In re A.G. CA2/6 ( 2020 )

Filed 11/3/20 In re A.G. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
IN RE A.G. et al., 2d Juv. No. B305272
(Super. Ct. Nos. 1506280-A,
Persons Coming Under The 1506281-A, 1506282-A,
Juvenile Court Law. 1506283-A, 19JV00371)
_____________________________ (Santa Barbara County)
SANTA BARBARA COUNTY
DEPARTMENT OF SOCIAL
SERVICES,
Plaintiff and Respondent,
v.
R.G., et al.,
Defendants and Appellants.
R.G. (father) and A.F. (mother) appeal the juvenile court’s
order terminating their parental rights to their minor children
A.G., D.G., and G.G. with a permanent plan of adoption. (Welf. &
Inst. Code,1 § 366.26.) Mother also appeals the order terminating
her parental rights to her minor children S.C. and D.R. with
adoption as the permanent plan. Mother and father contend the
court erred in denying a contested hearing to determine whether
the beneficial parent-child relationship exception to adoption (id.,
subd. (c)(1)(B)) applied. They also contend the court erred in
finding that the Indian Child Welfare Act (ICWA) (25 U.S.C.A.
§ 1901, et seq.) did not apply.
We agree that the court abused its discretion in denying
mother a contested section 366.26 hearing. “When, as here, a
parent has consistently and regularly visited his or her children
and at the selection and implementation hearing, offers
testimony regarding the quality of their parent-child relationship
and possible resulting detriment that would be caused by its
termination, a juvenile court abuses its discretion if it denies a
contested hearing on the beneficial parent-child relationship
exception.” (In re Grace P. (2017) 8 Cal. App. 5th 605, 608-609
(Grace P.).) Accordingly, we reverse and remand for the court to
conduct such a hearing. Otherwise, we affirm.
FACTS AND PROCEDURAL HISTORY
Dependency Petitions; Detention
Appellants are the natural parents of A.G. (born in July
2014), D.G. (born in July 2014), and G.G. (born in August 2017).
1 All Statutory references are to the Welfare and Institution
Code.
2
Mother is also the natural parent of L.E.2 (born in November
2005), S.C. (born in May 2011), and D.R. (born in January 2013).
In October 2016, Santa Barbara County Department of
Social Services, Child Welfare Services (DSS) detained A.G.,
D.G., L.E., S.C., and D.R. based on allegations that mother and
father were using drugs and engaging in criminal activity and
domestic violence. At the six-month status review hearing, the
children were returned to mother and father with family
maintenance services. In December 2017, the matter was
dismissed and the children were returned to mother and father’s
legal and physical custody.
In September 2019, DSS filed another dependency petition
as to all six children. The petition alleged among other things
that on August 25, 2019 the children witnessed mother, who
suffers from bipolar disorder, attempt to commit suicide by
ingesting various pills. Father was aware of the suicide attempt
but “did not seek out appropriate medical attention for the
mother, resulting in 13-year-old [L.E.] having to reach out to
others so that her mother would receive li[f]e-saving medical
attention.” Mother admitted using methamphetamine. Both
parents have extensive histories of domestic violence, child
welfare referrals, and criminal activity including possession and
being under the influence of a controlled substance. In addition,
appellants each previously had their parental rights terminated
to other children (A.R., C.R., and Al.G.) who were subsequently
adopted.
2 At the conclusion of the section 366.26 hearing, the court
selected legal guardianship as the permanent plan for L.E.
Mother does not challenge this aspect of the court’s order.
3
L.E. was placed with her maternal uncle in Goleta, S.C.
and D.R. were placed with D.R.’s paternal aunt in Lompoc, and
D.G., A.G. and G.G. were placed with their paternal uncle and his
wife in Lompoc.
At the detention hearing, the court stated, “I have to ask in
every case whether a child is or may be a Native American Indian
child. There have been prior cases, but I have to ask each and
every time. I’ll ask you at this time if you have any Native
American Indian heritage and, if so, what tribe.” Father replied
that he had no such heritage. Mother replied “I believe so” and
identified the tribe as “Chumash.” The court asked mother “[i]s
that the Coastal Chumash, or is that the Federally recognized
tribe, which is the Santa Ynez Band of Chumash?” Mother
replied, “Coastal.” The court then added, “We went through this
last time and the tribe was found not to be Federally recognized
and not Indian children, but still we have to notice the Bureau of
Indian Affairs.”
