In re Jorge G. CA2/3 ( 2023 )

Filed 6/26/23 In re Jorge G. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re JORGE G., a Person Coming B323059
Under the Juvenile Court Law.
_____________________________________
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN AND Super. Ct. No. 19CCJP00627C)
FAMILY SERVICES,
Plaintiff and Respondent,
v.
ABRAHAM G. et al.,
Defendants and Appellants.
APPEALS from an order of the Superior Court of Los
Angeles County, Tiana J. Murillo, Judge. Conditionally affirmed
and remanded with directions.
Law Office of Karen B. Stalter and Karen B. Stalter, under
appointment by the Court of Appeal, for Defendant and
Appellant, Abraham G.
Serobian Law and Liana Serobian, under appointment by
the Court of Appeal, for Defendant and Appellant, J.D.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, Sarah Vesecky, Deputy County
Counsel, for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
J.D. (mother) and Abraham G. (father) appeal from the
order of the juvenile court terminating their parental rights to
their son, Jorge G. Mother contends the juvenile court
misapplied the parental-benefit exception to termination of
parental rights. (See Welf. & Inst. Code,1 § 366.26, subd.
(c)(1)(B)(i).) Joined by father, mother also contends that both the
Los Angeles County Department of Children and Family Services
(DCFS) and the juvenile court conducted an inadequate inquiry
pursuant to California law implementing the Indian Child
Welfare Act (ICWA). (See § 224.2.)
We conclude that the juvenile court did not err in
determining that the parental-benefit exception did not apply
here. However, because DCFS concedes that a limited remand is
appropriate for purposes of conducting a sufficient inquiry under
ICWA and related California provisions, we conditionally affirm
the juvenile court’s order terminating parental rights and
1 All undesignated statutory references are to the Welfare
and Institutions Code.
2
remand this matter to the juvenile court for the sole purpose of
ensuring compliance with ICWA and related California statutes.
FACTUAL AND PROCEDURAL BACKGROUND
I. Dependency petition, jurisdiction, and disposition
Mother and father have three children: Elisa, born in
February 2008; Jasmine, born in August 2009; and Jorge, born in
January 2018. Only Jorge is the subject of these appeals.
In January 2018, DCFS received a referral stating that
mother tested positive for methamphetamine the day after Jorge
was born and tested positive for marijuana a month earlier. In
interviews with DCFS after the referral, mother acknowledged
using marijuana regularly during her pregnancy. Father also
acknowledged recently using methamphetamine, crack, and
marijuana.
On January 30, 2018, DCFS filed a dependency petition on
behalf of the children pursuant to section 300 alleging that
mother and father had histories of substance abuse and were
current abusers of methamphetamine and marijuana. The
juvenile court thereafter ordered the children detained. Elisa
was placed with a paternal aunt, Maria H., and Jasmine and
Jorge were placed with another paternal aunt, Rosio S.
In subsequent interviews with DCFS, the parents described
an incident in which Jasmine was inadvertently struck as father
attempted to stop a physical altercation between mother and her
sister. Hence, on March 27, 2018, DCFS filed a first amended
dependency petition to include an additional count relating to the
altercation.
In April 2018, the juvenile court conducted a combined
jurisdiction/disposition hearing. The court sustained the
3
allegations in the amended petition, ordered the children
removed from the parents’ custody, ordered DCFS to provide the
parents with reunification services, and ordered monitored
visitation for the parents.
II. Interim reports and status hearings
A. September 2018 report
DCFS filed a status report in September 2018. Both
parents were enrolled in substance abuse treatment programs
but continued to struggle with sobriety. Nonetheless, DCFS
reported that the parents were coordinating with the caregivers
to maintain visits with the children and no concerns with the
visits were reported.
The children had adjusted well to their current placements.
While both Elisa and Jasmine reported missing their parents,
Jorge was too young to make a statement.
B. November 2018 report and hearing
DCFS filed another status report in November 2018. Both
parents continued with their treatment programs and were
generally maintaining their sobriety.
The parents continued to visit the children on a weekly
basis but had been arriving late to visits. Mother also sometimes
ended visits with Jasmine and Jorge after 30 minutes because
she was not comfortable with their caregiver, Rosio S. The
parents shared transportation, so father left the visits early with
mother. Still, both parents reported enjoying spending time with
the children.
At a status hearing on November 27, 2018, the juvenile
court found that the parents’ progress with their case plans had
been substantial and ordered continued reunification services.
