In re A.S. CA2/2 ( 2024 )

Filed 9/30/24 In re A.S. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
In re A.S., a Person Coming B334413
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No.
20LJJP00532A)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
S.M.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Donald A. Buddle, Jr., Judge. Affirmed in
part and conditionally reversed in part with directions.
Lori N. Siegel, under appointment by the Court of Appeal,
for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Sarah J. Vesecky, Senior Deputy
County Counsel, for Plaintiff and Respondent.
__________________________________________
In this juvenile dependency appeal, S.M. (mother) seeks
reversal of the juvenile court’s January 9, 2024 order terminating
parental rights to her young daughter A.S. (daughter). Mother
makes four arguments on appeal. First, mother argues the
juvenile court erred when it summarily denied her Welfare and
Institutions Code section 388 petition, through which mother
sought to reinstate reunification services.1 Second, mother
argues the juvenile court erred when it denied her requests to
have her mother (maternal grandmother) assessed as a relative
placement for daughter under section 361.3. Third, mother
argues the court should not have terminated her parental rights
because the beneficial parental relationship exception to adoption
applied here. Finally, mother argues the order terminating
parental rights must be reversed because the juvenile court and
the Los Angeles County Department of Children and Family
Services (Department) failed to comply with the Indian Child
Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and related
California law (Cal-ICWA).
We agree with mother that the juvenile court and the
Department failed to comply with the required initial duty of
inquiry under Cal-ICWA. Accordingly, and in light of our
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2
Supreme Court’s recent decision in In re Dezi C. (2024) 16 Cal.5th
1112 (Dezi C.), we conditionally reverse the order terminating
parental rights and remand with directions so that the juvenile
court can ensure compliance with Cal-ICWA. In all other
respects, we affirm the juvenile court’s January 9, 2024 order.
BACKGROUND
1. The Family
Prior to the initiation of the proceedings below, mother and
daughter lived with maternal grandmother and other maternal
relatives. Daughter had developmental delays and, during the
underlying proceedings, was diagnosed with autism.
Mother did not know who daughter’s father was. L.S. was
mother’s ex-boyfriend and initially was named as “father” in the
underlying section 300 petition. L.S. believed he was daughter’s
father, but was unsure. Sometimes mother said he was and
sometimes she said he was not. A family law custody order
granted joint custody of daughter to mother and L.S. However,
mother did not abide by that order.
Mother and L.S. had a contentious and “toxic” relationship,
including domestic violence. They each made serious
accusations, often unsubstantiated or false, against the other
(e.g., physical and sexual abuse, drug use, threatened violence)
and harassed each other on social media. Although at various
times criminal protective orders protected mother, maternal
grandmother, a maternal uncle, and daughter from L.S., they did
not always comply with those orders. For some time, maternal
grandmother allowed L.S. to live in her home with mother in
violation of a restraining order. An adaptive learning skills
instructor who had worked with L.S. for two years said L.S. was
3
diagnosed with “Mild Intellectual Disability” and was “ ‘not a bad
person.’ ”
Initially in the proceedings below, L.S. was considered
daughter’s presumed or alleged father. In late-2020, however,
after having taken a paternity test, it was determined L.S. was
not daughter’s biological father and the juvenile court made a
non-paternity finding as to him.
In addition to L.S., mother provided names of two other
possible fathers. One, N.A., submitted to a paternity test, which
indicated he was not daughter’s biological father. The juvenile
court made non-paternity findings as to N.A. The other, A.P., did
not believe he was daughter’s father and mother told him he was
not the father. Neither he nor his family members wanted to be
involved in the proceedings below. The juvenile court ordered no
reunification services for him.
2. Detention, Petition and Adjudication
In August 2020, when daughter was 18 months old, she
was removed from mother and L.S. and placed in the foster home
of Mr. and Mrs. M. The Department filed a section 300 petition
on behalf of daughter (petition). Prior to adjudication, mother
enrolled in a parenting class and visited with daughter
consistently, either on-line or in person. Mother called the foster
parents at all hours and complained about their care of daughter,
making them uncomfortable and reluctant to communicate with
mother. In September 2020, during a Department interview,
maternal grandmother expressed interest in daughter being in
her home and mother moving out.
In December 2020, after mother previously had signed a
waiver of rights and pleaded no contest to the petition, the
juvenile court sustained allegations that mother and L.S. had a
4
history of violent altercations in daughter’s presence, continued
to threaten each other, failed to abide by criminal protective
orders and restraining orders, and mother failed to protect
daughter. The court declared daughter a dependent of the court,
removed her from mother and any alleged father, and ordered
family reunification services. The court ordered mother, among
other things, to participate in a domestic violence program, drug
testing (and, if any test was missed or positive, a substance abuse
program), a parenting program, and individual counseling. The
court granted mother monitored visits with daughter.
3. Reunification Period
a. Mother
In November 2020, mother completed a parenting program.
Mother stated she had enrolled in a domestic violence class as
well as individual counseling. However, the Department was
unable to verify her participation in either. Additionally, mother
consistently failed to appear for drug tests and, as a result, the
Department advised her she needed to enroll in a substance
abuse program. At the time, mother and a maternal aunt were
living in maternal grandmother’s home.
In November 2021, mother stated she had moved out of
maternal grandmother’s home for some time, but again was
living with maternal grandmother and other maternal relatives.
