In re Robert H. CA2/3 ( 2023 )

Filed 6/8/23 In re Robert H. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 Robert H. et al., Persons B324774
Coming Under the Juvenile
Court Law. Los Angeles County
Super. Ct. Nos.
LOS ANGELES COUNTY 19CCJP04692A,
DEPARTMENT OF CHILDREN 19CCJP04692B
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
J.D.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County. Stephen C. Marpet, Judge Pro Tempore of the Juvenile
Court. Conditionally affirmed.
Megan Turkat Schirn, under appointment by the Court
of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, Veronica Randazzo, Deputy County
Counsel, for Plaintiff and Respondent.
_________________________
Mother and father separately appeal the juvenile court’s
orders terminating their parental rights to their son Robert (born
December 2012) and daughter R.H. (born May 2019). Mother
contends the juvenile court erred in finding the beneficial parent
relationship exception to adoption did not apply under In re
Caden C. (2021) 11 Cal.5th 614 (Caden C.). She also contends
the court and the Los Angeles County Department of Children
and Family Services (DCFS) failed to make an adequate inquiry
under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901et seq.) (ICWA) and related California law (Welf. & Inst. Code,
§ 224 et seq.).1 Father joins in mother’s arguments.2 We
1 Undesignated statutory references are to the Welfare
and Institutions Code. Because ICWA uses the term “Indian,”
we do the same for consistency, although we recognize other
terms are preferred. (In re Benjamin M. (2021) 70 Cal.App.5th
735, 739, fn. 1.)
2 Father’s notice of appeal indicates he challenged the court’s
denial of his section 388 petition, heard September 22, 2022
and October 6, 2022, and the court’s October 17, 2022 orders
terminating his parental rights. Father’ opening brief includes
statements of the case and facts, but he merely joins in mother’s
arguments and makes no substantive arguments of his own.
He thus has forfeited any claim of error as to the court’s denial
of his section 388 petition and the applicability of the beneficial
parent relationship exception as to him. (In re A.L. (2022) 73
Cal.App.5th 1131, 1154, fn. 9.) Accordingly, we address only
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conclude substantial evidence supports the juvenile court’s
finding that the beneficial parent relationship exception to
adoption did not apply. As DCFS does not oppose a remand for
it to make an ICWA inquiry of the children’s known and available
extended family members, we conditionally affirm the order
terminating parental rights and remand the matter for DCFS
to do so.
FACTUAL AND PROCEDURAL BACKGROUND
A detailed account of the juvenile court proceedings
through its August 4, 2020 orders sustaining DCFS’s section 387
supplemental petition and removing the children from parents’
custody is set forth in this Court’s earlier opinion affirming
the court’s disposition orders (In re Robert H. (Feb. 25, 2021,
B307041) [nonpub. opn.]). We summarize the pertinent events,
drawing on our earlier opinion.
1. Earlier proceedings leading to removal of children
In July 2019, DCFS filed a non-detained section 300
petition in the juvenile court under subdivision (b)(1) alleging
the children’s physical health and safety were at serious risk
of harm due to parents’ daily marijuana use, which interfered
with their ability to care for and supervise their children.3 At the
detention hearing, the court found there were reasonable services
to prevent detention, and released the children to parents under
DCFS’s supervision.
the applicability of the exception to mother and focus on the facts
relevant to her.
3 We state the allegations as amended by the juvenile court.
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DCFS’s investigation revealed both parents had a long
history of marijuana use. Robert suffered from asthma and
had missed numerous days from school because of it. DCFS
gave parents a referral for the mobile pediatric asthma program.
Parents also required new housing due to issues with their
landlord. They planned to move in with paternal great-
grandmother.
In October 2019, parents pleaded no contest to the
amended petition. The juvenile court declared the children
dependents of the court, found reasonable services available
to prevent their removal, and released them to parents’ home.
The court ordered mother to participate in random drug testing,
individual counseling, and a parenting course.4 Mother no longer
would be required to drug test if she submitted six consecutive
clean tests.
At the January 22, 2020 non-appearance progress report
hearing, DCFS submitted its last minute information report
(LMI) stating it had “unresolved safety and overall well-being
concerns for minors.” Mother (and father) had failed to submit
to drug testing and had not enrolled in any services. As of
November 2019, Robert had missed 21 days of school since
September. Mother had received a notice of eviction and notice
to vacate the family home. She nevertheless declined the social
worker’s offer to refer her to transitional and sober living housing
and had yet to contact Legal Aid for assistance. DCFS opined
parents were not “seriously focusing on complying with the Court
orders.” The juvenile court found parents not in compliance with
4 The court made similar orders as to father.
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their case plans, ordered family preservation services, and set
an appearance progress hearing for February 27, 2020.
In its LMI filed for the February hearing, DCFS reported
mother still had not submitted any drug tests. During an
unannounced visit in early February, the social worker smelled
marijuana in the air while mother held R.H. As of February 12,
2020, a psychiatric social worker with the Department of Mental
Health had been unable to reach mother by phone or mail to
schedule a mental health treatment plan appointment for Robert.
The agency thus closed the referral. At the February 27 hearing,
the court admonished parents to cooperate with its orders and
to meet their children’s needs, including Robert’s asthma and
education needs.
At some point in March 2020, mother and the children
moved into the home of father and paternal great-grandmother.
