In re David V. CA2/7 ( 2024 )

Filed 2/5/24 In re David V. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re DAVID V. et al., Persons B328454
Coming Under the Juvenile Court
Law. (Los Angeles County
Super. Ct. No. 18CCJP05847)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
DAVID V.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Debra R. Archuleta, Judge. Conditionally
affirmed with directions.
Joseph T. Tavano, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and David Michael Miller, Senior
Deputy County Counsel, for Plaintiff and Respondent.
____________________________________
INTRODUCTION
David V. appeals from an order under Welfare and
Institutions Code section 366.26 terminating his parental rights
to his sons, David V. (D.V.) and Aiden V.1 David argues the
juvenile court erred in ruling the parental-benefit exception
under section 366.26, subdivision (c)(1)(B)(i), did not apply. We
conclude the court did not err because substantial evidence
supported the court’s finding David failed to maintain regular
visits with D.V. and Aiden.
David also argues the Los Angeles County Department of
Children and Family Services failed to comply with its duty of
inquiry under the Indian Child Welfare Act (25 U.S.C. § 1901et seq.) (ICWA) and related California law. Following an appeal
by D.V. and Aiden’s mother raising the same issue, we ordered
the Department to comply with ICWA and related California law.
(See In re David V. (Aug. 8, 2023, B327092).) We direct the
juvenile court to provide the same relief in this case. Therefore,
we conditionally affirm the juvenile court’s order with directions
to ensure compliance with ICWA.
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. The Juvenile Court Declares D.V. and Aiden
Dependent Children of the Court
In September 2018 the Department filed a petition in the
juvenile court on behalf of D.V., who was two years old, and
Aiden, who was one year old, alleging in counts under
section 300, subdivisions (a) and (b), that David and the
children’s mother Kristian E. had a history of engaging in violent
altercations in the children’s presence and that the children’s
home was filthy and unsanitary. The juvenile court detained
D.V. and Aiden, placed them with their maternal grandmother
Maria L., and ordered monitored visitation for a minimum of
three times per week for three hours per visit.
In October 2018 the juvenile court, after dismissing a count
alleging Kristian had a history of substance abuse, sustained the
petition, declared D.V. and Aiden dependent children of the court,
and removed them from David and Kristian. The court ordered
reunification services and monitored visitation. The reunification
plan included a domestic violence program, individual counseling,
and parenting classes.
B. The Juvenile Court Terminates Reunification Services
and Sets a Hearing Under Section 366.26
In April 2019 the Department reported David had not
participated in any court-ordered programs or responded to the
Department’s efforts to contact him. At that time, D.V. and
Aiden were temporarily placed with their paternal grandmother,
but they moved back to Maria’s home in September 2019 and
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remained there throughout the dependency proceedings. The
juvenile court terminated reunification services in May 2019.
In February 2021 the juvenile court granted Maria legal
guardianship and terminated jurisdiction. In March 2022,
however, Maria filed a section 388 petition asking the court to
terminate the legal guardianship because she believed a younger
person would be “better equipped” to care for D.V. and Aiden,
who were then five and four years old. Maria asked the court to
consider placing the children with a maternal cousin in Florida.
David opposed the request to place D.V. and Aiden with
Kristian’s cousin in Florida. He told the Department that he had
recently enrolled in parenting and domestic violence classes and
that he had not enrolled earlier because “his pride got in the
way.” He said that he had moved to Desert Hot Springs,
California and did not have transportation to visit D.V. and
Aiden as often as the court had permitted, but that he called
them regularly and now had a car, which would allow him to visit
them more often. He also said he wanted to complete the court-
ordered programs and reunify with the children. After a hearing,
the juvenile court granted Maria’s section 388 petition, reinstated
jurisdiction, and ordered an expedited assessment of the
maternal cousin. The court also set the matter for a section
366.26 hearing.
C. David Visits D.V. and Aiden Inconsistently
For the first three weeks after the children’s detention,
David visited D.V. and Aiden pretty much as permitted by the
juvenile court. In the Department’s April 2019 six-month review
report, however, the children’s paternal grandmother (with whom
the children were temporarily placed) reported that David visited
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the children only once a week for two to three hours, less than
one-third the amount the juvenile court had authorized. David
did not respond to communications from the Department during
this six-month period.
In September 2019, after the court terminated reunification
services, the children’s paternal grandmother reported that
David had stopped visiting altogether. By December 2019, David
had resumed visiting the children two to three times per week.