Mother still failed to show for her drug tests. A Department
social worker advised mother her reunification services could be
terminated due to her lack of cooperation. Mother admitted she
had not enrolled in court-ordered programs. She explained, “she
knows [daughter] should be enough motivation, but she is
depressed and sometimes her daughter is not enough
motivation.” Mother said she did not want to get out of bed and
5
had suicidal ideations. She noted she “does smoke weed, but not
excessively” and had “been drinking heavily since she turned 18,”
saying she drank “ ‘hard liquor.’ ” Nonetheless, mother stated
she was “ ‘ready to parent.’ ”
b. Daughter
During the reunification period, daughter remained in the
foster home of Mr. and Mrs. M., who were interested in adoption
or legal guardianship. The Department reported daughter had
“flourished in the structure and consistency of the foster home.”
Daughter showed “growth in her motor skills, development and
her speech since placement in the home.” In November 2021,
Daughter’s therapist stated the foster parent Mrs. M. was “a
major asset to helping [daughter] improve.” The therapist tried
to contact mother about psychological testing for daughter, but
mother did not return the therapist’s telephone calls. Daughter
enrolled in services with the Regional Center.
c. Visits
In May 2021, the Department reported mother’s parenting
skills were improving and her visits with daughter were
appropriate. Mrs. M., maternal grandmother, and a maternal
aunt served as monitors for mother’s visits with daughter, which
occurred at a park or at maternal grandmother’s home. A
Department social worker who observed visits between mother
and daughter believed daughter had “developed a strong bond
with the mother.” The social worker described a “delightful little
ritual” between mother and daughter at the end of visits that
included a “hug, high five and then fist bump.”
In November 2021, the social worker again reported visits
went well, mother and daughter hugged and kissed each other
during visits, and had “long embraces at the end of each visit.”
6
However, the Department was “unable to liberalize because
[mother] has not provided any information as to her progress on
her Court orders, and continues to be a no show for Drug and
Alcohol testing.”
4. Permanency Planning and Review Period
By late-November 2021, the Department recommended
terminating reunification services. Daughter’s counsel supported
the Department’s position. At a January 19, 2022 hearing,
however, counsel for mother urged the juvenile court to return
daughter to mother’s care and to continue reunification services.
Mother’s counsel also requested, for the first time, that maternal
grandmother be assessed for placement. The Department argued
there was no need to assess anyone at that time because
daughter was doing well in her placement with Mr. and Mrs. M.
Counsel for the Department stated, “If and when a new
placement becomes necessary, then the Department, of course,
will reassess the maternal grandmother.” The juvenile court
agreed with the Department and denied without prejudice
mother’s request to assess maternal grandmother for placement.
At that same January 19, 2022 hearing, the juvenile court
terminated mother’s reunification services and set the matter for
a permanency planning hearing. Mother filed a notice of intent
to file writ petition challenging the day’s orders. After review,
however, mother’s attorney found no viable issues for review and,
therefore, notified mother and the court that she would not file a
writ petition under California Rules of Court, rule 8.452. Mother
did not file a writ petition in propria persona. Accordingly, this
court dismissed the matter. (S.M. v. Superior Court (Apr. 28,
2022, B318072).)
7
In mid-2022, the Department reported daughter continued
to do well in the home of foster parents Mr. and Mrs. M.
A Department social worker reported daughter “appears
comfortable and happy with the prospective adoptive parents and
naturally seeks comfort from them” and tells them “I love you.”
However, Mrs. M. reported that, as daughter grew older, visits
with mother began to have a “negative impact on the child’s
behavior in the home” and at her daycare. After some visits,
daughter feared the bathtub and screamed when Mrs. M. tried to
bathe her or wash her hair. After one visit, daughter exposed
herself to a father of another child at daycare. Another time,
daughter “spread her feces all over a crib and walls in a room” at
daycare. Daughter underwent a child abuse consultation and
forensic medical exam because foster mother reported daughter
fondled herself and exposed herself to adult males. The
examination could neither confirm nor exclude sexual abuse.
At a July 2022 permanency planning hearing, counsel for
mother made an oral motion that daughter be placed with
maternal grandmother. Counsel for the Department noted, “[W]e
are post-termination of family reunification services with the
recommendation of adoption with the current caregivers. Any
request to change the minor’s placement at this time would not
be appropriate, especially without a 388 filing.” The juvenile
court denied the motion for the reasons stated by the
Department.
In January 2023, the Department reported foster mother
Mrs. M. had stated, “ ‘I need the visits to stop because they are
affecting [daughter’s] behavior.’ ” In the same report, the
Department noted at visits, daughter was “excited to see her
mother by smiling and laughing when her mother approaches the
8
car to remove[] her from her car seat. After visits [daughter] puts
her head down in a sad motion and pouts. [Daughter] is very
connected to both her mother and grandmother.”
Although Mr. and Mrs. M. consistently expressed their
desire to adopt daughter, over time the Department developed
concerns about their ability to do so. In January 2023, the
Department requested “additional time to address the concerns
as to [Mr. M.’s] referral history, obtain the clearances for [a] new
adult [in the foster home] and address the concerns as to the
caregiver’s parenting skills.” It was noted foster mother Mrs. M.
may have taken on too much as she was her adult-son’s part-time
caretaker, had four dependent children, including daughter, in
her care, and was caring for her mother-in-law who had
dementia. Also, a few people familiar with the family observed a
lack of a bond between Mrs. M. and daughter.