During a virtual home inspection in April 2020 (due to COVID-19
restrictions), Robert told the social worker he “feels better with
no breathing problems.” Both he and R.H. appeared to be happy
and healthy. Mother still had not submitted to drug testing and
admitted she had not followed up with medical appointments
for either child.
DCFS detained the children from parents on April 24,
2020, and placed them with maternal aunt and her wife. On
April 28, 2020, DCFS filed a supplemental petition under section
387 alleging parents’ failure to comply with their court-ordered
case plans endangered the children’s physical health and safety
and placed them at risk of harm.
In its LMI filed for the May 1, 2020 detention hearing,
DCFS reported Robert had disclosed paternal great-grandmother
had hit him on his limbs and stomach while the family was living
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with her; mother had hit him with a belt; and paternal great-
grandmother “smoke[d] constantly while in the home.” The court
detained the children and ordered twice weekly monitored visits
for parents.
The jurisdiction/disposition report updated the court on
the family’s circumstances. DCFS had given mother drug testing
information on May 11, 2020, but she admitted she had been
smoking and asked the social worker to “hold off” on submitting
the testing referral. In a July 1, 2020 interview, Robert told
the social worker he liked staying with his aunt. He was
participating in on-line schoolwork but had difficulty with
reading. He had a cell phone to call his mother. Maternal
aunt was concerned about Robert’s mental health, anger, and
behavior.
On August 4, 2020, after hearing argument, the juvenile
court sustained the supplemental petition, vacated its prior home
of a parent order, removed the children, and ordered the children
suitably placed with maternal aunt. The court ordered DCFS
to provide family reunification services; mother to submit to
drug testing, a parenting education program, and individual
counseling; and monitored visitation twice a week for two hours
each visit. This court affirmed those orders.
2. Family reunification (August 2020 to September 2021)
DCFS’s status review report filed October 22, 2020 noted
the children continued to live with maternal aunt, her wife,
and her wife’s daughter. They were providing a clean, safe,
and loving home for the children. Robert had begun mental
health therapy that month and was attending online classes
as a second-grader.
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Parents were living with paternal great-grandmother.
(Mother lived in the garage when father was away.) In July
2020, mother had enrolled in an affiliate of “Shields for Families”
and received parenting, case management, and housing referrals.
Mother had not returned to the agency since enrolling, however.
She apparently was receiving therapy through another agency,
but the social worker could not confirm if that were true.
Mother was visiting the children at maternal grandmother’s
home. Father refused to visit and had had no contact with
the social worker since the children’s removal.
In its report filed January 6, 2021, DCFS noted the social
worker visited the children’s caretakers in December 2020.
The caretakers wanted mother to put more effort into seeing her
children. On the weekends, they drove the children to maternal
grandmother’s home to visit mother. They had asked mother to
pick a weekday when she could take the bus to visit the children
at their home as well, but she had not responded. The aunts
were providing the children with everything they needed and
were willing to be their co-guardians. DCFS recommended
the court terminate reunification services.
At the February 2, 2021 review hearing, the court
found parents’ progress toward alleviating or mitigating the
circumstances necessitating the children’s placement had
“not been substantial.” Nevertheless, the court continued
reunification services.
In its LMI filed April 20, 2021, DCFS noted mother
reported she was almost done with her parenting class and
had enrolled in individual counseling, but the social worker
was unable to verify that information with mother’s providers.
Mother also told the social worker she would be having surgery
7
in a few days. The children had adjusted well to living with
maternal aunt; they were happy and stable.
DCFS’s status review report filed July 23, 2021 noted
mother had been partially compliant in her case plan. Mother
asked to defer drug testing until after her surgery, however, as
she would be taking medication. She then had complications
from the surgery, apparently preventing her from testing.
Mother said she had to reenroll in the parenting class through
Shields for Families due to her surgery. In July 2021, mother’s
therapist from Shields for Families confirmed mother had
enrolled in therapy last year. Mother had been “doing pretty
well” and had missed sessions only occasionally, the last time
having been due to her surgery in April.
Visits were scheduled for twice a week, once at maternal
grandmother’s home and once at maternal aunt’s home. Father
did not come to the visits. Mother video-called father during
her visits, so he could see the children. In June 2021, maternal
grandmother told the social worker mother was required to
confirm the visit in advance with maternal aunt or the visit
wouldn’t take place. There had been times when mother hadn’t
shown up for a visit after maternal aunt had driven the children
to maternal grandmother’s home. Maternal grandmother
also said mother had shown up to a few visits after she had
been drinking or smoking marijuana and sometimes arrived late.
According to maternal grandmother, mother sometimes yelled
at R.H. and didn’t have the patience to care for her during visits.
DCFS described Robert and R.H. as “doing very well.” To
accommodate the two children, their caregivers had moved from
their two-bedroom apartment to a larger, three-bedroom unit.
Maternal aunt and her wife were willing to be co-guardians of
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the children. Robert said, “ ‘I want to stay with my aunt. I don’t
want to go with my dad, but I wouldn’t mind seeing my mom.’ ”
DCFS again recommended the court terminate parents’
reunification services. The court continued the review hearing
to September 24, 2021 for the parents to contest that
recommendation.
