation with mother. The Foster Family Agency (FFA) social worker expressed that
Z.C. wanted to visit his siblings three times a month, his grandparents once a month for
an hour, and his mother once a month just to check in.
The Agency concurred with the request for Z.C. to receive one-hour weekly visits
via Zoom with the Agency’s discretion to switch to in-person visits, consistent with
COVID-19 protocols. As to mother’s request for therapeutic visits, there was not a
current therapeutic visit option available. Z.C. remained placed in the intensive treatment
foster home in Shasta County. The Agency argued that any in-person visits with mother
should occur in Shasta County, as they believed it would create an impediment to a
positive visit to transport Z.C. for two-and-a-half hours from the foster home to
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participate in the visit. The Agency was willing, however, to assist mother with
transportation, should in-person visits occur, so that they could occur in Shasta County.
Mother continued to request therapeutic visits and changed her request to six hours
per week of in-person visits with Z.C. Z.C.’s counsel argued such an increase would be
harmful to Z.C. and noted mother had failed to make adequate progress in her therapy to
justify such robust visitation. The juvenile court ordered visitation between Z.C. and
mother for one hour once a week via Zoom, with discretion to increase the visits and/or
transition those visits to in-person as determined to be safe and if it was determined to be
in Z.C.’s best interests after consultation with his attorney.
12-Month Review
Z.C. remained in the intensive services foster care home in Shasta County. A.C.
had made further disclosures of abuse by mother, including mother hitting Z.C. with a
hanger, leaving marks all over his arms and back, and then making Z.C. wear a sweater to
hide the marks. A.C. also disclosed that mother would make the older siblings hit Z.C.
with a hanger. Z.C. had also recently disclosed further incidents of mother’s abuse to his
foster parents. He reported that mother would spank him many times, and she made him
choose whether he would get hit with a whip or a stick. He further reported mother
would beat his sister, leaving his sister with bruises all over. Z.C. also became very
distressed describing mother’s abuse of the family dog.
Z.C. was also struggling with the Zoom visits with mother. On August 19, 2020,
when Z.C. had not wanted to participate in a Zoom visit, he told his foster parents he was
still mad at her for what she did to him, and he gets nervous when he talks to her and
stated, “I don’t want to make her mad.” The foster parents tried various ways to
encourage him to visit, but he continued to say that he was afraid of mother and afraid
that if he went home, she would spank him for what he said. When the social worker
asked him why he would not visit with mother, he reported that he was scared and his
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visits remind him of the times she would hit and hurt him. He also said he was scared the
social worker would take him back to live with his mother.
Z.C. would break down and cry when asked to visit mother and would become
upset if the foster parents offered a reward for attending a visit. Despite encouragement
from the social worker and foster parents, Z.C. would frequently refuse visits and show
signs of distress and anxiety when pressured to participate.
Visits continued to take place virtually due to a high risk of COVID-19 infection
and a stay-at-home-order in Shasta County where Z.C. resided. On November 10, 2020,
mother requested in-person visitation. The social worker replied that they “have not been
able to safely transition to in-person visit due to the increase in COVID-19 cases in the
different counties. Shasta County is continuing to see an increase in COVID-19 cases
and at this time, [Z.C.’s] [FFA] does not believe it is safe for in-person visits to occur.
We will continue to assess and monitor this situation.” Mother asked for in-person visits
again in December 2020. The social worker again responded that there were no in-
person visits due to COVID-19 and also noted that Z.C. lives in a home with an
individual with a compromised immune system and it would not be safe to do in-person
visits, further noting the court’s order provided for Zoom visits.
Mother had continued in counseling but still denied the physical abuse and would
not take responsibility for it. She also had yet to submit to the court-ordered
psychological evaluation.
On December 22, 2020, Mother requested a contested 12-month hearing, which
was scheduled for January 20, 2021. She again requested in-person visits. The Agency
and Z.C.’s counsel objected due to the worsening situation with COVID-19 and Z.C.’s
extreme fear of the mother and severe reactions to the Zoom visits with her. He was
reported to do well on Zoom visits with his grandparents. Because an elderly relative
lived with the foster family, they had to be very cautious about COVID-19, and had
continued homeschooling. Even the social worker was not permitted inside the home.
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The juvenile court ordered that in-person visits were out of the question due to the current
COVID-19-related situation.
The Agency filed an addendum for the contested hearing, which had been reset to
February 1, 2021. The report documented a serious reaction by Z.C. when he was asked
to participate in a Zoom visit with mother on January 6, 2021. He yelled and seemed
very stressed and curled up in a contorted position on the floor. His therapist reported
concern about his reactions and his response to visits with mother and described his
recent reaction as a sign of distress. She further reported that Z.C. was not yet ready to
start the trauma work and she was working on building a rapport with him and
developing coping skills.
On February 1, 2021, the matter was continued again because mother still had not
submitted to the court-ordered psychological evaluation. It was noted that Z.C. had
refused to participate in every visit, all of which were to have been video visits, with
mother since the December 22, 2020 hearing and was exhibiting severe anxiety and stress
when he was asked to visit. Due to Z.C.’s reactions when pressured to participate in a
visit, the juvenile court ordered Z.C. be offered a visit and if he says “No,” then there was
to be no more discussion, even if it was encouragement.
Mother’s psychological evaluation was finally completed on February 9, 2021.
She was diagnosed with an unspecified impulse control disorder borderline, and
narcissistic personality traits and negativistic personality features were noted. She still
did not acknowledge responsibility for the reason her children were removed and denied
her children’s reports of physical abuse. Mother downplayed or avoided discussion of
any events in the record that cast her in a negative light. The evaluator reported that
despite all the services, mother continued to deny the abuse and therefore there was little
reason to believe the children would be at any less risk than at the beginning of the case
and there were no additional services he would recommend that would alleviate the risk
factors.