On June 9, 2023, after almost three years with Mr. and
Mrs. M., the juvenile court ordered daughter removed from their
home due to safety concerns. The court also modified mother’s
visits and ordered that they take place at a Department-approved
or neutral location, with a social worker or “HSA” present, and no
unapproved people present. The Department was ordered to
assess monitors proposed by mother and to assess maternal
grandmother’s home for visits. At that hearing, mother also
made an oral request that maternal grandmother be assessed for
placement. Counsel for mother stated, “At this time, we are just
asking for the assessment to determine whether or not it would
be appropriate to have [daughter] released to [maternal
grandmother’s] home, pending the results of the investigation”
into the concerns necessitating daughter’s removal from Mr. and
Mrs. M.’s home. Mother also had filed a relative information
9
sheet, listing maternal grandmother and a maternal uncle who
lived with maternal grandmother. Given the concerns still being
investigated, however, the juvenile court did not place daughter
with maternal grandmother or with any relative.
Instead, daughter was placed with a different foster parent,
Ms. Z., who previously worked at a home for the mentally
challenged and had experience fostering children and working
with autistic children. Ms. Z. said daughter “fit right in since
arriving to the home” and soon began calling Ms. Z. “mommy.”
Mother’s monitored visits with daughter continued and took
place at a Department office. In July 2023, a Department social
worker reported daughter was “happy during the visit, constantly
hugging and kissing her mother.” However, the social worker
also reported daughter “regress[ed] in her development when
visiting with the mother, reverting to acting younger, not using
her speech to request what she wants such as a juice cup or toy,
she constantly reaches for her mother to hold her, and crying
more than usual.”
In September 2023, a Department social worker reported
daughter had formed a bond with Ms. Z., calling her “mom,”
initiating hugs, saying “I love you,” and stating she wanted to
stay with Ms. Z. “until she is a big person.” According to Ms. Z.,
daughter had “made amazing progress at home,” “was potty-
trained in a matter of a few days,” and had “developed a sisterly
bond with the caregiver’s younger children.” Ms. Z. said she had
worked with autistic children with “more difficult needs than
[daughter].” Ms. Z. was working with a therapist to address
daughter’s “intense fear of showers.” Ms. Z. said she had formed
a strong bond with daughter, loved her “deeply,” and wanted to
10
adopt her. Ms. Z. felt “it was meant to be that [daughter] came to
her home.”
Around the same time, and as the court previously had
ordered, the Department assessed maternal grandmother as a
potential monitor and her home as a location for visits. The
Department found the home “neat and clean with no safety
concerns noted.” The Department concluded maternal
grandmother’s home was “appropriate for visitation at this time.”
In September 2023, the juvenile court authorized monitored
visits for mother and daughter in maternal grandmother’s home
only. The court ordered mother’s contact with anyone in the
home must be monitored, and visits in any other location had to
be approved in advance by the Department.
In November and December 2023, the Department reported
daughter’s adoption by Ms. Z. had been approved. The
Department recommended that the juvenile court terminate
parental rights.
At a November 17, 2023 hearing, counsel for mother
renewed her request that maternal grandmother be assessed for
placement. The Department objected to the request, stating it “is
ready to terminate parental rights” and daughter had been in her
new placement, which was “adoption ready,” for several months.
The juvenile court denied mother’s request.
In early January 2024, a Department social worker spoke
with daughter’s therapist, who “did not believe that the visits
with the mother are healthy for [daughter] as there is strong
regression during the sessions after the visits occur.” She
explained, daughter “ ‘regresses to becoming nonverbal after
visitations, using the restroom on herself, and constant crying.’ ”
The therapist did not believe daughter had “a connection with the
11
mother after the visits.” According to the therapist, daughter
could not answer questions about visits with mother other than
to say what food she ate. The social worker also spoke with Ms.
Z., who reported mother “continually harasses” her after visits
“about [daughter’s] hair care, diet, and several other issues, that
are not true.” Ms. Z. “tried to be patient with the mother, but the
mother continues to aide in [daughter’s] behavior regressing to
that of an infant.” The social worker reiterated that, during
visits with mother, daughter was happy but her behavior
regressed. Mother’s visits were consistent and monitored.
5. Mother’s Section 388 Petition and Termination of
Parental Rights
The permanency planning hearing originally was scheduled
for May 2022. However, the hearing was continued several times
for a variety of reasons. Ultimately, it was held close to two years
later, on January 9, 2024.
The day before the permanency planning hearing, mother
filed a section 388 petition, asking the court to order
“Reinstatment of reunification services.” Mother stated she had
enrolled in a treatment program “to complete the remaining
components of my case plan as well as to make up for my missed
testing.” She “expect[ed] to complete treatment February 2024.”
Mother believed the requested order was best for daughter
because mother “visit[s] consistently and ha[s] a bond with my
daughter.” Mother attached an enrollment letter from the
treatment program, which stated mother had enrolled in a “Day
Treatment/Outpatient/Residential Substance Abuse Program” in
October 2023.
At the January 9, 2024 permanency planning hearing, the
juvenile court first addressed mother’s section 388 petition.
12
Counsel for mother requested the court either continue the
hearing, so the Department could “properly and fully address
mother’s 388 and for a report,” or grant the section 388 petition.
Counsel for daughter and for the Department both urged the
court to deny the section 388 petition. Finding no changed
circumstances and that the section 388 petition was not in
daughter’s best interest, the juvenile court denied the 388
petition without a hearing.
