In re Xavier W. CA2/1 ( 2022 )

Filed 7/29/22 In re Xavier W. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
In re XAVIER W., a Person B315709
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No. 19CCJP05812)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
T.W.,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Jean M. Nelson, Judge. Affirmed.
Christopher Blake, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, Sally Son, Deputy County Counsel, for
Plaintiff and Respondent.
_______________________________
1
In this dependency case (Welf. & Inst. Code, § 300 et seq.),
T.W. (Mother) appeals from the juvenile court’s order terminating
her parental rights over her son, Xavier W. (then, three years
2
old). Mother contends we must reverse the order because the
court erred in finding the parental-benefit exception to
termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)) did not
apply to her relationship with her son, as the court did not apply
the applicable test set forth in In re Caden C. (2021) 11 Cal.5th
614. For the reasons explained below, we agree with Mother that
the trial court erred in not applying the correct legal standard
under Caden C., but we conclude the error was harmless because
there is insufficient evidence in the record as a matter of law to
satisfy the factual elements of the Caden C. test.
Mother also contends the matter must be remanded for
further proceedings under the Indian Child Welfare Act. (25
U.S.C. § 1901 et seq.; (ICWA).) She concedes the Los Angeles
County Department of Children and Family Services (DCFS)
fulfilled its duties to make inquiries of extended family members
and included all requisite information in the ICWA notices it
1
Undesignated statutory references are to the Welfare and
Institutions Code.
2
The juvenile court did not determine the identity of
Xavier’s father.
2
sent. She argues, however, that DCFS failed to follow up on
“some collateral information” regarding a distant relative’s
potential tribal affiliation and another relative’s affiliation with a
non-federally recognized tribe. We conclude DCFS did not have a
legal duty under ICWA, or California law interpreting ICWA, to
take further action concerning this so-called “collateral
information.” We affirm the juvenile court’s order terminating
parental rights.
3
BACKGROUND
I. Prior Dependency Proceedings Involving Mother’s
Older Children
In May 2019, four months before the referral that led to the
present dependency proceedings involving Mother’s son Xavier, a
juvenile court in San Bernardino County terminated Mother’s
parental rights to her older children, an eight-year-old son and a
three-year-old daughter. The prior dependency proceedings arose
from Mother’s history of mental health and substance abuse
issues. Mother’s older children—Xavier’s half siblings—were
receiving permanency planning services and were living in the
home of their prospective adoptive parent, Ms. D.
II. Detention of Xavier
A. Current referral
Shortly before midnight on September 4, 2019, the Los
Angeles Police Department received a 911 call regarding an
abandoned child in a car parked on a street. A resident in the
neighborhood had observed the child standing on the front
3
Facts and proceedings related to the ICWA issues Mother
raises on appeal are set forth below in a separate section of this
opinion.
3
passenger seat of the car, crying and screaming. Emergency
personnel responded to the scene and extracted 16-month-old
Xavier from the car. He was alone in a locked car, and the
passenger side window of the car was rolled down four inches.
He wore a shirt and a soiled diaper. According to an officer, the
child was not in distress. It appeared to the officer that people
had been living in the car, as it contained dirty clothes, trash,
food, and two unopened bottles of alcohol. Xavier was
transported to a hospital, where he did not require medical care
and showed no signs of abuse. He was placed in protective
custody with DCFS. The following morning, Mother was arrested
for child endangerment, after she could not locate Xavier and
reported him missing. Mother had a prior arrest in 2010 for the
same charge for leaving her older son (then, three months old)
unattended.
A DCFS social worker interviewed Mother where she was
being held in jail. Mother stated she lived in Bakersfield with
Xavier’s maternal grandmother. She had driven to San
Bernardino County for a court appearance. She stayed in San
Bernardino for around two months. On her way back to
Bakersfield, on the night before her arrest, she pulled over and
parked the car because she needed to get gas. Xavier was
sleeping, and she did not want to wake him, so she left him in the
car with the windows cracked open. Around 11:00 p.m., she
walked to a gas station that was across the street from where she
parked the car, but the gas station was closed. She walked
further, became lost, and met a man who said he would help her
find gas for her car. They rode three buses together, looking for
gas, but did not find any. Around 6:30 a.m., the following
morning, a woman drove Mother back to the area where Mother
4
had parked the car, and Mother continued to search for gas. At
around 8:00 a.m., nine hours after she left Xavier alone in the
car, Mother returned to the spot where she had parked the car,
and the car was gone. Mother called the police to report that her
car and Xavier were missing. Mother turned herself in to the
4
police, and she was arrested.
Mother told the social worker she had been diagnosed with
posttraumatic stress disorder and insomnia resulting from
childhood trauma. She denied any other mental health issues
and said she did not take medication. Mother admitted to near-
daily marijuana use to help her sleep. The last time she used
was the previous afternoon when she and Xavier stopped at the
beach on their drive from San Bernardino to Bakersfield. Mother
said she waited an hour after using marijuana before she
5
resumed the drive. From a review of Mother’s juvenile court
case in San Bernardino County, the social worker learned that
Mother had been diagnosed with schizophrenia, bipolar disorder
and medication noncompliance.
Mother listed Xavier’s maternal grandfather as her support
system. He lived out-of-state. Mother said Xavier’s maternal
4
Later, during an interview on October 24, 2019, Mother
told a DCFS dependency investigator that she left Xavier alone in
the car at 11:01 p.m. and returned at 11:15 p.m. to find him
missing.
5
During the subsequent interview on October 24, 2019,
Mother told the dependency investigator that when she used
marijuana while at the beach with Xavier that day, she smoked
“2 blunts.”
5
grandmother did not help her care for Xavier, although they lived
together.