At the conclusion of the hearing, mother and father
submitted on temporary detention, the children were ordered
detained in out-of-home care, and the matter was set for a
jurisdiction hearing.
Jurisdiction and Disposition
In its jurisdiction report, DSS recommended that the court
find the allegations of the dependency petition true and that the
children remain in out-of-home care pending disposition. DSS
also asked the court to find that ICWA did not apply to the
children. DSS noted that S.C. and D.R.’s fathers had both denied
Native American heritage. DSS further noted that in the prior
dependency case, it had received a letter from the Santa Ynez
Band of Chumash Indians indicating that A.G., D.G., L.E., S.C.,
4
and D.R. were neither members of the tribe nor eligible for
enrollment. The Coastal Chumash tribe, of which mother
claimed heritage, is not a federally recognized Indian tribe.
At the jurisdiction hearing, the court granted DSS’s request
for judicial notice of the records in the prior dependency
proceedings and found that ICWA did not apply as to all the
children except S.C., for whom such a finding was still pending.
In its report for the disposition hearing, DSS recommended
that the children be declared dependents of the juvenile court and
that both mother and father be bypassed for reunification
services pursuant to section 361.5, subdivisions (b)(11) and
(b)(13).3 At the conclusion of the hearing, counsel for DSS stated
that the parties had reached a settlement whereby mother and
father would withdraw their contest to DSS’s recommendations
in exchange for DSS’s agreement that they would each receive
3 Section 361.5, subdivision (b)(11) provides that
reunification services need not be provided when the court finds
by clear and convincing evidence “[t]hat the parental rights of a
parent over any sibling or half-sibling of the child had been
permanently severed, . . . and that, according to the findings of
the court, this parent has not subsequently made a reasonable
effort to treat the problems that led to removal of the sibling or
half sibling of that child from the parent.” Subdivision (b)(13)
states that reunification services may be bypassed where parent
“has a history of extensive, abusive, and chronic use of drugs or
alcohol and has resisted prior court-ordered treatment for this
problem during a three-year period immediately prior to the
filing of the petition that brought the child to the court’s
attention, or has failed or refused to comply with a program of
drug or alcohol treatment described in the case plan required by
Section 358.1 on at least two prior occasions, even though the
programs identified were available and accessible.”
5
three hours of weekly supervised visits with the children. The
court entered orders accordingly and set the matter for a section
366.26 hearing.
Section 366.26 Hearing; Offer of Proof
In its report for the section 366.26 hearing, DSS
recommended that parental rights be terminated as to all five of
mother and father’s children with a permanent plan of adoption
for all of the children. Mother and father both requested that the
matter be set for a contested hearing. At DSS’s request, the court
ordered mother and father to file offers of proof for a contested
hearing. The court also found that ICWA did not apply as to S.C.
Prior to the section 366.26 hearing, mother filed an “offer of
proof to outline, in summary form, some of the evidence that will
be presented to the Court on the specific issue of whether there
exists a ‘beneficial relationship[]’ between mother and children
pursuant to . . . [s]ection 366.26(c)(1)(B)(i).” Mother offered she
would give testimony establishing among other things that (1)
“[m]other is consistent with visitations and comes prepared and
is engaged throughout the visits”; (2) “[m]other has been clean
and sober since October 4, 20[19], is attending substance abuse
treatment at Lompoc Recovery Center, and meets with a Sponsor
on a regular basis”; (3) “[m]other is prepared and lovingly
interacts with all her children during visits”; (4) “[m]other and
[the] children have open communication and during visits talk
about school and daily life”; (5) “[m]other is able to assist all the
children when they are in need of assistance”; (6) “[d]uring visits
the children look to mother to meet their emotional needs” and
that “[m]other can provide numerous examples of when the
children look to [her] for their emotion[al] needs[,] i.e., during
sibling disagreements”; (7) “[G.G.] runs to mother during visits”
6
and “looks to his mother when needing to be soothed”; (8) “[t]he
children reach out to their parents for affection at the beginning
and end of the visits”; and that (9) “[d]espite having only hours of
visitation a month the children continue to look to mother for
emotional and physical support.”
