In re A.K. CA2/2 ( 2023 )

Filed 5/24/23 In re A.K. CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re A.K., a Person Coming B319793
Under the Juvenile Court Law. (Los Angeles County
Super. Ct.
No. 18CCJP03827C)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
JEANNE K.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Robin Kesler, Juvenile Court Referee. Affirmed.
Jill Smith, under appointment by the Court of Appeal, for
Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Jane Kwon, Principal Deputy
County Counsel, for Plaintiff and Respondent.
******
Jeanne K. (mother) appeals from the juvenile court’s order
terminating her parental rights to A.K. (born 2015). Mother
contends the order must be reversed because the beneficial
parent-child exception applies.
Mother also challenges the finding that the Indian Child
Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) was not
applicable because no inquiry was made to maternal
grandmother before the permanency planning hearing. We take
judicial notice of the fact the Los Angeles County Department of
Children and Family Services (DCFS) has made an inquiry of
maternal grandmother who denied Indian ancestry. We conclude
that any error in making this inquiry after the permanency
planning hearing was harmless.
Thus, the order terminating mother’s parental rights is
affirmed, and mother’s ICWA challenge is moot.
BACKGROUND
Petition and Detention
Mother and her children were investigated by DCFS in
2014, 2016, and 2017 based on allegations that the children had
been neglected due to mother’s substance abuse and resulting
caretaker absence. DCFS recommended to mother that she enroll
in a drug treatment program, but she failed to complete any
program.
2
In 2018, DCFS received a report mother had planned to
harm herself by overdosing on a cocaine injection. During the
investigation, mother admitted she used methamphetamines and
alcohol when stressed, but declined to answer whether she used
them in front of the children.
In June 2018, DCFS filed a petition under Welfare and
Institutions Code section 300, subdivision (b),1 on behalf of A.K.
and mother’s two older children, Andrew and Ariel.2 DCFS
alleged that mother was unable to provide adequate supervision
and was placing the children at substantial risk of serious
physical harm due to her substance abuse, as well as her mental
and emotional problems. At the detention hearing, the children
were removed from mother’s care, and A.K. was placed with
Ms. C. Monitored visits were ordered for mother.
The detention report contains facts supporting the
necessity of detention, including mother’s history of drug use, her
admission to using methamphetamine with alcohol to manage
her stress, and her admission of a plan to harm herself by
overdosing on cocaine. The report also noted mother had no
contact with A.K.’s father, Timothy Earl Ferris,3 due to a stay-
away order based on domestic violence.
Two months later, on August 7, 2018, DCFS filed a first
amended petition, alleging that Andrew and Ariel’s father,
Randall Vessells, had endangered the children’s safety by
misusing methamphetamines, alcohol, and marijuana. It also
1 All further unattributed statutory references are to the
Welfare and Institutions Code.
2 Andrew and Ariel are not subjects of this appeal.
3 Ferris is not part of this appeal.
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alleged the children were endangered by his mental and
emotional problems.
During this time, mother enrolled in an outpatient program
and participated in counseling to develop a relapse prevention
plan and received mental health services. DCFS acknowledged
mother’s progress but noted she had not completed her substance
abuse program and that her live-in boyfriend had not submitted
to being live scanned, as requested.
Adjudication hearings
Mother filed a signed waiver of rights and, thus, the
juvenile court sustained the first amended petition on
December 7, 2018. However, the court did not make a
determination whether to return custody of the children to
mother; instead, the juvenile court continued the hearing to
January 25, 2019, to obtain a supplemental report on mother’s
progress.
At the January 2019 hearing, the juvenile court declared
the children dependents of the court and removed them from
parental custody. Reunification services and monitored visits
were ordered for the parents.
Reunification Period
Reunification services were provided from January 2019 to
April 2022. Mother stopped attending her drug treatment
program due to a relapse, but reenrolled in February 2019. The
children visited their mother two to three times a month at a
mall or park. Mother was observed to have difficulty monitoring
the three children and setting behavioral boundaries.
At the July 24, 2019 six-month review, the juvenile court
ordered unmonitored visitation for mother every other week,
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conditioned on her continuing to test negative for drug-related
substances and identifying the visit location for DCFS.