B. Petition and Detention Hearing
On September 9, 2019, DCFS filed a dependency petition
under section 300, subdivisions (b) and (j), alleging Xavier was at
risk of harm due to (1) Mother leaving him unattended in a car,
as she had done with his older half brother (counts b-1 & j-1); (2)
Mother’s marijuana abuse, resulting in Mother being under the
influence of marijuana on multiple occasions while Xavier was in
her care (counts b-2 & j-2); (3) Mother’s mental and emotional
problems, including schizophrenia, bipolar disorder, and
posttraumatic stress disorder, and her history of involuntary
hospitalizations, which rendered Mother incapable of providing
regular care for and supervision of Xavier (counts b-3 & j-3); and
(4) Mother driving Xavier while under the influence of marijuana
on the day she left him unattended in the car (count b-4). The
allegations in counts b-1/j-2—b-3/j-3 reference the similar conduct
of Mother at issue in the San Bernardino County dependency
proceedings involving Xavier’s older half siblings.
Mother was in custody and did not appear at the
September 10, 2019 detention hearing. The juvenile court found
DCFS made a prima facie showing that Xavier was a person
described by section 300, and the court detained the child from
Mother. Xavier was in a foster home. The court granted Mother
once-monthly monitored visits with Xavier while she was in
custody and, after her release, monitored visits to occur two to
three times per week. At the request of Xavier’s attorney, the
court ordered DCFS to determine if Xavier could be placed in the
same foster home as his older half siblings and, if not, to facilitate
sibling visits.
6
On September 30, 2019, Mother, who was still in custody,
made her first appearance in this matter. The juvenile court
appointed counsel for her and arraigned her on the petition.
Mother denied the allegations. Xavier remained detained in
foster care.
III. Jurisdiction Over Xavier/Disposition
A. DCFS’s reports filed prior to the adjudication
hearing
In preparation of the Jurisdiction/Disposition Report, a
DCFS dependency investigator interviewed Xavier’s maternal
grandmother, who reported Mother was diagnosed with
schizophrenia and bipolar disorder when she was 12 years old.
As a child, Mother took prescribed medication for these
conditions, but over time, Mother stopped taking the medication.
Mother and Xavier came to live with the maternal grandmother
when Xavier was two months old. The maternal grandmother
assisted Mother in caring for Xavier, and she supported Xavier
financially. She worried about leaving Xavier alone with Mother
due to Mother’s short temper, and she believed Mother needed
medication for her mental health issues. When Mother would
become frustrated, the maternal grandmother “would step in and
offer to take Xavier from her and sooth[e] him so that he would
not be traumatized.” She reported that Mother did fairly well at
feeding and changing Xavier and keeping him on a schedule.
DCFS reported in the Jurisdiction/Disposition Report that
Xavier would be placed with Ms. D. in November 2019. Ms. D.
was in the process of finalizing her adoption of Xavier’s half
siblings, and she was interested in adopting Xavier to keep the
siblings together.
7
As of October 27, 2019, the date DCFS prepared the
Jurisdiction/Disposition Report, Mother had not had any visits
with Xavier. The detention facility where Mother was housed
informed DCFS that Mother could not have any visitors due to
her hostile and uncooperative behavior (including spitting,
kicking, yelling, and being naked in her cell) and the fact she was
on “suicide watch” in the mental health unit.
DCFS recommended in the Jurisdiction/Disposition Report
that the juvenile court decline to grant Mother reunification
services with Xavier because Mother had not resolved the issues
which resulted in termination of reunification services in the case
involving Xavier’s half siblings (mental and emotional problems,
substance abuse, and child safety issues). (See § 361.5, subd.
(b)(11) [relevant reunification services bypass provision].)
On November 7, 2019, Mother pleaded no contest and was
convicted of child endangerment (Pen. Code, § 273a), and she was
sentenced to two years in prison. She was transferred to a state
prison facility. In a Last Minute Information for the Court, filed
January 10, 2020, DCFS reported Mother could be eligible for
parole in September 2020. In a Last Information for the Court,
filed February 26, 2020, DCFS reported Mother was now eligible
for visits with Xavier in the prison facility. No visits occurred
prior to the adjudication hearing, which was held on February 26,
2020.
B. Adjudication hearing
On February 26, 2020, Mother, who was still incarcerated,
appeared at the adjudication hearing. Without objection, the
juvenile court admitted into evidence DCFS’s reports in this
matter (referenced above) and took judicial notice of documents
in the San Bernardino County dependency proceedings involving
8
Xavier’s half siblings (sustained petitions, case plans, findings,
and orders). After hearing oral argument from the parties, the
court sustained the dependency petition as to all counts (as
summarized above). The court continued the matter for
disposition and set the matter for a contest on DCFS’s
recommendation that Mother not receive reunification services in
this case. Xavier remained placed with his half siblings in the
home of Ms. D.
C. DCFS’s reports filed prior to the disposition
hearing
In a Last Minute Information for the Court, filed July 13,
2020, DCFS reported Mother was housed in a “high-observation
mental health module” at her place of incarceration. The
facility’s staff informed DCFS that Mother could not have any
visitors due to the COVID-19 pandemic, regardless of whether
visits could be arranged while she was housed in that unit.
In a Last Minute Information for the Court, filed
September 11, 2020, DCFS reported Xavier was receiving
Regional Center Services. His service provider informed DCFS
that Xavier, who was two years and four months old, had an 11-
month delay in receptive language, a 10-month delay in cognitive
development, an eight-month delay in expressive language and
self-help, a four-month delay socially and emotionally, and a
three-month delay in gross and fine motor skills.
In a Last Minute Information for the Court, filed
September 15, 2020, DCFS discussed an in person meeting
between Mother and a social worker that occurred on August 26,
2020 at Mother’s place of incarceration. Mother acknowledged
she had bipolar disorder and stated she was taking prescribed
9
medication to treat her condition. She said she planned to
continue taking the medication after her release.