At the hearing, counsel for DCFS told the court DCFS
now recommended continuing reunification services due to the
COVID-19 pandemic and mother’s inability to test because of
her surgery. The court disagreed. Noting the children had been
detained 17 months earlier, and parents thus would be entitled
only to one more month of services, the court stated it could not
find there was a likelihood of reunification in the next month.
The court stated parents had “done nothing,” had not shown
the court they wanted their children “back in their life,” and had
“stagnated for a year and a half.” The court found it “patently
obvious . . . that services should be terminated today.” The court
terminated reunification services over DCFS’s objection and
ordered a section 366.26 hearing.
3. Permanency planning (October 2021 to October 2022)
In January 2022, DCFS filed section 366.26, status review,
and addendum reports. Mother continued to have monitored
visits with the children on Sundays at maternal grandmother’s
home. She did not attend her second scheduled weekly visit
at the caregiver’s home. Father had not confirmed a day for
his monitored visits, but in late December the social worker
and he had discussed it, and father was to get back to her after
the new year.
The children were “comfortable and thriving” in maternal
aunt’s home. R.H. had started school and Robert was “doing
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pretty well in school.” DCFS repeated Robert’s earlier statement
about wanting to stay with his aunt.
Maternal aunt and her wife wanted to adopt the children.
They “wish[ed] to provide a nurturing and stable home” for
Robert and R.H. DCFS noted maternal aunt had been involved
in the children’s lives since their birth. DCFS identified adoption
as the most appropriate plan, but the adoption study was not
yet complete due to maternal aunt and her wife having relocated
to the larger home. They were raising their two children—
a 12-year-old daughter and a baby born July 2021—along
with Robert and R.H. They both worked full-time and
shared childcare responsibilities. DCFS noted the children
interchangeably referred to maternal aunt and her wife
as “ ‘aunt’ and ‘mom.’ ”
DCFS reported Robert’s statements about adoption as:
wishing “to live with his ‘aunties’ until he is older,’ ” sometimes
calling them “ ‘mom,’ ” and being happy living with his
aunts, their children, and R.H. R.H. was too young to make
“a meaningful statement regarding adoption,” but DCFS noted
she had “been observed being comfortable and playful in the
presence” of her caregivers.
In January 2022, father filed a section 388 petition to
reinstate his family reunification services and for unmonitored
and extended visits. Father had enrolled in services and was
testing negative. He stated he had a strong bond with his
children based on their virtual visits each Sunday. The court
summarily denied the petition as failing to state new evidence
or a change in circumstances.
In its section 366.26 and status review reports filed
April 18, 2022, DCFS stated adoption remained the permanent
10
placement goal for the children and recommended the court
terminate parental rights. DCFS noted the children continued
to do well in the caregivers’ home. Robert had begun to have
some behavioral issues, however. He wasn’t listening at school
or at home, and sometimes yelled in class. The social worker
referred Robert to therapy.
On May 17, 2022, father filed a second section 388 petition,
asking for the same change in orders as before, noting he had
completed his drug treatment program and various classes, and
was regularly participating in counseling.
DCFS’s LMI filed the day before the May 20, 2022 hearing
reported the prospective adoptive parents’ new home had been
approved and there were no impediments to adoption readiness.
At the hearing, counsel and the court discussed issues with
the notice of the section 366.26 hearing. Minors’ counsel also
objected to the section 366.26 report as having insufficient
information regarding the quality of visitation; counsel asked
for the report to provide that information. She had asked DCFS
in January to provide more information on the quality of parents’
visits with the children. The court set father’s section 388
petition for hearing in July with the 366.26 hearing to trail.
The court ordered DCFS to provide parents with proper notice
and admonished it that the 366.26 report “needs to give me an
update how the visits are going, when it’s going, and the dates,
times, location so that I can make appropriate findings.”
The section 366.26 and status review reports filed July 14,
2022 made no change in recommendation. As of June 15, 2022,
father had not had any visits or calls with the children, and the
caregiver stated the children did not have a relationship with
him. According to the caregiver, mother continued to visit the
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children on Sundays at maternal grandmother’s home but
showed “little to no pat[ience] with the children and g[ot] easily
frustrated with them.” DCFS recommended the court deny
father’s petition and proceed with termination of parental rights.
The court set father’s section 388 petition for a contested
hearing in September and continued the section 366.26 hearing
for the same day. At minors’ counsel’s request, the court ordered
DCFS to provide delivered service logs to all counsel.
DCFS provided delivered service logs from May 20, 2022
to August 9, 2022. On June 16, 2022, the caregiver told the social
worker mother visited every Sunday but was “very impatient
with the kids” and “easily frustrated.” When the social worker
asked Robert where he wanted to live, he said he wanted “to
continue to be with his aunt.” On August 3, 2022, the social
worker contacted father about re-establishing his visits.
In its addendum report filed August 12, 2022, DCFS noted
the social worker had been in contact with father about setting
his visitation for two weekday evenings and was waiting for his
response. The report noted Robert said he does not want to live
with father and “continues to voice that he wants to be adopted
by maternal aunt.” The caregiver told the social worker that
Robert had been acting out and becoming defiant. Robert shared
with the caregiver that he acted out because people had told him
he was “going to live with his dad and he does not want that to
happen.” The report also revealed a domestic violence incident
had occurred between parents in October 2021.
The court continued the hearing to September 22, 2022.