In May 2020, when the children were again living with Maria,
Maria said David visited the children “consistently on a weekly
basis” until the pandemic began. After that, she said, David
visited them only twice.
In February 2021 the juvenile court reduced David’s
visitation to one visit per week. Maria reported in April 2022
that David had “intermittent contact” with D.V. and Aiden
because he commuted from Desert Hot Springs where he lived
with his mother. Maria said that there was “no consistent
schedule,” but that he had visited in the last week and a half.
In May 2022 Maria took the children to Desert Hot Springs
to visit David. They swam at a hotel pool, drove “Go-Karts,”2 and
“had a lot of fun.” It was also in May 2022 that David told the
Department he had a car and planned to visit the children more
often. But in June 2022 David did not see D.V. and Aiden for
several weeks, and in July 2022 Maria again had to take the
2 A “go-kart is ‘a small low motor vehicle with four wheels
and an open framework . . . .’” (State ex rel. Town of Richmond v.
Roode (R.I. 2002) 812 A.2d 810, 814.) It is “typically driven on a
closed course.” (Spot on Evergreen III, Inc. v. Washington State
Liquor and Cannabis Bd. (Wash.Ct.App. 2020) 13 Wash.App.2d
1008 [2020 WL 1853075, p. 5].)
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children to Desert Hot Springs to visit David. The record does
not indicate whether David visited D.V. and Aiden at any other
time in July 2022. In August 2022 David attended the children’s
birthday party at Maria’s home. Again, the record does not state
whether David visited the children at any other time in August.
In a November 2022 status review report, the Department
stated David visited D.V. and Aiden once or twice per month,
which was less than half the visits the court had allowed. The
Department’s January 2023 section 366.26 report stated David
maintained “regular contact” with the children, including phone
calls, video calls, and in-person visits. Maria said David visited
the children every other day when he was in Los Angeles, but the
report did not indicate how long David typically stayed in Los
Angeles. During his visits, David helped bathe and dress the
children and ate meals with them. David spent approximately
two weeks in Desert Hot Springs between visits to Los Angeles.
D. The Juvenile Court Terminates David’s Parental
Rights to D.V. and Aiden, and David Timely Appeals
At the section 366.26 hearing Maria testified and confirmed
much of what she told the Department about David’s visits with
D.V. and Aiden. Maria said the children would be “sad” if they
could not visit with their father, but not “traumatized.” She
explained that David was “in and out” and did not visit
consistently, that this was “normal” for the children, and that
they were not sad when David leaves. To the contrary, she said,
when David leaves, the children “continue like nothing”
happened and “just pick up where they left off.”
The juvenile court found that D.V. and Aiden were
adoptable and that the parental-benefit exception to adoption did
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not apply. The court ruled David did not maintain regular
visitation with the children, finding that “at times there’s been
regular visitation and contact,” but that “at other times it’s been
sporadic.” The court said that, when David is in Los Angeles “he
drops in and sees the kids,” but that when he is not in
Los Angeles, “he doesn’t particularly drop in and see the kids.”
The court also found David failed to establish “a bond” with
D.V. and Aiden. The court ruled that “any benefit accruing to
these children from their continued relationship with their father
is outweighed by the physical and emotional benefit the children
will receive through permanency and stability of adoption and
that adoption is in the best interests of the children.” Regarding
whether terminating parental rights would be detrimental to the
children, the court, without making an affirmative, express
finding to that effect, stated: “It appears to the court that [David]
was a mere playmate to these children. He also did not
participate in medical appointments, [and] he did not participate
in school activities . . . . He would show up on occasion, share a
meal with his sons, and play with them, and that seemed to be
the nature and the extent of the contact and the bond with the
children. There doesn’t seem to be great issues with the boys
detaching from . . . father when the visits terminate. . . . We
don’t have outward signs of trauma to the children.” The court
found “it would be detrimental to these children to be returned to
the parents” and terminated David’s parental rights. David
timely appealed.
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DISCUSSION
A. The Juvenile Court Did Not Err in Ruling the
Parental-benefit Exception Did Not Apply
1. Applicable Law and Standard of Review
The purpose of a hearing under section 366.26 is “‘to select
and implement a permanent plan for the child’” after the juvenile
court has terminated reunification services. (In re Caden C.
(2021) 11 Cal.5th 614, 630 (Caden C.); see In re Christopher L.