Mother also offered that she would elicit testimony from
the social worker to establish that “during a visit on November 7,
2019, when asked about what [D.R.] and [S.C.] though about the
plan to stay in their current placement[,] they became sad and
asked when they would get to be with their mom. [S.C.]
expressed further sadness about the plan meaning she cannot bet
to see their mother every day.” Mother also submitted
documentary evidence of her ongoing participation in drug
treatment and parenting classes. She went on to assert that her
offer of proof was “sufficient to justifying a full evidentiary
hearing per the standard articulated in Grace P.” Father did not
file an offer of proof.
At the hearing, counsel for DSS conceded that mother had
maintained regular visitation with children. Counsel asserted,
however, that mother’s proffered evidence “does not rise to the
level to substantiate her burden and . . . does not outweigh the
benefit of permanency for the children to be placed in adoption.”
Counsel also claimed that mother’s offer of proof “does not
describe any evidence that is different or in addition to what is
already set forth in the social worker’s report.” Counsel added
“there’s nothing to indicate that what will be shown will
distinguish [mother’s] interaction with her children from any
other caring, loving adult to support a finding that this specific
relationship is a beneficial relationship to the children, that that
7
warrants delaying permanency for the children who are in
adoptive homes.”
Mother’s attorney countered “there’s nothing in the reports
that talks about any other interactions with her children and
then running to this other person. It’s specifically to the mother.
I can’t argue in the negative, something that doesn’t appear in
the reports.” The court replied: “That would not be the standard.
Even if they ran to no one else and only ran to the mother, is that
enough to show beneficial relationship? Based upon the offer of
proof, it’s not specific enough. The request for hearing is denied,
as the offer of proof[] I find to be insufficient. There’s not enough
that’s been demonstrated what specific evidence you would intent
to show to justify having the hearing.”
Father’s counsel acknowledged that no offer of proof was
filed on father’s behalf and added, “I’m not arguing whether or
not we would have been able to provide an offer of proof.” After
noting father’s ongoing efforts to correct the issues that led to the
children’s removal, counsel stated “the reason I didn’t provide an
offer of proof to the Court is the very positive things that he’s
been doing don’t address any of the particular factors in the
exceptions [to adoption].” The court replied: “[T]he preference at
this stage is adoption, unless there’s an exception and that
exception has to be clearly and strongly demonstrated to be must
more than the legal preference for adoption. There’s no offer of
proof that was made by the father. I assume you can’t meet it.
Mother’s I find is insufficient.” The court proceeded to terminate
parental rights to A.G., D.G., G.G., S.C., and D.R. with a
permanent plan of adoption. L.E. was placed in a legal
guardianship.
8
DISCUSSION
Mother’s Offer of Proof for Contested Hearing
Mother contends the juvenile court abused its discretion
and violated her due process rights by refusing to hold a
contested section 366.26 hearing to determine whether the
beneficial parent-child relationship exception to adoption
applied. She claims that her offer of proof was sufficient to
warrant such a hearing because it set forth evidence relevant to
her claim that the exception applied. We agree.
“‘The selection and implementation hearing under section
366.26 takes place after the juvenile court finds that the parents
are unfit and the child cannot be returned to them.’ [Citation.]
Section 366.26 governs termination of parental rights.
Subdivision (b) of this section states: ‘At the hearing, . . . the
court . . . shall review the report [required by statute], shall
indicate that the court has read and considered it, shall receive
other evidence that the parties may present, and then shall make
findings and orders.’ [Citation.]” (Grace P., supra, 8 Cal.App.5th
at p. 611.)
“If the parents have failed to reunify and the court has
found the child likely to be adopted, the burden shifts to the
parents to show exceptional circumstances exist such that
termination would be detrimental to the child. [Citation.]
Parents can request a contested hearing on this issue to present
evidence supporting their claim that an exception to termination
of parental rights exists.” (Grace P., supra, 8 Cal.App.5th at
p. 611.)
Here, mother sought a contested hearing to present
evidence that the beneficial parent-child relationship exception to
adoption applied. That exception provides that the juvenile court
9
shall not terminate parental rights where it “finds a compelling
reason for determining that termination would be detrimental to
the child [because] [¶] (i) 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).)
“A parent has a right to due process at a section 366.26
hearing resulting in the termination of parental rights, which
includes a meaningful opportunity to be heard, present evidence,
and confront witnesses. . . . Since due process does not authorize
a parent ‘to introduce irrelevant evidence, due process does not
require a court to hold a contested hearing if it is not convinced
the parent will present relevant evidence on the issue he or she
seeks to contest.’ [Citation.] ‘The trial court can therefore
exercise its power to request an offer of proof to clearly identify
the contested issue(s) so it can determine whether a parent’s
representation is sufficient to warrant a hearing involving
presentation of evidence and confrontation and cross-examination
of witnesses.’ [Citation.] The parent’s offer of proof ‘must be
specific, setting forth the actual evidence to be produced, not
merely the facts or issues to be addressed and argued.’