The hearing on father’s section 388 petition proceeded over two
days, September 22 and October 6. Father and the supervising
social worker testified, primarily about father’s visitation.
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DCFS provided an LMI to the court with updated
information for the October 6, 2022 hearing. The court had
ordered it to provide a report “detailing/itemizing the parents[’]
visitation with the children from at least the last 3 to 4 months.”
The new social worker assigned August 19, 2022 interviewed
Robert at school on September 27, 2022. She asked Robert about
his recent September visits with father. Robert, who now saw
his father on Wednesdays and Saturdays, said the visits were
“new to him,” as “ ‘before [he] wouldn’t see him and it had been
a very long time since [he] saw [his] dad.’ ”
Robert also talked about his visits with mother. He saw
mother at his grandmother’s every Sunday, and said he had
a better relationship with her than with father. He said he
“really enjoys being able to hug his mom.” They usually eat
at his grandmother’s and play and watch television together.
Sometimes they walk to the park. When asked about phone calls
with mother, Robert said he sometimes asks “his auntie to call
mom.” He said “he would actually like to visit mom more.”
Robert did not understand why this was happening to him.
He said he asked his auntie why he was taken from his parents,
and she said it was because he was left alone at home. Robert
explained he didn’t remember ever being left alone, stating, “ ‘All
I would do was go to school and be with my mom.’ ” He described
mother walking him to the corner and waving “bye” after he
crossed the street to enter the school.
The social worker also asked Robert if he knew what
“being adopted” meant. Robert responded that it meant “not
being a part of his mom anymore.” When asked if he wanted
to be adopted, Robert stated he wasn’t sure. He said “that is a
question that he asks himself.” When asked if would like to be
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returned to his parents’ care, Robert said he “did not know if he
wanted that.” The social worker then asked Robert if would
like his aunt to adopt him, and he said, “ ‘Yes, I would like to
be adopted by my aunt as long as I can still have visits with my
mom and dad.’ ” He said “he would be very upset if he did not
see his mom because he enjoys hugging her a lot and has a good
relationship with his mom.”
The social worker interviewed mother and father
separately that same day. Mother said she visits the children
on Sundays and calls them about once a week. When asked why
she didn’t also visit on Saturdays, mother responded she didn’t
know that was an option. Mother said she and the children play
games at maternal grandmother’s home and sometimes go to
the park. Mother said she sometimes brings toys and food for
the children during her visits. She described R.H. as crying
when she leaves, but mother said R.H. would stop if she gave
R.H. money. Mother said she never had alone time with the
children, as someone always was present. The social worker
explained monitored visits required the monitor to be “within
ear and eye shot.”
Mother said she and father were living in paternal
grandmother’s home with his sister. Mother received state
disability income due to a learning disability. She told the social
worker she had completed the required six clean tests and was
getting ready “to do parenting” with Shields for Families, where
she goes for counseling.
Mother was against adoption. She said that “given it’s her
sister, and she’ll be able to still see her children, she guess[es]
it’s okay, but she would like to be more involved with the decision
making, like parties, etc.”
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The social worker also interviewed father. He told her that
before she scheduled his first visit on September 17, he hadn’t
had a set visitation schedule. Father stated the former social
worker did not help him arrange visitation. Rather, he had
video calls with the children on mother’s phone when she visited
them on Sundays.
The social worker spoke with the caregiver by phone
about parents’ visits. She said the social worker tried to arrange
visitation for father in the past, but he would never follow
through. He also never called to check on the children. The
caretaker described father’s recent visits at parks near his home
and near the caretaker’s home.
The caregiver confirmed mother consistently visited the
children on Sundays, usually at maternal grandmother’s home.
The caregiver said the previous social worker had arranged
for mother to visit once during the week but “that has never
happened.” Rather, mother visited only when the caretaker
drove the children to maternal grandmother’s home in
Los Angeles. The caregiver said mother usually watched
television with the children or would give them her cellphone.
Sometimes they walked to the park, but mother wouldn’t bring
anything to play with the children there. Rather, she would
just sit there and not engage with the children. As for calls, the
caregiver said mother called only to confirm her visit on Sundays;
she did not otherwise call to check on the children’s wellbeing.
The caregiver told the social worker she was willing to
have an open adoption if the children wanted to visit mother and
father. The report recommended the court terminate parental
rights and the children be placed for adoption. The report
noted that, “[i]f the children were to be adopted, there is not
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a detriment in attachment with [mother or father] as caregiver,
[maternal aunt] is open to having an open adoption and allow
the children to have ongoing visits with their biological parents.”
4. Final section 366.26 hearing
The court convened the section 366.26 hearing on
October 17, 2022. Mother was not present. Father testified
about his difficulties with the former social worker in arranging
visitation, and his interactions with the children. The court
noted the former social worker stated in her reports that she had
contacted father about visitation dates, but he never followed-up
with her. Father’s counsel argued the children would benefit
from a relationship with him.
Mother’s counsel joined in father’s argument. She asked
the court to find the beneficial parent exception applied and
to order legal guardianship as the children’s permanent plan.
Mother consistently visited and called the children every week.
Counsel also noted Robert had said he enjoys being able to spend
time with parents, hug mother, and go to the park with mother
and engage in activities with her. Counsel argued those
activities were “typical for a parent and child to do to bond.”