D. Disposition hearing
At the September 18, 2020 disposition hearing, Mother’s
counsel waived Mother’s appearance. Without objection, the
juvenile court admitted into evidence DCFS’s reports in this
matter (referenced above). The court declared Xavier a
dependent of the court, removed him from Mother’s custody, and
ordered him suitably placed. After hearing argument, the court
declined to grant Mother reunification services, finding by clear
and convincing evidence that the bypass provisions in section
361.5, subdivisions (b)(10)-(11) applied because Mother did not
make a reasonable effort to treat the problems that led to
removal of Xavier’s half siblings from her custody (and ultimately
termination of her reunification services and parental rights).
The court sent the matter for a permanency planning hearing
under section 366.26. The court made no change to the visitation
order: once-monthly monitored visits with Xavier while she was
in custody and, after her release, monitored visits to occur two to
three times per week.
IV. Mother’s Visitation With Xavier, Beginning
November 2020
In its section 366.26 report, filed January 15, 2021, DCFS
stated Mother was released from custody in or around November
2020 and had participated in one monitored visit with Xavier at
the park on November 24, 2020. DCFS described the visit as
follows:
“Xavier who is largely nonverbal, understands some
receptive language, but struggles with expressive language, was
largely quiet during the visit. He would look to CSW [child’s
10
social worker], and stare at mother, but was receptive to getting
up and walking, pointing at different objects/animals and
naming, chasing the pigeons (child initiated this on his own after
the adults pointed at them), and sitting on the toddler swings at
the park. These activities were largely suggested by CSW as
mother appeared hesitant to initiate activity during the visit.
“Mother brought chicken nuggets from Burger King, and a
sealed store-bought pre-sliced watermelon package, and juice for
the child. Xavier ate a few of the chicken nuggets and attempted
to play with a toy mother gave him. The toy was a liquid motion
maze toy that you push a button and tilt to move the liquid. The
toy, while not dangerous, was not developmentally appropriate.
The child’s hands were too small to push the small button even
when using the full force of both thumbs. Mother tried to
demonstrate for him the action of the toy, and he attempted to
press the button to move the liquid. At one point during the visit,
mother struggled to place the child in the toddler swing set, and
requested CSW’s assistance with his limbs. Xavier was mostly
observant and hesitant, but not fearful during the visit. The
child appeared to enjoy being outside, but was largely indifferent
to mother. Mother would comment to CSW about how the child
has grown since she last saw him, and bring up things she did in
the past with her other children (re: prior monitored visits with
Xavier’s older half-siblings at the same park when she and her
mother lived around the corner from the park).”
In a Status Review Report, filed March 17, 2021, DCFS
updated the juvenile court on Mother’s visitation with Xavier.
On January 22, 2021, Mother had a monitored virtual visit with
Xavier, who was now two years and nine months old. This was
Mother’s second visit with Xavier since he was detained from her
11
in September 2019. DCFS described the virtual visit as follows:
“During the visit, Xavier remained nonverbal and appeared
disinterested. Xavier said ‘hi’ to his mom but did not respond to
questions such as ‘did you eat today?’ or ‘how are you?’ Xavier
looked off to the side frequently during the visit. Mother stated
that she did not wish to keep Xavier on the phone if he wasn’t
engaging in the visit, and CSW asked mother if she would like to
end the visit. Mother stated that she would like to end the visit,
and she said goodbye to Xavier. Xavier responded ‘bye,’ and the
visit was ended.”
As stated in the same Status Review Report, Mother had
her third monitored visit with Xavier on February 26, 2021. It
was an in person visit at the park. Mother brought Xavier
snacks, juice, a basketball, a talking picture book, and a teddy
bear. When Mother arrived at the park, the social worker was
pushing Xavier on a swing. DCFS described the interaction
between Mother and Xavier as follows:
“[M]other took Xavier out of the swing set to give him a
hug. Mother sat Xavier down next to her on a bench and gave
him his presents and snacks. Xavier did not appear fearful or
hesitant around his mother, but Xavier was mostly quiet during
the visit. CSW suggested to mother that they move underneath
the canopy as the sun was shining directly in front of mother and
Xavier. Mother agreed and moved her items to the picnic area
beneath the canopy.
“During the visit, mother read to Xavier from the talking
picture book, and Xavier appeared interested in the buttons that
made sounds. Xavier sat next to his mother as she read to him,
and Xavier quietly ate his honey bun snack, and drank his Capri-
Sun juice. Xavier did not engage in any conversation with his
12
mother. Xavier would alternate between eating his snack and
examining his toys. At the end of the visit, mother walked with
CSW and Xavier back toward the car, and Mother leaned down to
hug and kiss Xavier. Xavier appeared receptive to mother’s
affection, and Xavier said ‘bye’ to his mother.”
In a further Status Review Report, filed on September 20,
2021, DCFS stated the following regarding Mother’s visitation:
“Mother . . . has continued to receive monitored visitation with
the minor, and [the social worker] has acted as the monitor for
the mother’s visits. Visits with the mother are positive, and
Xavier is comfortable around his mother and interacts with her
throughout the visit. Mother is patient with Xavier and often
brings food and toys for Xavier to play with. Mother reads stories
to Xavier and encourages Xavier to read along. Mother has
brought picture books to share with Xavier as well as videos.
Mother will sit quietly with Xavier if he is focused on watching a
video or is playing with a toy. Mother and Xavier also go outside
to allow Xavier to ride tricycles and play basketball. Mother has
continued to act appropriately during visitation and requires
little to no redirection from [the social worker].” DCFS did not
state the number of visits Mother had between March 17, 2021,
the date the previous Status Review Report was filed, and
September 20, 2021, the date this Status Review Report was
filed.
DCFS recommended the juvenile court terminate Mother’s
parental rights and select adoption as Xavier’s permanent plan.