[Citation.]” (Grace P., supra, 8 Cal.App.5th at p. 612.) If the
parent’s offer of proof is sufficient, the juvenile court’s failure to
hold a contested hearing amounts to an abuse of discretion. (Id.
at pp. 611, 614-615.)
“Application of the beneficial parent-child relationship
exception consists of a two-prong analysis. [Citation.] The first
prong inquires whether there has been regular visitation and
contact between the parent and child. [Citation.] The second
asks whether there is a sufficiently strong bond between the
parent and child that the child would suffer detriment from its
10
termination. [Citation.] [¶] The first prong is quantitative and
relatively straightforward, asking whether visitation occurred
regularly and often. . . . [¶] In contrast, the second prong
involves a qualitative, more nuanced analysis, and cannot be
assessed by merely looking at whether an event, i.e. visitation,
occurred. Rather, the second prong requires a parent to prove
that the bond between the parent and child is sufficiently strong
that the child would suffer detriment from its termination.
[Citation.] In applying this exception, the court must take into
account numerous variables, including but not limited to (1) the
age of the child, (2) the portion of the child’s life spent in the
parent’s custody, (3) the ‘“positive”’ or ‘“negative”’ effect of
interaction between parent and child, and (4) the child’s unique
needs. [Citation.]” (Grace P., supra, 8 Cal.App.5th at pp. 612-
613.) “The application of the beneficial parent relationship
exception requires a robust individualized inquiry given that
‘[p]arent-child relationships do not necessarily conform to a
particular pattern,’ and no single factor—such as supervised
visitation or lack of day-to-day contact with a noncustodial
parent—is dispositive. [Citations.]” (Id. at p. 613.)
Here, it is undisputed that mother established the first
prong of the beneficial parent-child relationship exception by
maintaining regular visitation with the children. With regard to
the second prong, mother offered to testify among other things
that “[d]uring visits the children look to [her] to meet their
emotional needs” and that she “can provide numerous examples
of when the children look to [her] for their emotion[al] needs[,]
i.e., during sibling disagreements.” Mother also offered to testify
that G.G. “runs to mother during visits” and “looks to his mother
when needing to be soothed, ” that “[t]he children reach out to
11
their parents for affection at the beginning and end of the visits,”
and that “[d]espite having only hours of visitation a month the
children continue to look to mother for emotional and physical
support.” Mother further offered she would elicit testimony from
the social worker that during a visit on November 7, 2019, D.R.
and S.C. expressed sadness when asked about the plan to stay in
their placement “and asked when they would get to be with their
mom.”
The juvenile court nevertheless found that mother’s offer of
proof was insufficient and accordingly refused to hold a contested
section 366.26 hearing. In doing so, the court violated mother’s
due process rights and thus abused its discretion.
Grace P., supra, 8 Cal. App. 5th 605, is on point. The father
in that case, like mother here, made an offer of proof regarding
the beneficial parent-child relationship exception to adoption. As
here, it was undisputed that the father had maintained regular
visitation with his children. “As to the second prong, Father
offered his testimony about the positive quality of his visitation,
how he parented all three children during visits, and how the
children considered him to be a father figure. Father also offered
Grace’s testimony regarding how she enjoyed visits with Father,
saw Father as a parent, and would be sad if visitation with
Father ended. The juvenile court opined this offer of proof was
not sufficient to warrant a contested hearing.” (Id. at p. 614.)
The court of appeal reversed. After recognizing that
father’s offer of proof merely had to identify evidence that was
relevant to his claim that the beneficial-child relationship
exception applied, the court of appeal reasoned that “since Father
satisfied the first prong [of the exception] in the case at bar, his
proffered evidence was consequential to and probative of the
12
issue of his relationship with the children and the detriment they
would suffer by its severance. . . . [T]his qualitative inquiry
regarding the nature of the relationship between the parent and
child cannot be as directly and summarily assessed as the first
prong regarding contact. The second prong requires the court’s
careful assessment of the child’s relationship with the parent.