Robert also said he would like to see mother more often and
had a good relationship with her, demonstrating his strong bond
with mother. He wanted to be adopted by his aunt as long as
he still could visit parents. Counsel argued Robert “is clearly
telling us that he does not approve of nor does he want an
adoption as that would potentially sever the relationship between
. . . him and his parents.”
Minors’ counsel acknowledged mother had a better
argument than father, as she did visit consistently and arguably
had a beneficial relationship with the children, though not
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necessarily in the role of a mother. Assuming mother had a
beneficial relationship with the children, counsel argued that
relationship did not outweigh the benefits of adoption. Counsel
noted the children had been with maternal aunt for two and
a half years and had a very strong connection to her. Minors’
counsel did not believe “it would . . . be overly detrimental”
to the children to be adopted by maternal aunt, noting mother
essentially would become the children’s legal aunt. Counsel
argued the court should terminate parents’ parental rights
as parents had not met their burden to establish the exception.
Counsel for DCFS also argued that, assuming arguendo
mother met the second prong of the exception, she didn’t
“believe there’s any way that the court can find” mother “can
meet the third prong that terminating that attachment would
be detrimental to the child when balanced against the benefit
[of] the new adoptive home.”
The court noted it had read and considered the documents
introduced into evidence, listened to arguments of counsel, and
listened to father’s testimony. The court found father did not
meet the first prong of Caden C.—regular visitation—and found
the exception did not apply as to him. The court found mother
had visited the children consistently, but “the issue is whether
[they] would benefit from a continuing relationship with
the mother and that’s where it fails.” The court continued,
“I reviewed this file and I’m satisfied that . . . it would not
be harmful to sever the relationship between the parents and
[these children] as the adoptive home is the best place for
[the children].” The court terminated parents’ parental rights
as to both children and named the caretaker as the prospective
adoptive parent. Parents separately appealed.
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5. Facts relating to ICWA
The Indian Child Inquiry Attachment (ICWA-010(A)) forms
attached to DCFS’s initial July 2019 petition indicated a social
worker had made an “Indian child inquiry” for the children and
they had no known Indian ancestry. The initial detention report
also noted mother denied having any Indian ancestry on July 15,
2019. Mother and father also each filed ICWA-020 Parental
Notification of Indian Status forms on July 26, 2019. Each
checked the box, “I have no Indian ancestry as far as I know.”
At the July 26, 2019 detention hearing, the juvenile court
confirmed with mother and father that they had no American
Indian heritage in their families’ backgrounds as far as they
knew. The court found it had no reason to know the children
were Indian children under ICWA. The court ordered parents
to keep DCFS, their attorneys, and the court aware of any new
information relating to possible ICWA status.
DCFS’s initial jurisdiction/disposition report states mother
denied having Indian heritage. She was born in Los Angeles and
raised by her mother. The report states father also was born in
Los Angeles and denied having Indian heritage. He was raised
by his grandmother and great-grandmother.
DISCUSSION
1. The court did not err in terminating mother’s
parental rights
a. Applicable law and standards of review
Under section 366.26, once the juvenile court terminates
reunification services and determines a dependent child is
adoptable—a finding not in dispute here—it must select adoption
as the permanent plan and terminate parental rights unless
it finds doing so would be detrimental to the child under one of
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several statutory exceptions. (§ 366.26, subd. (c)(1); Caden C.,
supra, 11 Cal.5th at pp. 630–631.)
The beneficial parent relationship exception applies
where the parent has “maintained regular visitation and contact
with the child and the child would benefit from continuing the
relationship.” (§ 366.26, subd. (c)(1)(B)(i).) Our Supreme Court
recently clarified the three elements a parent must prove,
by a preponderance of the evidence, to establish the exception:
(1) the parent’s regular visitation and contact with the child;
(2) the child’s “substantial, positive, emotional attachment to
the parent,” “the continuation of which would benefit the child”;
and (3) that the termination of “that attachment would be
detrimental to the child even when balanced against the
countervailing benefit of a new, adoptive home.” (Caden C.,
supra, 11 Cal.5th at pp. 631, 636.)
In assessing whether terminating parental rights
would be detrimental to the child, the court must perform a
“case-specific inquiry,” asking, “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?]’ [Citation.] When the
relationship with a parent is so important to the child that
the security and stability of a new home wouldn’t outweigh
its loss, termination would be ‘detrimental to the child due to’
the child’s beneficial relationship with a parent.” (Caden C.,
supra, 11 Cal.5th at pp. 633–634.)
“A showing the child derives some benefit from the
relationship is not a sufficient ground to depart from the
statutory preference for adoption.” (In re Breanna S. (2017)
8 Cal.App.5th 636, 646, disapproved on another ground in
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Caden C., supra, 11 Cal.5th at pp. 637–638, fns. 6–7.) Rather,
the parent must show 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.)
In evaluating the existence of a beneficial parental
relationship, courts consider several factors, including “[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.” (In re
Autumn H., supra, 27 Cal.App.4th at p. 576.) The Caden C.
court clarified, however, that a parent’s failure to make adequate
progress with her case plan or “continued struggles” with issues
that led to the dependency—standing alone—do not preclude
application of the exception. (Caden C., supra, 11 Cal.5th at
pp. 637–638.)