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The hearing took place on February 22, March 12, and March 17, 2021. Mother’s
therapist testified regarding mother’s treatment goals and participation and stated that she
would benefit from further therapy. Mother had never acknowledged physical abuse
other than “spanking,” she was not willing to talk about certain issues related to the abuse
and she continued to state that the children were lying.
Neither of mother’s two anger management instructors were able to report that
mother had benefited from their instruction; one reported that mother had trouble taking
responsibility for her actions and lacked empathy.
Z.C. was still receiving counseling but he no longer needed the WRAP services
for behavior and mental health that had been previously necessary. His therapist reported
that Z.C. was making progress and she had tried to start the process of the trauma work,
but he was not yet ready, so she was addressing his other treatment goals such as positive
coping skills and identifying his feelings. Neither his current nor his prior therapist had
recommended any different type of therapy for Z.C. and neither had indicated that Z.C.
was not making appropriate progress in therapy. The social worker testified that there
was no timeline set for someone to progress through their trauma work.
Z.C. was doing well in his foster home where he had foster parents who were
trained to address his behaviors and provide the emotional support he needed. He was
reported to trust and love his foster parents and his problematic behaviors had decreased
while in their care. Z.C. had become comfortable enough with his foster parents to start
disclosing his trauma to them. Visits with mother had continued via Zoom. The social
worker testified they had continued via Zoom because the surge in COVID-19 in Shasta
County had resulted in the FFA restricting in-person visits. Additionally, the elderly at-
risk parent was still living in the foster family’s home. The social worker believed it
would be detrimental to the Z.C. to move him from his current placement, where he was
doing so well and where the foster parents were able to meet his behavioral and
emotional needs for the sole purpose of trying to accommodate in-person visits with
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mother. Additionally, the social worker also testified that Z.C. was not emotionally able
to handle in-person visits with mother.
Z.C. had shown no resistance to Zoom visits with his siblings or grandparents and
seemed to enjoy those visits. But of the 38 scheduled Zoom visits with mother, Z.C. had
refused to participate in 22 of them. The visit supervisor testified that Z.C. did not appear
to enjoy visits with mother and had never been able to attend the entire hour-long visit.
Mother had recently sent a book to Z.C. and had hidden her phone number inside the
book on a dark page. When Z.C. found the phone number, he became very upset with
mother.
The juvenile court found by clear and convincing evidence that the Agency
provided reasonable services to both Z.C. and mother. The court found mother had been
given myriad opportunities to benefit from services that she either rejected or tried to
manipulate, and even when she did complete services, she learned nothing from them.
The court terminated mother’s reunification services and set a section 366.26 hearing. It
also found visitation for Z.C. with mother was detrimental and ordered it to cease
immediately.
Section 366.26 Hearing
The section 366.26 hearing took place on September 1 and 2, 2021. The juvenile
court followed the recommendation of the Agency and terminated parental rights.
Z.C. was 10 years old and had been out of mother’s care for almost two years. He
was visiting with his siblings and grandparents, but not with mother. Z.C. was in good
health and doing well scholastically. He was continuing in his weekly counseling and
received additional behavioral support counseling though his placement, as he was in a
placement designated as an intensive services foster care home. His mental health, mood
and nightmares were continuing to improve. His therapist reported that he seemed to be
doing well, felt safer, had stated he knows mother cannot do anything bad to him, and he
has a good relationship with his caregivers. He had met some treatment goals but had not
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yet completed all his therapeutic goals, and he was not likely ready to push further with
his therapeutic trauma work.
The adoptions specialist met with Z.C. and his caregivers to discuss Z.C.’s attitude
toward placement and adoption. Z.C. was observed to have a good understanding of
adoption, as his caregivers were in the process of adopting another child and the process
was discussed freely. Z.C. was happy to hear he had his own adoption worker because he
was excited to be adopted by his current caregivers, who were committed to adopting
him. He stated he loved his caregivers, wanted to remain in their home, and expressed
happiness that he would be adopted and would not be going back to his mother’s care.
He had formed a healthy and reciprocal relationship with his caregivers, to whom he
looked to meet his physical and emotional needs. He had been placed in their home since
June 22, 2020.
Additional facts are included in our discussion of the issues.
DISCUSSION
I
Reasonable Services Finding at the 12-Month Review
Mother contends the juvenile court’s finding, made at the 12-month review
hearing for minor Z.C., that reasonable services were provided is not supported by the
evidence because the Agency did not provide in-person visits nor facilitate therapeutic
visits between Z.C. and mother. She argues that, although this court previously affirmed
findings from both the six-month review hearing, and the October 26, 2020 hearing on
mother’s petition for modification, that nontherapeutic virtual visits were reasonable, the
continuance of such visits up to the March 2021 12-month review hearing, without
transitioning back to in-person visits, was unreasonable. We reject this contention.
“At each review hearing, if the child is not returned to his or her parent, the
juvenile court is required to determine whether ‘reasonable services that were designed to
aid the parent . . . in overcoming the problems that led to the initial removal and the
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continued custody of the child have been provided or offered to the parent . . . ’
(§§ 366.21, subds. (e)(8) & (f)(1)(A), 366.22, subd. (a).) The ‘adequacy of reunification
plans and the reasonableness of the [Agency’s] efforts are judged according to the
circumstances of each case.’ [Citation.] To support a finding that reasonable services
were offered or provided to the parent, ‘the record should show that the supervising
agency identified the problems leading to the loss of custody, offered services designed to
remedy those problems, maintained reasonable contact with the parents during the course
of the service plan, and made reasonable efforts to assist the parents in areas where
compliance proved difficult . . . .’ ” (In re M.F. (2019) 32 Cal.App.5th 1, 13-14, italics
omitted.) The services provided do not have to be the best services that could have been
provided, rather they must have been reasonable under the circumstances. (See Elijah R.
