In re J.B. CA4/1 ( 2022 )

Filed 8/26/22 In re J.B. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re J.B., a Person Coming Under
the Juvenile Court Law.
D080107
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY,
(Super. Ct. No. J519899)
Plaintiff and Respondent,
v.
A.H. et al.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Michael P. Pulos, Judge. Affirmed in part, conditionally reversed in part
with directions.
Michelle D. Peña, under appointment by the Court of Appeal, for
Defendant and Appellant, A.H.
Paul A. Swiller, under appointment by the Court of Appeal, for
Defendant and Appellant, M.B.
Claudia Silva, acting County Counsel, Caitlin E. Rae, Chief Deputy,
and Eliza Molk, Senior Deputy counsel, for Plaintiff and Respondent.
1
A.H. (Mother) and M.B. (Father) appeal a juvenile court order
terminating their parental rights for minor J.B. They contend the court
erred in finding that the beneficial parent-child relationship exception did not
apply to prevent termination of their rights under Welfare and Institutions
Code, section 366.26, subdivision (c)(1)(B)(i).1 Mother further contends the
juvenile court erred in denying her petition under section 388 to lift
supervised visitation, which would apply if the court did not terminate her
parental rights. Both parents also contend that the juvenile improperly
found that the Indian Child Welfare Act (ICWA) did not apply because the
Agency and the court failed to meet the burden of initial inquiry by not
asking readily available relatives about their ancestry.
We conclude that the juvenile court did not abuse its discretion in
determining that the parents’ relationship with J.B. did not outweigh the
benefits of adoption. We also conclude that the court did not err in denying
Mother’s section 388 petition for expanded visitation. However, because we
agree that the Agency and the court did not meet the burden of initial
inquiry, we conditionally reverse the order with directions for the court to
comply with the inquiry provisions of ICWA and section 224.2. In all other
respects, we affirm the order.
BACKGROUND
A. Incidents Precipitating Detention.
Mother and Father are the parents of J.B. They were in a romantic
relationship for two years before J.B. was born.
1 Further statutory references are to the Welfare and Institutions Code
unless otherwise stated.
2
In May 2018, while Mother was pregnant with J.B., the parents
engaged in an argument and Mother ran outside for some air. Father ran
after her, grabbed her right arm and her hair, and spun her around. She fell
and sustained lacerations. She was taken to the hospital for monitoring.
Father was arrested and the criminal court issued a “no negative contact”
domestic violence restraining order against Father. Although Mother
initially moved out of their shared home, she told a judge that Father did not
touch her and she moved back in with Father. The criminal court ordered
Father to attend a 52-weeek domestic violence program.
Three months later, Father violated the terms of the restraining order
when he threw a car seat through a bedroom window of their home while
Mother was feeding newborn J.B. nearby.2 Father was under the influence
at the time of the incident. Mother was smoking marijuana and drinking
while breastfeeding J.B. A responding officer believed that if Mother and
J.B. were in the bedroom when the window shattered, it could have caused
Mother great bodily injury and the potential death of newborn J.B. Mother,
however, did not want to pursue prosecution or cooperate as a witness.
Mother reported that Father became “aggressive and angry” when he
drank “hard liquor.” He did not allow her to socialize with friends or other
family members and took her phone away for periods of time to prevent her
from talking to her friends. Mother lived with Father and his mother
(paternal grandmother). Mother said they were not at the home during the
day when she was caring for J.B.
Mother agreed to a safety plan in October 2018 saying that she would
take J.B. to her mother’s home (maternal grandmother) if Father showed
2 Mother’s accounts varied about whether she was in another room or in
the bedroom where the window was broken.
3
signs of an attitude or behavior change or if he was under the influence. She
agreed to contact law enforcement if she feared for J.B.’s safety. Father
agreed not to drink alcohol in the home.
After Mother agreed to stay with maternal grandmother, the criminal
court imposed another domestic violence protective order prohibiting any
contact between Mother and Father except to safely exchange the child for
visitation. Less than 10 days later, Mother returned to Father’s home.
The parents refused multiple requests for drug testing. Mother
admitted that she used marijuana while she cared for and breastfed J.B., but
she agreed not to drink alcohol.
The Agency was concerned that Mother returned to live with Father
despite the protective order and that Mother intended to ask the criminal
court to drop the protective order. The Agency was also concerned about the
parents’ use of marijuana and alcohol while they cared for J.B.
The Agency filed a petition in November 2018 alleging that J.B. was a
child within the jurisdiction of the juvenile court under section 300,
subdivision (b) because he was at substantial risk of suffering serious
physical harm due to his exposure to violent confrontations between the
parents and the parents’ inability to provide care due to their substance
abuse. The parents disagreed with the findings from the Agency’s
investigation and denied any physical altercations. The juvenile court issued
a protective custody warrant and ordered J.B. detained out of the home
B. Six-Month Review Period.
In the initial reporting period, Mother progressed from supervised
visitation to short, structured unsupervised visits during the week. Mother
interacted appropriately with J.B. during her visits.