During this time the children made significant
improvements in their foster homes. For instance, Andrew and
A.K. became less aggressive and more emotionally expressive,
and A.K.’s speech improved due to speech therapy. Andrew
focused more on his schoolwork and acted less hostile in class.
A.K. was sleeping through the night. Their sister, Ariel,
demonstrated her creativity and enjoyed skateboarding.
During this same time mother’s housing was unstable, as
she was moving between Whittier and San Bernardino. She had
two relapses and did not complete her court-ordered program.
She was not forthcoming about her relapses because she did not
want her visits to become monitored. When she submitted to drug
testing, it was often negative, but she would then not appear for
testing for weeks or months thereafter. Mother did not complete
the required parenting program and admitted to not taking her
psychotropic medication. Because of her noncompliance and
relapses, DCFS changed the visits to monitored.
Monitored visits occurred in the park or mall, and mother’s
parenting style was inappropriate. When A.K. wanted attention,
mother often ignored him. She would allow him to roll around on
the floor of the mall and did not monitor his safety or behavior.
Additionally, mother canceled the visits on several occasions.
DCFS assessed the risk as high for abuse and neglect if the
minors were returned to mother, who was not in compliance with
her court-ordered programs and had not shown long-term
stability with her sobriety, mental health, or housing. When
asked, Ariel and Andrew stated they wished to stay in their
foster homes. A.K. was too young to make a statement.
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Based on mother’s lack of progress and the risk to the
children, the juvenile court terminated reunification services at
the 12-month review in September 2020. Mother filed two
petitions for modification requesting additional reunification
services. Both were denied because the court found no substantial
change in mother’s circumstances and that the requests were not
in A.K.’s best interest.
Proceedings for ICWA
DCFS attached the Indian child inquiry attachment, form
ICWA-10, to its petition and based on its inquiry A.K. had no
known Indian ancestry. In addition, mother filed the parental
notification of Indian status, form ICWA-020, on June 18, 2018,
and stated she had no Indian ancestry.
Consequently, at the June 18, 2018 detention hearing, the
juvenile court found no reason to know A.K. had Indian ancestry.
Mother, however, then claimed some heritage on father’s side of
the family, and DCFS was ordered to present evidence of its
efforts to locate the father. Despite their efforts, the father was
not found.
Mother subsequently stated her belief she had Cherokee
heritage, but later denied it and asked DCFS to “forget about it.”
DCFS sent notices to the Bureau of Indian Affairs, Cherokee
Nation, Department of the Interior, Eastern Band of Cherokee
Indians, and United Keetoowah Band of Cherokee. These notices
included information about the parents and maternal
grandparents, but only the Eastern Band of Cherokee Indians
responded, stating that A.K. was not registered or eligible to
register as a member. No other entity responded to the notices.
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Permanency Planning Hearing
At the April 11, 2022 hearing, mother argued that the
beneficial relationship exception applied. The juvenile court
found mother had failed to establish the exception applied and
terminated mother’s parental rights. The court also found it had
no reason to believe ICWA applied but requested that DCFS
further investigate any relatives it could find.
Mother filed a timely notice of appeal on April 12, 2022.
Postappeal ICWA inquiry and order4
The juvenile court held a hearing on September 16, 2022, to
review DCFS’s efforts to contact mother’s relatives. The court
considered the DCFS report, which stated that maternal
grandmother had been contacted and had replied she had no
Indian ancestry. Further, maternal grandmother added that
maternal grandfather had no Indian ancestry. As a result, the
juvenile court found no reason to know A.K. is an Indian child, as
defined by ICWA, and did not order any notice to be given to any
tribe or the Bureau of Indian Affairs.
4 We grant DCFS’s request for judicial notice of these
postappeal proceedings. (Evid. Code, §§ 452, subd. (d), 459, subd.
(a).)
In determining whether the juvenile court committed error,
an appellate court generally is limited to matters that were
before the juvenile court when it made the ruling at issue. (In re
Zeth S. (2003) 31 Cal.4th 396, 400.) Here, we do not take judicial
notice of the postappeal proceedings to determine whether error
occurred under ICWA; indeed, we assume below that DCFS
breached its duty of inquiry under ICWA. Rather, we take
judicial notice to determine whether there was resulting
prejudice from that assumed error. (In re Z.N. (2009) 181
Cal.App.4th 282, 298-299.)