(2022) 12 Cal.5th 1063, 1076; In re D.M. (2021) 71 Cal.App.5th
261, 268.) If the court determines “the child is likely to be
adopted,” the court must “terminate parental rights to allow for
adoption.” (Caden C., at p. 630; see § 366.26, subd. (c)(1); In re
I.E. (2023) 91 Cal.App.5th 683, 690.) “But if the parent shows
that termination would be detrimental to the child for at least
one specifically enumerated reason, the court should decline to
terminate parental rights and select another permanent plan.”
(Caden C., at pp. 630-631; see § 366.26, subd. (c)(1)(B), (4)(A).)
One of those reasons, the parental-benefit exception, requires the
parent to establish by a preponderance of the evidence (1) “the
parent has regularly visited with the child,” (2) “the child would
benefit from continuing the relationship,” and (3) “terminating
the relationship would be detrimental to the child.” (Caden C., at
p. 629; see § 366.26, subd. (c)(1)(B)(i); In re M.V. (2023)
87 Cal.App.5th 1155, 1183.)
“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; accord, In re
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M.V., supra, 87 Cal.App.5th at p. 1183; see In re I.R. (2014)
226 Cal.App.4th 201, 212 [“Regular visitation exists where the
parents visit consistently and to the extent permitted by court
orders.”].) “Visits and contact ‘continue[ ] or develop[ ] a
significant, positive, emotional attachment from child to parent.’
[Citation.] Courts should consider in that light whether parents
‘maintained regular visitation and contact with the child’
[citation] but certainly not to punish parents or reward them for
good behavior in visiting or maintaining contact—here, as
throughout, the focus is on the best interests of the child.”
(Caden C., at p. 632; see In re Eli B. (2022) 73 Cal.App.5th 1061,
1069-1070.) Thus, “the visitation element is to be understood in
light of the overall purpose of the beneficial relationship
exception.” (Eli B., at p. 1070.)
A juvenile court’s decision that a parent has not satisfied
his or her burden to establish the parental-benefit exception
applies “may be based on any or all of the component
determinations,” including “whether the parent has maintained
regular visitation.” (In re Breanna S. (2017) 8 Cal.App.5th 636,
646-647, disapproved on another ground in Caden C., supra,
11 Cal.5th at pp. 637, fn. 6, 638, fn. 7.) Indeed, “a parent must
prove all three components of the beneficial relationship
exception,” and a “failure of proof on any one of them is fatal.”
(In re Katherine J. (2022) 75 Cal.App.5th 303, 322, fn. 10; see
In re Eli B., supra, 73 Cal.App.5th at p. 1068 [where the parent
did not meet his or her burden to prove regular visitation, the
reviewing court need not consider the other elements of the
parental-benefit exception].)
We review the juvenile court’s ruling on the first element of
the parental-benefit exception for substantial evidence.
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(Caden C., supra, 11 Cal.5th at p. 640; In re Eli B., supra,
73 Cal.App.5th at p. 1068.) In reviewing factual determinations
for substantial evidence, we do not “‘reweigh the evidence,
evaluate the credibility of witnesses, or resolve evidentiary
conflicts.’” (Caden C., at p. 640.)
2. Substantial Evidence Supported the Juvenile
Court’s Finding David Failed To Regularly
Visit His Children
David does not contest the facts underlying the juvenile
court’s determination he visited D.V. and Aiden sporadically.
Indeed, he concedes that his visitation was not “perfect for a time
due to the distance” from Desert Hot Springs, but he contends
that, “viewing the life of the case, [he] maintained regular
visitation and contact with the children.”
The record does suggest David made efforts to visit his
children and, when he could not see them in person, to maintain
contact with them by phone and video calls. But David’s
argument ignores substantial periods of time when he failed to
visit D.V. and Aiden to the extent permitted by the juvenile court.
For example, for at least six months (from the end of 2018 to
early 2019) David visited the children for less than one-third the
permitted amount. For some part of 2019 David did not visit the
children at all, and he only began visiting them again after the
juvenile court terminated reunification services. Despite the
juvenile court reducing the number of weekly visits to one, the
record indicates only a few periods of time when David visited the
children as often as allowed (and David did not submit any
evidence to the contrary or testify at the section 366.26 hearing).
Even after David told the Department he had a car and would
10
begin visiting D.V. and Aiden more often, it appears he did not.