v. Superior Court (1998) 66 Cal.App.4th 965, 969, citing In re Misako R. (1991)
2 Cal.App.4th 538, 547.)
We review the juvenile court’s determination of reasonable services for substantial
evidence. (In re Christina L. (1992) 3 Cal.App.4th 404, 414.) When the juvenile court
does not continue the case to the permanency planning review hearing and sets a section
366.26 hearing, the court must find reasonable services have been provided by clear and
convincing evidence. (§ 366.21, subd. (g)(4).) “When reviewing a finding that a fact has
been proved by clear and convincing evidence, the question before the appellate court is
whether the record as a whole contains substantial evidence from which a reasonable fact
finder could have found it highly probable that the fact was true. In conducting its
review, the court must view the record in the light most favorable to the prevailing party
below and give appropriate deference to how the trier of fact may have evaluated the
credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable
inferences from the evidence.” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011-
1012.)
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In mother’s previous appeal from the six-month review hearing (In re A.C. et al.,
supra, C092444), mother argued the Agency failed to provide reasonable services prior to
the six-month review hearing because she was not provided in-person visits with Z.C.
She also contended that the juvenile court’s six-month review order did not provide for
reasonable visitation thereafter because, despite Z.C. having been placed into a
therapeutic foster home with a high-risk family member and a recent death in the family
due to COVID-19, the court should have ordered in-person visits. For the reasons set
forth in our opinion in case No. C092444, we rejected these contentions, concluding
mother “has not shown that it was unreasonable given the considerations of the ongoing
COVID-19 epidemic for the Agency to continue her supervised visits in an online
medium, nor did she seek relief from the court for any perceived deficiency arising from
the manner of those visits.” (In re A.C. et al., supra, C092444 [at p. 16].)
In mother’s subsequent appeal from the October 26, 2020 modification order (In
re A.C. et al., supra, C093009), mother again challenged the juvenile court’s order
limiting Z.C.’s visitation with mother to one-hour weekly Zoom visits. As previously
stated, the juvenile court had determined that Z.C.’s visits should be limited to one hour a
week via Zoom with discretion to increase the visits and/or transition to in-person
visitation as determined to be safe and in Z.C.’s best interests. We reviewed the propriety
of that order utilizing the rules associated with the review of visitation orders generally
and affirmed, finding no abuse in the juvenile court’s balancing of mother’s desire for in-
person visits with the dangers associated with the COVID-19 pandemic and Z.C.’s
interest in maintaining his placement.
Mother now argues that the Agency’s failure to transition back to in-person visits,
as authorized by the juvenile court’s October 26, 2020 modification order, “as well as the
Agency’s efforts to facilitate therapeutic visits,” as authorized back at detention, was
unreasonable. Thus, she argues, the juvenile court’s March 2021 12-month review
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hearing order, which found the Agency had provided reasonable reunification services,
was not supported by the evidence.
A.
Appealability
First, we briefly address mother’s contention that she may raise issues arising from
the 12-month review hearing in this appeal because she filed a petition for extraordinary
writ pursuant to California Rules of Court, rule 8.452, which was denied summarily on
the merits. (R.C. v. Superior Court of Yolo County (C093790, petn. den. May 13, 2021);
Joyce G. v. Superior Court (1995) 38 Cal.App.4th 1501 (Joyce G.).) We take judicial
notice of the court file in that proceeding, case No. C093790. (Evid. Code, § 452, subds.
(c), (d).) Mother is correct that she may re-raise the issue she raised in her petition for
extraordinary writ, although her reasoning is in error. She may re-raise the issue not, as
mother contends, because it was not decided on the merits, but because her petition was
summarily denied. (Joyce G., at pp. 1513-1514 [petition can be considered on its merits
and still be summarily denied].)
“Subsequent appellate review of findings subsumed in an order setting a section
366.26 hearing is dependent upon an antecedent petition for writ review of those findings
having been ‘summarily denied . . . .’ ” (Joyce G., supra, 38 Cal.App.4th at p. 1513;
§ 366.26, subd. (l).) Mother’s writ petition raised the issue of substantial evidence to
support the finding that reasonable services were provided. Specifically, she argued she
was not provided reasonable visitation services with Z.C. because the Agency did not
make reasonable efforts to provide meaningful visitation and the appropriate therapeutic
services to mend her relationship with Z.C. The petition was summarily denied on the
merits. When “the denial is summary, the petitioner retains his or her appellate remedy
(§ 366.26, subd. (l)(1)(C)) but is limited to the same issue on the same record (§ 366.26,
subd. (l)(1)(B)) and thus is destined on appeal to receive the same result.” (Joyce G., at
p. 1514, italics added.) Thus, while mother may again argue the evidence did not support
17
the juvenile court’s reasonable services finding at the 12-month review hearing, we again
reject her contention.
B.
In-Person Visitation
Initially we note it does not appear there was any change in the foster family’s
concern for the health of the elderly parent living in the home. By all accounts, the
relative was still living there and the children in the home were still being homeschooled
due to COVID-19 concerns. It was reasonable for the Agency to continue to offer visits
in a virtual format based on the specific facts of this case, Z.C.’s need for a specialized
foster home, his drastic improvement since being placed in that home, and the special
requirements of that home due to high-risk family member who resided in the home.
Thus, the condition precedent to the juvenile court’s order providing the Agency with
discretion to transition to in-person visits—that such visits were determined to be safe—
had not been met.