The court then turned to the permanency planning hearing.
At the start of the hearing, mother’s attorney renewed mother’s
request that daughter be placed with maternal grandmother.
Counsel noted maternal grandmother had moved into a larger
apartment. The juvenile court ruled, “Considering the timing,
the request is denied.”
Mother testified. She said she visited with daughter two
days a week for three to four hours each time. Maternal
grandmother monitored the visits and interacted with daughter.
Mother stated during visits she made food for daughter, played
with her, and taught her age appropriate things. Mother also
said she learned daughter was autistic from a Department report
she received in the mail. After that, mother researched autism to
learn more. Mother testified she had never met daughter’s
therapist. Mother did not agree with the therapist’s report that
daughter regressed after visits. Mother described daughter as
happy and eager to see her.
Mother’s counsel argued mother qualified for the beneficial
parental relationship exception to adoption and, therefore, the
juvenile court should not terminate mother’s parental rights.
Counsel urged the court not to put too much weight on the
therapist’s statement that daughter regressed after visits.
13
Mother’s counsel noted the therapist had never attended one of
mother’s visits with daughter and it was speculative to try to
determine why daughter regressed. Counsel believed mother had
“demonstrated a significant parent-child bond that the court
should not terminate.”
Counsel for daughter and for the Department agreed
mother had shown consistent and regular contact with daughter
but, nonetheless, urged the court to terminate parental rights.
Daughter’s attorney did not believe mother had shown a
substantial and emotional attachment with daughter, noting
daughter was a happy child, whether with mother or with others.
Daughter had formed a quick and strong bond with Ms. Z., which
had greatly benefitted daughter. Counsel for the Department
argued Ms. Z. filled the parental role, which included handling
daughter’s difficult behaviors, while mother acted more like a
close family friend, who enjoyed happy play dates with daughter.
The court held it was likely daughter would be adopted and
no exceptions to adoption applied. The court found mother had
maintained consistent visitation with daughter but had not
formed the necessary bond with her. Noting daughter’s therapist
was a non-interested party, the court gave more weight to the
therapist’s assessment of “the effects of mother’s visits with
[daughter]” than to mother’s assessment. In addition, the court
explained Ms. Z. corroborated the therapist’s reports that visits
had a negative effect on daughter. Finally, the court noted,
“There is no evidence that when [daughter] is reverting that she
is requesting to visit mother or any evidence that there is a
request to visit mother at all. It seems more like play dates.”
The court terminated mother’s parental rights, as well as those of
14
L.S. and A.P., and ordered adoption with Ms. Z. as daughter’s
permanent plan.
6. Facts Relevant to ICWA/Cal-ICWA
a. Mother
Initially, mother reported her family might have Cherokee
Indian ancestry. However, mother had no tribal registration
number, and no relatives with tribal affiliation were found prior
to daughter’s initial placement. Soon after, mother filed an
ICWA-020 form stating she had no known Indian ancestry.
Mother again denied Indian ancestry prior to the adjudication
hearing.
During a July 2022 hearing, maternal grandmother told
the court she believed she had Native American ancestry because
her “daughter recently got a blood test” that “shows [they] have
Native American ancestry.” Maternal grandmother stated she
“was going to do the test” but she had not yet done so. The court
ordered the Department to ask “maternal grandmother and any
known relatives regarding ICWA, if it hasn’t already done so.”
b. Alleged and Presumed Fathers
L.S. twice denied having Indian ancestry. N.A. also denied
Indian ancestry, and the court found there was no reason to
believe ICWA applied to him. A.P. reported “there is no known
history of ICWA in his family.” He refused to provide names of
his relatives. The juvenile court held ICWA did not apply to A.P.
7. Appeal
Mother appealed. In her notice of appeal, mother stated
she was appealing from “1/9/2024 Denial of Continuance; Denial
of Setting 388 for Hearing; Termination of Parental Rights.”
15
DISCUSSION
1. Section 388 Petition
Mother argues the juvenile court erred when it summarily
denied her section 388 petition without a hearing. Mother claims
she made a prima facie showing of both changed circumstances
and that the requested modification would be in daughter’s best
interest. As discussed below, we find no error.
a. Applicable Law
A parent of a dependent child may seek modification of an
order “upon grounds of change of circumstance or new evidence.”
(§ 388, subd. (a)(1).) “[T]he parent must sufficiently allege both a
change in circumstances or new evidence and the promotion of
the child’s best interests.” (In re G.B. (2014) 227 Cal.App.4th
1147, 1157.)
The juvenile court is not required to hold a full hearing on a
section 388 petition. “The parent seeking modification must
‘make a prima facie showing to trigger the right to proceed by
way of a full hearing. [Citation.]’ [Citations.] There are two
parts to the prima facie showing: The parent must demonstrate
(1) a genuine change of circumstances or new evidence, and that
(2) revoking the previous order would be in the best interests of
the children. [Citation.] If the liberally construed allegations of
the petition do not show changed circumstances such that the
child’s best interests will be promoted by the proposed change of
order, the dependency court need not order a hearing.” (In re
Anthony W. (2001) 87 Cal.App.4th 246, 250.)