Because this is an individualized inquiry and parenting style and
relationships differ greatly between families, the juvenile court
must take caution before denying a contested hearing on this
issue when a parent has clearly maintained regular contact with
the child.” (Grace P., supra, 8 Cal.App.5th at pp. 614-615.)
In reaching its conclusion, the court of appeal also rejected
the Los Angeles County Department of Child and Family
Service’s [DCFS] arguments that the father’s offer of proof was
insufficient because (1) “the proposed testimony would not
provide new information to the court since DCFS’s reports
documented Father’s interactions with the children”; and (2)
“based on its own reports, Father was incapable of proving a
sufficiently strong relationship with the children to satisfy the
exception.” (Grace P., supra, 8 Cal.App.5th at p. 615.) The court
reasoned that “DCFS’s arguments are based entirely on the
evidence it offered at the selection and implementation hearing.
Father’s proposed evidence, which purported to address the
existence of a beneficial parent-child relationship, was not
admitted. Without such evidence, we cannot conclude that
Father was incapable of proving the exception. Without the
evidence, we cannot conclude that Father’s and Grace’s testimony
would be duplicative of the DCFS reports. On the contrary, the
offer of proof indicated that Father and Grace would expound on
13
the details of the relationship that has been positively (though
concisely) documented by DCFS.” (Id. at p. 615.)
Here, DSS makes similarly-unavailing arguments in
asserting that mother’s offer of proof was insufficient to warrant
a contested hearing. Moreover, DSS ignores Grace P., other than
to cite it for the proposition that the juvenile court’s order
denying such a hearing is reviewed for an abuse of discretion.
As Grace P. makes clear, the juvenile court abuses its discretion
in denying a parent’s request for a contested hearing where, as
here, the parent files an offer of proof that sets forth “‘relevant
evidence on the issue he or she seeks to contest.’ [Citation.]”
(Grace P., supra, 8 Cal.App.5th at p. 612.) Mother’s offer of proof
plainly set forth such evidence. The juvenile court erred in
requiring mother to identify evidence sufficient to establish that
the beneficial parent-child relationship exception applied.
Mother referred the juvenile court to Grace P. and the court was
bound to follow that decision. (Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal. 2d 450, 455.)
To the extent DSS relies on cases holding that the juvenile
court did not abuse its discretion in finding that the exception did
not apply (e.g., In re Aaliyah R. (2006) 136 Cal. App. 4th 437),
those cases are inapposite. Here, as in Grace P., “[mother’s]
proposed evidence, which purported to address the existence of a
beneficial parent-child relationship, was not admitted. Without
such evidence, we cannot conclude that [mother] was incapable of
proving the exception.” (Grace P., supra., 8 Cal.App.5th at
p. 615.)
Moreover, mother’s proffered evidence was not duplicative
of the evidence contained in the relevant reports. The section
366.26 report purports to contain information regarding each
14
child’s statements regarding their placements and prospective
adoptions. L.E., however, was the only child asked whether she
wanted to continue living with mother and she stated that she
did. Mother’s parental rights to L.E. were not terminated, and
L.E. was placed in a legal guardianship. As to the other children,
the report contains no statements regarding their relationships
with mother. With regard to eight-year-old S.C. and seven-year-
old D.R., the report merely states that the girls “enjoy their
placement” and “rated their placement ‘20’ out of a scale of one to
ten.” As mother stated in her offer of proof, she intended to offer
evidence that both children did not want to end their relationship
with mother, considered her to be their “mom,” and wanted to be
with her.
In light of this proffered evidence, mother had a due
process right to a contested section 366.26 hearing to address the
beneficial parent-child relationship exception to adoption. (Grace
P., supra, 8 Cal.App.5th at pp. 608-609.) The juvenile court thus
abused its discretion in refusing to hold such a hearing. (Ibid.)