4
The court also maintained the children’s placement orders, but
allowed the parents to have unmonitored visits with the children
and gave DCFS discretion to further liberalize their visits.
C. May 2019 report and hearing
DCFS filed another status report in May 2019. Both
parents continued to be compliant with their case plans and
maintain their sobriety.
By then, the parents were having unmonitored visits with
the children, which were going well. DCFS was considering
overnight visits, but father was currently homeless and mother
was not permitted to have children stay at her sober living
facility. Hence, DCFS approved overnight visits at the home of
Bertha B., mother’s aunt.
According to a last minute information report filed by
DCFS on May 21, 2019, the children had an overnight visit with
the parents at Bertha B.’s house in early May, which went well,
and two more overnight visits had been scheduled.
At a status hearing on May 21, 2019, the juvenile court
ordered continued reunification services and maintained the
children’s placement orders.
D. August and November 2019 reports
DCFS filed an interim status report in August 2019. The
parents continued to be unable to secure stable housing. With
minor exceptions, they had been testing negative for drugs and
alcohol.
The parents continued to have overnight visits with the
children at Bertha B.’s home, and DCFS reported having no
concerns with the visits. DCFS’s August 2019 status report thus
5
recommended that the children be released to the parents within
five court days of the parents securing appropriate housing.
DCFS filed another status report in November 2019. Both
parents were employed and continued to test negative for drugs
and alcohol, but remained homeless.
The parents continued to have overnight visits with the
children, but DCFS reported that the visits had “not been
consistent.” According to the report, the parents had trouble with
transportation to and from visits and they “lack[ed] in
communication with [the] caregivers if visits will be occurring
with the children over the weekend.” DCFS further reported that
although visits went well, “the lack of consistency has
discouraged the children from being excited to have a visit with
their parents over the weekend, due to being disappoint[ed],
when visits do not occur.”
E. June 2020 report and September 2020 hearing
DCFS filed another status report in June 2020.
Between January and May 2020, both parents missed some
of their scheduled drug tests and father tested positive a few
times. Both parents remained homeless, and were not
participating in counseling in accordance with their case plans.
Although the parents were able to spend Christmas 2019
with their children at Bertha B.’s home, Bertha B. had since
moved and could no longer accommodate the parents’ overnight
visits. The parents thus had a couple of overnight visits with the
children at motels when they could afford it. The parents also
visited the children once in June 2020 at the home of Rosio S.
That visit went well and the children enjoyed spending time with
their parents. Recent visits had otherwise been virtual because
6
of the COVID-19 pandemic. Those visits went well and were
consistent.
At a hearing in September 2020,2 the juvenile court ordered
continued reunification services and maintained the children’s
placement orders.
F. February 2021 report and March 2021 hearing
DCFS filed another status report in February 2021.
The parents missed 15 drug tests and tested negative
several times between late October 2020 and February 2021.
DCFS was thus unable to confirm that the parents had
maintained sobriety. Mother was temporarily residing with
Bertha B. and father remained homeless.
Overnight visits with the children had resumed at Bertha
B.’s house. While visits went well when they occurred, DCFS
again reported that visits had been inconsistent and that the
parents had not been regularly communicating with the
caregivers about whether visits would occur. DCFS also
emphasized again that the lack of consistency had discouraged
the children, who were disappointed when visits did not occur.
At a hearing in March 2021, the juvenile court found the
parents were in partial compliance with their case plans, ordered
continued reunification services, and maintained the children’s
placement orders.
2 Due to the then-pending COVID-19 pandemic, the juvenile
court continued hearings scheduled for April and June 2020 until
September 2020.
7
G. May 2021 report and hearing
DCFS filed another status report in May 2021.
DCFS could not confirm the parents’ sobriety because they
did not show up to the majority of their scheduled drug tests
between March and April 2021. The parents were living in a
mobile home but did not have a reliable location to connect to
amenities like water and power.
DCFS continued to report that the parents’ visits, although
they went well when they occurred, had been inconsistent and
that the children were discouraged as a result. Because neither
parent had an operable vehicle and they declined to use public
transportation, they were relying on the paternal aunts to help
transport the children to and from overnight visits.
According to a last minute information report filed by
DCFS on May 18, 2021, mother tested positive for
methamphetamine and amphetamine in April 2021 and did not
show up for a scheduled drug test the next week.