4
Mother participated in the drug dependency court, but was in poor to
fair compliance with its requirements. Mother enrolled in a domestic
violence group and demonstrated that she learned about aspects of abuse,
including emotional abuse. She believed she only suffered emotional abuse
based on Father’s comments to her.
Mother and Father continued to reside together with paternal
grandmother. When the social worker informed her that she could not have
overnight visits while she lived with Father, Mother said she might move into
the home of maternal grandmother.
Father brought toys and food to his visits with J.B. and interacted with
him appropriately. He fed and changed J.B. as needed. Father, however,
canceled several visits due to work or illness.
Although Father participated in his domestic violence program, he did
not demonstrate an ability to use the tools he learned. He continued to
engage in arguments in the home and sent the social worker profane and
hostile text messages.
J.B. did well in out-of-home care. He also spent time at a respite foster
home and adjusted well to new people.
At the six-month review hearing in June 2019, the Agency reported it
had reverted Mother’s visits to supervised because Mother was taking J.B. to
see Father during her visits and she tested positive for alcohol use on several
occasions. Mother’s counsel set the matter for trial on the issue of supervised
visits.
In a September 2019 addendum report, Mother reported that she had
maintained her sobriety since June 2019. However, a photo on Mother’s
social media account showed her at a restaurant with a glass of beer.
Mother’s drug tests were negative.
5
Mother’s domestic violence facilitator noted that Mother lacked insight
regarding the effects of domestic violence because she continued to live with
Father despite expressing a desire to separate from him. Photos from the
parents’ social media accounts showed that they visited with J.B. jointly at
Father’s place of employment even though Father was not allowed to be
present during unsupervised visits.
The court continued the contested hearing for the Agency to obtain
additional information regarding the parents’ progress and insight into the
protective issues.
Thereafter, Mother completed a substance abuse treatment program
and complied with drug testing requests. She tested negative for all
substances. She also completed a parenting class. Mother attended a
domestic violence group, but did not acknowledge domestic violence in her
relationship with Father saying that she only experienced emotional abuse.
Father tested positive for THC, indicating recent marijuana use.
Although Father completed a 52-week domestic violence treatment program,
he had limited insight. His provider recommended conjoint therapy between
Father and J.B. as well as between the parents. The Agency remained
concerned that the parents chose to live together despite domestic violence
being the primary protective issue for this case. They continued to lack
insight about domestic violence dynamics in their relationship despite their
participation in domestic violence programs.
At the continued hearing in October 2019, the court ordered Mother to
have short, structured, unsupervised visits, which were separate from
Father. The court added conjoint therapy to the case plans to address
domestic violence, based on the parties’ agreement to participate.
6
C. 12-Month Review Period.
The parents had difficulty arranging conjoint therapy due to scheduling
conflicts for both the parents and the provider. The Agency referred the
parents to another provider, but they did not engage in conjoint therapy.
Father resisted random drug tests citing his work schedule. He tested
positive for cocaine in October 2019.
Mother temporarily left the home she shared with Father and paternal
grandmother in mid-November 2019 after an incident in which paternal
grandmother drank to excess and threw food at Mother. Mother said she
went to maternal grandmother’s home to cool off, but Mother continued to
live in Father’s home. She acknowledged that people drinking alcohol in
front of her was a trigger. But she stated, “This is how I want to live my life
and I cannot deny that [Father] is [J.B.]’s dad.”
The parents set the matter for trial at the scheduled 12-month review
hearing in January 2020. The matter was continued several times due to the
pandemic and to allow the Agency to reassess service recommendations for
the parents.
Mother moved out of Father’s home in January or February 2020 to
show the Agency she was not living with him. However, they continued their
relationship. Father tracked her whereabouts on his phone.
In March 2020, local police received a report that Father was banging
on the door and yelling at maternal stepgrandfather’s residence, where
Mother was staying. A security guard told Father to leave. Mother reported
that they broke up in March. Father later said they broke up after being
intimate in mid-May 2020.
By June 2020, Mother reportedly removed the ability of Father to track
her phone and said she would walk away from Father if she saw him in
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public. When a social worker noticed she was wearing an engagement ring,
Mother admitted she was engaged to Father and they had planned to marry
the following year. She appeared irritated at the social workers questions
and asked why the worker wanted to know everything.
When the contested 12-month hearing proceeded in July 2020, the
court found Mother’s progress was adequate and Father’s progress was
minimal. The court continued reunification services for an additional six
months.
D. 18-Month Review Period.
Mother was granted overnight visits with J.B. in mid-July 2020. By
September 2020, however, the Agency was concerned that Mother was not
forthcoming about where these visits occurred. The parents went out of town
during the same period of time in September. Although they told the social
worker that they were going to different locations, their social media accounts
showed photographs of the parents together and contained comments from
Mother expressing her love and commitment to Father, including a statement
suggesting they were married. J.B.’s caregiver believed Mother was living
with Father again. Mother said she split her time between maternal
grandmother and maternal stepgrandfather. Both grandparents said they
would not see Mother for days and said she would also stay with a friend.
When pressed to confirm her living situation, Mother was evasive. The
Agency reverted Mother’s visits to supervised visits at the end of October
2020.
