In re Kimberly F. CA2/4 ( 2022 )

Filed 12/23/22 In re Kimberly F. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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 FOUR
In re KIMBERLY F., a Person B317759
Coming Under the Juvenile Court
Law.
(Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. DK21665A)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
JORGE G., et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, D. Zeke Zeidler, Judge. Affirmed.
Gina Zaragoza, under appointment by the Court of
Appeal, for Defendant and Appellant Jorge G.
Johanna R. Shargel, under appointment by the Court
of Appeal, for Defendant and Appellant Cynthia F.
Dawyn R. Harrison, Acting County Counsel, Kim
Nemoy, Assistant County Counsel and Sally Son, Deputy
County Counsel, for Plaintiff and Respondent.
_____________________________________________
INTRODUCTION
Appellants Jorge G. (Father) and Cynthia F. (Mother)
appeal from a January 3, 2022, juvenile court order
terminating their parental rights as to Kimberly F. At the
time of the order, Kimberly was 13 and her juvenile court
proceedings had been pending for nearly five years.
Respondent Los Angeles County Department of Children
and Family Services (DCFS) recommended termination of
parental rights to facilitate Kimberly’s adoption by her foster
caregiver of almost three years, which Kimberly supported
through counsel. Father and Mother both opposed
termination. After a hearing, the court ordered termination
and that adoption be the permanent plan for Kimberly’s
custody and care. Father and Mother timely appealed. We
affirm.
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PROCEEDINGS BELOW
A. Initial Removal of Kimberly from Father and
Mother
On February 14, 2017, DCFS filed a petition under
section 300 of the Welfare and Institutions Code.1 DCFS
alleged, inter alia, that Father and Mother had medically
neglected Kimberly and her two younger siblings, neither of
whom is involved in this appeal. In April 2017, the juvenile
court sustained the medical neglect allegation and ordered
Kimberly released to her parents.
During subsequent home visits, a children’s social
worker (CSW) observed Kimberly was “flat” around her
parents, from whom she “ke[pt] her distance.” In July 2017,
DCFS filed a petition under section 342 presenting
additional allegations of neglect and domestic violence,
which the court later sustained. The court ordered Kimberly
detained in shelter care with monitored visitation for each
parent.
Kimberly adapted well to her first foster home and
repeatedly expressed desire to be adopted by her caregivers.
Through February 2018, Father was inconsistent in visiting
Kimberly, which upset her. In May 2018, Father and
Mother separated. Through October 2018, Father reportedly
struggled to engage with Kimberly, who stated she liked to
1 Undesignated statutory references are to the Welfare and
Institutions Code.
3
see Father from time to time “so she can receive money,” but
showed frustration with him on multiple occasions.
B. Return to Parents and Second Removal
In March 2019, the juvenile court found each parent
had made substantial progress, and ordered Kimberly
returned to her parents’ custody, over her counsel’s
objection. Kimberly initially resided with Mother and a
maternal aunt in the maternal grandparents’ home. Within
a week, the maternal aunt reported that Mother was
neglecting the children in order to prioritize her relationship
with a boyfriend who was a registered sex offender. On
April 2, 2019, Mother informed a CSW that she chose to
“give up her children” to maintain that relationship.
The same day, Kimberly was taken to reside with
Father in the paternal grandparents’ home. It was almost
immediately reported that Kimberly said “she wants to kill
the family and she wants to be in the cemetery.” One week
later, Kimberly was involuntarily hospitalized, as the
paternal relatives reported Kimberly continued to make
similar statements. After her discharge from the hospital,
Kimberly continued to make homicidal statements, criticized
Father’s appearance and accent, and denied Father was her
father. Kimberly also struck Father and told him she hated
him. On May 28, 2019, Kimberly engaged in a physical
confrontation with the paternal grandmother, and was again
involuntarily hospitalized.
4
In July 2019, after Kimberly briefly resided with a
maternal aunt, the court again ordered Kimberly removed
from the parents and detained in shelter care, with
monitored visitation for Father and unmonitored visitation
for Mother.
C. Termination of Parental Rights
On July 12, 2019, Kimberly was placed with foster
caregiver C.G. Soon after, DCFS filed a petition under
section 342 alleging that Mother was both unwilling and
unable to care for Kimberly, and Father was unable to care
for her.