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DISCUSSION
I. Applicable law and standard of review
Once a juvenile court has terminated reunification services
and determined a child is adoptable, the court is required to
terminate parental rights unless it finds an applicable exception.
(§ 366.26, subd. (c)(1).) The exception at issue here, sometimes
referred to as the beneficial parent-child exception, applies when
“[t]he court finds a compelling reason for determining that
termination would be detrimental to the child” because “[t]he
parents have maintained regular visitation and contact with the
child and the child would benefit from continuing the
relationship.” (§ 366.26, subd. (c)(1)(B)(i).)
The parent bears the burden of proving that the exception
applies. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 952-954.) To
do so, the parent must prove three statutory elements: “(1)
regular visitation and contact, (2) a relationship, the continuation
of which would benefit the child such that (3) the termination of
parental rights would be detrimental to the child.” (In re
Caden C. (2021) 11 Cal.5th 614, 631 (Caden C.).)
For the first element, visitation, the question is simply
whether the parent consistently visited, as permitted by court
orders. The focus is not on punishing or rewarding parents for
their behavior in visiting or maintaining contact, but on the best
interests of the child. (Caden C., supra, 11 Cal.5th at p. 632.)
As to the second element, whether the child would benefit
from continuing the relationship, “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., supra, 11
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Cal.5th at p. 636.) The parent must also show that “the
relationship promotes the well-being of the child to such a degree
as to outweigh the well-being the child would gain in a
permanent home with new, adoptive parents.” (In re Autumn H.
(1994) 27 Cal.App.4th 567, 575 (Autumn H.).) Relevant factors in
assessing the parent-child relationship include “[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.” (Id. at p. 576.)
For the third element, whether termination would be
detrimental to the child, the court must determine “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.)
We review the juvenile court’s findings concerning
visitation and whether the child would benefit from continuing
the relationship with the parent for substantial evidence.
(Caden C., supra, 11 Cal.5th at pp. 639-640.) Whether
termination of parental rights would be detrimental to a child
because of the child’s relationship with the parent is a question
we review for abuse of discretion. (Ibid.)
In this case, the juvenile court found mother had met her
burden on the first element by showing regular visitation and
contact with A.K. It found she failed to meet her burden to show
the second element by establishing a beneficial relationship
existed between herself and A.K. It also found she did not meet
her burden on the third element because she did not establish
that losing the relationship with mother would be detrimental to
A.K.
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II. Substantial evidence supports the finding of no
beneficial relationship
Mother argues the juvenile court erred by finding no
beneficial relationship between her and A.K. because it relied on
her lack of sobriety and absence of a parental role in A.K.’s life.
Her arguments, however, focus on select statements made by the
juvenile court at the hearing, rather than the entire record before
the juvenile court.
In its order, the juvenile court relied on DCFS reports filed
in 2020, 2021, and 2022. This evidence shows A.K. had spent
three of his six years in the custody of his mother and the rest
with Ms. C. And, prior to A.K.’s 2018 detention, the evidence
showed his caregivers were his siblings or his mother’s boyfriend.
Mother identified no evidence showing that A.K. had developed a
substantial bond with her in the portion of his life before
detention.
Additionally, a beneficial relationship is based on finding
positive effects for the child or conduct that meets the child’s
particular needs. (Autumn H., supra, 27 Cal.App.4th at p. 576.)
In her visits with A.K. after the detention, mother brought gifts
and money and would allow him to do whatever made him happy.
If A.K. had a bad day or misbehaved, mother would laugh and
find the misbehavior funny. This is not enough to establish a
beneficial relationship and, as a result, mother did not identify
any specific evidence showing that her relationship with A.K. had
positive effects or met his particular needs.
Although A.K. enjoyed seeing mother at the visits, that
alone is not sufficient to establish the beneficial parent-child
relationship. (In re C.F. (2011) 193 Cal.App.4th 549, 555 [loving
contact or pleasant visits are not sufficient to show a significant,
10
positive, emotional attachment between child and parent].)
Mother failed to identify any additional evidence showing a
substantial, beneficial relationship with A.K.