Mother did not comply with requests for random drug tests between
August and November 2020. Father similarly did not comply with requests
for random drug testing even though the Agency arranged for mobile testing
at his home.
8
Mother enrolled in a virtual co-parenting class, but did not follow
through for several months, citing problems with internet connectivity.
Father stated he was unable to attend co-parenting classes due to his work
schedule.
At the scheduled 18-month review hearing in November 2020, the
parents requested a trial on the issue of placement and services. The juvenile
court made a prima facie finding on the Agency’s section 388 request to
change Mother’s visits to supervised.
A January 2021 addendum report indicated that J.B. continued to do
well and was very attached to his foster parent. He was aware of who his
mother is and asked to see pictures of her. Mother and J.B. were excited to
see one another for visits. The Agency recommended termination of
reunification services and the parents’ counsel confirmed a trial date. The
court continued the contested hearing because the assigned social worker was
unavailable.
In March 2021, the Agency reported that Mother did not comply with
on-demand drug testing on two occasions. She had not completed the co-
parenting program, but intended to start soon. Father was nearly finished
with the co-parenting program. Mother completed her domestic violence
group, but continued her relationship with Father. The Agency was
concerned that she had not gained insight to protect herself and J.B. from an
unhealthy relationship. Father did not provide on-demand drug tests even
when he said he would comply. He did complete a domestic violence group as
required by his probation and participated in parenting and co-parenting
classes. The Agency continued to recommend termination of services and the
setting of permanency planning hearing.
9
The court again continued the scheduled 18-month review hearing
when the parents agreed to undergo hair follicle testing to show sobriety over
the prior months. They also agreed to permit the agency to assess their
respective homes for placement.
Mother’s hair follicle sample tested positive for cannabinoids and THC.
Mother said she relapsed on marijuana due to insomnia. She said she
preferred marijuana to melatonin, which made her “zoned out.” Father’s hair
follicle test was positive for multiple substances including cocaine,
cannabinoids. and THC.
Mother rescheduled her home visit twice before saying she moved back
in with Father and that they resumed their relationship. She said they
wanted to take steps to reunify as a whole family. She said that if J.B. could
not be placed with them, she would move back in with maternal
stepgrandfather.
On April 20, 2021, the court considered the Agency’s section 388
petition to revert Mother’s visits to supervised along with the combined
contested 18- and 24-month reviews. The court heard testimony from the
social worker and considered the Agency’s reports. The social worker
understood the parents were living together. The worker viewed the home in
early April and had no concerns regarding the residence. The worker had no
concerns about Mother’s supervised visits with J.B. However, the social
worker was concerned about returning J.B. to Mother because the parents
were living together and both parents continued to use substances. The
worker thought it would have been helpful if the parents had participated in
conjoint therapy to address concerns in the relationship and to avoid future
domestic violence. The worker stated that the Agency did not have a
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concurrent home for J.B. at the time and that resource family approval (RFA)
evaluations were still ongoing for several relatives.3
Before making its ruling, the court commented that “time is the biggest
enemy of this case.” The court looked not only at the parents’ journey, but
also the child’s journey to see if those intersected in a healthy, consistent and
meaningful way to determine if there was a substantial probability of
returning the child to his parents.
The court gave Mother credit for completing a domestic violence course,
but noted that it did not have clear evidence that Mother was applying what
she learned in that course when she renewed her relationship with Father
and began living with him again.
The court observed that it only had one hair follicle test for Mother and
did not have other evidence of consistent sobriety despite repeated requests
for testing. For Father, there was one hair follicle test showing he used or
was exposed to cocaine in the past 90 days.
The court observed that the parents’ visits with J.B. were good.
However, J.B.’s behavior changed in early April 2021. He was screaming at
bedtime and throwing toys. The court expressed concern that the parents did
not follow-up or ask the caregiver about this behavior. The court was also
concerned about whether Mother could handle this behavior given that she
reported taking marijuana on a daily basis for insomnia. There was a
concern about her ability to safely care for J.B. while she was under the
influence.
3 The Agency interviewed many relatives about possible placement and
several submitted applications for RFA approval. RFA approvals were not
ultimately granted for J.B.’s relatives for a variety of reasons.
11
The court determined that the Agency provided reasonable services and
that the parents made some progress with their case plan. However, there
was no additional evidence of sobriety and no showing of insight regarding
either domestic violence or an ability to understand J.B.’s recent negative
behavioral changes when the parents renewed their relationship. The court,
therefore, terminated reunification services.4
The court also granted the Agency’s section 388 petition to change
Mother’s visits to supervised. The court set a permanency hearing for August
2021.
E. Permanency Planning Period.
Maternal stepgrandfather took Mother to an emergency department in
June 2021 due to a huge bite mark that punctured her skin after an incident
between Mother and Father. The incident was not reported to law
enforcement. Sometime in late June 2021, Mother moved out of Father’s
residence and into stepgrandfather’s home.
J.B. was placed in a new home in early August 2021 with a family who
was willing to adopt him. J.B. was familiar with the family and had an
attachment to them because they had provided respite care for him since
2019. The caregiver reported that she has “relationships” with Mother and
stepgrandfather. She commented that they are part of the family and she
wanted J.B. to continue a relationship with his family if it was in his best
interests.