We review the court’s findings as to whether the parent
has maintained regular visitation and whether the child
would benefit from continuing the parent-child relationship
for substantial evidence. (Caden C., supra, 11 Cal.5th at pp. 639–
640.) In so doing, we do “ ‘not reweigh the evidence, evaluate
the credibility of witnesses, or resolve evidentiary conflicts,’ ” and
we will uphold the juvenile court’s determinations even where
substantial evidence to the contrary also exists. (Id. at p. 640.)
Where, as here, a parent contends the court erred in finding she
did not meet her burden of proof, we must determine whether
“the evidence compels a finding in favor of the appellant as a
matter of law. [Citations.] Specifically, the question becomes
whether the appellant’s evidence was (1) ‘uncontradicted and
unimpeached’ and (2) ‘of such a character and weight as to leave
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no room for a judicial determination that it was insufficient to
support a finding.’ [Citation.]” (In re I.W. (2009) 180 Cal.App.4th
1517, 1528, disapproved on another ground in Conservatorship
of O.B. (2020) 9 Cal.5th 989, 1003, fn. 4, 1010, fn. 7.)
“[T]he ultimate decision—whether termination of parental
rights would be detrimental to the child due to the child’s
relationship with [her] parent—is discretionary and properly
reviewed for abuse of discretion.” (Caden C., supra, 11 Cal.5th
at p. 640.)
b. The court did not err in finding the beneficial parent
relationship exception did not apply
As to the first element, the juvenile court found—and
counsel for the children and DCFS agreed—mother consistently
visited the children on Sundays at the maternal grandmother’s
home. DCFS does not dispute that finding on appeal.
As to the second and third elements, the juvenile court
stated, “the issue is whether this child”—presumably referring
to Robert— “would benefit from a continuing relationship with
the mother and that’s where it fails. . . . I reviewed this file and
I’m satisfied that [for] both children . . . it would not be harmful
to sever the relationship between the parents and this child as
the adoptive home is the best place for this child.”
The record demonstrates at least Robert felt a positive
emotional attachment to mother.5 Robert was seven years old
5 R.H. was situated differently. She was removed from
parents’ care at only 11 months. She thus had spent more than
two thirds of her life out of mother’s custody and with maternal
aunt. The only evidence in the record of a bond between her and
mother was the fact she cried when mother left at the end of her
visits. (She would stop crying, however, when mother gave her
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when removed from parents’ custody. He thus had lived most of
his life with mother even after having spent two and a half years
living with maternal aunt by the time of the section 366.26
hearing. He referred to mother as “mom.” He considered his
relationship with mother to be better than that with father. He
confirmed he saw “his mom” every Sunday at “his nanny’s house”
and described his interactions with mother there positively: he
“really enjoy[ed] being able to hug his mom” during their visits;
they ate, played, and watched television; and “sometimes they
walk[ed] to the park.” During her interview, mother said she
played card games with the children during her visits and
sometimes brought the children toys and food. When asked
whether mother phoned him, Robert said he sometimes would
ask “his auntie” to call mother. He also said he “would actually
like to visit mom more.”
When the social worker spoke with Robert in September
2022 about his feelings toward adoption, he was a couple of
months shy of ten years old. At first, he said he wasn’t sure if
he wanted to be adopted. He knew that adoption meant he would
not be “part of his mom anymore.” When asked, he also didn’t
know that he wanted to return to parents’ care. But, when
specifically asked if he wanted maternal aunt to adopt him,
Robert said, “ ‘Yes . . . as long as I can still have visits with my
mom and dad.’ ” He told the social worker “he would be very
money.) We assume DCFS would recommend the siblings be
treated the same, so that if the beneficial parent exception
applied only to one of them, DCFS would recommend legal
guardianship for both children. Accordingly, we focus—as the
parties do—on Robert.
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upset if he did not see his mom because he enjoys hugging her
a lot and has a good relationship with [her].”
The record does not include any observations by the
social worker of mother’s visits with her children. Although
the record indicates the social worker visited the children in
their placement, it is unclear whether a social worker ever
was present at one of mother’s visits with them at maternal
grandmother’s home. Accordingly, only the social worker’s notes
and DCFS reports of what the participants told the social worker
about the visits were before the juvenile court. We conclude
Robert’s own statements reflect he had a substantial, positive,
emotional attachment to mother. Although the court did
not explicitly rule mother satisfied the second element of the
exception, we assume it found she did.
Mother argues the juvenile court failed to consider the
evidence of an emotional bond between Robert and mother and
ignored Robert’s expressed wishes. She thus contends the court
did not engage in the analysis of the detriment to the child should
that “substantial, positive relationship be severed” necessary to
the balancing test required under Caden C. We disagree. We
do not read the court’s ruling as finding Robert did not have
an emotional attachment to mother, as she suggests. Rather,
we read the court’s ruling to reflect its finding that on balance
the security and stability of adoption outweighed any harm
to the children from the loss of their parent-child relationship
with mother so that terminating parental rights would not be
detrimental to them.