According to DCFS, Xavier was bonded to Ms. D., and she wanted
to adopt him. At the time of the section 366.26 permanency
planning hearing, which was held on October 1, 2021, when
13
Xavier was three years and five months old, Xavier had lived
with Ms. D. for nearly two years.
V. Section 366.26 Hearing
At the October 1, 2021 section 366.26 permanency planning
hearing, the trial court admitted DCFS’s evidence without
objection: two section 366.26 reports, filed on June 2, 2021 and
6
September 30, 2021; and a Status Review, filed on September
30, 2021. Xavier’s counsel urged the juvenile court to follow
DCFS’s recommendation and terminate parental rights, arguing
no exception to adoption applied.
Mother attended the section 366.26 hearing by telephone.
She did not present any evidence. Her counsel argued: “Mother
vehemently objects to [DCFS]’s recommendation. We are asking
the court not to terminate parental rights. The bond between
Mother and her child is too strong and it would not be in the best
interest of the child if the court terminates parental rights.
Mother has been working very hard. She did complete a
parenting class. She completed numerous sessions of individual
counseling. We urge the court that based on the bond that
Mother has, it would be detrimental and not in the best interest
to adopt this child. Mother would like an opportunity to reunify
with the child.” Counsel did not cite to evidence in support of this
argument.
The juvenile court found no exception to adoption applied
and ruled as follows, in pertinent part: “I am going to terminate
parental rights today. Mother does visit with Xavier, but her
6
We did not reference above these two section 366.26
reports because the information therein is not germane to the
issues on appeal.
14
visits are still monitored. Her visits are not so frequent or so
exceptional that there is a parental bond as defined under the
law. Mother does have a bond with this child, but it is the loving
bond that occurs between most every parent and child. But she
has not stepped up to what would be considered a parental role in
those visits beyond just being the mother. So she has not met her
burden of proof for the parental bond exception, and any bond
that does exist is outweighed by the benefits Xavier will have in
having permanency through adoption with the caretaker, who
has done a good job in raising him, and who also has a very good
bond with the child.” The court found by clear and convincing
evidence that Xavier was adoptable, selected adoption as the
permanent plan in Xavier’s best interest, and designated Ms. D.
as the prospective adoptive parent.
DISCUSSION
I. Parental-Benefit Exception
Mother contends the juvenile court committed reversible
error in finding the parental-benefit exception to termination of
parental rights (§ 366.26, subd. (c)(1)(B)(i)) did not apply to her
relationship with Xavier, as the court did not apply the applicable
test set forth in In re Caden C., supra, 11 Cal.5th 614 (Caden C.),
decided by the Supreme Court four months before the section
366.26 hearing in this case. As explained more fully below, we
agree with Mother that the trial court erred, but we conclude the
error was harmless because Mother failed to carry her burden to
establish the parental-benefit exception, in that the record is
devoid of evidence satisfying the factual elements of the Caden C.
test.
15
A. Applicable law
When a juvenile court “cannot safely return a dependent
child to a parent’s custody within statutory time limits, the court
must set a hearing under section 366.26.” (Caden C., supra, 11
Cal.5th at p. 630.) At the section 366.26 hearing, the juvenile
court is required to select and implement a permanent plan for a
dependent child. The “question before the court [at a section
366.26 hearing] is decidedly not whether the parent may resume
custody of the child,” as “reunification services have been
terminated, and the assumption is that the problems that led to
the court taking jurisdiction have not been resolved.” (Ibid.) If
the court determines by clear and convincing evidence that the
dependent child is likely to be adopted, “the court shall terminate
parental rights to allow for adoption” unless a parent shows
termination would be detrimental to the child for one of the
reasons enumerated in section 366.26, subdivision (c)(1). (Caden
C., at pp. 630-631.) If the parent makes the requisite showing,
the “court should decline to terminate parental rights and select
another permanent plan.” (Ibid.) Only “ ‘in exceptional
circumstances’ ” will a court choose a permanent plan “ ‘other
than the norm, which remains adoption.’ ” (Id. at p. 631.)
The parental-benefit exception, at issue here, applies where
the juvenile “court finds a compelling reason for determining that
termination would be detrimental to the child” because: “The
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).) As our Supreme
Court has explained, a parent must prove three elements “to
establish the exception: (1) regular visitation and contact, and (2)
a relationship, the continuation of which would benefit the child
16
such that (3) the termination of parental rights would be
detrimental to the child.” (Caden C., supra, 11 Cal.5th at p. 631.)
“[I]n assessing whether termination would be detrimental, the
trial court must decide whether the harm from severing the
child’s relationship with the parent outweighs the benefit to the
child of placement in a new adoptive home. [Citation.] By
making this decision, the trial court determines whether
terminating parental rights serves the child’s best interests.” (Id.
at p. 632.)
As to the first element of the exception—regular visitation
and contact—the “question is just whether ‘parents visit
consistently,’ taking into account ‘the extent permitted by court
orders.’ ” (Caden C., supra, 11 Cal.5th at p. 632.) In evaluating
this element, courts should not “punish parents or reward them
for good behavior in visiting or maintaining contact – here as
throughout, the focus is on the best interests of the child.” (Ibid.)
“Visits and contact ‘continue[] or develop[] a significant, positive,
emotional attachment from child to parent.’ ” (Ibid.)
“As to the second element, courts assess whether ‘the child
would benefit from continuing the relationship.’ (§ 366.26, subd.
(c)(1)(B)(i).) Again here, the focus is on the child. And the
relationship may be shaped by a slew of factors, such as ‘[t]he age
of the child, the portion of the child’s life spent in the parent’s
custody, the “positive” or “negative” effect of interaction between
parent and child, and the child’s particular needs.’ ” (Caden C.,
supra, 11 Cal.5th at p. 632.) Courts “often consider how children
feel about, interact with, look to, or talk about their parents.