4 Mother filed a notice of intention to file a petition for a writ of mandate
to challenge this ruling. However, we dismissed the matter after Mother’s
counsel indicated that a petition for writ of mandate would not be filed under
California Rules of Court, rule 8.452 because there were no viable issues for
writ review.
12
The permanency planning hearing pursuant to section 366.26, which
was initially scheduled for August 2021, was continued twice at the Agency’s
request to allow the Agency additional time to find an appropriate permanent
placement and to assess relative applications for RFA.
According to an addendum report in November 2021, J.B. had adjusted
well to his new home and he had formed attachments to the caregivers and
their biological son. He enjoyed visits with his parents during the reporting
period and engaged with them. However, he was able to separate at the end
of each visit without distress. He did not ask about the parents outside of
visits. He did ask about his previous caregiver with whom he spent the
majority of his life.
Over the following months, J.B. engaged with the parents during visits
and appeared excited to see them upon arrival. He continued to easily
separate at the end of visits. He was upset when one visit did not occur in
December 2021, but he calmed down when the visitation monitor played
music during the car ride back from the visit. At another visit, he repeatedly
asked to see his previous caregiver. He was upset at the end of a visit
because he wanted to continue playing. However, he resolved his emotions
and walked away from the visit without distress.
In early January 2022, when he was being transported back from a
visit he said he wanted to be with “his family,” whom he identified as his
caregivers. J.B. referred to his caregivers as “Mommy” and “Daddy” and to
their son as his “brother.” A social worker observed J.B. run into the
caregivers’ arms after visits with the parents. His teachers reported that he
often asked for his caregiver, who worked at the school, when he returned
from visiting the parents.
13
The Agency recognized that J.B. had a relationship with his parents.
However, given that J.B. had spent all but the first three months of his life in
foster care, the Agency did not believe this relationship was “secure enough”
to outweigh the benefits of permanency that would be gained through
adoption. The Agency did not believe it was in his best interests to withhold
permanency from him any longer.
The parents requested a contested hearing on the issue of termination
of parental rights. At a pretrial settlement conference in February 2022, the
parents’ counsel confirmed the contested trial on the issue of the parent/child
bond and adoptability.
Mother submitted a section 388 petition requesting a change of order
terminating her services to place J.B. with her or to expand her visits to
unsupervised visits. In support of her request, she presented evidence that
she had completed the co-parenting class, obtained employment as a
caregiver for a young child, and attended narcotics anonymous meetings. She
also submitted a report from Elizabeth Stanton, Psy.D., a psychologist who
reviewed the case reports and observed two visits between Mother and J.B.
Dr. Stanton opined that Mother and J.B. had a secure attachment pattern.
F. Combined Contested 366.26 and 388 Hearing.
The contested hearing proceeded on March 3, 2022. Dr. Stanton
testified about her observations from two visits between J.B. and Mother.
She believed there was a secure attachment between Mother and J.B.
because he sought her out for assistance with snacks and looked to her for
guidance to navigate play structures. J.B. had no negative reaction to
separating from Mother, which Dr. Stanton thought indicated an expectation
that she would return. She did not believe he was apathetic to her because
14
he looked for her as they parked for the visit and grabbed her hand when he
got out of the car.
On cross-examination, Dr. Stanton agreed that the child did not
verbally express an expectation to see Mother again. Dr. Stanton did not
believe J.B.’s change in behavior after the visits indicated a lack of
attachment, but rather was typical of a child in the midst of conflict.
Dr. Stanton agreed that a child can have more than one secure
attachment, which is great for a child. She believed it would benefit J.B. to
remain in contact with the biological family as well as the caregiving family.
She described that as a win-win situation.
Dr. Stanton also agreed that children benefit from stability over time in
their placement. She could not say that a secure attachment is more
important than the benefit of a long-term stable home. She thought a
combination of the two would be beneficial.
She was not asked to opine about whether adoption or legal
guardianship should be the permanent plan. Nor was she able to say
whether J.B. should return to Mother’s care. She could not say there would
be immediate detriment to J.B. if the secure attachment with Mother was
broken.
Dr. Stanton did not interview or talk to J.B.’s caregiver in preparing
her report. She did not believe information from the caregiver would
necessarily be helpful to analyze a bond between J.B. and Mother. She did
not know the level of attachment J.B. had formed with the caregiver.
Dr. Stanton agreed that trust and stability is a benefit of an adoptive
home. She could not say whether that benefit outweighed any detriment
from termination of parental rights.
15
Mother testified on her own behalf. She acknowledged that the case
was opened due to domestic violence and drug abuse. She said that she
learned in her domestic violence course about the cycle of violence and red
flags. She made a safety plan and identified as a victim of domestic violence.
She said she learned in her drug treatment program about how to stay away
from users and how to cope by going outside and getting exercise. Her
relapse prevention plan includes going to therapy and counseling, attending
narcotics anonymous meetings, and seeking out people for guidance. She was
seeing a psychiatrist for anxiety and depression and was consistently taking
medication.
