In re R.C. CA2/5 ( 2024 )

Filed 10/30/24 In re R.C. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE
In re R.C., A Person Coming Under B334810, B336370
the Juvenile Court Law.
___________________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No.
DEPARTMENT OF CHILDREN 21CCJP05373A)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
R.C.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Charles Q. Clay, III, Judge. Conditionally
reversed and remanded with directions.
Gina Zaragoza, under appointment by the Court of Appeal,
for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Stephen Watson, Senior Deputy
County Counsel, for Plaintiff and Respondent.
R.C. (Mother) is the mother of Ro.C. (Minor), who was just
over a year old when the juvenile court found her to be a
dependent child based on Mother’s no contest plea to allegations
arising from a history of mental and emotional problems. In this
consolidated appeal, we consider whether, later in the
dependency proceedings, the juvenile court erred by declining to
find changed circumstances justifying resumption of reunification
services, by ruling the parental benefit exception to statutory
provisions governing the termination of parental rights did not
apply, and by finding the Los Angeles County Department of
Children and Family Services (the Department) complied with its
obligations under the Indian Child Welfare Act (ICWA) and
related California law.1
I. BACKGROUND
A. The Department’s Initial Investigation and Detention
The Department began investigating Minor’s welfare in
November 2021. In an interview with a social worker, Mother
presented with a “flat affect” but denied she suffered from any
mental health issues and denied Minor was being neglected.
Asked about her living arrangements, Mother advised she was
“couch surfing at friend[s’] homes.” When the social worker
attempted to speak with Mother regarding obtaining a medical
assessment of Minor and establishing a safety plan (Minor
1
Minor’s father, whose parental rights were also terminated
by the juvenile court, was never identified during the dependency
proceedings and, accordingly, is not a party to this appeal.
2
appeared malnourished and underweight for her age), Mother
hurriedly left the interview.2
The social worker spoke with two maternal cousins, S.M.
and B.B., and a maternal aunt J.T. Two of the relatives reported
Minor’s father was the maternal grandfather and that he had
been sexually abusing Mother for years. Those same two
relatives also expressed reservations about Mother’s mental
health. All three, however, asserted they did not have any
concerns about Minor or Mother’s ability to care for the child.
The Department filed a dependency petition alleging Minor
was at substantial risk of suffering serious physical harm.
Department reports filed in connection with the hearing
indicated Mother previously lost her parental rights to two older
children due to substantiated allegations of general neglect. In
that earlier dependency proceeding, the court determined ICWA
was inapplicable to Minor’s siblings; on that basis, the
Department stated ICWA “does not apply” to Minor.
Two maternal relatives were present at the initial
detention hearing on the petition: the maternal aunt J.T. and a
maternal uncle W.B. The court addressed both relatives during
the hearing but did not inquire about whether Minor may be an
Indian child. The court ordered Minor detained from Mother and
issued a protective custody warrant for Minor and an arrest
warrant for Mother. Those warrants were recalled after Mother
and Minor were located two months later.
In February 2022, Mother was arraigned and denied the
petition’s allegations. In addition, she disclaimed orally and in
2
Ten days later, the Department filed a missing person’s
report for Mother and Minor.
3
writing any Indian heritage, and the juvenile court found “this
case is not governed by [ICWA].”
B. Jurisdiction and Disposition
The Department re-interviewed Mother before the
jurisdiction hearing. She reported she was still transient and
living with relatives. Although she continued to deny any mental
illness or condition, the Department investigator observed
Mother presented with “comprehension challenges”: she “did not
show a consistent capacity to understand questions” and was
“often off-topic and required refocusing.”
Maternal relatives also voiced concerns about Mother’s
mental health. For example, maternal cousin B.B., with whom
Minor had been placed, reported Mother had
“comprehension/cognitive deficits” that implicated her ability to
meet Minor’s needs. To illustrate, B.B. described Mother’s
attempt at Minor’s first birthday party to force feed formula to
her daughter even though Minor had progressed to eating solid
food. Other relatives, including maternal aunt B.H., related
similar concerns about Mother’s ability to provide for Minor’s
daily needs.
The Department subsequently filed an amended
dependency petition adding an additional count alleging a
substantial risk of serious physical harm (Welf. & Inst. Code,3
§ 300, subd. (b)(1)) and another count alleging Minor was at
substantial risk of abuse in connection with abuse of a sibling
(§ 300, subd. (j)). Both newly alleged counts alleged Minor was at
3
Undesignated statutory references that follow are to the
Welfare and Institutions Code.