Further, mother does not identify evidence that A.K.
displayed any behavior or emotions from which an inference
could be drawn that he had a substantial attachment to mother.
Such evidence, for example, would be facts showing A.K. cried or
was disappointed when the visits with mother ended.
Thus, substantial evidence in the record supports the
finding that mother did not have a substantial, beneficial
relationship with A.K., and the parental benefit exception did not
apply.
III. No abuse of discretion in finding no detriment to
A.K. would result from termination of the parental
relationship
Even if mother had established she had a substantial
relationship with A.K., this would not be grounds to reverse the
order because she did not establish that termination of her
parental rights would create a detriment to A.K. that outweighed
the benefit of his adoptive home. The benefits of adoption include
the security and sense of belonging that a new family would
confer. (Autumn H., supra, 27 Cal.App.4th at p. 575.)
A.K. had been residing with Ms. C. from his 2018 detention
to the permanency planning hearing in 2022. A.K. was bonded to
Ms. C. and thriving in a loving and trusting relationship and a
nurturing and structured home environment. He called his
caregivers “mom,” sought out their attention, and wanted to be
wherever they were.
The record, therefore, showed the adoptive home would
provide substantial benefits to A.K. Mother identified no evidence
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showing that terminating her parental rights would create a
detriment that outweighed these benefits. Therefore, there was
no abuse of discretion in finding no detriment to A.K. would
result from termination of the parental relationship, and the
benefits of the adoptive home outweighed the detriment of
terminating parental rights.
IV. No prejudice from defect in initial ICWA inquiry
Mother argues that the juvenile court erred by finding
ICWA did not apply because no inquiry was made to maternal
grandmother. However, after the April 11, 2022, hearing, DCFS
contacted maternal grandmother, who stated that neither she nor
the maternal grandfather had Indian ancestry. Mother’s
contention, therefore, is moot.
Despite this, mother argues that further inquiries should
be made because DCFS admitted it had received a list of 22
possible relatives of A.K. However, the record shows that DCFS
made an inquiry to these individuals when it sent a letter to each
person inquiring about their possible relation to A.K. or mother.
Eight letters were returned and only one individual contacted
DCFS to explain he was not related to A.K., according to DCFS.
No response to the other 13 letters was received. Therefore,
further inquiry was made.
DCFS satisfied its affirmative and continuing duty to
inquire whether A.K. may be an Indian child. (§ 224.2, subd. (a).)
This duty of 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 and where the child, the parents, or Indian
custodian is domiciled.” (§ 224.2, subd. (b).) Under ICWA, the
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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).)
Aside from the argument about maternal grandmother,
mother does not identify how the juvenile court erred by finding
that DCFS had satisfied its duty of inquiry. The juvenile court
relied on reports filed by DCFS that identify its efforts to contact
relatives and any identified person about A.K.’s possible Indian
ancestry. Therefore, there are no grounds to find the juvenile
court erred by concluding there was no reason to believe A.K. was
an Indian child.
Further, even if DCFS had failed to conduct a proper
inquiry, this failure is harmless unless the record contains
information suggesting a reason to believe that the child may be
an ‘Indian child’ within the meaning of ICWA, such that the
absence of further inquiry was prejudicial to the juvenile court’s
ICWA finding. (In re Dezi C. (2022) 79 Cal.App.5th 769, 777,
review granted Sept. 8, 2022, S275578.) For this purpose, “the
‘record’ includes both the record of proceedings in the juvenile
court and any proffer the appealing parent makes on appeal.” (Id.
at p. 779.)
Nothing in the record suggests a reason to believe that A.K.
is an Indian child within the meaning of ICWA. Mother makes
no proffer on appeal that she has any Indian heritage or that she
has any information regarding possible Indian heritage on
father’s side. There is no special circumstance suggesting that
mother or maternal grandmother would not know their own
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heritage. In sum, there is no evidence that any extended relative
had any information pertaining to whether A.K. had Indian
heritage.
DISPOSITION
The juvenile court’s order terminating mother’s parental
rights to A.K. is affirmed.
________________________
CHAVEZ, J.
We concur:
________________________
LUI, P. J.
________________________
HOFFSTADT, J.
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