“After the termination of reunification services, the
parents’ interest in the care, custody and companionship of the
child are no longer paramount. Rather, at this point ‘the focus
shifts to the needs of the child for permanency and stability.’ ”
16
(In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Thus, “after
reunification services have terminated, a parent’s [section 388]
petition for either an order returning custody or reopening
reunification efforts must establish how such a change will
advance the child’s need for permanency and stability.” (In re
J.C. (2014) 226 Cal.App.4th 503, 527.)
b. Standard of Review
“We review the juvenile court’s summary denial of a section
388 petition for abuse of discretion.” (In re Anthony W., supra, 87
Cal.App.4th at p. 250.) “ ‘ “The appropriate test for abuse of
discretion is whether the trial court exceeded the bounds of
reason. When two or more inferences can reasonably be deduced
from the facts, the reviewing court has no authority to substitute
its decision for that of the trial court.” ’ ” (In re Stephanie M.,
supra, 7 Cal.4th at pp. 318–319.) A court exceeds the limits of
discretion if its determination is arbitrary, capricious, or patently
absurd. (Id. at p. 318.)
c. Analysis
We agree with the Department that mother failed to
demonstrate changed circumstances. In her section 388 petition,
mother pointed to her enrollment in a treatment program “to
complete the remaining components of my case plan as well as to
make up for my missed testing” as her changed circumstance.
Mother attached to her section 388 petition a November 2023
letter from the treatment center stating that, the month before,
she had enrolled in either a “Day Treatment,” “Outpatient” or
“Residential” substance abuse program (the letter does not
specify which). The letter also states mother would attend
“treatment” and “12-Step Program meetings.” The letter does not
mention drug testing or whether mother had completed any drug
17
tests since enrolling in the program, let alone whether or how she
had benefited from the program or participated in counseling,
which also was part of her case plan. The letter was not, as
mother describes it on appeal, a “progress letter.” On this record,
at best, mother presented changing circumstances, which was not
enough. (In re Casey D. (1999) 70 Cal.App.4th 38, 47,
disapproved on other grounds in In re Caden C. (2021) 11 Cal.5th
614, 636, fn. 5.)
Mother also failed to demonstrate that the requested
change of order (i.e., reinstatement of reunification services) was
in daughter’s best interest. In her section 388 request, in
response to why her requested change would “be better for the
child,” mother stated simply, “I visit consistently and have a bond
with my daughter.” Although the record supports a finding that
mother loved daughter and the two shared a bond, the record also
reveals both that daughter’s behavior regressed during and after
visits with mother and daughter’s therapist did not believe visits
with mother were “healthy” for daughter. On appeal, mother
posits daughter’s regressions could be because daughter missed
mother while they were apart or because daughter was still
adjusting to her new placement with Ms. Z. after years of living
with Mr. and Mrs. M. On appeal, however, we cannot reweigh
the evidence or substitute one inference for another. (In re
Stephanie M., supra, 7 Cal.4th at pp. 318–319.) On the eve of the
permanency planning hearing (which had been continued
multiple times over the course of close to two years), mother
failed to show how her proposed change of order would promote
daughter’s stability. (In re J.C., supra, 226 Cal.App.4th at
p. 527.)
18
The juvenile court did not abuse its discretion in summarily
denying mother’s section 388 petition.
2. Relative Placement
Mother argues the juvenile court erred by not ordering an
assessment of maternal grandmother as a relative placement for
daughter. Mother seeks reversal of the order terminating
parental rights and remand for a relative placement hearing.
a. Jurisdiction
As an initial matter, we address the Department’s two-
pronged argument that we lack jurisdiction to consider the
relative placement issue. First, the Department argues mother
did not appeal or otherwise challenge the juvenile court’s earlier
orders denying assessment for relative placement such that those
orders are now final. Second, the Department argues mother
failed to specify in her notice of appeal the court’s most recent
order (made at the January 9, 2024 hearing) denying her request
for relative placement.
Although we agree with the Department’s first argument,
we disagree with the second. Because mother did not appeal or
otherwise challenge the juvenile court’s earlier orders denying
her requests for relative placement, those orders are final and
mother cannot now challenge them on appeal. (§ 395,
subd. (a)(1).) The Department’s second point hinges on the fact
that, of the three orders specified in mother’s notice of appeal,
none was the court’s order denying her request for relative
placement. We do not read the notice of appeal so narrowly.
Indeed, as the Department recognizes, we must construe the
notice of appeal liberally. (Cal. Rules of Court, rule 8.100(a)(2).)
Here, the notice of appeal specified the following three orders
made at the January 9, 2024 hearing: the denial of a
19
continuance, the denial of mother’s section 388 petition, and the
termination of parental rights. Although the notice of appeal did
not specify the court’s January 9, 2024 order denying mother’s
request for relative placement, we conclude her appeal
encompasses that order, which was made at the same hearing as
the other identified orders. On appeal, mother contends the issue
of relative placement might impact the issue of termination of
parental rights, which clearly is a part of her appeal.2 In this
sense, we conclude mother preserved the issue of relative
placement for appeal.
b. Standing
The Department also argues mother lacks standing to raise
the issue of relative placement on appeal. On this point, we
agree.
“Not every party has standing to appeal every appealable
order. Although standing to appeal is construed liberally, and
doubts are resolved in its favor, only a person aggrieved by a
decision may appeal. [Citations.] An aggrieved person, for this
purpose, is one whose rights or interests are injuriously affected
by the decision in an immediate and substantial way, and not as
a nominal or remote consequence of the decision.” (In re K.C.