First, as DCFS notes, the juvenile court was not required
to recite its specific factual findings in determining the beneficial
parent relationship exception to adoption did not apply. (In re
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A.L., supra, 73 Cal.App.5th at pp. 1155–1156.) Second, the court
here was well versed in our high court’s directives in Caden C.
and specifically referred to the case and its requirements
throughout the proceedings. Indeed, the court admonished DCFS
to ensure its reports complied with Caden C. Responding to
minor’s counsel’s objection in May 2022 that the section 366.26
report did not provide sufficient information about the visits
between parents and the children, the court stated, “I know that
[DCFS] was given a tutorial on Caden C.[,] but it doesn’t seem
to have trickled down to some of these social workers who are
writing these reports. I won’t accept these reports. I need the
information that is necessary for an appropriate finding at a .26.”
Ultimately, the court ordered DCFS to provide a supplemental
report on visitation that included “interviews of the parents,
caregivers[,] and the child Robert.” In response, DCFS filed
the September 30, 2022 LMI that included Robert’s statements.
Accordingly, we can infer the court understood what it must and
must not consider in assessing the beneficial parent relationship
exception.
Moreover, the court stated it had read and considered
the evidence before it—which included DCFS’s reports—and the
arguments of counsel. DCFS’s LMI included Robert’s statements
about being “very upset” if he didn’t see his mother, and his
desire to be adopted by maternal aunt if he could continue
seeing his parents. Mother’s counsel specifically argued Robert’s
statements were “clearly telling us” he did not want adoption
as it would sever his relationship with parents.
We thus can infer the court considered Robert’s wish
to see his mother, and the other evidence before it, in finding
termination of parental rights would not be detrimental to him
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when balanced with the benefits of adoption. As the court stated
in In re C.B. (2010) 190 Cal.App.4th 102, 125, “[w]hile the court
had to consider each child’s wishes, it was required to act in each
child’s best interest (§ 366.26, subd. (h)(1)) and a child’s wishes
are not necessarily determinative of the child’s best interest.”
The record here supports the juvenile court’s implied finding
that the benefits of stability, security, and permanence Robert
would receive through adoption were in his best interest and
outweighed the upset he would experience from the loss of his
relationship with mother.
The record shows that, for the two and a half years Robert
had been living with maternal aunt, his relationship with mother
was limited to monitored visits once a week at his grandmother’s
home or a nearby park. Although Robert enjoyed those visits
and his hugs with mother, the record does not indicate mother
asked Robert about his schooling, his well-being, or his feelings.
Rather, mother’s visits with the children—by her own account—
consisted of playing games, watching television, and going to
the park. She sometimes brought the children food and toys.
According to maternal aunt, mother “usually” watched television
with the children or gave them her cellphone. Mother also
wouldn’t bring anything to the park to play with the children
and would “just sit there and . . . not engage with her children.”
The court reasonably could find mother was not particularly
engaged with her children during their visits.
We acknowledge “[t]he quality of the minor’s attachment
to his parents must be evaluated in the context of the contact
they were permitted to have with him during the course of the
dependency proceeding.” (In re M.G. (2022) 80 Cal.App.5th 836,
851.) Critically, here, the record shows mother was scheduled
25
to visit with the children twice per week—once at maternal
grandmother’s home and once at maternal aunt’s home—but
mother chose not to.6 Robert wished he could see mother more
often, but mother never made the effort to take the bus to visit
the children at maternal aunt’s home despite maternal aunt’s
invitation. In September 2022, maternal aunt confirmed with
the new social worker that mother visited the children only when
maternal aunt drove them to maternal grandmother’s home.7
And, during the two and a half years the children were out of
her custody, mother never once asked DCFS to liberalize her
visits to unmonitored—despite their authority to do so—or what
she would need to accomplish to be granted an unmonitored visit.
The DCFS reports also show the caretaker described
mother as having “little to no” patience with the children and
said mother got “easily frustrated with them” as late as June
2022. In her September 2022 interview, maternal aunt told
the social worker mother never called to check on the children’s
6 The court’s original disposition order from August 2020
ordered monitored visits for mother “at least twice a week for
two hours in duration” and gave DCFS discretion to liberalize.
DCFS’s reports repeatedly stated mother was scheduled to visit
the children twice per week, once at maternal grandmother’s
home and once at the caregiver’s home.
7 The new social worker asked mother why she didn’t visit
on Saturdays. Mother responded she didn’t know that was
an option. The record shows, however, that mother’s second
visit was scheduled for a weekday at maternal aunt’s home. In
September 2022, maternal aunt confirmed the previous social
worker had “set up” mother to visit once during the week, but
mother never did.
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well-being, only to confirm her Sunday visit. Nor, as minors’
counsel noted, is there any evidence in the record that mother
attended any of the children’s medical or school appointments—
or asked to attend them—despite Robert’s struggles with asthma
and earlier issues with school. Rather, when mother said she
would like to be more involved in decision making concerning
the children, she cited “parties” as an example. And, mother did
not appear at the section 366.26 hearing, like father did, to testify
about her interactions with the children during their visits or to
explain why she didn’t travel to maternal aunt’s for a second visit
with her children during the week.8
Robert wanted to see mother but also consistently said he
wanted to stay with his aunt. He and R.H. referred to maternal
aunt and her wife interchangeably as “aunt” and “mom.” Both
children were thriving in their caregivers’ home—Robert’s
asthma was under control and he was doing better in school.
Maternal aunt and her spouse were committed to adopting the
children to provide them with “a nurturing and stable home.”