Mother was living with paternal stepgrandfather and believed J.B.
could live there. However, the stepgrandfather’s RFA application was denied
based on his criminal and child welfare history.
Mother denied having contact with Father in the past six months and
said she had no intention of renewing a romantic relationship with Father.
Mother acknowledged that there was emotional abuse and control in her
relationship with Father.
The social worker testified that Mother typically visited J.B. along with
maternal stepgrandfather. Mother interacted appropriately with J.B. during
visits. She was attentive, affectionate, and allowed him to lead in play. He
responded sometimes when Mother redirected him. If he had a problem,
Mother would go to him. He did not seek her out.
When the social worker transported J.B. to visits with Mother, he did
not express excitement to see Mother or the stepgrandfather and he did not
spontaneously talk about Mother. When asked, he said he liked the visits.
On one occasion, the child said he wanted to go see his prior caregiver, but
16
when they arrived at Play City for the visit, he became more animated. J.B.
separated easily at the end of visits and showed no distress at all.
J.B. talked about the caregivers all the time. He referred to them as
“Mommy” and “Daddy” and said he wants to live with them. After visits, his
teacher noticed that he was standoffish, sucked his thumb, and asked for his
caregiver.
The caregivers reported that when there were no visits with Mother,
J.B. seemed happy and did not appear distressed about not seeing Mother.
According to the social worker, J.B. is a friendly, social, and energetic
boy. His caregivers want to adopt him.
After considering the evidence and the reports, the court denied
Mother’s 388 petition finding it was not in J.B.’s best interest to change J.B.’s
placement or to lift supervision from her visits.
The court found by clear and convincing evidence that it was likely that
J.B. would be adopted if parental rights were terminated and none of the
exceptions under section 366.26, subdivision (c)(1) existed, including the
beneficial parent-child relationship. The court, therefore, terminated all
parental rights as to both Mother and Father and determined that adoption
was the appropriate permanent plan. The court set the post-permanency
planning hearing for August 31, 2022.
DISCUSSION
I. Beneficial Parent-Child Exception
The parents contend the court erred in determining that the beneficial
parent-child exception did not apply to prevent termination of their parental
rights. They contend there was substantial evidence of a beneficial
relationship and that the court abused its discretion in determining that the
17
benefits of that relationship did not outweigh the detriment J.B. would suffer
from terminating the relationship.
A. General Legal Principles.
“The sole purpose of the section 366.26 hearing is to select and
implement a permanent plan for the child after reunification efforts have
failed.” (In re J.D. (2021) 70 Cal.App.5th 833, 851-852.) At this hearing “the
juvenile court has three options: (1) to terminate parental rights and order
adoption as a long-term plan; (2) to appoint a legal guardian for the
dependent child; or (3) to order the child be placed in long-term foster care.
[Citation.] Adoption is the preferred plan and, absent an enumerated
exception, the juvenile court is required to select adoption as the permanent
plan. [Citation.] The burden falls to the parent to show that the termination
of parental rights would be detrimental to the child under one of the
exceptions.” (In re Fernando M. (2006) 138 Cal.App.4th 529, 534.)
One of the exceptions to the preference for adoption is the parental-
benefit exception. (§ 366.26, subd. (c)(1)(B)(i).) A parent asserting this
exception must show by a preponderance of the evidence: (1) regular
visitation and contact with the child; (2) the child has a substantial, positive,
emotional attachment to the parent; and (3) 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.).)
The first element, visitation, is “straightforward,” requiring that the
“ ‘parents visit consistently,’ taking into account ‘the extent permitted by
court orders.’ ” (Caden C., supra, 11 Cal.5th at p. 632.) The second element
focuses on the child and is determined by taking into consideration factors
such as “ ‘[t]he age of the child, the portion of the child’s life spent in the
18
parent’s custody, the “positive” or “negative” effect of interaction between
parent and child, and the child’s particular needs.’ ” (Ibid., citing In re
Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.).) For the third
element, “the court must decide whether it would be harmful to the child to
sever the relationship and choose adoption. [Citations.] 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.” (Caden C., at p. 633.) When the benefits of a
stable, adoptive, permanent home outweigh the harm the child would
experience from the loss of a continued parent-child relationship, the court
should order adoption. (Id. at p. 634.)
When deciding whether terminating parental rights would be
detrimental to the child, the court does not compare the attributes of the
parent against those of the custodial caregiver. (Caden C., supra, 11 Cal.5th
at p. 634.) Additionally, a parent’s lack of progress in addressing the issues
that led to dependency is not determinative. (Id. at p. 637.) A parent’s
inability to address the issues leading to dependency may be relevant in
assessing whether the interaction between parent and child “has a ‘negative
effect’ on the child.” (Ibid.) Performing this analysis is a “subtle enterprise.”
(Id. at p. 634.) “In many cases, ‘the strength and quality of the natural
parent/child relationship’ will substantially determine how detrimental it
would be to lose that relationship, which must be weighed against the
benefits of a new adoptive home.” (Ibid.)
We review the juvenile court’s findings as to whether the parent has
maintained regular visitation and contact with the child, as well as the
existence of a beneficial parent-child relationship, for substantial evidence.