Substantial evidence supported the juvenile court’s finding David
failed to maintain regular visitation. (See In re Eli B., supra,
73 Cal.App.5th at pp. 1070-1071 [father failed to show regular
visitation where his visitation “throughout the years-long
dependency proceeding was sporadic and also entailed significant
gaps”]; In re Breanna S., supra, 8 Cal.App.5th at p. 647 [evidence
of sporadic visits in the first 18 months of the dependency
proceedings, coupled with more regular visits during the final
six months before the section 366.26 hearing, was not regular
visitation]; In re I.R., supra, 226 Cal.App.4th at p. 212 [parent
failed to maintain regular visitation where there were
“significant lapses in visits”].)
Citing In re D.M., supra, 71 Cal.App.5th at page 270, David
argues his visits over the course of the years-long dependency
proceeding were sufficiently regular. In In re D.M., however, the
juvenile court found the parent’s “‘fairly consistent’” visitation
met the first element of the parental-benefit exception, and the
Court of Appeal held substantial evidence supported that finding.
(Ibid.) That’s not what happened here: The juvenile court here
found David’s visitation was not regular, and substantial
evidence supported that finding. (See In re M.R. (2017)
8 Cal.App.5th 101, 108 [“we do not consider whether there is
evidence from which the juvenile court could have drawn a
different conclusion but whether there is substantial evidence to
support the conclusion that the court did draw”]; see also In re
I.J. (2013) 56 Cal.4th 766, 773 [“‘We do not reweigh the evidence
or exercise independent judgment, but merely determine if there
are sufficient facts to support the findings of the trial court.’”].)
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Because David has not shown the juvenile court erred in
finding he failed to meet the first element of the parental-benefit
exception, we need not address his arguments regarding the
second and third elements. (In re Eli B., supra, 73 Cal.App.5th at
p. 1068; see In re Katherine J., supra, 75 Cal.App.5th at p. 322,
fn. 10.) The juvenile court did not err in terminating David’s
parental rights.
B. David Is Entitled to the Same Relief Under ICWA and
Related California Law That Kristian Obtained in
Her Appeal
David also challenges the juvenile court’s finding ICWA
does not apply. He argues the Department failed to comply with
its obligations under ICWA and related California law to ask
known relatives, including a maternal aunt, a maternal cousin,
and the children’s paternal grandmother, about D.V. and Aiden’s
possible Indian ancestry.
In her appeal from the juvenile court’s order terminating
her parental rights, Kristian similarly challenged the court’s
findings under ICWA and related California law. In that appeal
we ordered the Department to interview known and available
maternal and paternal relatives and extended family members,
including those David identified in his brief on appeal. (In re
David V., supra, B327092.) We ordered: (1) The Department is
to “make reasonable efforts to attempt to identify and thereafter
to interview all maternal and paternal relative extended family
members, not just those who previously have been identified, as
well as others who have an interest in the children, regarding the
children’s possible Indian ancestry. [The Department] is to
submit a report of its interviews or efforts to conduct the
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interviews to the juvenile court.”; (2) “If, based on the initial
inquiry, there is reason to believe an Indian child may be
involved but not yet sufficient information to determine if notice
must be provided to a tribe or tribes, [the Department] is to
conduct further inquiry pursuant to [section] 224.2,
subdivision (e).”; (3) “At a noticed hearing, with counsel for the
parents reappointed, the juvenile court is to ensure adequate
inquiry and any necessary notice has been made and make ICWA
findings as to the children. If the juvenile court finds . . . ICWA
is not applicable, the order terminating parental rights shall
remain the order of the court. If notice is required pursuant to
. . . ICWA and a tribe determines [D.V.] or Aiden V. is an Indian
child, the court shall proceed in compliance with . . . ICWA.”; and
(4) “At the conclusion of the proceedings addressing compliance
with federal and state law related to . . . ICWA, and upon the
juvenile court’s findings and orders, the parties have the right to
appeal from the renewed ICWA findings.” (David V., B327092.)
We make the same order here: We direct the juvenile court to
ensure the Department complies with ICWA and related
California law as ordered in In re David V., supra, B327092.
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DISPOSITION
The order terminating David’s parental rights is
conditionally affirmed. The juvenile court is directed to ensure
the Department complies fully with ICWA and related California
law.
SEGAL, Acting P. J.
We concur:
FEUER, J.
MARTINEZ, J.
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