[Citations.] Doing so properly focuses the inquiry on the child,
even as courts must remain mindful that rarely do ‘[p]arent-child
relationships’ conform to an entirely consistent pattern.” (Ibid.)
17
To satisfy this element, “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.” (Id. at p. 636.)
“Concerning the third element – whether ‘termination
would be detrimental to the child due to’ the relationship – the
court must decide whether it would be harmful to the child to
sever the relationship and choose adoption. (§ 366.26, subd.
(c)(1)(B); see also § 366.26, subd. (c)(1)(D).) Because terminating
parental rights eliminates any legal basis for the parent or child
to maintain the relationship, courts must assume that
terminating parental rights terminates the relationship.
[Citations.] What courts need to determine, therefore, is how the
child would be affected by losing the parental relationship – in
effect, what life would be like for the child in an adoptive home
without the parent in the child’s life.” (Caden C., supra, 11
Cal.5th at p. 633.) “When the relationship with the parent is so
important to the child that the security and stability of a new
home wouldn’t outweigh its loss, termination would be
‘detrimental to the child due to’ the child’s beneficial relationship
with the parent. (§ 366.26, subd. (c)(1)(B)(i).)” (Id. at pp. 633-
634.)
“When it weighs whether termination would be
detrimental, the court is not comparing the parent’s attributes as
custodial caregiver relative to those of any potential adoptive
parent(s). Nothing that happens at the section 366.26 hearing
allows the child to return to live with the parent. [Citation.]
Accordingly, courts should not look to whether the parent can
provide a home for the child; the question is just whether losing
the relationship with the parent would harm the child to an
18
extent not outweighed, on balance, by the security of a new,
adoptive home. [Citation.] Even where it may never make sense
to permit the child to live with the parent, termination may be
detrimental. [Citation.] And the section 366.26 hearing is
decidedly not a contest of who would be the better custodial
caregiver.” (Caden C., supra, 11 Cal.5th at p. 634.) The parental-
benefit exception does not permit “a judgment about the parent’s
problems to deprive a child of the chance to continue a
substantial, positive relationship with the parent.” (Id. at p.
643.)
As our Supreme Court pointed out, “the ‘Task Force,’ which
the Legislature created in 1987 to redesign the dependency
system and whose recommendations the Legislature adopted,”
“explained why the parental-benefit exception existed and when
it should be applied: ‘Termination would not be permissible,
however, in the following situation[]: [¶] a) Termination would be
detrimental to the child due to the strength of the parent-child
relationship. There is substantial clinical evidence that some
children in foster care retain very strong ties to their biological
parents. Since termination in such situations is likely to be
harmful to the child, courts should retain parental ties if desired
by both the parents and the child.’ ” (Caden C., supra, 11 Cal.5th
at p. 635.)
The parent challenging the termination of parental rights
based on the parental-benefit exception has the burden of proving
by a preponderance of the evidence that the exception applies.
(Caden C., supra, 11 Cal.5th at p. 629.)
We review the juvenile court’s determination whether the
parent has visited and maintained contact with the child
consistently, given the extent permitted by the court’s orders, for
19
substantial evidence. (Caden C., supra, 11 Cal.5th at pp. 639-
640.) We likewise review for substantial evidence the court’s
determination whether the relationship is such that the child
would benefit from continuing it. (Id. at p. 640.) We may “ ‘not
reweigh the evidence, evaluate the credibility of witnesses, or
resolve evidentiary conflicts,’ ” and we will uphold the trial
court’s determinations supported by substantial evidence even if
“ ‘substantial evidence to the contrary also exists.’ ” (Ibid.)
We review whether termination of parental rights would be
detrimental to the child for abuse of discretion. (Caden C., supra,
11 Cal.5th at p. 640.) “A court abuses its discretion only when
‘ “ ‘the trial court has exceeded the limits of legal discretion by
making an arbitrary, capricious, or patently absurd
determination.’ ” ’ [Citation.] But ‘ “ ‘[w]hen two or more
inferences can reasonably be deduced from the facts, the
reviewing court has no authority to substitute its decision for
that of the trial court.’ ” ’ ” (Id. at p. 641.)
B. The error
Mother contends the juvenile court erred because it applied
an incorrect legal standard in finding the parental-benefit
exception to termination of parental rights did not apply to
Mother’s relationship with Xavier. We agree. Based on the
court’s statements when it ruled on this matter at the section
366.26 hearing, the court focused its analysis on whether Mother
established a “a parental role in [her] visits [with Xavier] beyond
just being the mother.” A “parental role” is not an element of the
parental-benefit exception. (See § 366.26, subd. (c)(1)(B)(i).) In
Caden C., supra, 11 Cal.5th 614, our Supreme Court did not
20
define or mention a “parental role” in discussing the application
7
of the parental-benefit exception.
As the Court of Appeal explained in In re L.A.-O. (2021) 73
Cal.App.5th 197 (L.A.-O.), “the words ‘parental role,’ standing
alone, can have several different meanings. They can mean being
the person whom the child regards as his or her parent (or at
least as more his or her parent than any other caregiver).
However, we already know that the parental-benefit exception
does not require that the parent be the child’s primary
attachment. [¶] They can mean being a good parent – nurturing,
supportive, and guiding. Caden C., however, tells us that the
parental-benefit exception does not require being a good parent;
it does not require that the parent have overcome the struggles
that led to the dependency, and it does not require that the
parent be capable of resuming custody. [¶] These words can also
mean giving parental care, such as changing diapers, providing
toys and food, and helping with homework. This would conflict,
however, with Caden C.’s warning that ‘rarely do “[p]arent-child
relationships” conform to an entirely consistent pattern.’ ” (Id. at
p. 210.)