(2011) 52 Cal.4th 231, 236.) “[A] parent does not have standing
to raise relative placement issues on appeal, where the parent’s
reunification services have been terminated. [Citation.] This is
because decisions concerning placement of the child do not affect
the parent’s interest in reunification, where the parent is no
longer able to reunify with the child.” (In re A.K. (2017) 12
2 In the following section, we address the tenuous
connection between the relative placement issue and termination
of parental rights as presented in this case.
20
Cal.App.5th 492, 499.) Nonetheless, our Supreme Court has held
“[a] parent’s appeal from a judgment terminating parental rights
confers standing to appeal an order concerning the dependent
child’s placement only if the placement order’s reversal advances
the parent’s argument against terminating parental rights.” (In
re K.C., supra, 52 Cal.4th at p. 238.)
Mother recognizes the general rule that, once her
reunification services were terminated in January 2022, she
lacked standing to raise the relative placement issue on appeal.
Nevertheless, mother argues she has standing to raise the issue
in this appeal because (i) she asked multiple times below to have
maternal grandmother assessed for placement, (ii) she filed a
section 388 petition seeking to reinstate reunification services,
and (iii) placing daughter with maternal grandmother might
have impacted whether mother’s parental rights were terminated
and would have “furthered Mother’s bond and relationship with
[daughter] as maternal grandmother had been monitoring
Mother’s visits in her home without incident.”
We are not persuaded by mother’s arguments. First, as
noted above, other than her request made at the January 9, 2024
hearing, mother failed to appeal or otherwise challenge the
denials of her relative placement requests. Accordingly, those
rulings are not before us. Second, also as discussed above, we
find no error in the juvenile court’s order denying mother’s
section 388 petition. Finally, it is entirely and inappropriately
speculative to consider whether placement with maternal
grandmother might have impacted the court’s ruling on mother’s
parental rights. At best, and as mother recognizes, if we were to
reverse on the relative placement issue, the juvenile court would
hold a relative placement hearing under section 361.3. That
21
alone would not affect mother’s parental rights. Rather, mother’s
parental rights might be protected if, for example, maternal
grandmother wanted daughter to be placed with her, the juvenile
court believed it was in daughter’s best interest to have maternal
grandmother and her home assessed for placement, it was
determined maternal grandmother and her home were safe and
appropriate for daughter, daughter successfully lived with
maternal grandmother for some time, maternal grandmother was
unable or did not want to adopt daughter but instead opted for
legal guardianship, and the juvenile court determined legal
guardianship with maternal grandmother was in daughter’s best
interests. (See §§ 361.3, 366.26, subd. (c)(1)(A).) Such
speculation does not give rise to standing. (In re Cody R. (2018)
30 Cal.App.5th 381, 390; In re K.C., supra, 52 Cal.4th at p. 236.)
3. Beneficial Parental Relationship
Mother also argues the order terminating parental rights
must be reversed because the juvenile court erred when it failed
to apply the beneficial parental relationship exception to
adoption. We disagree.
a. Applicable Law
At the permanency planning hearing, the juvenile court
may terminate parental rights only upon finding the child is
likely to be adopted and no statutory exception to adoption
applies. (§ 366.26, subds. (b) & (c)(1).) Here, it is undisputed
daughter was likely to be adopted. Thus, our focus is whether a
statutory exception to adoption and the termination of parental
rights applies.
The exception mother raises is the beneficial parental
relationship exception. This exception is set forth in section
366.26, subdivision (c)(1)(B)(i), which provides: “[T]he court shall
22
terminate parental rights unless . . . [¶] . . . [¶] (B) The court
finds a compelling reason for determining that termination would
be detrimental to the child due to one or more of the following
circumstances: [¶] (i) The parents have maintained regular
visitation and contact with the child and the child would benefit
from continuing the relationship.”
To establish this exception, the parent must prove the
following three elements: “(1) regular visitation and contact, and
(2) a relationship, the continuation of which would benefit the
child such that (3) the termination of parental rights would be
detrimental to the child.” (In re Caden C., supra, 11 Cal.5th at
p. 631 (Caden C.).) “[I]n assessing whether termination would be
detrimental, the trial 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.
[Citation.] By making this decision, the trial court determines
whether terminating parental rights serves the child’s best
interests.” (Id. at p. 632.) “ ‘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.” (Id. at p. 633.) The
“ ‘statutory exceptions merely permit the court, in exceptional
circumstances [citation], to choose an option other than the norm,
which remains adoption.’ ” (Id. at p. 631.)
b. Standard of Review
When reviewing an order terminating parental rights and
rejecting application of the beneficial parental relationship
exception, we apply a hybrid standard of review. On the one
hand, “[a] substantial evidence standard of review applies to the
23
first two elements [of the exception]. The determination that the
parent has visited and maintained contact with the child
‘consistently,’ taking into account ‘the extent permitted by the
court’s orders’ [citation] is essentially a factual determination.
It’s likewise essentially a factual determination whether the
relationship is such that the child would benefit from continuing
it.” (Caden C., supra, 11 Cal.5th at pp. 639–640.)
On the other hand, the juvenile court’s determination on
the third element is reviewed for an abuse of discretion. As to the
third element, the juvenile court “makes the assessment by
weighing the harm of losing the [parent-child] relationship
against the benefits of placement in a new, adoptive home. And
so, the ultimate decision—whether termination of parental rights
would be detrimental to the child due to the child’s relationship
with his parent—is discretionary and properly reviewed for abuse
of discretion.” (Caden C., supra, 11 Cal.5th at p. 640.)