Moreover, it is clear that, subsequent to the juvenile court’s October 26, 2020
modification order, there was not only no improvement in the quality of mother’s
visitation with Z.C. or his reaction to such visits, but rather, a decline in such. Z.C.
would exhibit severe anxiety and stress at the mere suggestion of visits with mother,
including crying, yelling and even curling up in a contorted position on the floor—a sign
Z.C.’s therapist stated was a sign of distress and caused her concern. The Agency would
have been derelict in its responsibilities to have forced (or attempted to force) Z.C. to
participate in in-person visits. In fact, even the virtual visits were so detrimental to Z.C.
that first the court ordered Z.C. be permitted to refuse visits without subsequent pressure
to attend, and then ordered the visits ceased entirely.
Additionally, it does not appear in the record that Z.C.’s attorney had been
consulted, let alone had approved, transition to in-person visits. Thus, the other condition
precedent to the juvenile court’s order providing the Agency with discretion to transition
18
to in-person visits—that such visits be determined to be in Z.C.’s best interests after
consultation with his attorney—had not been met either.
Mother posits that Z.C.’s “feelings about and issues with” visitation pertained only
to virtual visits, not in-person visits. The evidence suggests otherwise. While Z.C. did,
at one point, complain about having too many Zoom visits with all his family members,
he subsequently had the number of such visits reduced. Thereafter, he appeared to have
no difficulty with Zoom visits with his siblings or grandparents—only with mother. In
fact, on one occasion in August 2020, Z.C. had been excited when his caregivers logged
in to facilitate a virtual visit but, once he discovered it was a visit with mother and not his
maternal grandparents, he became frustrated and made clear he had no desire to speak
with mother.
Moreover, Z.C.’s objection to visits did not coincide only with the change from in-
person to virtual visits. It also coincided with his disclosure of additional abuse
perpetrated by her, his statements that he was scared and mad, his disclosure that visits
reminded him of mother’s abuse, and his statements that mother would become angry or
refuse to listen to him when he would ask to end visits early. Finally, while Z.C. did at
one point agree that in-person visits are preferable to virtual visits, that remark was made
early in these proceedings and also appeared to be based largely on the fact that mother
would bring him snacks.
While visitation is an essential component of any services provided pursuant to the
reunification plan (In re Alvin R. (2003) 108 Cal.App.4th 962, 972 (Alvin R.); accord, In
re M.F., supra, 32 Cal.App.5th at p. 16.), it need not be devoid of limitations. Any
visitation order, and indeed the one in this case, must be pursuant to the minor’s best
interests. Z.C. was clearly distressed by his virtual visits with his mother, as shown by
his acting out prior to visits and refusal to participate in them. Additionally, mother had
made little if any progress in alleviating the circumstances causing Z.C.’s removal.
Mother failed to benefit from either of her anger management programs, consistently
19
failed to participate in a psychological evaluation, hired her own psychologist, then failed
to sign releases of information to allow the sharing of information between her
psychologist and the Agency, and consistently denied the abuse occurred, despite
overwhelming evidence that it had.
In its October 2020 ruling on mother’s petition for modification, the juvenile court
allowed the Agency the discretion to increase visits and/or transition those visits to in-
person as they determined to be safe and in Z.C.’s best interests. Given Z.C.’s increase in
distress surrounding his mother’s visits and the continued COVID-19 concerns in the
foster family home, the decision of the Agency not to transition to in-person visits with
mother does not undermine the juvenile court’s finding at the 12-month review hearing,
that the Agency provided reasonable services.
C.
Therapeutic Visits
We likewise reject mother’s contention that the Agency’s failure to facilitate
therapeutic visits, as authorized back at detention, was unreasonable. First, we reject
mother’s contention that Z.C.’s “feelings about and issues with” visitation pertained only
to virtual visits, not in-person visits, and he otherwise enjoyed visiting mother. There is
no evidence of such. Mother acknowledges that Z.C. said he did not like visiting with
her, and that he expressed a fear of being sent back to live with her. Given Z.C.’s
reaction to the suggestion of video visits with mother, it is difficult to see how in-person
visits, even in a therapeutic setting, would soothe him.
Nor do we find that the Agency was required to arrange for therapeutic visits to
have been found to have provided reasonable services. Mother’s last in-person visit with
Z.C. was in March 2020. She had been in counseling with the same counselor since
October 2019 yet that counselor had never indicated mother was ready for therapeutic
visits. Likewise, neither of Z.C.’s therapists ever indicated he was ready for therapeutic
visits. To the contrary, Z.C., who had been diagnosed with posttraumatic stress disorder,
20
reported his visits reminded him of the times mother hit and hurt him. Z.C.’s therapist
reported he was making progress and she had tried to start the process of the trauma
work, but he was not yet ready, so she was addressing his other treatment goals such as
positive coping skills and identifying his feelings. Neither his current nor his prior
therapist had recommended any different type of therapy for Z.C. and neither had
indicated that he was not making appropriate progress in therapy.
Mother argues Alvin R., supra,108 Cal.App.4th at page 965 compels a finding that
therapeutic visits or family therapy was required in order to have provided reasonable
services in this case. Alvin R. is inapposite. As recognized by mother, in Alvin R., a key
component of that reunification plan was that the father and his son participate in conjoint
counseling, after the son had participated in eight sessions of individual counseling. (Id.
at p. 965.) The son had refused all visits for four months and the social worker knew it
was unlikely he would ever agree to visits without conjoint therapy; and she knew
conjoint therapy would not occur until the son was in individual therapy. (Id. at p. 973.)
The appellate court reversed the juvenile court’s finding that reasonable services were
provided because the department had failed to timely effectuate individual counseling for
the son, unreasonably delaying conjoint counseling and visitation. (Ibid.)
Here, the case plan provided for Z.C. to be “referred to appropriate mental health
services to meet [his] needs” to “include individual counseling, conjoint/family
counseling if and when recommended by the child’s provider, and specialty mental health
services . . . as recommended by the child’s provider.” (Italics added.) Significantly,
neither of Z.C.’s therapists ever recommended therapeutic visits, family therapy, or any
other additional therapeutic services for Z.C. Thus, the Agency’s failure to provide
therapeutic visits in this case did not render the services unreasonable.