Other than Robert’s statement that he would be upset if
he could not see mother, mother presented no evidence showing
that terminating the parent-child relationship would harm
the children or that any harm would not be outweighed by
the security and stability adoption would provide. As we said,
mother did not appear at the section 366.26 hearing; her counsel
gave no reason for her absence. Notably, Robert’s and R.H.’s
counsel—although acknowledging mother had “a beneficial
8 Mother said she had a learning disability. Nothing in the
record, however, suggests mother was incapable of taking a bus.
She also told the social worker she graduated from high school.
27
relationship with the children”—argued the court should
terminate parental rights as that relationship did “not meet
the threshold needed to outweigh the benefits of adoption.”
Despite Robert’s obvious desire to see his mother, on this
record we do not find the court abused its discretion in finding
the benefits of adoption outweighed any harm to Robert if his
relationship with mother were severed. Robert had conflicting
feelings. He didn’t understand why “this [was] happening
to him.” He wanted to be able to see and hug mother, but he
also wanted maternal aunt to adopt him. The juvenile court
reasonably could have found the stability, security, and
permanence of adoption would benefit Robert in light of these
conflicting feelings. And, given the limited nature of mother’s
relationship and engagement with Robert (and R.H.)—partly
through her own choice—we cannot conclude the court abused
its discretion in finding those benefits of adoption outweighed
the upset Robert might experience from the termination of his
parent-child relationship with mother.
Finally, we do not agree with mother’s interpretation of
the court’s statement that, “it would not be harmful to sever the
relationship between the parents and this child as the adoptive
home is the best place for this child,” as having improperly
“focused on . . . the appropriateness of the adoptive placement.”
As we said, the court referred to Caden C. throughout the
proceedings. Our high court’s directives were foremost in the
court’s mind. Mother’s counsel also noted an adoptive parent’s
willingness to allow parents to maintain contact with their child
is an improper consideration at a section 366.26 hearing, citing
In re C.B., supra, 190 Cal.App.4th at pp. 127–129 (remanding
for new section 366.26 hearing where juvenile court reached
28
its conclusion that the termination of parental rights would not
“ ‘ “greatly harm” ’ ” the children based in part on the expectation
that aunt and uncle caregivers would permit children to have
continued contact with their mother).
Maternal aunt here said she was willing to have an open
adoption, and mother understood her sister would allow her to
have contact with the children. Nothing in the record suggests,
however, the court impermissibly considered that fact, as in
In re C.B., in finding severing the mother-child relationship
would not be detrimental to the children when balanced with
the benefits they would gain from adoption. We are convinced
the juvenile court considered the evidence before it and adhered
to our high court’s ruling in Caden C. (See In re A.L., supra,
73 Cal.App.5th at p. 1156 [rejecting parent’s claim court “simply
considered the respective parental roles of the foster parents”
and parent and failed to engage in balancing test, citing People
v. Thomas (2011) 52 Cal.4th 336, 361 for the proposition that
“appellate court ‘presume[s] that the [trial] court “knows and
applies the correct statutory and case law” ’ ”]; cf. In re J.D.
(2021) 70 Cal.App.5th 833, 863–864 [remanding for a new
section 366.26 hearing where neither the parties nor the court
had the benefit of Caden C., and reviewing court could not
be certain juvenile court did not rely on improper factors].)
The evidence here shows Robert got some benefit from
seeing mother—especially being able to hug her—but the
evidence does not compel a finding that Robert’s relationship
with mother was so significant that its loss would be detrimental
to him. In so concluding, we do not discount Robert’s statements
about his feelings toward mother. We recognize, as we infer the
juvenile court did, Robert will face some upset. We cannot say
29
the juvenile court acted outside the bounds of reason in finding
that upset did not outweigh the benefits of adoption, however.
Accordingly, we conclude mother and father failed to demonstrate
the juvenile court prejudicially erred in terminating their
parental rights.
2. We remand for compliance with ICWA
Both the juvenile court and DCFS “have an affirmative
and continuing duty to inquire whether a child . . . is or may
be an Indian child.” (§224.2, subd. (a).) Under section 224.2,
subdivision (b), if a child is placed in DCFS’s temporary custody,
the agency must inquire whether the child is or may be an Indian
child, by asking a nonexclusive group that includes the child,
the parents, and extended family members. Parents denied the
children were Indian children, but the record does not indicate
DCFS asked the children’s extended family members about
their possible Indian status. Extended family members include
grandparents, aunts and uncles, siblings, sibling-in-laws, nieces,
nephews, first or second cousins, and stepparents. (25 U.S.C.
§ 1903(2); § 224.1, subd. (c).) DCFS does not oppose a remand
“for the purpose of making ICWA inquiry of known and available
extended family members.” We accept DCFS’s concession and
conditionally affirm the matter for DCFS to do so.
DISPOSITION
The juvenile court’s orders terminating parental rights
are conditionally affirmed. We remand the case for further
proceedings (1) to ensure DCFS has made an ICWA inquiry of
the children’s known and available extended family members;
and (2) for the juvenile court to determine whether ICWA applies
based on that inquiry. If the court determines it has no reason
to believe ICWA applies, the orders terminating parental rights
30
shall remain in effect. If DCFS’s inquiry gives the court a reason
to believe ICWA applies, the court shall vacate those orders and
conduct further proceedings consistent with ICWA and related
state law.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
LAVIN, Acting P. J.
HEIDEL, J.*
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
31