Accordingly, we reverse the order terminating parents rights and
remand for further proceedings.4
4 For purposes of remand, “[w]e note even when a parent
makes a prima facie case and obtains a contested selection and
implementation hearing under section 366.26, the juvenile court
continues to exercise its discretion to limit the hearing to
relevant evidence. [Citations.] In addition, that a parent
satisfies a prima facie showing does not guarantee the court
finding the existence of the exception: the court may still find
that the parent-child relationship is not significant enough to
‘outweigh the well-being the child would gain in a permanent
home with new, adoptive parents.’ [Citation.] The contested
15
Because we reverse the termination of parental rights as to
mother, we must also reverse the termination of parental rights
as to father. (Cal. Rules of Court, rule 5.725(a)(1), (2); In re Mary
G. (2007) 151 Cal. App. 4th 184, 208.) To the extent father argues
that the juvenile court abused its discretion in denying him a
contested section 366.26 hearing, the claim is forfeited because he
did not file an offer of proof. Although father asserts that an offer
of proof “would have been futile” and that evidence of his ongoing
efforts to achieve sobriety was relevant to the determination
whether the children would benefit from continuing their
relationship with him, that evidence was plainly insufficient by
itself to demonstrate a prima facie showing for a contested
hearing.
ICWA
Mother and father also contend the juvenile court erred in
finding that ICWA did not apply. We conclude otherwise.
“ICWA protects the interests of Indian children and
promotes the stability and security of Indian tribes and families
by establishing certain minimum federal standards in juvenile
dependency cases. [Citations.] ICWA defines an Indian child as
any unmarried person who is under age 18 and is either: (1) a
member of an Indian tribe, or (2) eligible for membership in an
Indian tribe and the biological child of a member of an Indian
tribe. [Citation.]” (In re Shane G. (2008) 166 Cal. App. 4th 1532,
1538 (Shane G.).) “When a court ‘knows or has reason to know
that an Indian child is involved’ in a juvenile dependency
hearing solely provides the parent the opportunity to make his or
her best case regarding the existence of a beneficial parental
relationship that has been fostered by the continued and regular
contact.” (Grace P., supra, 8 Cal.App.5th at p. 615.)
16
proceeding, a duty arises under ICWA to give the Indian child’s
tribe notice of the pending proceedings and its right to intervene.
[Citations.] Alternatively, if there is insufficient reason to believe
a child is an Indian child, notice need not be given. [Citations.]”
(Ibid.)
Circumstances that may provide knowledge or reason to
know a child is an Indian child include where “[a] person having
an interest in the child . . . informs the court or the county
welfare agency . . . or provides information suggesting that the
child is an Indian child . . . .” (Cal. Rules of Court, former rule
5.664(d)(4)(A); Shane G., supra, 166 Cal.App.4th at p. 1538.) “If
. . . circumstances indicate a child may be an Indian child, the
social worker must further inquire regarding the child’s possible
Indian status. Further inquiry includes interviewing the
parents, Indian custodian, extended family members or any other
person who can reasonably be expected to have information
concerning the child's membership status or eligibility.
[Citation.] If the inquiry leads the social worker or the court to
know or have reason to know an Indian child is involved, the
social worker must provide notice. [Citations.]” (Id. at p. 1539.)
Here, father disclaimed any Indian heritage. Mother said
she “believe[d]” she was descended from the Coastal Chumash
tribe, which is not federally recognized; the only federally-
recognized Chumash tribe is the Santa Ynez Band of Chumash.
The court noted “[w]e went through this last time [i.e., in the
prior dependency proceedings] and the tribe was found not to be
Federally recognized and not Indian children, but still we have to
notice the Bureau of Indian Affairs.” At the jurisdiction hearing,
the court granted DSS’s request for judicial notice of the records
in the prior proceedings—which included the Santa Ynez Band of
17
Chumash’s response stating that A.G., D.G., L.E., S.C., and D.R.
were neither members of the tribe nor eligible for membership—
and found that ICWA did not apply as to all the children except
S.C., for whom such a finding was still pending due to
information regarding her natural father’s possible Indian
heritage. At the section 366.26, the court found that ICWA did
not apply to S.C.
The juvenile court did not err in finding that ICWA did not
apply. In making its finding, the court took judicial notice of the
record of the prior dependency proceedings in 2017, in which the
only federally-recognized Chumash tribe (the Santa Ynez Band of
Chumash) sent a response stating that the children were neither
members of the tribe nor eligible for membership.5 In light of
this evidence, the court could reasonably find that the ICWA
noticing requirements did not apply.
In any event, DSS’s investigation into mother’s claimed
Chumash heritage continued after the court issued its ruling and
notices were sent to the Santa Ynez Band of Chumash and the
BIA. On November 1, 2019, the social worker contacted the
maternal grandmother, through whom mother claimed her
Coastal Chumash heritage. The maternal grandmother said “she
is in the process of getting a roll number and researching family
ancestry” and that “she could not contribute any more
information other than what [mother] provided regarding Native
5The response does not refer to G.G., who was less than a
month old at the time and was in mother’s custody. Because
G.G.’s siblings are not members nor eligible for membership in
the Santa Ynez Band of Chumash tribe, the court could
reasonably make the same finding as to G.G. (See Shane G.,
supra, 166 Cal.App.4th at p. 1539, fn. 4.)