21
D.
Full Benefit of Reunification Period
Finally, we briefly address mother’s contention that she was “denied the full
benefit of her reunification” period because there were “nearly three months”
(specifically, the time between August 4, 2020, and October 26, 2020—amounting to 83
days) prior to the modification in October 2020 wherein the court’s order improperly
provided Z.C. with discretion whether to visit with mother. Therefore, she reasons, the
court’s order rendered services throughout the reunification period unreasonable. In
considering and rejecting this contention, we note that the 12-month review hearing did
not conclude until March 17, 2021—12 months plus an additional 86 days after the date
Z.C. entered foster care (here, December 21, 2019). (§§ 341.49, 361.5, subd. (a)(1)(A).)
Thus, even allowing for the 83 days the invalid visitation order was in effect, mother
received “the full benefit” of her 12 months of reunification services.
II
Termination of Visitation
Mother next contends the juvenile court’s order, entered at the 12-month review
hearing, terminating visitation was an abuse of discretion. She acknowledges that she did
not raise this issue in her extraordinary writ petition, as required to preserve the issue for
further litigation (§ 366.26, subd. (l)), but argues she should be permitted to raise it,
nonetheless, because her counsel rendered ineffective assistance in failing to include it in
her writ petition. To establish ineffective assistance of counsel in dependency
proceedings, a parent must establish both that his or her attorney’s representation was
deficient, and that this deficiency resulted in prejudice. (In re Dennis H. (2001)
88 Cal.App.4th 94, 98.) Mother has not established either prong here.
Mother argues the order “was an abuse of discretion because there was no
substantial evidence in-person visitation with mother would be detrimental to [Z.C.] –
particularly if the grandparents were present during the visitation.” She argues that “[f]or
22
the same reasons as set forth in Section I(D)(2)(i) [of her brief arguing the Agency should
have transitioned back to in-person visits], ante,” the court should not have found in-
person visits detrimental. For the same reasons we rejected her argument, ante, we reject
it here and find no abuse of discretion in the court’s finding of detriment. Since the court
did not abuse its discretion, inclusion of the issue in the extraordinary writ was
unnecessary and no prejudice ensued. (People v. Constancio (1974) 42 Cal.App.3d 533,
546 [“It is not incumbent upon trial counsel to advance meritless arguments or to
undertake useless procedural challenges merely to create a record impregnable to assault
for claimed inadequacy of counsel”].)
III
Due Process
Mother contends “the order terminating parental rights must be reversed because
the Agency and juvenile court unreasonably delayed reinstating in-person visitation, and
failed to facilitate therapeutic visitation, violating mother’s due process rights to litigate
and establish the parental-benefit exception to adoption.” Mother did not make a due
process challenge below, but again contends we must nonetheless address the issue
because she received ineffective assistance of counsel. We reject her contention.
As we have already explained and concluded herein, neither the Agency nor the
juvenile court unreasonably failed to transition to in-person or therapeutic visits. Thus,
mother’s contention that her due process rights were violated fails, regardless of whether
her counsel had preserved the issue for appeal. (See In re N.M. (2008) 161 Cal.App.4th
253, 270.)
IV
Beneficial Parental Relationship Exception to Adoption
Next, mother contends “[t]he juvenile court misapplied the law and erroneously
excluded relevant evidence when determining whether the parental-benefit exception to
adoption applied.” We reject this contention, as well.
23
A.
The Exception
At a section 366.26 hearing, the juvenile court “shall terminate parental rights and
order the child placed for adoption” if it finds “by a clear and convincing standard, that it
is likely the child will be adopted.” (§ 366.26, subd. (c)(1).) Juvenile courts should
decline to terminate parental rights only in “ ‘exceptional circumstances’ ” where the
parent “can establish termination would be detrimental to the child under one of the
statutory exceptions.” (In re D.P. (2022) 76 Cal.App.5th 153, 163.) One such exception
is the beneficial parental relationship exception, which applies when “[t]he parents have
maintained regular visitation and contact with the child and the child would benefit from
continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) For the exception to apply,
“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.” (In re
Caden C. (2021) 11 Cal.5th 614, 636 (Caden C.).) There are three elements needed to
establish this exception: “(1) regular visitation and contact, and (2) a relationship, the
continuation of which would benefit the child such that (3) the termination of parental
rights would be detrimental to the child.” (Id. at p. 631, italics omitted.)
B.
Additional Background
The section 366.26 hearing took place on September 1 and 2, 2021. In addition to
her own testimony and the testimony of the maternal grandmother and grandfather,
mother offered, and the court admitted, the following documents into evidence: (1) a
February 21, 2021 letter from Reverend Ricardo Mendez stating mother loves her
children, can provide a loving home, and had made strides in becoming a better parent;
(2) a letter dated January 31, 2021, in support of mother’s character; (3) several other
third party letters stating the author had never seen mother abuse her children and relating
24
to mother’s relationship with her children; and (4) over 300 photographs, primarily
family photographs of mother and her children.
The court excluded as irrelevant: (1) letters dated March 2, 2021, April 13, 2021,
June 4, 2021, and July 12, 2021, reflecting mother’s enrollment in January 2021 into a
series of parenting courses—the fourth and final of which was to end on September 21,
2021; (2) a January 22, 2021 letter to mother’s counsel from mother’s therapist regarding
mother’s progress in outpatient psychotherapy services, which had been written prior to
the therapist’s testimony at the 12-month review hearing; and (3) 10 letters in support of
the maternal grandparents’ character. The court noted that the therapist’s letter about
mother’s progress in counseling was also “to[o] old.”