From July to September 2019, Kimberly made progress
with respect to her mental health and behavior. Kimberly
was observed to be “assertive” and “honest about her opinion
about others.” Subsequent reports similarly observed that
Kimberly was assertive, honest, and capable of advocating
for herself. Kimberly began to refuse to attend visits with
Father and showed little interest in his regular phone calls.
In September 2019, the court sustained the allegations in
the section 342 petition and scheduled a section 366.26
hearing for January 2020, which was later continued to June
2021.
By March 2020, Kimberly was reported to be positively
bonded with caregiver C.G. C.G. expressed a willingness to
provide Kimberly with permanence through legal
guardianship or long-term foster care. Beginning in October
2020, Kimberly reported a desire to be adopted, though not
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by C.G. Kimberly continued to “thrive” in C.G.’s home.
Father maintained consistent visitation.
On June 15, 2021, at the continued section 366.26
hearing, Kimberly’s counsel informed the court that
Kimberly wanted to be adopted by C.G., who by this time
wanted to adopt Kimberly. After the court again continued
the hearing, Kimberly and C.G. consistently expressed a
desire to move forward with the adoption.
On December 3, 2021, DCFS recommended
termination of Mother’s and Father’s parental rights and
adoption as the permanent plan for Kimberly’s custody and
care. On December 15, 2021, Kimberly’s therapist reported
that Kimberly’s mental health began to decline when Father
told her he was attempting to reunify with her and opined
that Father’s visits were detrimental to Kimberly’s mental
health. Even then, however, Kimberly said she looked
forward to Father’s visits.
On January 3, 2022, the court held a section 366.26
hearing. Father and Mother each opposed termination of
parental rights, arguing that the parental benefit exception
applied. Kimberly argued, through counsel, that the
exception did not apply, noting that Kimberly had repeatedly
expressed that “she does want to be freed up for adoption,
she does want to be adopted, she does want permanency.”
Counsel further represented that Kimberly had recently
indicated “she does not want continued contact with her
parents going forward.” DCFS joined in that argument.
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The juvenile court found each parent had failed to
establish the third element of the parental benefit exception.
The court explained, in relevant part, that “[t]he visitation
and contact with the parents, especially at her age, has
conferred a parental role and relationship, but the court
cannot find that that parental role and relationship
outweighs the benefits of permanence in adoption, nor that it
would be detrimental to the child to sever the parent-child
relationship.”
Finding Kimberly was likely to be adopted, the court
terminated Mother’s and Father’s parental rights and
selected adoption as Kimberly’s permanent plan. Each
parent timely appealed.
D. ICWA Procedural History
On February 14, 2017, when DCFS filed the original
petition under section 300, DCFS also filed a detention
report stating that Father and Mother each had denied any
known Indian ancestry in response to inquiries from a CSW.
Father and Mother also each filed an ICWA-020 form
declaring, under penalty of perjury, “I have no Indian
ancestry as far as I know.” At the detention hearing on
February 15, 2017, in response to an inquiry from the
juvenile court, Kimberly’s maternal grandmother denied any
knowledge that Kimberly had Indian ancestry. The court
found that it had no reason to believe Kimberly was an
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Indian child and that the Indian Child Welfare Act (ICWA)
did not apply in the proceedings.2
DISCUSSION
Governing Law
If the juvenile court cannot safely return a dependent
child to the custody of a parent within statutory time limits,
the court must set a hearing under section 366.26. At the
hearing, the question before the court is not whether the
parent may resume custody of the child. (See In re Amber
M. (2002) 103 Cal.App.4th 681, 690.) When the court orders
the section 366.26 hearing, the assumption is that the
problems that led to the court taking jurisdiction have not
been resolved. (In re Caden C. (2021) 11 Cal.5th 614, 635
(Caden C.).) The goal at the section 366.26 hearing is to
select and implement a permanent plan for the child. (Ibid.)
The juvenile court must first determine by clear and
convincing evidence whether the child is likely to be adopted.
(See § 366.26, subd. (c)(1).) If so, then the court shall
terminate parental rights to allow for adoption. (Caden C.,
2 The court found Father to be Kimberly’s presumed father.
Mother denied that she knew the whereabouts of Kimberly’s
biological father or had any contact information for him or his
relatives. DCFS exercised due diligence in attempting to locate
the biological father, without success. We note there was no
ICWA error with respect to the biological father. (See In re Q.M.