At a hearing on May 25, 2021, the juvenile court found that
the parents were not in substantial compliance with their case
plans, terminated reunification services, maintained the
children’s placement orders, and ordered monitored visitation.3
The court also set a hearing pursuant to section 366.26 for
November 2021.
3 Two months later, DCFS reported that father’s visits with
the children had become “nonexistent,” that he was not in contact
with DCFS, and that his compliance with his case plan was
“minimal.”
8
H. Section 366.26 reports
DCFS filed a report pursuant to section 366.26 in
September 2021. In July 2021, Jasmine and Jorge had been
placed with Bertha B. due to a child abuse referral in their
previous home. Elisa remained with paternal aunt Maria H.
Bertha B. was willing to monitor visits with the parents,
but the parents had failed to schedule visits. According to the
report, mother had “maintained telephone contact,” but it is
unclear from the report with whom or how often she maintained
contact.
The report recommended guardianship for Jasmine and
adoption for Elisa and Jorge. DCFS intended to reassess the
children’s permanent placement plan once Bertha B.’s home was
approved. DCFS thus requested to continue the pending section
366.26 hearing. The juvenile court continued the matter until
January 2022.
DCFS filed a second report pursuant to section 366.26 in
December 2021. By then, DCFS had determined that Bertha B.’s
home was not suitable for permanent placement of all three
children. It therefore asked to continue the hearing for 90 days
to assess Elisa’s permanent placement.
DCFS further reported that in mid-October 2021, mother
had agreed to weekly four-hour monitored visits with the children
at a park. A monitored visit by mother that same month went
well. She stayed for the duration of the visit and was attentive to
the children.
I. January 2022 hearing and May 2022 report
A permanency planning hearing was scheduled for January
2022. Before the hearing, DCFS filed an updated adoptive
9
planning report for Jorge, now four years old. DCFS
recommended adoption of Jorge by Bertha B., who had been
approved for adoption and had been caring for Jorge since July
2021. At the hearing, the court continued the section 366.26
hearing to May 2022.
DCFS filed another status report in May 2022. Mother had
been consistently visiting the children weekly at a park near
Bertha B.’s home, with Bertha B. monitoring the visits. The
visits went well and mother was attentive to the children.
According to DCFS’s report, Elisa and Jasmine understood
they could not reunify with their parents. Jasmine was happy
residing with Bertha B., and Elisa wanted to reside with Bertha
B. too. Jorge was too young to make a meaningful statement.
III. Section 366.26 hearing
The juvenile court held a hearing pursuant to section
366.26 on August 22, 2022.4
Counsel for DCFS requested that the court terminate
parental rights for Jorge and order legal guardianship for
Jasmine. Counsel emphasized that mother had visited the
children only “somewhat consistently,” and that father had not
visited them at all since July 2021. Counsel further explained
that DCFS’s recommendations for Jasmine and Jorge were
different because they were not similarly situated. Whereas
Jasmine had spent a significant amount of time under her
parents’ care before she was removed from their custody at eight
years old, Jorge was removed from his parents’ custody at birth
and thus had never been under their care. Citing In re Caden C.
4 Regarding Elisa, the court continued the matter 60 days.
10
(2021) 11 Cal.5th 614 (Caden C.), counsel for DCFS further
contended that there was no compelling reason that terminating
parental rights would be detrimental to Jorge.
Father’s counsel stated that father objected to termination
of his parental rights to Jorge. According to counsel, father had
weekly phone and video calls with Jorge and Jorge was “always
happy to see him.” Counsel thus asked the court to apply the
parental-benefit exception to adoption, arguing that the benefits
to Jorge from adoption would be outweighed by the detriment
from losing his relationship with father.
Mother’s counsel stated that mother also objected to
termination of her parental rights to Jorge. Counsel argued that
as Jorge grew older he would resent that his sisters were in legal
guardianships and could continue their relationships with the
parents, but he could not. Counsel also asked the court to apply
the parental-benefit exception.
Counsel for the children argued in favor of DCFS’s
recommendations. Counsel noted that there was no evidence of
father’s ongoing phone calls with Jorge, and that father had not
visited the children since July 2021. Counsel likewise noted that
mother’s visits had been inconsistent throughout the dependency
proceedings and that, unlike his siblings, Jorge had been
removed from his parents’ custody since birth. Moreover, counsel
emphasized the absence of evidence of a substantial, positive,
emotional attachment between Jorge and either parent.
At the conclusion of argument, the juvenile court found by
clear and convincing evidence that Jorge was likely to be adopted.