(Caden C., supra, 11 Cal.5th at pp. 639-640.) We do “ ‘not reweigh the
19
evidence, evaluate the credibility of witnesses, or resolve evidentiary
conflicts’ ” and will uphold the juvenile court’s determinations even where
substantial evidence to the contrary also exists. (Id. at p. 640.)
“[T]he ultimate decision—whether termination of parental rights would
be detrimental to the child due to the child’s relationship with his parent—is
discretionary and properly reviewed for abuse of discretion.” (Caden C.,
supra, 11 Cal.5th at p. 640.) A court abuses its discretion by making
“ ‘ “ ‘an arbitrary, capricious, or patently absurd determination.’ ” ’ ”
(Id. at p. 641.)
The Caden C. court explained, “ ‘there likely will be no practical
difference in application of the two standards,’ ” but “[a]t its core, the hybrid
standard . . . simply embodies the principle that ‘[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,
reached pursuant to the statutory scheme’s comprehensive and controlling
provisions.’ ” (Caden C., supra, 11 Cal.5th at p. 641.)
B. Analysis.
1. Visitation.
In this case, the court determined that the regular visitation and
contact prong was met.
2. Beneficial Relationship.
Looking at the second element, to determine whether the child would
benefit from continuing his relationship with the parents, the court observed
that it needed to consider the “nature and contours” of the relationship. The
court stated, “What gives contour and shape to the relationship are things
like the age of the child, how much [of] the child’s life has been spent in the
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parents’ custody, the positive or negative effect of the interaction between the
parent and child, and the child’s particular needs.”
The court found Dr. Stanton’s comments credible, but it determined
that the image of the relationship that emerged was one where the child had
a fun and caring relationship with people he visited regularly. After the
visits, he transitioned back to his normal routine seamlessly. The court
acknowledged that different inferences could be drawn from how a child
reacts after a visit. Outside of the visits, the court found no evidence that the
parents occupied “space in the child’s head.” The court determined the
relationship was beneficial and positive, but at the “lower end of substantial.”
Contrary to Mother’s contention, the court’s comments do not suggest
that it intertwined the second and third prong. We agree there is some
evidence that Mother did “occupy space” in J.B.’s head at some points during
the case, as evidenced by the fact that he asked to see pictures of her on at
least one occasion. But any error in this regard was harmless because the
court went on to find that a beneficial relationship existed, just “at the lower
end of substantial.”
We conclude there is substantial evidence to support the court’s
finding. “[T]he beneficial relationship exception demands something more
than the incidental benefit a child gains from any amount of positive contact
with her natural parent. (In re Dakota H. (2005) 132 Cal.App.4th 212, 229 [a
parent must demonstrate something ‘more than frequent and loving contact,
an emotional bond with the child, or pleasant visits’ ”]; In re Angel B. (2002)
97 Cal.App.4th 454, 468 [“for the exception to apply, the emotional
attachment between the child and parent must be that of parent and child
rather than one of being a friendly visitor or friendly nonparent relative, such
as an aunt”].) The exception requires the existence “ ‘ “of a substantial,
21
positive emotional attachment” ’ between parent and child.” (In re Katherine
J. (2022) 75 Cal.App.5th 303, 319, citing Caden C., supra, 11 Cal.5th at
p. 633, and quoting Autumn H., supra, 27 Cal.4th at p. 575.) The record
shows that J.B. enjoyed his visits with the parents, was excited to see them,
and that they interacted appropriately. However, the record also shows that
he did not spontaneously talk about the parents. He separated easily from
them at the end of visits and he was not typically upset when visits did not
occur. There was also evidence that he had other, perhaps more significant,
attachments to the caregivers with whom he lived for most of his life.
3. Detriment.
Moving to the third element, the court analyzed whether any harm
from severing the relationship with the parents outweighed the benefit of
adoption. The court emphasized that it was not looking at whether the
parents had a “parental role,” but rather whether “the relationship with a
parent is so important to the child that the security and stability of a new
home would [not] outweigh its loss.” The court determined that there was no
evidence of such a relationship in this case. The court determined that “a
child who is this young who spent most of his time outside of the parents’
care will be able to find in the security and stability of a new home the
comfort that will make the termination of parental loss something that is a
distant memory.” The court commented that there would be some residual
effects in the short term if the parents are not able to visit because the visits
were part of the routine, similar to visiting a friend or relative once a week.
The court believed the parents loved J.B. and perhaps needed him. However,
it did not find that J.B. needed them to the point that it would be
detrimental.
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The parents did not meet their burden of showing that any detriment
J.B. might endure from the termination of his relationship with Mother and
Father outweighed the stability he would enjoy in an adoptive home. (Caden
C., supra, 11 Cal.5th at p. 636.) Dr. Stanton could not opine about whether
J.B. would suffer any immediate detriment from the termination of his
relationship with the parents. She was not asked to opine about whether
adoption or guardianship were the best permanent plan for J.B. She would
not say “for sure” whether or not the benefits of a stable adoptive home would
overcome any “ambiguous loss” he might feel later in life from the
termination of parental rights, or vice versa.