4
risk in light of Mother’s history of mental and emotional
problems or her cognitive and developmental deficits; the counts
additionally alleged Minor’s two older siblings had received
permanent placement services due to Mother’s mental health
issues.
At a hearing in May 2022, Mother pled no contest to the
newly added counts (as amended by interlineation). The court
ordered monitored visitation and reunification services for
Mother. In addition, the court ordered Mother to complete a
developmentally appropriate parenting program, undergo an
Evidence Code section 730 psychological evaluation, and obtain
additional mental health services if recommended by the
psychological evaluator.
C. Termination of Reunification Services
In advance of the six-month status review hearing, the
Department reported Mother had completed a ten-week, on-line
parenting program. The program’s administrator observed that
although Mother completed the program, she had “challenges
completing the workbook and understanding the material.” The
administrator also told a Department social worker that “there is
something off” with Mother and opined she may have a “learning
disability.”
The Department also reported Mother underwent the
court-ordered psychological evaluation. The evaluator expressed
“significant concerns regarding [Mother’s] psychological and
emotional function” and opined it was “likely that [Mother’s]
potential cognitive delays interfere with parenting capacity, and
without services would present a continued risk of harm to her
children.” The evaluator recommended several services for
5
Mother and opined that “without ongoing services and supports,
the family is at substantial risk of recidivism.” Following the
Evidence Code section 730 evaluation, the Department provided
a mental health referral to Mother, but Mother did not act on
that referral.4
The Department also reported on Mother’s visitation,
which was consistent and revealed the existence of some bond
between Mother and Minor. Minor’s caregiver, maternal cousin
B.B., related Minor cried and was “very clingy” following in-
person visits with Mother. At the same time, B.B. reported
Minor’s emotional reaction to Mother’s departure dissipated
quickly after being soothed. The Department indicated Minor
was “happy, healthy and well-bonded” to B.B., who ensured the
child attended all medical appointments and was meeting age-
appropriate developmental milestones. On balance, the
Department found Mother to be in “partial compliance” with her
case plan and working toward meeting the plan’s goals. The
Department accordingly recommended continuation of
reunification services.
At the six-month status review hearing, held in November
2022, the juvenile court found Mother’s progress with her case
plan had “not been substantial.” Because there was a substantial
probability Minor might be returned to Mother within the next
six months, however, the court ordered the Department to
continue providing reunification services to Mother.
4
Mother had enrolled in mental health services before her
Evidence Code section 730 evaluation, but she stopped receiving
those services after two months.
6
As of March 2023, the Department reported Mother had
not shown “consistency in following through in receiving
services.” Mother remained homeless despite receiving multiple
housing referrals and, despite receiving numerous referrals for
mental health services, had not provided any proof of enrollment
in such services. A visitation monitor reported Mother was
attentive only “sometimes” and had to be “reminded to complete
simple tasks such as changing [Minor’s] diaper, . . . pick[ing food]
up off the floor, [and] not allowing [Minor] to put toxic items in
her mouth . . . . [M]other appears to be there just to visit and does
not know the basics of child supervision.” The Department
opined Mother did “not appear able to provide for [Minor’s] basic
needs[,] including food, water and shelter. Mother does not
appear able to properly care for [Minor] and has not fully
addressed the issues that brought her to the attention of [the
Department].” The Department further advised that Minor
appeared “comfortable” in the presence of B.B, with whom she
appeared to share a “close bond.” B.B. wanted to adopt Minor,
and the Department recommended termination of reunification
services.
At the 12-month review hearing, held that same month, the
juvenile court terminated family reunification services for
Mother, finding “the extent of progress made toward alleviating
and mitigating the causes necessitating placement has not been
substantial.”
D. Mother’s Changed Circumstances Petition and
Termination of Parental Rights
In June 2023, in advance of a scheduled section 366.26
selection and implementation hearing, the Department reported
7
Minor’s caregiver B.B. had provided her with a “great level of
care,” observed that Minor and B.B. shared “a loving and genuine
bond with one another,” and related B.B. was “committed to
providing a forever home” to Minor. The Department also
reported Mother was having weekly visits with Minor. Although
Mother was engaged “at times” with Minor during her visits, she
“had to be reminded of certain tasks[,] such as changing the
child’s diaper or feeding the child.” The Department also
recorded that it had asked Mother and B.B. if they had any
Native American ancestry and related that both parties stated
they had no new information and that there had been no mention
of such ancestry from any family members.