As we stated in In re Katherine J. (2022) 75 Cal.App.5th
303 (Katherine J.): “While each of these definitions [set forth
above] may be useful as factors to determine the strength of a
parent’s relationship with their child, none is dispositive on its
7
The Supreme Court issued its opinion in Caden C. four
months before the section 366.26 hearing in this case. Neither
the parties nor the juvenile court referenced Caden C. or the
tripartite analysis the Supreme Court announced in Caden C. for
applying the parental-benefit exception.
21
own. Therefore, problems arise when juvenile courts use the
phrase ‘parental role’ without explaining which meaning(s) they
impart to it.” (Id. at p. 319.) Here, we cannot discern what the
juvenile court meant by “parental role” and whether the court’s
definition contravenes the analysis in Caden C. for application of
the parental-benefit exception.
Mother argues the juvenile court’s error requires that we
reverse the order terminating parental rights and remand the
matter for a new section 366.26 hearing where the court will
reconsider application of the parental-benefit exception in light of
Caden C. DCFS argues this case is amenable to a state law
harmless error analysis under People v. Watson (1956) 46 Cal.2d
818, 836 because Mother did not meet her burden to show the
parental-benefit exception applies to her relationship with
Xavier. We agree with DCFS’s position. As explained more fully
below, the record before us is devoid of evidence establishing the
first two elements of the parental-benefit exception under Caden
C.’s test. Thus, the error is harmless because it is not reasonably
probable the result would have been more favorable to Mother if
the court had applied the correct legal standard under Caden C.
C. Harmless error analysis
“The California Constitution prohibits a court from setting
aside a judgment unless the error has resulted in a ‘miscarriage
of justice.’ (Cal. Const., art. VI, § 13.)” (In re Celine R. (2003) 31
Cal.4th 45, 59-60.) Applying the Watson harmless error standard
for state law error, we reverse an order in a dependency case only
if we find it is reasonably probable the result would have been
more favorable to the appellant but for the error. (Id. at p. 60.)
A juvenile court’s error “is amenable to harmless error analysis”
where determining prejudice does not “require ‘a speculative
22
inquiry into what might have occurred in an alternative
universe.’ ” (In re James F. (2008) 42 Cal.4th 901, 915.) This is
such a case where the harmless error analysis requires no
speculation. The evidence in the record before us is insufficient
as a matter of law to show the factual elements necessary to
establish the parental-benefit exception to termination of
parental rights.
We invited the parties to submit supplemental briefing
regarding the application of a harmless error analysis in this
case. In her supplemental briefing, Mother acknowledges that
where a juvenile court applies an incorrect legal standard under
Caden C., a case may be amenable to a harmless error analysis
where there is a failure of proof on the first two (factual) elements
of the Caden C. test, as opposed to the third (discretionary)
element. She asserts, however, that the juvenile court here found
that she satisfied the first two elements. It did not, and it could
not, based on the lack of evidence in the record, as explained
below. We note this is not a case where there is evidence in the
record supporting the first two elements of the Caden C. test, and
remand is required for error under Caden C. so the trial court
may properly exercise its discretion as to the third element of the
test. (Cf. In re D.M. (2021) 71 Cal.App.5th 261, 271 [“We cannot
know how the court would have exercised its discretion if it had
the benefit of the Caden C. analysis when making its ruling. We
believe the juvenile court should make this determination in the
first instance”].)
1. Regular visitation and contact
As to the first element of the exception—regular visitation
and contact—the “question is just whether ‘parents visit
consistently,’ taking into account ‘the extent permitted by court
23
orders.’ ” (Caden C., supra, 11 Cal.5th at p. 632.) Mother asserts
the juvenile court found she maintained regular visitation and
contact with Xavier, thus satisfying the first element of the
Caden C. test. While the juvenile court noted Mother was
visiting Xavier, it made no finding the visitation was regular or
consistent. Rather, the court stated Mother’s visits were “not so
frequent or so exceptional that there is a parental bond as
defined under the law.” The court could not have made a finding
that Mother satisfied this element of the exception because there
is no evidence in the record showing regular visitation and
contact.
In the months following Mother’s September 5, 2019 arrest,
and before the pandemic began, Mother did not have any visits
with Xavier because of her reported hostile and uncooperative
behavior at the detention facility. After Mother was released
from custody, she had two in person visits and one virtual visit
with Xavier over four months between November 2020 (the
month of her release) and March 17, 2021 (the date DCFS
prepared one of its status review reports). That is fewer than one
visit per month, although the juvenile court’s order allowed
Mother two to three visits per week. Mother did not present
evidence of any extenuating circumstances that prevented her
from visiting regularly under the terms of the court’s visitation
order. As set forth above, Mother did not present any evidence at
all concerning the parental-benefit exception to termination of
parental rights.
Based on the record, we know Mother visited Xavier in the
period between March 17, 2021 and September 20, 2021 (the date
of DCFS’s next status review report, shortly before the section
366.26 hearing), but we do not know how many visits occurred
24
and if the visits occurred regularly under the terms of the court’s
visitation order. A finding that Mother visited Xavier regularly
in the six months before the section 366.26 hearing would be
based on pure speculation.
To establish the parental-benefit exception to termination
of parental rights, it was Mother’s burden to show regular
visitation and contact with Xavier, and she failed to satisfy her
burden. Given Mother’s failure of proof on this element, the
juvenile court’s error in applying an incorrect legal standard
under Caden C. is harmless. Even if there was evidence that
Mother’s visits were regular and consistent during the six months
before the section 366.26 hearing, and that was deemed sufficient
to establish the first element of the Caden C. test, we would
affirm the order terminating Mother’s parental rights due to a
failure of proof on the second element, as set forth below.
2. Beneficial relationship
Caden C. describes the second element of the exception as
“a relationship, the continuation of which would benefit the
child.” (Caden C., supra, 11 Cal.5th at p. 631.) To satisfy this
element, a parent must show “something more than the
incidental benefit a child gains from any amount of positive
contact with [his or] her natural parent.” (Katherine J., supra, 75
Cal.App.5th at p. 318.) The parent must show that he or she is
more than “a mere ‘friendly visitor.’ ” (Id. at p. 319.) Rather, 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.” (Caden C., at p. 636.) The determination on this
element of the Caden C. test, like the determination on the first
25
element of the test, is a factual matter, not a discretionary one.