“In reviewing factual determinations for substantial
evidence, a reviewing court should ‘not reweigh the evidence,
evaluate the credibility of witnesses, or resolve evidentiary
conflicts.’ [Citation.] The determinations should ‘be upheld if . . .
supported by substantial evidence, even though substantial
evidence to the contrary also exists and the trial court might have
reached a different result had it believed other evidence.’ ”
(Caden C., supra, 11 Cal.5th at p. 640.) “Review for abuse of
discretion is subtly different, focused not primarily on the
evidence but the application of a legal standard. A court abuses
its discretion only when ‘ “ ‘the trial court has exceeded the limits
of legal discretion by making an arbitrary, capricious, or patently
absurd determination.’ ” ’ [Citation.] But ‘ “ ‘[w]hen two or more
inferences can reasonably be deduced from the facts, the
24
reviewing court has no authority to substitute its decision for
that of the trial court.’ ” ’ ” (Id. at p. 641.)
“At its core,” this hybrid standard of review “embodies the
principle that ‘[t]he statutory scheme does not authorize a
reviewing court to substitute its own judgment as to what is in
the child’s best interests for the trial court’s determination in
that regard, reached pursuant to the statutory scheme’s
comprehensive and controlling provisions.’ ” (Caden C., supra, 11
Cal.5th at p. 641.)
c. No Error
We assume mother satisfied both the first element (regular
visitation and contact with daughter) and the second element (a
relationship with daughter, the continuation of which would
benefit her) of the beneficial parental relationship exception. We
conclude, however, the juvenile court did not abuse its discretion
in determining mother failed to establish the third element.
As noted above, the third element requires the juvenile
court to “decide whether it would be harmful to the child to sever
the [parental] relationship and choose adoption.” (Caden C.,
supra, 11 Cal.5th at p. 633.) The court must determine “how the
child would be affected by losing the parental relationship—in
effect, what life would be like for the child in an adoptive home
without the parent in the child’s life.” (Ibid.) Although the loss
of a parental relationship, including the one in this case, may
cause detriment to a child, the question for the juvenile court is
whether the countervailing positives the child gains in a
permanent, stable home outweigh any such detriment. (Ibid.)
“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
25
child’s beneficial relationship with a parent.” (Id. at pp. 633–
634.)
Here, it was not an abuse of discretion to determine
adoption by Ms. Z. outweighed any detriment daughter might
experience by losing her relationship with mother. Although
daughter certainly enjoyed her time with mother, it was
reasonable to conclude maintaining their relationship did not
outweigh “ ‘the security and the sense of belonging a new family
would confer.’ ” (Caden C., supra, 11 Cal.5th at p. 633.) For most
of her young life, daughter has not lived with mother and her
visits with mother were always monitored. Moreover, daughter’s
therapist believed visits with mother were not “healthy” for
daughter. The therapist did not believe daughter had a
connection with mother, noting daughter was unable to talk
about her visits other than to say what food she ate. The
therapist, Mr. and Mrs. M., as well as Ms. Z., all observed
daughter to regress markedly after visits with mother. Similarly,
a Department social worker observed daughter’s behavior to
regress during a visit. Although mother attributes daughter’s
regression to her change of placement from Mr. and Mrs. M. to
Ms. Z., daughter was observed to regress after visits with mother
long before she was placed with Ms. Z. Moreover, our role is not
to reweigh the evidence or substitute our inferences for those of
the trial court. (Caden C., supra, 11 Cal.5th at pp. 640, 641.)
On the other hand, daughter had bonded quickly with Ms.
Z., calling her “mommy,” stating she wanted to stay with Ms. Z.
“until she is a big person,” and telling Ms. Z. she loved her.
Daughter was making measurable progress under her care. Ms.
Z. was able to offer daughter—a child with special needs—a
loving, safe, and stable home. On this record, we conclude the
26
juvenile court did not abuse its discretion when it refused to
apply the beneficial parental relationship exception here.
4. ICWA/Cal-ICWA
a. Applicable Law
“ICWA establishes minimum standards for state courts to
follow before removing Indian children from their families and
placing them in foster care or adoptive homes and does not
prohibit states from establishing higher standards.” (Dezi C.,
supra, 16 Cal.5th at p. 1129.) Under Cal-ICWA, the juvenile
court and the Department “have an affirmative and continuing
duty to inquire whether” a dependent child “is or may be an
Indian child.” (§ 224.2, subd. (a); Dezi C., supra, 16 Cal.5th at
pp. 1131–1132.) For these purposes, an “Indian child” is a child
who (1) is “a member of an Indian tribe,” or (2) “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); Welf. & Inst.
Code, § 224.1, subd. (a) [adopting federal law definition].)
Under Cal-ICWA, the Department and the juvenile court
have an initial “duty to inquire whether [a] child is an Indian
child.” (§ 224.2, subd. (b); id., subd. (a).) The Department
discharges this duty chiefly by “asking” family members “whether
the child is, or may be, an Indian child.” (Id., subd. (b).) This
includes inquiring of not only the child’s parents, but also others,
including but not limited to “extended family members.” (Ibid.)
“Extended family members” include the dependent child’s adult
“grandparent, aunt or uncle, brother or sister, brother-in-law or
sister-in-law, niece or nephew, first or second cousin, or
stepparent.” (25 U.S.C. § 1903(2); Welf. & Inst. Code, § 224.1,
subd. (c) [adopting federal law definition].) For its part, the
juvenile court discharges this duty “[a]t the first appearance in
27
court of each party” by asking “each participant present”
“whether the participant knows or has reason to know that the
child is an Indian child.” (§ 224.2, subd. (c).) This duty is often
referred to as the “initial duty of inquiry.” (Dezi C., supra, 16
Cal.5th at p. 1132.)