It further found no evidence to support the conclusion that it
would be detrimental to Jorge to sever the relationship with his
parents. While it noted “some evidence of visitation with mother,
11
that visitation does not rise to the level of the positive and
substantial and emotional attachment that is outlined by the In
re: Caden C. matter.” Nor was the court persuaded by the
argument of mother’s counsel that Jorge might later resent his
sisters’ continued relationship with the parents. The court thus
concluded that the parental-benefit exception did not apply,
terminated the parents’ parental rights to Jorge, and designated
Bertha B. as Jorge’s prospective adoptive parent.
Both parents timely appealed.
IV. Additional ICWA-related background
We briefly summarize additional background relevant to
the ICWA arguments raised by the parents.
DCFS attached ICWA-010(A) Indian Child Inquiry
Attachment forms to its section 300 petition filed in January
2018, indicating that it interviewed the parents about their
Native American heritage. According to those forms, mother
denied having any Native American heritage, but father
“reported that he may have Native American heritage.” The
forms thus noted that the children “may have Indian ancestry.”
Father appeared in juvenile court on January 31, 2018. He
stated that he was not aware of having any Native American
heritage, but was unsure about whether mother had any such
heritage. The court then found no reason to know that ICWA
applied to the case. That same day, father filed an ICWA-020
Parental Notification of Indian Status form stating, “I have no
Indian ancestry as far as I know.”5
5 On April 28, 2023, we granted DCFS’s motion to augment
the record to include father’s ICWA-020 form.
12
Mother appeared in juvenile court on February 5, 2018.
She denied having any Native American heritage. The court
again found no reason to know that ICWA applied to the case.
That same day, mother filed an ICWA-020 Parental Notification
of Indian Status form stating, “I have no Indian ancestry as far
as I know.”
In connection with its March 2018 jurisdiction/disposition
report, DCFS interviewed the parents about their family
histories. Mother was raised by her paternal aunt beginning at
age two following the death of her parents. Mother had five
sisters and a brother. Father was the youngest of 13 siblings.
His mother was deceased, but he maintained a relationship with
his father.
On appeal, DCFS concedes that the “record does not
document DCFS inquired of the relatives it had contact with
during the underlying proceedings as to whether Jorge is or may
be an Indian child.” Those relatives include maternal great aunt
Bertha B.; paternal aunts Rosio S. and Maria H.; and paternal
uncle Jorge.6
6 DCFS also had contact information for paternal
grandfather Librado G., who spent time in both the United States
and Mexico. Additionally, the record reflects that DCFS held two
family meetings in March 2018, and that someone named Misty
A., who identified herself in sign-in sheets as “prima,” “tia,”
“prima-in-law,” and “cousin-in-law,” attended the meetings.
DCFS concedes the record does not document that DCFS
inquired of Librado G. or Misty A. whether Jorge is or may be an
Indian child.
13
DISCUSSION
Mother argues that the juvenile court focused on improper
factors in concluding that the parental-benefit exception to
termination of parental rights under section 366.26, subdivision
(c)(1)(B)(i) did not apply here. She also contends that the juvenile
court minimized the evidence of her visitation with Jorge, and
that her bond with him was substantial. Joined by father,
mother further contends DCFS and the juvenile court conducted
an inadequate inquiry pursuant to ICWA and related California
law. We address each contention in turn.
I. Parental-Benefit Exception
A. Applicable law
Section 366.26’s express purpose is “to provide stable,
permanent homes” for dependent children. (§ 366.26, subd. (b).)
If the juvenile court has ended reunification services, adoption is
the legislative preference. (§ 366.26, subd. (b)(1).) When the
court finds by clear and convincing evidence the child is likely to
be adopted, the statute mandates terminating parental rights
and placing the child for adoption unless the parent can show an
exception applies. (§ 366.26, subd. (c)(1); Caden C., supra, 11
Cal.5th at p. 625.)
One such exception is the parental-benefit exception, which
applies if the harm from severing the parent-child relationship
outweighs the benefit of placing the child in an adoptive home.
(Caden C., supra, 11 Cal.5th at p. 632.) To establish this
exception, the parent must demonstrate, by a preponderance of
the evidence, that termination would be detrimental to the child
in light of three statutory elements: (1) regular visitation and
contact with the child, (2) a relationship, the continuance of
14
which would benefit the child, such that (3) terminating parental
rights would be detrimental to the child. (§ 366.26, subd.