(2022) 79 Cal.App.5th 1068, 1082 [“[W]e cannot ask the agency
. . . to interview individuals for whom no contact information has
been provided”].)
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supra, 11 Cal.5th at 635.) But if the parent shows that
termination would be detrimental to the child, the court
should decline to terminate parental rights and select
another permanent plan. (See § 366.26, subd. (c)(1)(B)(i)–
(vi), (4)(A).)
The Legislature enacted the parental benefit exception
set forth in section 366.26, subdivision (c)(1)(B)(i) more than
30 years ago because “‘some children in foster care retain
very strong ties to their . . . parents.’” (Caden C., supra, 11
Cal.5th at 635.) The parental benefit exception is “limited in
scope” and “‘merely permit[s] the court, in exceptional
circumstances, to choose an option other than the norm,
which remains adoption.’” (Id. at 631.) In determining
whether such exceptional circumstances exist, the juvenile
court “shall consider the wishes of the child.” (See § 366.26,
subd. (h)(1).)
“[T]he parent asserting the parental benefit exception
must show, by a preponderance of the evidence, three things.
The parent must show regular visitation and contact with
the child, taking into account the extent of visitation
permitted. Moreover, the parent must show that the child
has a substantial, positive, emotional attachment to the
parent — the kind of attachment implying that the child
would benefit from continuing the relationship. And the
parent must show that terminating that attachment would
be detrimental to the child even when balanced against the
countervailing benefit of a new, adoptive home.” (Caden C.,
supra, 11 Cal.5th at 636.)
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In weighing the implications of termination against the
benefits of adoption, the juvenile court may make explicit or
implicit findings ranging from specific benefits related to the
child’s specific characteristics up to a higher-level conclusion
about the benefit of adoption all told. These factual
determinations are reviewed for substantial evidence.
(Caden C., supra, 11 Cal.5th at 640.) The court’s ultimate
decision is reviewed for abuse of discretion. (Ibid.)
“In reviewing factual determinations for substantial
evidence, a reviewing court should ‘not reweigh the evidence,
evaluate the credibility of witnesses, or resolve evidentiary
conflicts.’” (Caden C., supra, 11 Cal.5th at 640.) “[T]he
statutory scheme does not authorize a reviewing court to
substitute its own judgment as to what is in the child’s best
interests for the trial court’s determination in that regard.”
(Id. at 641.)
Analysis
Father contends the juvenile court abused its
discretion in determining that he failed to establish the third
element of the parental benefit exception, namely that
terminating his relationship with Kimberly would be
detrimental to her even when balanced against the
countervailing benefits of a new, adoptive home. Mother
contends the court prejudicially erred in determining ICWA
did not apply without first directing ICWA inquiries to
Father and Mother in open court and ensuring DCFS
directed similar inquiries to several members of Kimberly’s
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extended family. For reasons discussed below, we reject
each contention.
A. The Juvenile Court Acted Within Its Discretion
in Determining Father Failed to Establish the
Parental Benefit Exception
We conclude the juvenile court acted within its
discretion in determining that Father failed to meet his
burden to establish the third element of the parental benefit
exception. The record before the court showed that, from
October 2020 to January 2022, Kimberly consistently
expressed a desire to be adopted. Kimberly was 13 years old
by the time of the section 366.26 hearing and had repeatedly
been reported to be assertive, honest, and capable of
advocating for herself. Kimberly was reported to have been
thriving in the care of prospective adoptive parent C.G., with
whom she had been positively bonded since at least March
2020.
In contrast, Kimberly’s relationship with Father had
for years been, at best, strained and, at times, overtaken by
her overt hostility towards him. In the months leading up to
the section 366.26 hearing, Father’s visits were reported by
Kimberly’s therapist to be detrimental to her mental health.
At the hearing, moreover, Kimberly’s counsel reported she
wished to cease contact with Father. The court reasonably
could have assigned great weight to Kimberly’s wishes in
determining that on balance, the benefits of adoption
outweighed any detriment to Kimberly from the termination
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of Father’s parental rights. (See Caden C., supra, 11 Cal.5th
at 635; § 366.26, subd. (h)(1).)