(Id. at p. 640.)
Mother asserts the juvenile court found she satisfied this
element. While the court did state Mother had a bond with
Xavier, the court said nothing about Xavier having an
attachment to Mother. And there is no evidence in the record
from which such an attachment can be inferred.
Xavier was just 16 months old when he was detained from
Mother. He did not see Mother again for more than two years.
We quoted above the paragraphs in DCFS’s reports describing
Mother’s interactions and relationship with Xavier in the year
before the section 366.26 hearing. There is nothing in the reports
indicating Xavier had a substantial, positive, emotional
attachment to Mother, or any attachment to her at all. DCFS
described in detail the three visits that occurred between
November 2020 and March 17, 2021 (two in person and one
virtual). On all three occasions, the social worker who monitored
the visits reported that Xavier was largely indifferent to Mother.
On the third visit, Xavier was reportedly receptive when Mother
initiated a hug and a kiss at the end of the visit. In DCFS’s
summary of the visits that occurred in the six months before the
section 366.26 hearing, DCFS reported: “Visits with the mother
are positive, and Xavier is comfortable around his mother and
interacts with her throughout the visit.” To infer, based on this
statement, that Xavier had a substantial, emotional attachment
to Mother—as opposed to the type of relationship a child would
have with a friendly visitor—would be pure speculation.
Mother appeared at the section 366.26 hearing and chose
not to present any evidence in support of her assertion the
parental-benefit exception to termination of parental rights
26
applied to her relationship with Xavier. There is insufficient
evidence in the record as a matter of law to support the first two
elements of the Caden C. test, which are factual, not
discretionary, matters. In light of Mother’s failure of proof, the
juvenile court’s error is harmless. We need not address the third
element of the Caden C. test.
II. ICWA
A. ICWA Facts and Proceedings
An August 20, 2015 minute order from the dependency
proceedings in Xavier’s half siblings’ case, which is included in
the record before us, states that the juvenile court in San
Bernardino County found ICWA did not apply.
On September 5, 2019, when a social worker in the present
case spoke to Mother on the day of her arrest for child
endangerment, Mother told the social worker she had Indian
ancestry. In the Detention Report, filed September 9, 2019,
DCFS summarized Mother’s statements to the social worker as
follows: “Mother . . . stated that there is American Indian
Heritage on her side of the family. Mother stated that she is in
the process of enrolling herself and the children. Mother stated
that she needs to do it soon so she does not have to deal with
DCFS anymore. Mother stated that she was not going to provide
CSW with the name of the tribe until she has successfully
enrolled along with her children.” Form ICWA-010(A), attached
to the dependency petition, indicated Xavier may have Indian
ancestry.
On September 30, 2019, when Mother made her first
appearance in these dependency proceedings, she filed form
ICWA-020, Parental Notification of Indian Status. She checked
the box on the form indicating, “I may have Indian Ancestry,” and
27
she identified the tribe as Cherokee. As reflected in the minute
order from the September 30, 2019 hearing, the juvenile court
ordered DCFS to investigate Mother’s claim of Indian ancestry.
On October 24, 2019, a dependency investigator
interviewed Mother regarding possible Indian ancestry. In the
Jurisdiction/Disposition Report, DCFS summarized Mother’s
statements as follows: “On 10/24/2019, mother informed [the
dependency investigator] that she is Creole, and she is 60%
Indian Cherokee and Geechee. Mother reported that she is also
French and Hessian. Mother reported that land was stolen from
her grandmother. Mother reported that she has not yet
registered [with a tribe].”
On October 30, 2019, DCFS sent notice of the adjudication
hearing (form ICWA-030, Notice of Child Custody Proceeding for
Indian Child) by certified mail, with return receipt requested, to
the Bureau of Indian Affairs (BIA), the Secretary of the Interior,
the Cherokee Nation of Oklahoma, the United Keetoowah Band
of Cherokee Indians, and the Eastern Band of Cherokee Indians.
The notices included information about Xavier, Mother, Xavier’s
maternal grandparents, and Xavier’s maternal great-
grandparents. For Mother, the notices listed the possible tribe
and location as Cherokee and Oklahoma. For Xavier’s maternal
grandmother, the notices listed the possible tribe and location as
“Gullah AKA Geechee” and Texas. For Xavier’s maternal
grandfather, the notices listed the possible tribe and location as
Cherokee and Muskogee, Oklahoma. In the “Additional
information” section under the entry for Mother’s information,
DCFS wrote: “Maternal Grandfather stated that his Aunt
received payments from the Cherokee Nation of Oklahoma.
28
Maternal Grandmother stated that her mother was full blood
Gullah Indian.”
On November 4, 2019, the juvenile court continued the
adjudication hearing and ordered DCFS to file a report before the
next hearing with an “update on ICWA notice.” DCFS provided
the update in a Last Minute Information for the Court, filed
January 10, 2020. DCFS attached to this report a December 3,
2021 letter from the Eastern Band of Cherokee Indians, stating
that based on the information DCFS provided, Xavier was
neither registered nor eligible to register as a member of the
tribe, and he was not an Indian child in relation to the tribe.
DCFS also attached the return receipts from all the notices it
sent to the tribe/bands, the BIA, and the Secretary of the
Interior.
At the continued hearing on January 13, 2020, the juvenile
court found ICWA does not apply in this case.
B. Applicable law
Under ICWA, an “Indian child” is an unmarried person
under 18 years of age who is (1) a member of a federally
recognized Indian tribe or (2) is eligible for membership in a
federally recognized tribe and is the biological child of a member
of a federally recognized tribe. (25 U.S.C. § 1903(4) & (8); see §
224.1, subd. (a) [adopting federal definitions].)