(c)(1)(B)(i); Caden C., at p. 631.) In assessing whether
termination would be detrimental, “the [juvenile] court must
decide whether the harm from severing the child’s relationship
with the parent outweighs the benefit to the child of placement in
a new adoptive home.” (Caden C., at p. 632.)
The first element, regular visitation and contact, “is
straightforward. The question is just whether ‘parents visit
consistently,’ taking into account ‘the extent permitted by court
orders.’ ” (Caden C., supra, 11 Cal.5th at p. 632.)
The second element requires the court to “assess whether
‘the child would benefit from continuing the relationship.’
(§ 366.26, subd. (c)(1)(B)(i).) Again here, the focus is the child.
And the relationship may be shaped by a slew of factors, such as
“ ‘[t]he age of the child, the portion of the child’s life spent in the
parent’s custody, the “positive” or “negative” effect of interaction
between parent and child, and the child’s particular needs.’ ”
(Caden C., supra, 11 Cal.5th at p. 632.) In evaluating this factor,
“courts often consider how children feel about, interact with, look
to, or talk about their parents.” (Ibid.)
The third element—whether termination would be
detrimental to the child due to the relationship—requires the
court to decide whether it would be harmful to the child to sever
the relationship and choose adoption. (§ 366.26, subd. (c)(1)(B);
see also id., subd. (c)(1)(D).) In making this determination, a
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.) In each case, then,
15
“the court acts in the child’s best interest in a specific way: it
decides whether the harm of severing the relationship outweighs
‘the security and the sense of belonging a new family would
confer.’ [Citation.] ‘If severing the natural parent/child
relationship would deprive the child of a substantial, positive
emotional attachment such that,’ even considering the benefits of
a new adoptive home, termination would ‘harm[ ]’ the child, the
court should not terminate parental rights. [Citation.] That
subtle, case-specific inquiry is what the statute asks courts to
perform: does the benefit of placement in a new, adoptive home
outweigh ‘the harm [the child] would experience from the loss of
[a] significant, positive, emotional relationship with [the
parent?]’ ” (Id. at p. 633.)
In considering these issues, the parent’s struggles with
issues such as those that led to dependency are relevant only “to
the extent they inform the specific questions before the court:
would the child benefit from continuing the relationship and be
harmed, on balance, by losing it?” (Caden C., supra, 11 Cal.5th
at p. 638.) As our Supreme Court has explained: “[H]ow and how
much the loss of a relationship with a parent may be harmful,
how and how much that harm might be offset by a new family are
complex questions not always answered just by determining how
beneficial the child’s relationship with the parent is. Though
there is no reason for a court to consider ‘a second time’ the same
struggles in the same way, a parent’s struggles with substance
abuse, mental health issues, or other problems could be directly
relevant to a juvenile court’s analysis in deciding whether
termination would be detrimental.” (Id. at p. 639.)
Because the first two elements—whether the parent has
visited the child consistently, and whether the relationship is
16
such that the child would benefit from continuing it—are factual
determinations, we review them for substantial evidence. (Caden
C., supra, 11 Cal.5th at p. 639.) The third element—whether
termination of parental rights would be detrimental to the
child—requires the court to engage in a “delicate balancing” and
assess “the likely course of a future situation that’s inherently
uncertain.” (Id. at p. 640.) This determination is inherently
discretionary, and thus we review it for abuse of discretion.
(Ibid.)
B. Analysis
Mother argues that the juvenile court focused on improper
factors in determining that the parental-benefit exception did not
apply here. According to mother, the court erred by focusing on
mother’s failure to reunify with Jorge, and “minimized the strong
bond that mother and [Jorge] shared by way of two years of
overnight unmonitored visitation from May 2019 to May 2021,
and then regular weekly monitored visitation until August 2022
when the court terminated mother’s parental rights.” Mother
further contends her bond with Jorge was “unequivocally
positive, substantial, and worth preserving by way of legal
guardianship.”
We disagree with mother’s contentions. It is correct that
Caden C. held that “[p]arents need not show that they are
‘actively involved in maintaining their sobriety or complying
substantially with their case plan’ [citation] to establish the
[parental-benefit] exception.” (Caden C., supra, 11 Cal.5th at
p. 637.) But based on our review of the record, nothing indicates
the juvenile court relied on mother’s failure to comply with her
case plan or reunify with Jorge in concluding the parental-benefit
exception was inapplicable here.