18
American ancestry.” In February 2020, the Santa Ynez Band of
Chumash and the BIA were sent ICWA-030 notices by certified
mail regarding the section 366.26 hearing. It does not appear
from the record that any response was received as to either
notice.
“[O]ne of the primary purposes of giving notice to the tribe
is to enable the tribe to determine whether the child involved in
the proceedings is an Indian child.” (In re Desiree F. (2000) 83
Cal. App. 4th 460, 470.) “Each Indian tribe has sole authority to
determine its membership criteria, and to decide who meets those
criteria. [Citation.] Formal membership requirements differ
from tribe to tribe, as does each tribe’s method of keeping track of
its own membership.” (In re Santos Y. (2001) 92 Cal. App. 4th
1274, 1300.) Here, DSS sent ICWA notices to the Santa Ynez
Band of Chumash and the BIA. Neither the tribe nor the BIA
responded. Moreover, it is undisputed that the Santa Ynez Band
of Chumash—the only federally-recognized tribe through whom
the children might have Indian heritage—sent a response in the
prior dependency proceedings indicating that the children were
neither members of the tribe nor eligible for membership.
Accordingly, any error in the court having ruled that ICWA did
not apply prior to the ICWA notices being sent was harmless.
(See In re I.W. (2009) 180 Cal. App. 4th 1517, 1530 [“ A deficiency
in notice may be harmless when it can be said that, if proper
notice had been given, the child would not have been found to be
an Indian child and the ICWA would not have applied”],
disapproved on another ground in Conservatorship of O.B. (2020)
9 Cal.5th 989,1010, fn 7; see also Shane G., supra, 166
Cal.App.4th at p. 1539 [when agency performed reasonable
inquiry and found no reason to believe minor was an Indian child,
19
“reversing the judgment . . . for the sole purpose of sending notice
to the tribe would serve only to delay permanency . . . rather than
further the important goals of and ensure the procedural
safeguards intended by ICWA”].)
DISPOSITION
The juvenile court’s order terminating parental rights is
reversed. The matter is remanded for the juvenile court to
conduct a contested section 366.26 hearing as to mother and
determine whether the beneficial parent-child relationship
exception precludes the termination of parental rights as
contemplated in section 366.26, subdivision (c)(1)(B)(i).
NOT TO BE PUBLISHED.
PERREN, J.
I concur:
TANGEMAN, J.
20
YEGAN, J., Dissenting:
I respectfully dissent. When a biological parent fails to
reunify and the child is likely to be adopted, the parent has a
heavy burden of showing the parent-child relationship outweighs
the benefits of adoption. (In re Autumn H. (1994) 27 Cal. App. 4th
567, 575.) The trial court, in the exercise of its sound discretion,
reasonably concluded that mother’s offer of proof, which required
a two-prong showing, was insufficient to warrant a contested
hearing.
Prong one required that the offer of proof show that mother
maintained regular contact or visitation with the child. (In re
Autumn H., supra, 27 Cal.App.4th at p. 575.) No one disputes
that mother did that. She regularly visited the children.
The problem is that mother did not progress beyond
supervised visits and there was no offer of proof (prong two) that
the bond between mother and the children was so strong that the
children would suffer detriment from its termination. (In re
Grace P. (2017) 8 Cal. App. 5th 605, 613.) “[T]he parent must
prove he or she occupies a parental role in the child’s life,
resulting in a significant, positive emotional attachment of the
child to the parent. [Citations.]” (In re Valerie A. (2007) 152
Cal. App. 4th 987, 1007.) That requires a significant, positive,
emotional attachment from the child to the parent. (In re Bailey
J. (2010) 189 Cal. App. 4th 1308, 1315-1316.) “‘[F]requent and
loving contact’” is not enough. (Ibid.)