DCFS and the juvenile court “have an affirmative and
continuing duty to inquire whether a child” involved in
dependency proceedings “is or may be an Indian child.” (§ 224.2,
subd. (a).) When DCFS detains a child and places that child in
foster care, its duty to inquire “includes, but is not limited to,
asking the child, parents, legal guardian, Indian custodian,
extended family members, others who have an interest in the
29
child, and the party reporting child abuse or neglect, whether the
child is, or may be, an Indian child and where the child, the
parents, or Indian custodian is domiciled.” (§ 224.2, subd. (b).)
Under ICWA, the term “extended family member” is “defined by
the law or custom of the Indian child’s tribe or, in the absence of
such law or custom, shall be a person who has reached the age of
eighteen and who is the Indian child’s grandparent, aunt or
uncle, brother or sister, brother-in-law or sister-in-law, niece or
nephew, first or second cousin or stepparent.” (25 U.S.C. §
1903(2).)
“At the first appearance in court of each party, the court
shall ask each participant present in the hearing whether the
participant knows or has reason to know that the child is an
Indian child” (§ 224.2, subd. (c)) and order the parents to
complete form ICWA-020 (Parental Notification of Indian
Status). (Cal. Rules of Court, rule 5.481(a)(2)(C).)
If the juvenile court or social worker “has reason to believe
that an Indian child is involved in a proceeding,” based on the
initial inquiry described above, the court or social worker “shall
make further inquiry regarding the possible Indian status of the
child,” including, but not limited to: (1) interviewing the parents
and extended family members; (2) contacting the BIA and the
State Department of Social Services for assistance in identifying
and contacting tribes; and (3) contacting tribes and others “that
may reasonably be expected to have information regarding the
child’s membership status, or eligibility.” (§ 224.2, subd. (e).)
There is reason to believe a child is an Indian child if there is
information suggesting that either the child or the parent is a
member or may be eligible for membership in an Indian tribe. (§
224.2, subd. (e)(1).) “Information suggesting membership or
30
eligibility for membership includes, but is not limited to,
information that indicates, but does not establish, the existence
of one or more of the grounds for reason to know enumerated in
paragraphs (1) to (6), inclusive, of subdivision (d),” which we set
forth below. (Ibid.)
The purpose of interviewing extended family members as
part of further inquiry is “to gather the information required in
paragraph (5) of subdivision (a) of Section 224.3.” (§ 224.2, subd.
(e)(2)(A).) Such information includes: “All names known of the
Indian child’s biological parents, grandparents, and great-
grandparents, or Indian custodians, including maiden, married,
and former names or aliases, as well as their current and former
addresses, birth dates, places of birth and death, tribal
enrollment information of other direct lineal ancestors of the
child, and any other identifying information, if known.” (§ 224.3,
subd. (a)(5)(C).)
ICWA notice is required if DCFS or the juvenile court
knows or has reason to know a child is an Indian child under any
of the circumstances described in section 224.2, subdivision (d).
(25 U.S.C. § 1912(a); § 224.3, subd. (a); Cal. Rules of Court, rule
5.481(b)(1).) Under subdivision (d), “There is reason to know a
child involved in a proceeding is an Indian child under any of the
following circumstances:
“(1) A person having an interest in the child, including the
child, an officer of the court, a tribe, an Indian organization, a
public or private agency, or a member of the child’s extended
family informs the court that the child is an Indian child.
“(2) The residence or domicile of the child, the child’s
parents, or Indian custodian is on a reservation or in an Alaska
Native village.
31
“(3) Any participant in the proceeding, officer of the court,
Indian tribe, Indian organization, or agency informs the court
that it has discovered information indicating that the child is an
Indian child.
“(4) The child who is the subject of the proceeding gives the
court reason to know that the child is an Indian child.
“(5) The court is informed that the child is or has been a
ward of a tribal court.
“(6) The court is informed that either parent or the child
possess an identification card indicating membership or
citizenship in an Indian tribe.” (§ 224.2, subd. (d).)
C. Analysis
Mother concedes DCFS fulfilled its duties to make inquiries
of extended family members and included all requisite
information on the ICWA notices it sent. She argues, however,
that DCFS failed to follow up on “some collateral information” it
included in the ICWA notices in the “Additional information”
section: “Maternal Grandfather stated that his Aunt received
payments from the Cherokee Nation of Oklahoma. Maternal
Grandmother stated that her mother was full blood Gullah
Indian.” The applicable law we set forth above does not require
DCFS to take further action concerning this information, and
Mother cites no authority indicating such a requirement.
There is no section on an ICWA notice for listing
identifying information about a great-great-aunt, as such a
relative is not a direct lineal ancestor of the child. Nonetheless,
DCFS included on the ICWA notice the information it had
received from Xavier’s maternal grandfather about Xavier’s
great-great-aunt. Neither the BIA, the Secretary of the Interior
nor the tribe/bands requested identifying information about the
32
great-great-aunt in determining whether Xavier is an Indian
child. Moreover, Mother’s suggestion that DCFS could have
obtained information identifying Xavier’s great-great-aunt is
speculative. We have no reason to believe such information was
available to DCFS.
Mother acknowledges that Gullah or Geechee is not a
federally recognized Indian tribe. ICWA imposes no duty on
DCFS to investigate ancestry related to a non-federally
recognized tribe. (In re Jonathon S. (2005) 129 Cal.App.4th 334,
338, citing 25 U.S.C. § 1903(8) [“ ‘Indian tribe’ is defined so as to
include only federally recognized Indian tribes”].)
Mother has demonstrated no error under ICWA or
California law implementing ICWA.
DISPOSITION
The order terminating parental rights is affirmed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
MORI, J.*
*Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
33