17
On the contrary, at the section 366.26 hearing the juvenile
court focused on the three-part test outlined in Caden C. It noted
the absence of evidence “that it would be detrimental to [Jorge] to
sever the bond with his parents. While there is some evidence of
visitation with mother, that visitation does not rise to the level of
the positive and substantial and emotional attachment that is
outlined by the In re Caden C. matter.” The court’s minute order
from that same hearing likewise cited the court’s findings that
“the parent[s] ha[ve] not maintained regular visitation with
[Jorge] and ha[ve] not established a bond with the child. The
Court finds that any benefit accruing to [Jorge] from his . . .
relationship with the parent(s) is outweighed by the physical and
emotional benefit [Jorge] will receive through the permanency
and stability of adoption . . . .” It is therefore clear that the
juvenile court applied the correct criteria in determining that the
parental-benefit exception did not apply.7 (See Caden C., supra,
11 Cal.5th at pp. 636–637.)
We are also unpersuaded by mother’s argument that the
trial court minimized the evidence of her visits and contact with
Jorge. As DCFS argues, mother’s argument overlooks the
evidence that her visitation with Jorge was inconsistent over the
course of the dependency proceedings. True, DCFS’s reports from
September 2018, May and August 2019, June 2020, December
7 Mother argues that DCFS “focused on the fact that mother
did not obtain suitable housing and later relapsed to drug use,
and the court adopted this reasoning.” Mother provides no record
citations to support the claim that the court adopted this
reasoning. Rather, for the reasons discussed herein, we find that
the juvenile court correctly applied the criteria listed in section
366.26, subdivision (c)(1)(B)(i).
18
2021, and May 2022 reported that mother was consistently
visiting Jorge to the extent permitted by the visitation orders.
Equally true, however, DCFS’s report from November 2018
stated that mother had been arriving late to and leaving early
from visits, and its reports from November 2019, and February,
May, and September 2021 all reported that mother’s visits with
Jorge were inconsistent. Given the “straightforward” nature of
the first element of the test for the parental-benefit exception—
“whether ‘parents visit consistently,’ taking into account ‘the
extent permitted by court orders’ ” (Caden C., supra, 11 Cal.5th
at p. 632; see § 366.26, subd. (c)(1)(B)(i))—we find no error with
the juvenile court’s determination, supported by substantial
evidence, that mother failed to maintain regular visitation and
contact with Jorge. (See In re A.G. (2020) 58 Cal.App.5th 973,
995 [“ ‘ “Sporadic visitation is insufficient” ’ ” to establish first
element]; In re C.F. (2011) 193 Cal.App.4th 549, 554 [“Sporadic
visitation is insufficient to satisfy the first prong of the parent-
child relationship exception to adoption.”].)
Mother’s final argument is that the bond between her and
Jorge was “unequivocally positive, substantial, and worth
preserving” such that legal guardianship, not adoption, was the
best permanent plan for Jorge. Although mother does not say so
explicitly, we assume this argument addresses the second
element of the parental-benefit exception. (See Caden C., supra,
11 Cal.5th at p. 636 [second element of parental-benefit exception
test requires parent to “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”].) But because mother cannot satisfy the first
element, i.e., regular visitation, she cannot establish the
19
parental-benefit exception regardless of the second element. (See
ibid. [parent must establish all three elements of parental-benefit
exception]; In re I.R. (2014) 226 Cal.App.4th 201, 212 [failure to
visit “consistently and to the extent permitted by court orders”
would “fatally undermine any attempt to find the beneficial
parental relationship exception”].) Nor does mother appear to
directly address the third element of the parental-benefit
exception.
And even if we reached mother’s argument, we are not
convinced by it. As noted, under the second element, “courts
assess whether ‘the child would benefit from continuing the
relationship,’ ” and evaluate factors such as “ ‘the age of the child,
the portion of the child’s life spent in the parent’s custody, the
“positive” or “negative” effect of interaction between parent and
child, and the child’s particular needs.’ ” (Caden C., supra, 11
Cal.5th at p. 632; see also In re Autumn H. (1994) 27 Cal.App.4th
567, 575–576.)
Mother’s argument relies on the evidence of her visitation
with Jorge, which she argues proves a “substantial positive bond”
between them. But mother fails to point to anything specific in
the record showing that the visits reflected her “substantial,
positive, [and] emotional attachment” with Jorge. (Caden C.,
supra, 11 Cal.5th at p. 636.) We acknowledge that DCFS
reported visits typically went “well” when they occurred, but that
evidence falls short of establishing the second element of the
parental-benefit exception.