Three months later, in September 2023, the Department
reported Mother’s visits with Minor “remain[ed] the same”:
although Mother interacted in a “positive” manner with her
daughter, she “still ha[d] to be reminded to complete simple tasks
such as washing her hands after changing the child’s diaper,”
“allow[ed] the child to touch things she should not be touching,”
and did “not pay attention to the child when she beg[an] to climb
on things that c[ould] easily fall on her.” The Department also
reported Minor remained “happy, healthy and well-bonded” to
B.B, who, in the Department’s view, was a strong advocate for
Minor’s needs and served as a parental figure for Minor. The
Department recommended the termination of parental rights.
Later in September, Mother filed a section 388 petition
asserting there had been a change of circumstances justifying
resumption of reunification services. Mother argued she recently
completed a parenting course and, in recognition of how her
mental health affected her and Minor, had taken courses to
improve her mental well-being. Mother argued reinstatement of
8
reunification services, or a return of Minor to her care, would
serve Minor’s best interests because she and her daughter were
bonded as a result of Mother’s consistent visitation and Minor’s
emotional reactions at the conclusion of in-person visits.5
The Department opposed Mother’s change of circumstances
petition. The Department commended Mother for completing an
online parenting course for a second time but observed she
continued to struggle with comprehending the course material.
In addition, the Department reported the course’s administrator
stated she “would not feel comfortable allowing [Minor] to return
to [Mother’s] care without a suitable family member assisting
around the clock with Mother and child.” The Department
additionally opined Mother had not successfully addressed her
mental health issues because her recent enrollment in mental
health services did not establish participation in a sustained
manner.
The juvenile court held a hearing to consider permanency
planning for Minor and Mother’s section 388 petition in
November 2023. The court denied the section 388 petition,
finding that there was evidence circumstances were changing or
“amenable to change,” but no evidence of changed circumstances
nor evidence resuming reunification services would be in Minor’s
best interests. Proceeding to permanency planning, the court
terminated parental rights, finding the parental benefit exception
to termination inapplicable. The court agreed “Mother has
5
With her request, Mother submitted documentation
verifying her completion of the same on-line parenting course she
previously completed and a recent application for a psychological
evaluation and therapy services.
9
maintained regular visitation with [Minor] and has established a
bond” but found “any benefit that may accrue to [Minor] from her
continued relationship with Mother is outweighed by the physical
and emotional benefit that [she] will receive through the
permanency and stability of adoption . . . .”
II. DISCUSSION
The juvenile court’s denial of Mother’s changed
circumstances petition was not an abuse of discretion. Even
assuming for argument’s sake that Mother showed changed
rather than changing circumstances, Mother did not establish
reinstating reunification services was in Minor’s best interest.
The record showed Mother’s ability to care for and protect Minor
had not improved with time—likely because, during the two
years of dependency jurisdiction preceding the termination of
parental rights, Mother did not diligently seek or receive on a
sustained basis any mental health services.
The juvenile court also acted within its discretion when
deciding the parental benefit exception does not apply for the
reason it gave. When balanced against the demonstrated
benefits of the prospective adoptive home, the juvenile court did
not exceed the bounds of reason by finding that severing Mother’s
relationship with Minor would not be detrimental. Minor had
spent approximately two-thirds of her life in the care of B.B., to
whom she was closely bonded and regarded as a parental figure.
In contrast to Mother, B.B. had demonstrated an ability to
provide a “great” level of care for Minor.
Mother’s final contention, that the juvenile court’s ICWA-
related finding is infirm, has merit. The Department concedes no
ICWA-related inquiry was made of maternal aunt J.T. or
10
maternal uncle W.B., both of whom were both present at the
initial detention hearing. As we shall explain, this failure to
make inquiry of a detention hearing participant requires
conditional reversal of the parental rights termination order to
permit the inquiry that was not undertaken.