The written offer of proof states that mother was attending
therapy and NA/AA meetings, recently started a parenting class,
had been clean and sober for three months, and was attending
substance abuse treatment. None of that is relevant to whether
children had a significant emotional attachment with mother as a
parent figure. The offer of proof stated that mother lovingly
interacts with the children during visits, that mother missed the
children, and the children look to mother for emotional and
physical support. There is no supporting declaration that says
that --- not from mother, a caregiver, a social worker, a therapist,
a school teacher, a family member, a relative, a child’s playmate,
or a sibling. Attached to the written offer of proof is mother’s
attendance record at NA meetings, a letter that mother attended
a three-hour class on substance abuse, and a letter that mother
had attended six parenting classes.
There was no proof that severing the parent-child
relationship would be detrimental to the children. (See In re
Marcelo B. (2012) 209 Cal. App. 4th 635, 643.) What we know is
that the children were detained on August 25, 2019 after mother
attempted suicide in front of the children. Mother suffered from
untreated mental health issues (bipolar disorder, depression, and
anxiety), cried in front of the children, and said she no longer
wanted to live. Mother had a history of substance abuse
(methamphetamine), had abused and neglected two older
children which resulted in the termination of parental rights
(2011), had a history of domestic violence, substance abuse, drug
related crimes, and had a history of child welfare referrals, a
total of 18 from 2003 to 2018.
After the children were detained, there were more reports
of domestic violence and sexual abuse. The oldest child said
mother was “‘taking handfuls of pills’” and yelling about not
wanting to live anymore as the children ate dinner at the dining
room table. The oldest child called her aunt in Texas, who called
911. The paramedic said mother almost died of a drug overdose
and transported mother to the hospital where she tested positive
2
for methamphetamine. Fortunately, mother did not die. The
children were placed with family relatives who provided the
children loving homes.
Mother’s trial attorney conceded the offer of proof was
skimpy and “I would need the social worker to expound on these
visitations, to tell me what the children have said.” (Italics
added.) The trial court replied, it “sounds like [a contested
hearing is] going to be . . . akin to a deposition or fishing
expedition because you don’t know what the social worker is
going to say.” Counsel conceded that nothing more was being
offered, “although I believe there’s more.”
Offers of proof may not be based on speculation. (People v.
Babbitt (1988) 45 Cal. 3d 660, 684.) The social worker reported
that the children were bored during visits, that mother missed a
December 10, 2019 visit, and that the youngest child did not
want to visit mother. At one supervised visit, mother slept for 40
minutes and claimed she was on new medication. Mother agreed
to sign a medical release to determine what the medication was,
but failed to do so.
It is settled that a parent in a dependency case has no due
process right to present irrelevant evidence. (In re Tamika T.
(2002) 97 Cal. App. 4th 1114, 1122.) Nor is a trial court required
to conduct a contested hearing where there is no relevant
evidence to consider. (Ibid; In re Jeanette V. (1998) 68
Cal. App. 4th 811, 817 [“due process right to present evidence is
limited to relevant evidence of significant probative value to the
issue before the court”].) In re Grace P., supra, 8 Cal.App.5th at
page 612, on which the majority relies, states: “The parent’s offer
of proof ‘must be specific, setting forth the actual evidence to be
produced, not merely the facts or issues to be addressed and
3
argued.’ [Citation.]” Here the offer of proof was a Hail Mary.
There was no credible showing that any social worker, therapist,
caregiver, teacher, relative, family member, neighbor, CASA
worker, child, or sibling would testify that severing the parent-
child relationship would be detrimental to children and outweigh
the benefits of adoption. (See, e.g. In re Amber M. (2002) 103
Cal. App. 4th 681, 689; In re Jerome D. (2000) 84 Cal. App. 4th
1200, 1207.)
Finally, it must be observed that the trial court’s ruling
was addressed to its sound discretion. No abuse of discretion has
been shown. The ruling was not arbitrary, whimsical, or
capricious. It does not exceed the bounds of reason and we
should not substitute our judgment for that of the trial court.
(See, e.g., Estate of Gilkison (1998) 65 Cal. App. 4th 1443, 1448-
1449.)
I would affirm.
NOT TO BE PUBLISHED.
YEGAN, Acting P. J.
4
Arthur A. Garcia, Judge
Superior Court County of Santa Barbara
______________________________
Jacques Alexander Love, under appointment by the Court
of Appeal, for Defendant and Appellant R.G.
Leslie A. Barry, under appointment by the Court of Appeal,
for Defendant and Appellant A.F..
Michael C. Ghizzoni, County Counsel, Lisa A. Rothstein,
Senior Deputy Counsel, for Plaintiff and Respondent.