We find our decision in In re Angel B. (2002) 97 Cal.App.4th
454 (Angel B.), instructive here. There, the mother used cocaine
and amphetamines during her pregnancy, her child was detained
immediately after birth and placed in foster care, and the child
20
never lived with her mother. (Id. at p. 459.) At first, mother
appeared “for only some of the scheduled visits” with her child.
(Ibid.) Mother later maintained her sobriety and had “regular
visits with [the child], which went well.” (Ibid.) Mother’s
parental rights were later terminated. (Ibid.)
On appeal, the court, applying the same factors later
identified in Caden C. as relevant to the second element,
concluded that the juvenile court did not err in rejecting
application of the parental-benefit exception. (See Angel B.,
supra, 97 Cal.App.4th at pp. 467–468.) In particular, the court
noted that the child was “too young to understand the concept of
a biological parent”; had “spent relatively few hours visiting with
Mother, versus many hours being parented by the foster family”;
the child’s interactions with mother were positive, “but nothing in
the record indicates that, from [the child’s] point of view, the
interactions were particularly like those of a child with her
mother”; and there was “no evidence that [the child] has any
particular needs that can be met by Mother but not by the foster
family.” (Id. at pp. 467–468.)
These same considerations apply here. We have no doubt
that mother cares deeply for Jorge. But sadly, Jorge was
detained at birth and never resided with mother. His primary
caregivers from birth were Rosio S. and later Bertha B., with
whom he spent most of his time. And even assuming mother’s
interactions with Jorge were positive during her inconsistent
visits with him, she points to nothing in the record that compels
the conclusion that their bond was such that Jorge would
“ ‘benefit from continuing the relationship.’ ” (Caden C., 11
Cal.5th at p. 632, quoting § 366.26, subd. (c)(1)(B)(i); see In re
I.W. (2009) 180 Cal.App.4th 1517, 1528, disapproved on other
21
grounds in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn.
7 [where the trier of fact has concluded that the party with the
burden of proof did not carry the burden and that party appeals,
“the question for a reviewing court becomes whether the evidence
compels a finding in favor of the appellant as a matter of law”].)
In sum, the juvenile court did not err in concluding that the
parental-benefit exception was inapplicable here. (See Caden C.,
supra, 11 Cal.5th at pp. 639–640; § 366.26, subd. (c)(1)(B)(i).)
II. ICWA
A. Applicable law
“Congress passed ICWA in 1978 ‘ “to protect the best
interests of Indian children and to promote the stability and
security of Indian tribes and families by the establishment of
minimum Federal standards for the removal of Indian children
from their families and the placement of such children in foster or
adoptive homes which will reflect the unique values of Indian
culture . . . .” [Citation.]’ (In re Isaiah W. (2016) 1 Cal.5th 1, 8
(Isaiah W.); see 25 U.S.C. § 1902.)” (In re Ezequiel G. (2022) 81
Cal.App.5th 984, 998.)
California adopted conforming legislation, which “provides
that the court and county welfare department have an
affirmative and continuing duty to inquire whether a child for
whom a petition may be filed is or may be an ‘Indian child’
(§ 224.2, subd. (a))—that is, an ‘unmarried person who is under
age eighteen and is either (a) a member of an Indian tribe or (b)
is eligible for membership in an Indian tribe and is the biological
child of a member of an Indian tribe’ (25 U.S.C. § 1903(4);
§ 224.1, subd. (a) [adopting federal definition]).
22
“The state law duty to make an ICWA inquiry ‘begins with
the initial contact, including, but not limited to, asking the party
reporting child abuse or neglect whether the party has any
information that the child may be an Indian child.’ (§ 224.2,
subd. (a).) If a child is removed from parental custody, the county
welfare department ‘has a duty to inquire whether that child is
an Indian child. 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).) Further, at
the first appearance in court of each party, ‘the court shall ask
each participant present in the hearing whether the participant
knows or has reason to know that the child is an Indian child’
and ‘shall instruct the parties to inform the court if they
subsequently receive information that provides reason to know
the child is an Indian child.’ (§ 224.2, subd. (c).)