A. The Juvenile Court Did Not Abuse Its Discretion in
Denying Mother’s Section 388 Petition
Section 388 “accords a parent the right to petition the
juvenile court for modification of any of its orders based upon
changed circumstances or new evidence. [Citations.] To obtain
the requested modification, the parent must demonstrate both a
change of circumstances or new evidence, and that the proposed
change is in the best interests of the child. [Citations.]” (In re
Alayah J. (2017) 9 Cal.App.5th 469, 478.) Where, as here,
reunification services have been terminated, “the parents’
interest in the care, custody and companionship of the child are
no longer paramount” and a court considering the child’s best
interest in the context of a section 388 petition “must recognize
this shift of focus . . . .” (In re Stephanie M. (1994) 7 Cal.4th 295,
317; accord Alayah J., supra, at 478; In re K.L. (2016) 248
Cal.App.4th 52, 62.) Our review is for abuse of discretion. (In re
N.F. (2021) 68 Cal.App.5th 112, 120.)
The only argument Mother presents on appeal to contend
the trial court erred in finding an insufficient change of
circumstances is an argument that was not raised below. The
point is accordingly forfeited, and we decline to exercise our
discretion to address it. (See, e.g., In re S.B. (2004) 32 Cal.4th
1287, 1293; In re N.O. (2019) 31 Cal.App.5th 899, 935.) Even
assuming a sufficient change of circumstances showing was
11
made, however, the juvenile court’s order still was not an abuse
of discretion because there was an insufficient showing that
resuming reunification services would be in R.C.’s best interest.
Mother’s cited progress in addressing her skills as a parent
was, at best, uncertain. Over the course of two years, Mother
managed only to take one online parenting course twice and,
despite repeating the course, the record showed she gained little
insight into her responsibilities as a parent. Particularly telling
was the parenting course administrator’s statement, after
Mother’s second time participating in the course, that Mother
should not be allowed to care for Minor unless she had the full-
time assistance of another family member.
Visitation monitors also regularly reported Mother had
difficulty caring for Minor in the most basic respects, such as
attending to Minor’s need to have her diaper changed and
protecting her from obvious hazards. Mother also did not take
advantage of multiple referrals for mental health services. The
evidence Mother submitted in support of her change of
circumstances petition revealed, at most, that she had taken
preliminary steps to receiving therapy services and had done so
not long before filing the petition.
There was evidence the juvenile court credited to find
Minor had some bond with Mother, but there is also solid
evidence in the record that Minor was happy, healthy, and well-
bonded with her caregiver B.B., with whom she had lived for two
years and regarded as a parental figure.
On all these facts, the juvenile court did not abuse its
discretion in finding additional reunification services would not
be in Minor’s best interest. (See, e.g., In re Amber M. (2002) 103
Cal.App.4th 681, 686-687 [affirming denial of mother’s section
12
388 petition where her children had been out of her care for two
years and were attached to their caregivers].)
B. The Juvenile Court Did Not Err in Terminating
Mother’s Parental Rights
When a parent is unable to remedy issues that led to
dependency jurisdiction, the juvenile court holds a hearing under
section 366.26 to determine “whether to terminate parental
rights, making way for adoption, or to maintain parental rights
and select another permanent plan.” (In re Caden C. (2021) 11
Cal.5th 614, 625.) A “parent may avoid termination of parental
rights by establishing at least one of a series of enumerated
exceptions.” (Ibid.) One of these exceptions, set forth at section
366.26, subdivision (c)(1)(B)(i), is the parental benefit exception.
The exception is “limited in scope” and applies where “‘[t]he 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.’ (§ 366.26, subd. (c)(1)(B)(i).)
From th[is] statute, [our Supreme Court] readily discern[ed]
three elements the parent must prove to establish the exception:
(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.”
(Caden C., supra, 11 Cal.5th at 631.) Only the third element is
contested in this appeal.
Analyzing whether terminating a parental relationship
would be detrimental to a child requires the juvenile court to
determine “whether the harm of severing the relationship
13
outweighs ‘the security and the sense of belonging a new family
would confer.’ [Citation.] ‘If severing the natural parent/child
relationship would deprive the child of a substantial, positive
emotional attachment such that,’ even considering the benefits of
a new adoptive home, termination would ‘harm[ ]’ the child, the
court should not terminate parental rights. [Citation.]” (Caden
C., supra, 11 Cal.5th at 633, citing In re Autumn H. (1994) 27
Cal.App.4th 567, 575.) Relevant factual determinations include
“the specific features of the child’s relationship with the parent
and the harm that would come from losing those specific
features,” “how harmful in total that loss would be,” and “for the
particular child, how a prospective adoptive placement may offset
and even counterbalance those harms.” (Caden C., supra, at
640.)