We recognize that continued parental struggles with the issues leading
to dependency is not a bar to application of the beneficial parent-child
exception. However, such issues may be relevant to the detriment analysis
because they may “speak to the benefit (or lack thereof) of continuing the
relationship” with the child. (Caden C., supra, 11 Cal.5th at pp. 637-638.) In
this case, we note that the parents’ longstanding on-and-off relationship has
been punctuated with incidents of domestic violence that included not only
the two incidents that led to dependency, but also an incident in March 2020
where Father was banging on the door of Mother’s residence and an incident
in June 2021 when Mother suffered a bite during an incident with Father.
These incidents continued even though the parents both participated in
domestic violence counseling services. Dr. Stanton commented that J.B.’s
behavioral changes after visits could be a reflection of the fact that he was a
child in the midst of conflict. It is reasonable to conclude that the conflict in
the parents’ relationship could infect the quality of their relationship with
J.B. The court could reasonably conclude that the benefits of stability offered
23
to J.B. by adoption would outweigh the benefits of continuing his relationship
with the parents.
Viewing the evidence in the light most favorable to the juvenile court’s
order (Caden C., supra, 11 Cal.5th at p. 640), as we must, we conclude
substantial evidence supported the court’s factual findings and the juvenile
court did not abuse its discretion in declining to apply the parental-benefit
exception to adoption.
II. Mother’s Section 388 Petition
Mother contends the court erred in denying her request for expanded
and unsupervised visitation based on changed circumstances. We disagree.
Under section 388, any parent or person with an interest in a
dependent “may, upon grounds of change of circumstance or new evidence,
petition the court . . . for a hearing to change, modify, or set aside any order of
court previously made or to terminate the jurisdiction of the court.” (§ 388,
subd. (a)(1).) The petitioner bears the burden of proving, by a preponderance
of the evidence, two elements: (1) there is new evidence or a substantial
change of circumstances; and (2) the proposed modification would be in the
child’s best interests. (Cal. Rules of Court, rule 5.570(e); In re J.M. (2020)
50 Cal.App.5th 833, 845.) We review an order on a section 388 petition for
abuse of discretion. (In re I.B. (2020) 53 Cal.App.5th 133, 152-153.) “ ‘ “The
appropriate test for abuse of discretion is whether the [juvenile] court
exceeded the bounds of reason. When 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 [juvenile] court.” ’ ” (Id. at p. 153.)
Here, the court considered both whether there were changed
circumstances and the best interests of the child. The court acknowledged
that Mother made efforts to improve her circumstances a couple of months
24
after reunification services ended in April 2021. The court noted that this
case, which involved a child under the age of three when it commenced, had
been going on since 2018 and far exceeded the statutory time periods for such
a case. Mother had ups and downs throughout the case, including periods
where she was granted overnight visits but those were reverted based on lack
of sobriety. The court commented that it could not be assured that they were
not “just in the middle of that same changing circumstance, but rather at the
end of that road.” The court continued to have concerns that Mother
continued having contact with Father. The court was also concerned that
Mother had not disclosed to her therapist what the case involved and,
therefore, was not fully confronting the issues that precipitated the case.
Considering the best interests of the child for unsupervised visits, the
court expressed concern about whether Father would be present or the
stepgrandfather, who had some criminal background. Assuming there were
changed circumstances, which the court questioned, it found it was not in the
best interests of the child to lift supervision.
We conclude the court did not abuse its discretion. With respect to the
first element, “[t]he change of circumstances or new evidence ‘must be of such
significant nature that it requires a setting aside or modification of the
challenged prior order.’ ” (In re Mickel O. (2011) 197 Cal.App.4th 586, 615;
see In re N.F. (2021) 68 Cal.App.5th 112, 120 [“The change in circumstances
supporting a section 388 petition must be material.”]; In re Ernesto R. (2014)
230 Cal.App.4th 219, 223 [“To support a section 388 petition, the change in
circumstances must be substantial.”].) Mother’s recent efforts here were
commendable. Mother finally completed a co-parenting class that had been
required under her case plan for some time. She self-attested to attending
narcotics anonymous support meeting and submitted a negative drug test,
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both of which were previously required by her case plan. In addition, she had
obtained employment. However, after more than two years of reunification
services, it was unclear how significant these changes were after other
periods when she distanced herself from Father and achieved sobriety only to
relapse.
With regard to the second element, after reunification services have
terminated, “the parents’ interest in the care, custody and companionship of
the child are no longer paramount. Rather, at this point ‘the focus shifts to
the needs of the child for permanency and stability . . . .’ ” (In re Stephanie
M. (1994) 7 Cal.4th 295, 317.) Further, circumstances that are merely
changing (as opposed to changed) can result in a delay in the selection of a
permanent home, meaning they do “ ‘not promote stability for the child or the
child’s best interests.’ ” (In re Mary G. (2007) 151 Cal.App.4th 184, 206;
accord In re J.C. (2014) 226 Cal.App.4th 503, 527 [the child’s “best interests
are not to further delay permanency and stability in favor of rewarding
Mother for her hard work and efforts to reunify.”].) As the court observed, it
appeared Mother’s efforts represented changing, rather than changed,
circumstances. We cannot conclude the juvenile court abused its discretion in
determining that it was not in J.B.’s best interests to delay permanency by
either placing J.B. with Mother or lifting the supervision requirement
considering these changing circumstances.