“If the initial inquiry provides ‘reason to believe’ that an
Indian child is involved in a proceeding—that is, if the court or
social worker ‘has information suggesting that either the parent
of the child or the child is a member or may be eligible for
membership in an Indian tribe’—then the court or social worker
‘shall make further inquiry’ regarding the child’s possible Indian
status as soon as practicable. (§ 224.2, subd. (e).) Further
inquiry ‘includes, but is not limited to, all of the following: (A)
Interviewing the parents, Indian custodian, and extended family
members . . . . [¶] (B) Contacting the Bureau of Indian Affairs and
the State Department of Social Services . . . . [and] [¶] (C)
Contacting the tribe or tribes and any other person that may
23
reasonably be expected to have information regarding the child’s
membership, citizenship status, or eligibility.’ (Ibid.)” (In re
Ezequiel G., supra, 81 Cal.App.5th at pp. 998–999.)
Appellate courts have adopted different standards to
evaluate if a deficient inquiry pursuant to ICWA was harmless or
warrants reversal. (See In re Dezi C. (2022) 79 Cal.App.5th 769,
777–779 [describing different standards]; see also In re Ezequiel
G., supra, 81 Cal.App.5th at pp. 999–1002.) Moreover, as DCFS
notes, our high court has granted review of several appellate
decisions concerning the appropriate standard to evaluate
prejudicial error in this context.8 We need not address this issue
here because, as discussed below, the parties agree a limited
remand is appropriate.
B. Analysis
Mother and father contend that DCFS failed to comply with
its duty under ICWA and related California provisions to inquire
of their extended relatives about Jorge’s possible Indian ancestry.
They also contend that the juvenile court failed to comply with its
duty to ensure DCFS’s compliance with the agency’s inquiry
obligations. Mother and father further argue that these failures
constitute reversible error, and ask that we reverse and remand
8 See In re Dezi C. (2022) 79 Cal.App.5th 769 (review granted
Sept. 21, 2022, S275578); In re G.A. (2022) 81 Cal.App.5th 355(review granted Oct. 12, 2022, S276056); In re M.M. (2022) 81
Cal.App.5th 61 (review granted Oct. 12, 2022, S276099); In re
R.T. (July 6, 2022, B315541) [nonpub. opn.] (review granted
October 12, 2022, S275866); In re Athena R. (Dec. 13, 2022,
B318751) [nonpub. opn.] (review granted Mar. 22, 2023,
S278121); In re X.R. (Jan. 31, 2023, B318808) [nonpub. opn.]
(review granted Apr. 12, 2023, S278928).
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the matter to the juvenile court for compliance with ICWA and
related California provisions.
DCFS concedes that the record fails to indicate whether it
asked maternal great-aunt Bertha B., paternal grandfather
Librado G., paternal aunts Rosio S. and Maria H., or paternal
uncle Jorge, if Jorge is or may be an Indian child. In light of our
high court’s pending review of cases concerning the appropriate
standard for evaluating reversible error in this context, DCFS
agrees “that a concession is appropriate solely as to the
challenges the parents raise concerning DCFS’s and the juvenile
court’s compliance with the initial inquiry requirements of
section 224.2, subdivision (b), so the matter can be remedied
without further delay.” It thus “agrees the juvenile court’s order
terminating parental rights should be conditionally affirmed or
conditionally reversed and remanded for the sole purpose of
ensuring compliance with the ICWA and related California
statutes and for the juvenile court to make new ICWA findings.”
Because DCFS agrees that a limited remand is appropriate,
we conditionally affirm the juvenile court’s order terminating
parental rights and remand this matter to the juvenile court for
the sole purpose of ensuring compliance with ICWA and related
California statutes. We leave it to the juvenile court on remand
to determine the precise scope of the required inquiry,9 bearing in
9 DCFS disputes the parents’ apparent contention that Misty
A. is an extended family member. It contends that Misty A. was
related to Jorge by virtue of marriage to a cousin, and thus does
not fall within the definition of “extended family member” for
purposes of ICWA and related California law. Because we are
remanding this matter to the juvenile court for compliance with
25
mind that ICWA should not be used “as ‘a “get out of jail
free” card’ ” to avoid termination of parental rights, and that
“delays in finalizing adoptions or other permanent placements for
children who cannot safely be returned to their parents do not
serve the best interests of the children whom the dependency
system is intended to protect.” (Ezequiel G., supra, 81
Cal.App.5th at pp. 1001, 1003.)
ICWA and related California law, we will leave it to the juvenile
court to address this dispute in the first instance.
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DISPOSITION
The order terminating parental rights is conditionally
affirmed and the matter is remanded to the juvenile court for
compliance with the inquiry provisions of ICWA and related
California law and further proceedings not inconsistent with this
opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
EGERTON, J.
ADAMS, J.
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