The second duty is the duty of the Department or the
juvenile court to “make further inquiry regarding the possible
Indian status of the child.” (§ 224.2, subd. (e).) This duty of
further inquiry is triggered if the Department or court “has
reason to believe that an Indian child is involved” because the
record contains “information suggesting” the child is an Indian
child, and, once triggered, obligates the Department to conduct
further interviews to gather information, to contact the Bureau of
Indian Affairs and state department of social services for
assistance, and/or to contact the relevant Indian tribe(s). (Ibid.)
“Reason to believe” is defined as “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.” (§ 224.2,
subd. (e)(1).)
The third duty is the duty to notify the relevant Indian
tribe(s). (§ 224.3, subd. (a); 25 U.S.C. § 1912(a).) This duty is
triggered if the Department or the court “knows or has reason to
know . . . that an Indian child is involved.” (§ 224.3, subd. (a).)
Recently, in Dezi C., supra, 16 Cal.5th at page 1128, our
Supreme Court addressed “whether a child welfare agency’s
failure to make a proper inquiry under California’s heightened
ICWA requirements constitutes reversible error.” The Dezi C.
court held, “[E]rror resulting in an inadequate initial Cal-ICWA
inquiry requires conditional reversal with directions for the child
welfare agency to comply with the inquiry requirement of
28
[Welfare and Institutions Code] section 224.2, document its
inquiry in compliance with [California Rules of Court,] rule
5.481(a)(5), and when necessary, comply with the notice provision
of [Welfare and Institutions Code] section 224.3.” (Dezi C., at
p. 1136.)
b. Analysis
Mother makes two ICWA-related arguments. First, mother
argues she is entitled to reversal because the juvenile court and
the Department failed to comply with Cal-ICWA inquiry as to her
side of the family. Specifically, mother notes the Department did
not ask a maternal aunt about possible Indian ancestry. The
Department counters any alleged insufficiencies were not
prejudicial and, therefore, not grounds for reversal.
On this point, we must agree with mother. Although the
Department asked mother and maternal grandmother about
possible Indian heritage, there is no indication the Department
contacted or tried to contact other available maternal relatives
(including a maternal aunt who acted as a monitor for visits) to
ask the same. As such, this case falls within our Supreme
Court’s recent Dezi C. opinion. Thus, given the inquiry error here
(i.e., failure to ask available maternal relatives about possible
Indian ancestry), we must conditionally reverse and remand to
the juvenile court so that the court and the Department can
satisfy their duties under ICWA/Cal-ICWA. (Dezi C., supra, 16
Cal.5th at p. 1136.)
Second, mother argues because maternal grandmother
stated one of her daughters (it is not known which one) “recently
got a blood test” that “shows [they] have Native American
ancestry,” the Department was required to make “further
inquiry” under Cal-ICWA. On this point, we do not agree with
29
mother. Both mother and the Department cite In re J.S. (2021)
62 Cal.App.5th 678. In that case, our colleagues in Division
Seven explained why a DNA test done through ancestry.com had
“little usefulness” when determining whether a dependent child
is an Indian child for purposes of ICWA. The court noted, not
only do such tests often return very generalized, unhelpful
results, but “ ‘[b]eing an “Indian child” is . . . not necessarily
determined by the child’s race, ancestry, or “blood quantum,” but
depends rather “on the child’s political affiliation with a federally
recognized Indian Tribe.” ’ ” (Id. at p. 689.) “In other words, an
Indian child is one with a tribal affiliation, not merely Indian
ancestry.” (In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1009,
disagreed with on other grounds in Dezi C., supra, 16 Cal.5th at
p. 1152, fn. 18.)
Although we do not know what type of blood test maternal
grandmother meant when she said her daughter “got a blood
test,” the principles discussed in In re J.S., supra, 62 Cal.App.5th
at pages 689–690, apply here. Maternal grandmother’s vague
reference to a “blood test” that “show[ed]” Indian ancestry is
insufficient to trigger the further inquiry requirement. Maternal
grandmother’s statement simply gave no “reason to believe”
daughter was an Indian child for purposes of ICWA and Cal-
ICWA. (See § 224.2, subd. (e)(1) [defining “reason to believe” as
“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”].) Although certainly on remand, the Department should
follow up on maternal grandmother’s statement about her
daughter’s blood test, we conclude that statement did not trigger
the duty of further inquiry under Cal-ICWA.
30
DISPOSITION
The juvenile court’s January 9, 2024 order is conditionally
reversed. The matter is remanded to the juvenile court for
compliance with the inquiry and notice requirements of Welfare
and Institutions Code section 224.2 and 224.3 and the
documentation provisions of California Rules of Court, rule
5.481(a)(5). Specifically, the court shall ensure that the
Department asks available maternal relatives as to daughter’s
potential Indian ancestry. If the juvenile court thereafter finds a
proper and adequate inquiry and due diligence has been done and
determines ICWA does not apply, then the court shall reinstate
its order terminating parental rights. If the court concludes
ICWA applies, then it shall proceed in conformity with ICWA and
California implementing provisions.
In all other respects, the court’s January 9, 2024 order is
affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
31