III. ICWA Inquiry
The parents contend the Agency and the court failed to comply with the
burden of initial inquiry required by ICWA. We agree.
Congress enacted ICWA to address concerns regarding the separation
of Native American children from their tribes through adoption or foster care
placement. (In re Isaiah W. (2016) 1 Cal.5th 1, 7 (Isaiah W.).) Under
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California law adopted pursuant to ICWA, the juvenile court and the Agency
have an “ ‘affirmative and continuing duty to inquire” whether a child “is or
may be an Indian child.” (§ 224.2, subd. (a); Isaiah W., at p. 9.)
“[S]ection 224.2 creates three distinct duties regarding ICWA in
dependency proceedings. First, from the Agency’s initial contact with a
minor and his 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 (D.S.).)
The first stage of initial inquiry “ ‘includes, but is not limited to, asking
the child, parents, legal guardian, Indian custodian, extended family
members, others who have an interest in the child, and the party reporting
child abuse or neglect, whether the child is, or may be, an Indian child.’ ”
(D.S., supra, 46 Cal.App.5th at p. 1049.) ICWA defines “ ‘extended family
member’ ” by “the law or custom of the Indian child’s tribe” or, absent such
law or custom, as “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-
27
law or sister-in-law, niece or nephew, first or second cousin, or stepparent.”
(25 U.S.C. § 1903(2); § 224.1, subd. (c) [extended family member “defined as
provided in [§] 1903” of ICWA].)
In this case, the parents denied having Native American heritage early
in the case. At the jurisdiction and disposition hearing in December 2018,
the court found ICWA does not apply after Father’s counsel confirmed that he
denied Native American ancestry.
However, maternal grandmother, maternal stepgrandfather, paternal
grandmother, paternal grandfather, and a paternal aunt were all in contact
with the Agency throughout the case. Maternal grandmother attended
numerous hearings. Maternal stepgrandfather and paternal grandmother
also attended hearings. The Agency interviewed and assessed resource
family approval applications from maternal grandmother, maternal
stepgrandfather, and the paternal aunt for potential placement. The record
gives no indication that the Agency or the court asked any of these
individuals about Native American ancestry.
Asking extended family members is not only required (§ 224.2, subd.
(b)), but it also serves a meaningful purpose—“to obtain information the
parent may not have.” (In re Y.W. (2021) 70 Cal.App.5th 542, 556; see In re
T.G. (2020) 58 Cal.App.5th 275, 295 [“General information from the family
about its ancestry frequently provides the only available basis to believe an
Indian child may be involved.”]; In re Rylei S. (2022) 81 Cal.App.5th 309, 322
[“ ‘When parents are the sole target of the initial inquiry, it should be
understood that there are a variety of reasons why relying on the parents
does not necessarily protect the child’s best interests, or the rights of the
tribe. Parents may simply not have that information, or may possess only
vague or ambiguous information. [¶] The parents or Indian custodian may
28
be fearful to self-identify, and social workers are ill-equipped to overcome
that by explaining the rights a parent or Indian custodian has under the law.
Parents may even wish to avoid the tribe’s participation or assumption of
jurisdiction,’ ” citing Cal. ICWA Compliance Task Force, Rep. to Cal. Atty.
Gen.’s Bur. of Children’s Justice (2017) p. 28].) Nor are we asking the Agency
to “ ‘cast about’ for investigative leads.” (In re A.M. (2020) 47 Cal.App.5th
303, 323.) Each of these individuals were readily available to the Agency and
the court.
We conclude the error in failing to complete the initial inquiry was
prejudicial and a limited remand is necessary. We recognize there is a split
of authority as to the proper standard for assessing prejudicial error under
ICWA. (See, e.g., In re Dezi C. (2022) 79 Cal.App.5th 769, 777-779.) We need
not and do not take a position on that standard here, because the initial
ICWA inquiry was clearly inadequate as to multiple family members. The
Agency sought an ICWA finding when inquiry had just begun, and the
juvenile court did not take advantage of multiple opportunities at hearings to
ask the relatives about Native American heritage. These efforts were a
fundamental departure from the “ ‘affirmative and continuing duty to
inquire’ ” under ICWA, and resulted in a miscarriage of justice. (Isaiah W.,
supra, 1 Cal.5th at p. 9; Cal. Const., art. VI, § 13.)
DISPOSITION
The March 3, 2022 order is conditionally reversed. The matter is
remanded to the juvenile court with directions to comply with the inquiry
provisions of ICWA and section 224.2. If, after completing ICWA inquiry,
neither the Agency nor the juvenile court has reason to know that J.B. is an
Indian child, the court shall reinstate the findings and orders previously
entered on March 3, 2022. If, after an adequate inquiry, the Agency or
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juvenile court has reason to know E.M. is an Indian child, the juvenile court
shall proceed accordingly.
HALLER, Acting P. J.
WE CONCUR:
O’ROURKE, J.
AARON, J.
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