Thereafter, mother presented some additional photographs, which were marked for
identification. The county and Z.C.’s counsel objected on the basis of relevance and lack
of foundation, as the photos did not reflect of what and when they were taken. Mother’s
counsel responded the photos pertained to the bond between mother and Z.C., and
indicated she intended to have mother discuss them during her testimony. The court
deferred its ruling.
Mother then testified as to Z.C.’s likes and dislikes, her favorite memories, and
that she has saved all of his drawings since he was very young. She testified that, back
when they had in-person visits, Z.C. seemed excited to see her and they would cook, eat,
and play games. They sat and talked about school and his friends, and she would
sometimes help with his homework. Mother said Z.C. said his number one wish was to
come home. She testified they had a bond and he meant the world to her.
Mother was shown a photograph counsel wanted to have admitted into evidence.
Mother testified it was a photograph taken during a Zoom visit. She would have Z.C.
close his eyes, she would close her eyes and hug herself while pretending she was
hugging him. Z.C. had closed his eyes and hugged himself, indicating he was pretending
she was hugging him. Mother’s counsel indicated that many of the photos she was
25
seeking to admit were photos of mother and Z.C. hugging themselves. County counsel
objected for lack of foundation as to when the photos were taken. The court noted that
half of the photos were taken when mother’s children were very young. Mother’s
counsel then requested the court admit those photos (the first four in the packet) that were
photos taken during Zoom visits. Mother’s counsel represented those photos were taken
in September 2020. The court excluded them stating “[a]ssuming that’s true, I’m going
to sustain the objection because the 2020 photo would not be relevant for this particular
proceeding.”
After finding Z.C. adoptable, the juvenile court turned to consideration of the
beneficial parental relationship exception to adoption. The court began by stating mother
had met the consistent visitation requirement and additionally found “The relationship is
a parent-child relationship and not a friendship. That’s sort of hard to tell but let’s give
her that as well.” The court continued: “But then I also find -- have to find that benefit
to the child of maintaining that relationship would outweigh the benefit of adoption to
such a degree that termination of parental rights would greatly harm the child. In this
case, [Z.C.] has been consistent in his displayed fear of his mother. Contact with his
mother has been very detrimental and has caused severe trauma and he has been
expressing a desire not to see her and he wishes to be adopted. I don’t know how I can
find, because mom testifies that she loves him and she wants him back and that they have
a great relationship, that . . . it is in his best interest to not let him be adopted because
mom would benefit from that decision, not [Z.C.]. [Z.C.] most certainly would not
benefit from that decision and it is absolutely not in [Z.C.]’s best interest not to terminate
parental rights. I cannot find there’s a significant parental bond.”
C.
Analysis
Mother contends the juvenile court did not consider her relationship with Z.C.
over time (before and throughout the dependency proceedings) in considering whether it
26
was a significant and positive one for Z.C. This is evidenced, she argues, by the juvenile
court’s exclusion as irrelevant, the September 2020 photos of Z.C. taken during a Zoom
visit and the court’s failure to “discuss [Z.C.]’s age or the portion of [Z.C.]’s life spent in
mother’s custody.” She also contends the court erroneously excluded evidence of her
parenting classes, erroneously required she prove a significant parental relationship, and
erroneously required she prove termination of parental rights would greatly harm Z.C.
There was simply no evidence in this case that Z.C. would be negatively affected
by termination of his relationship with mother. By all accounts, the interactions with
mother had become extremely harmful to his emotional well-being and he was looking
forward to being adopted. Nonetheless, we shall address each of her various contentions
of error.
1. The Photographs
The juvenile court is required to consider whether there is a significant, positive,
emotional parent-child attachment. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575
(Autumn H.).) By the time of the section 366.26 hearing, “the nature and extent of” the
parent-child relationship “should be apparent” because “[s]ocial workers, interim
caretakers and health professionals will have observed the parent and child interact and
provided information to the court.” (Autumn H., at p. 575; see also In re J.D. (2021)
70 Cal.App.5th 833, 861.) This case is no exception.
Whatever positive relationship mother believed she had with Z.C. years earlier
was not evident by the time of the section 366.26 hearing. He had refused to visit her
since December 2020 and consistently had substantial, negative emotional distress at
even the thought of visiting with her. Even assuming Z.C. had some positive relationship
with mother in the past, by the time of the hearing, the evidence established he did not
have a significant, positive, emotional parent-child attachment. (Autumn H., supra,
27 Cal.App.4th at p. 575.)
27
Contrary to mother’s contention, it is apparent from the court’s ruling that it did
examine the nature of her relationship, including their visits and contact, with Z.C. during
“much of the dependency proceeding.” While mother would like to focus on a few
positive moments in visits that took place over a year earlier, the court appropriately
noted that Z.C. had consistently displayed fear of mother and that contact with mother
has been very detrimental and has caused him severe trauma.
The juvenile court has wide discretion to determine the relevance of evidence.
(People v. Kelly (1992) 1 Cal.4th 495, 523.) In light of the other, more current evidence
available to the court, the juvenile court could conclude that photographs taken a year
earlier reflecting Z.C.’s demeanor during a virtual visit shed little light on Z.C.’s current
relationship with mother and the benefit or detriment that may result should that
relationship be terminated. The exclusion of the photos does not convince us that the
court did not consider the nature and extent of the parent-child relationship.
2. Autumn H. Factors
Mother also complains, in passing, that the juvenile court did not discuss on the
record that it was considering the factors in Autumn H. of Z.C.’s age or the portion of his
life spent in mother’s custody. She implies that the court’s failure to discuss these factors
establishes the court “misapplied the law” and did not consider the nature of her
relationship with Z.C. The juvenile court is not required, however, to make independent
findings on the record in determining the beneficial parental relationship exception to
adoption does not apply. (In re A.L. (2022) 73 Cal.App.5th 1131, 1156, 1161.) The
record here does not convince us that the court did not consider the appropriate factors
and evidence in examining the nature of mother and Z.C.’s relationship.