A reviewing court uses the substantial evidence standard of
review to assess factual determinations underpinning a
detriment finding, “ranging from specific benefits related to the
child’s specific characteristics up to a higher-level conclusion
about the benefit of adoption all told.” (Caden C., supra, 11
Cal.5th at 640.) But “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.” (Ibid.)
Here, the juvenile court did not abuse its discretion in
determining that any harm that may result from terminating
Mother’s parental rights would be outweighed by the security and
stability Minor found living with her maternal cousin B.B.
Minor, who was almost three years old at the time parental
rights were terminated, was healthy, happy, and closely bonded
with B.B., with whom she had lived for approximately two
14
years—or almost twice as long as she had lived with Mother.
Although Mother was found to be consistent in her visitation and
the visits were enjoyed by both parties, the visits lasted only for a
couple of hours each week and Minor did not appear to suffer
from sustained separation anxiety or other emotional trauma
when the visits ended; to the contrary, after being soothed by
B.B. following Mother’s departure, Minor resumed playing with
no other ill effects being reported. In view of the “great” level of
care B.B. provided to Minor over the course of nearly two years,
the juvenile court’s determination that terminating parental
rights to enable B.B.’s adoption of Minor was not an abuse of
discretion. (See, e.g., In re A.L. (2022) 73 Cal.App.5th 1131,
1161-1162.)
C. Remand Is Required Because the Juvenile Court Did
Not Make ICWA Inquiry of Detention Hearing
Participants
Federal regulations implementing ICWA require state
courts “at the commencement of the proceeding” to ask “each
participant” in child custody proceedings whether they know or
have reason to know that the child is an Indian child and to
instruct the participants to inform the court if they subsequently
receive information that provides reason to know the child is an
Indian child. (25 C.F.R. § 23.107(a).) California law similarly
provides that “the court shall ask each party to the proceeding
and all other interested persons present whether the child is, or
may be, an Indian child” and “instruct the parties to inform the
court if they subsequently receive information that provides
reason to know the child is, or may be, an Indian child.” (§ 224.2,
subd. (c).)
15
Mother argues the juvenile court erred by not making
ICWA-related inquiry of (among others) maternal aunt J.T. and
maternal uncle W.B., both of whom were present at the detention
hearing. We agree it was error under Federal and State law for
the juvenile court not to make ICWA inquiry of maternal aunt
J.T. and maternal uncle W.B. (25 C.F.R. § 23.107(a); § 224.2,
subd. (c).) We shall accordingly conditionally remand the cause
with directions to correct the error.6 (In re Dezi C. (2024) 16
Cal.5th 1112, 1124 [“We therefore hold that an inadequate Cal-
ICWA inquiry requires conditional reversal of the juvenile court’s
order terminating parental rights with directions to the agency to
conduct an adequate inquiry, supported by record
documentation”].)
DISPOSITION
The order terminating parental rights is conditionally
reversed and the cause is remanded solely for further proceedings
required by this opinion. The juvenile court is directed to
reappoint counsel for Mother and either (a) hold a hearing to
6
The Department concedes a remand is required solely for
“compliance with the ICWA’s initial inquiry provisions” and
states that upon remand it “should make ICWA inquiry of (1)
maternal aunt J.T.; (2) maternal uncle W.B.; (3) maternal aunt
[B.]H.; and (4) maternal cousin [S.]M. . . . .” Our disposition will
not mandate inquiry co-extensive with the Department’s
concession, instead leaving what should be required to the
juvenile court’s determination in the first instance. Obviously,
however, nothing precludes the Department from voluntarily
undertaking the precise inquiry it now concedes it should have
undertaken.
16
permit the court itself to question maternal aunt J.T. and
maternal uncle W.B. about whether either has reason to know
Minor is an Indian child, or (b) direct the Department to question
maternal aunt J.T. and maternal uncle W.B. about whether there
is reason to know Minor is an Indian child and to thereafter
submit a report to the court documenting the relatives’ responses.
Nothing in our disposition precludes the juvenile court from
ordering additional ICWA-related inquiry, including of maternal
aunt B.H. and maternal cousin S.M., if the court deems it
advisable.
If additional inquiry results in information indicating there
is reason to know Minor is an Indian child, the juvenile court
shall proceed in accordance with ICWA and related California
law. If additional inquiry does not result in information
indicating there is reason to know Minor is an Indian child, the
court’s order terminating parental rights shall be reinstated.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, Acting P. J.
We concur:
MOOR, J.
KIM, J.
17