As Father observes, the record contains some evidence
of ambivalence on Kimberly’s part, including a report that,
as recently as December 2021, the month before the section
366.26 hearing, Kimberly said she looked forward to Father’s
visits. But by the time of the hearing, Kimberly had also
expressed a desire to cease all contact with Father and be
adopted by her foster caregiver of almost three years. Even
if Kimberly’s ambivalence could reasonably be construed as
a sign that there would be some detriment to her in severing
the parental relationship, it is not for this court to reweigh
the evidence and substitute our judgment for that of the
juvenile court. (See Caden C., supra, 11 Cal.5th at 640-641.)
Nor may we set aside the court’s selection of adoption
as Kimberly’s permanent plan merely because, as Father
observes, prospective adoptive parent C.G. had shown a
willingness to accept a legal guardianship or long-term foster
care instead of adoption. The statutory preference is for
adoption, regardless of whether a prospective adoptive
parent may be willing to accept less permanent
arrangements. (See § 366.26, subds. (b)-(c).) The parental
benefit exception warrants deviation from this preference
only in “exceptional” circumstances (Caden C., supra, 11
Cal.5th at 631), which the court implicitly determined
Father had not shown.
Two of the cases Father relies upon are inapposite
because they do not address the third element of the
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parental benefit exception. (See In re J.D. (2021) 69
Cal.App.5th 594, 863, 865; In re B.D. (2021) 66 Cal.App.5th
1218, 1228-1231.) And the third, In re D.P., is
distinguishable because the appellate court there concluded
a parent had established the third element because “the only
available evidence of bond” was her own testimony,
corroborated by visitation logs, that her children had strong
bonds with her and would be emotionally distressed by their
loss. (In re D.P. (2022) 76 Cal.App.5th 153, 167.) Here, in
contrast, the evidence before the court supported a
conclusion that Kimberly’s bonds with Father were tenuous
and uneven at best, and that their termination would not be
so detrimental as to override the benefits of adoption. (Cf. In
re Autumn H. (1994) 27 Cal.App.4th 567, 576.) In sum, we
conclude the juvenile court acted within its discretion in
determining that Father failed to meet his burden to
establish the exceptional circumstances necessary to trigger
the parental benefit exception.
B. Any Deficiency in the ICWA Inquiry Was
Harmless Error
After Father and Mother each denied any known
Indian ancestry under penalty of perjury and Kimberly’s
maternal grandmother denied any such ancestry in open
court, the juvenile court found ICWA did not apply. Mother
contends the court prejudicially erred in making this finding
without first asking Father and Mother in open court
whether they had reason to know that Kimberly is an Indian
13
child (see 25 C.F.R. § 23.107(a)), and ensuring that DCFS
asked several members of Kimberly’s extended family
whether she is or may be an Indian child (see § 224.2, subd.
(b)). DCFS does not dispute the procedural history but
contends the juvenile court’s omissions were harmless.
“Where . . . there is no doubt that the Department’s
inquiry was erroneous, our examination as to whether
substantial evidence supports the juvenile court’s ICWA
finding ends up turning on whether that error by the
Department was harmless—in other words, we must assess
whether it is reasonably probable that the juvenile court
would have made the same ICWA finding had the inquiry
been done properly. [Citation.] If so, the error is harmless
and we should affirm; otherwise, we must send it back for
the Department to conduct a more comprehensive inquiry.”
(In re Dezi C. (2022) 79 Cal.App.5th 769, 777 (Dezi C.),
review granted Sept. 21, 2022, S275578.)
Here, Father, Mother and Kimberly’s maternal
grandmother all denied any known Indian ancestry. None of
them suggested that extended family members might have
additional information. Mother has neither proffered any
contrary information nor identified any in the record.
Because nothing in the record suggests a reason to believe
Kimberly may be an Indian child, we conclude that any
deficiency in the ICWA inquiry was harmless error. (See
Dezi C., supra, 79 Cal.App.5th at 779, rev.gr.)
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DISPOSITION
The order terminating Father’s and Mother’s parental
rights as to Kimberly is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SCADUTO, J. *
We concur:
COLLINS, Acting P.J.
CURREY, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to Article VI, section 6, of the California
Constitution.
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