3. Parenting Classes
Mother also argues the court improperly excluded evidence she was taking
parenting classes because they showed she was making progress in services. We reject
her contention.
28
Since return to parental custody is not before the court at a section 366.26 hearing,
a parent’s success or struggles, or progress in services or lack thereof, are relevant in this
context only where they may mean that interaction between parent and child is positive,
or that, at least sometimes has a “ ‘ “negative” ’ effect” on the child. (Caden C., supra,
11 Cal.5th at pp. 634, 637-638.) Here, mother made no offer of proof that her mere
participation in parenting classes, as demonstrated by the letters she sought to introduce,
tended to establish that her interactions with Z.C. were positive. Thus, the court did not
err in excluding the evidence.
4. Significant Parental Relationship
Mother also contends that the juvenile court’s concluding statement that it “cannot
find there’s a significant parental bond” interjected an impermissible element into the
analysis because, she argues, she does not have to show a parental relationship or that
she fulfills a parental role in Z.C.’s life. Even assuming mother is correct that she need
not have a parental relationship with Z.C., the court presupposed she had such a
relationship, having stated: “The relationship is a parent-child relationship and not a
friendship. That’s sort of hard to tell but let’s give her that as well.” Thus, mother was
not prejudiced by her assignment of error.
Fairly construed, however, the juvenile court’s closing remark appears directed to
whether the bond was “significant” and its finding it was not. We do not agree that the
court misapplied the law in making this finding. The juvenile court is required to
consider whether there is a significant, positive, emotional parent-child attachment.
(Autumn H., supra, 27 Cal.App.4th at p. 575.)
5. Great Harm
Next in mother’s list of errors is her contention that the court held her to a higher
and improper standard of proof when it said it had to find that the benefit to Z.C. in
maintaining his relationship with mother outweighed the benefit of adoption to such a
29
degree that termination of parental rights would “greatly harm” Z.C. We reject this
undeveloped argument.
Interaction between natural parent and child will almost always confer some
incidental benefit to the child. (Autumn H., supra, 27 Cal.App.4th at p. 575.) Thus, it has
been repeatedly held that “[i]f 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.” (Ibid.) On the other hand, 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. (Caden C., supra,
11 Cal.5th at pp. 633-634; Autumn H., at p. 575.)
Mother cites Caden C. and states simply, that this long-used standard including the
language of “greatly harmed” is “a higher standard than the standard articulated by
Caden C.” and, therefore, the juvenile court “improperly elevated mother’s burden.” In
re Brittany C. (1999) 76 Cal.App.4th 847, not cited by mother, specifically addressed
whether the “greatly harmed” language misinterpreted the statute and held it did not,
stating: “To require that the parent need only show some, rather than great, harm at this
stage of the proceedings would defeat the purpose of dependency law, that is, the
protection of ‘children who are physically, sexually or emotionally abused, neglected or
exploited. (§ 300.)’ ” (Id. at p. 853.)
6. Z.C.’s Fear of Mother
Mother next contends the court abused its discretion in not finding the beneficial
parental relationship exception applied because the court’s finding that Z.C. “has been
consistent in his displayed fear of his mother” is unsupported by the record. She argues
he only expressed fear of returning home—not of mother, herself. In making this
argument, mother construes the record in her favor, ignoring the well-established rule that
the juvenile court is the finder of fact, and we construe the record in the light most
30
favorable to the juvenile court’s order. (In re Zeth S. (2003) 31 Cal.4th 396, 405; In re
Babak S. (1993) 18 Cal.App.4th 1077, 1088-1089.) We also presume in support of the
juvenile court’s finding the existence of every fact the trier could reasonably deduce from
the evidence and make all reasonable inferences that support the finding. (In re Babak S.,
at p. 1089.)
We will not inventory each and every piece of evidence supporting the juvenile
court’s findings. Instead, we list a few we have already recited herein: (1) all of the
minors reported being afraid of mother at their first visitation and displayed signs of fear
through facial expressions and body language; (2) when asked why he would not visit
with mother, Z.C. reported, on more than one occasion, that he was scared and his visits
remind him of the times she would hit and hurt him; and (3) Z.C. reacted by yelling and
curling up in a contorted position on the floor in response to the thought of having to visit
with her.
This evidence was more than sufficient for the juvenile court to find Z.C. had
displayed a fear of mother—not just a fear of having to return to living with mother. We
find no error here.
V
ICWA Inquiry
In her supplemental brief, mother contends the Agency failed to make an adequate
inquiry of extended family members—specifically, the maternal grandparents—to
determine if Z.C. had Indian ancestry. We conclude any error was harmless.
A.
ICWA-Related Facts
Z.C. was taken into protective custody on October 17, 2019, prior to the filing of
the section 300 petition. In its detention report, the Agency reported that, “[i]n
accordance with the Indian Child Welfare Act, the Agency made inquiries as to Native
American ancestry of the minors” and that, on October 17, 2019, mother had reported
31
that her side of the family had no Native American ancestry. Mother also informed the
Agency that the identity of Z.C.’s father is unknown.
On October 22, 2019, mother signed an ICWA-020 form, checking the box
indicating: “I have no Indian ancestry as far as I know.” The juvenile court found the
ICWA did not apply at the October 22, 2019 detention hearing. Mother and the maternal
grandfather were present at that hearing.
B.
Applicable Law
As this court recently explained: “ ‘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.” [Citation.]’ (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).) The juvenile court and the social services
department have an affirmative and continuing duty, beginning at initial contact, to
inquire whether a child who is subject to the proceedings is, or may be, an Indian child.
(Cal. Rules of Court, rule 5.481(a); § 224.2, subd. (a).)” (In re G.A. (2022)
81 Cal.App.5th 355, 360, petn. for review pending, petn. filed Aug. 19, 2022, S276056.)
Section 224.2, subdivision (e) provides that if the court or social worker has
reason to believe that an Indian child is involved in a proceeding, the court or social
worker shall, as soon as practicable, make further inquiry regarding the possible Indian
status of the child. As relevant here, further inquiry includes interviewing the parents,
Indian custodian, and extended family members to gather the information required in
paragraph (5) of subdivision (a) of section 224.3. (§ 224.2, subd. (e).)
32
“ ‘[S]ection 224.2 creates three distinct duties regarding [the] ICWA in
dependency proceedings. 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).) Second, if that initial inquiry
creates a “reason to believe” the child is an Indian child, then the Agency “shall make
further inquiry regarding the possible Indian status of the child, and shall make that
inquiry as soon as practicable.” (Id., subd. (e), italics added.) Third, if that further
inquiry results in a reason to know the child is an Indian child, then the formal notice
requirements of section 224.3 apply. (See § 224.2, subd. (c) [court is obligated to inquire
at the first appearance whether anyone “knows or has reason to know that the child is an
Indian child”]; id., subd. (d) [defining circumstances that establish a “reason to know” a
child is an Indian child]; § 224.3 [ICWA notice is required if there is a “reason to know”
a child is an Indian child as defined under § 224.2, subd. (d)].)’ (In re D.S. (2020)
46 Cal.App.5th 1041, 1052.)” (In re G.A., supra, 81 Cal.App.5th at p. 361, petn. for
review pending.)
When there is reason to believe the child is an Indian child, further inquiry is
necessary to help determine whether there is reason to know the child is an Indian child,
including: “(A) Interviewing the parents, Indian custodian, and extended family
members to gather the information required in paragraph (5) of subdivision (a) of
Section 224.3[;] [¶] (B) Contacting the Bureau of Indian Affairs and the State
Department of Social Services for assistance in identifying the names and contact
information of the tribes in which the child may be a member, or eligible for membership
in, and contacting the tribes and any other person that may reasonably be expected to
have information regarding the child’s membership status or eligibility[;] [¶] (C)
Contacting the tribe or tribes and any other person that may reasonably be expected to
have information regarding the child’s membership, citizenship status, or eligibility.
Contact with a tribe shall, at a minimum, include telephone, facsimile, or electronic mail
33
contact to each tribe’s designated agent for receipt of notices under the [ICWA]
[citation]. Contact with a tribe shall include sharing information identified by the tribe as
necessary for the tribe to make a membership or eligibility determination, as well as
information on the current status of the child and the case.” (§ 224.2, subd. (e)(2).)
“[C]laims of inadequate inquiry into a child’s Native American ancestry [are
reviewed] for substantial evidence.” (In re G.A., supra, 81 Cal.App.5th at p. 361, petn.
for review pending; see also In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.) “We
must uphold the [juvenile] court’s orders and findings if any substantial evidence,
contradicted or uncontradicted, supports them, and we resolve all conflicts in favor of
affirmance.” (In re A.M. (2020) 47 Cal.App.5th 303, 314.)
C.
Agency Inquiry and Harmless Error
An ICWA violation may be held harmless, “when, even if notice had been given,
the child would not have been found to be an Indian child, and hence the substantive
provisions of the ICWA would not have applied.” (In re S.B. (2005) 130 Cal.App.4th
1148, 1162.) Remand for further inquiry is limited “to those cases in which the record
gives the reviewing court a reason to believe that the remand may undermine the juvenile
court’s ICWA finding, the ‘reason to believe’ rule effectuates the rights of the tribes in
those instances in which those rights are most likely at risk, which are precisely the cases
in which the tribe’s potential rights do justify placing the children in a further period of
limbo.” (In re Dezi C. (2022) 79 Cal.App.5th 769, 781-782, review granted Sept. 21,
2022, S275578.)
Assuming the Agency had a duty to interview extended family under the
circumstances presented here, in claiming ICWA deficiencies following termination of
parental rights, an appellant must show prejudice from the agency’s failure to conduct
such interviews. (In re G.A., supra, 81 Cal.App.5th at p. 363, petn. for review pending;
34
see also In re Dezi C., supra, 79 Cal.App.5th at p. 779, review granted; In re Darian R.
(2022) 75 Cal.App.5th 502, 509-510.) Mother has not done so here.
Here, mother indicated she did not have any Native American ancestry. The
identity of Z.C.’s father is unknown. The juvenile court made the finding the ICWA does
not apply when mother and the maternal grandmother were present in court, without
objection. These proceedings have continued for over two years. Nonetheless, at no time
did mother, or the maternal grandparents, ever claim possible Native American ancestry
or suggest that other relatives may have further relevant information.
Mother cites to no evidence to support her claim that the juvenile court and the
Agency, nonetheless, had reason to believe an Indian child is involved such that further
inquiry was required, and even on appeal does not proffer any such reason to believe Z.C.
has such heritage. (In re A.C. (2021) 65 Cal.App.5th 1060, 1069 [parent asserting failure
to inquire must make an offer of proof or affirmatively claim Indian heritage on appeal].)
There is nothing in the record below or on appeal to suggest that further contact with the
maternal grandparents, or other relatives, might contradict mother’s statement that she
does not have Native American heritage.
“The burden on an appealing parent to make an affirmative representation of
Indian heritage is de minimis. In the absence of such a representation, there can be no
prejudice and no miscarriage of justice requiring reversal.” (In re Rebecca R., supra,
143 Cal.App.4th at p. 1431.) We conclude the record shows no prejudice flowing from
the Agency’s failure to interview extended family members. (See In re Darian R., supra,
75 Cal.App.5th at p. 510.)
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DISPOSITION
The orders of the juvenile court (terminating parental rights) are affirmed.
/s/
EARL, J.
We concur:
/s/
DUARTE, Acting P. J.
/s/
HOCH, J.
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