In re D.O. CA2/4

Filed 6/23/22 In re D.O. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re D.O., A Person Coming Under B315227
Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No.
AND FAMILY SERVICES, 19CCJP03120B)
Plaintiff and Respondent,
v.
S.W.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Ashley Price, Judge Pro Tempore.
Conditionally affirmed with directions.
Johanna R. Shargel, under appointment by the Court
of Appeal, for Defendant and Appellant.
Office of the County Counsel, Rodrigo A. Castro-Silva,
County Counsel, and William D. Thetford, Deputy County
Counsel, for Plaintiff and Respondent.
________________________________
INTRODUCTION
In September 2021, the juvenile court terminated the
parental rights of appellant mother S.W. and non-party
father Steven H. over their daughter D.O. (then two years
old) at a hearing brought under Welfare and Institutions
Code section 366.26.1 Additionally, despite claims from both
Mother and Steven of potential membership in Indian tribes,
the court found the Indian Child Welfare Act (ICWA)
inapplicable.
On appeal, Mother argues the court erred in declining
to apply the parental-benefit exception to terminating her
rights and further erred in finding ICWA inapplicable. The
Los Angeles County Department of Children and Family
Services (DCFS) contends the court did not err in declining
to apply the parental-benefit exception but does not oppose a
limited remand for compliance with ICWA.
We conclude the court did not err in finding the
parental-benefit exception inapplicable because substantial
evidence supported its finding that D.O. would not benefit
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2
from a continued relationship with Mother, and the court did
not abuse its discretion in determining that it was in D.O.’s
best interest to sever the parental relationship. We agree,
however, that a limited remand for ICWA-compliance is
appropriate.
STATEMENT OF RELEVANT FACTS
A. The Court Removes the Children
S.W. is the mother of Derek H. (born October 2008) and
D.O. (born May 2019). Michael H. is Derek’s father, and
Steven H. is D.O.’s father. In May 2019, DCFS received a
referral alleging general neglect of Derek. After an
investigation, DCFS filed a petition on behalf of Derek and
D.O., alleging counts under section 300, subdivisions (a),
(b)(1), and (j). The petition included allegations that Steven
had physically abused Derek, that Mother was aware of such
abuse but failed to protect Derek, that Mother had a history
of substance abuse, and that both parents had used drugs in
front of Derek.
Mother filed an ICWA-020 form, indicating she “may
have Indian ancestry,” and indicated the Blackfoot and
Cherokee tribes. At the May 2019 detention hearing (at
which the court detained both children from Mother,
releasing Derek to Michael and placing D.O. with foster
parents), the court ordered DCFS to investigate Mother’s
claim and send appropriate notices. In July 2019, Steven
filed an ICWA-020 form stating he “may have Indian
3
ancestry,” and indicated the Apache tribe through his
paternal grandmother. In response to a question from the
court at his arraignment, Steven indicated DCFS should
speak with his eldest brother for more information. The
court again ordered DCFS to investigate the claim and send
appropriate notices.
In its jurisdiction/disposition report, DCFS stated that
it had been unable to obtain information regarding Mother’s
potential tribal membership because it had been unable to
interview her.2 DCFS had sent notices to the Blackfoot and
Cherokee tribes; each notice contained a statement that,
according to the maternal grandmother, the maternal great
grandmother had received a monthly check from the
Blackfoot and Cherokee tribal bands. The record contains no
other details about DCFS’s investigation of Mother’s or
Steven’s potential Indian heritage. However, the court later
found ICWA inapplicable.
At the July 2019 adjudication hearing, Derek testified
-- consistent with earlier statements -- that Steven had been
physically abusing him, including hitting and choking him,
for several years. Steven denied such abuse, and Mother
claimed never to have witnessed it. The children’s counsel
joined in DCFS’s request that the petition, which had been
previously amended to dismiss allegations regarding
Michael, be sustained, and the court partially sustained the
2 Mother did not return phone calls and later informed a
social worker she did not wish to speak with anyone about the
allegations.
4
petition.3 Proceeding to disposition, the court removed the
children from Mother and Steven, keeping Derek with
Michael and D.O. with her foster parents.4 The court
ordered DCFS to provide family reunification services,
including for mother: a drug/alcohol program, testing,
parenting classes, and individual counseling.
B. Six and Twelve-Month Review Hearings
Following the children’s detention, Mother and Steven
visited Derek and D.O. on a weekly basis. Despite DCFS’s
informing Mother that Steven’s presence was distressing
Derek, Mother continued to bring Steven. Consequently,
after August 2019, Derek no longer visited with Mother and
D.O. When Mother asked about visiting Derek, a children’s
social worker (CSW) suggested weekend visits monitored by
Michael, but Mother refused, stating she did not want to
deal with Michael. With respect to court-ordered services,
Mother initially missed multiple tests, failed to attend a
scheduled meeting with the social worker, and expressed the
view that her children had been taken from her for “‘false
reasons.’” She eventually enrolled in a substance abuse
program, testing negative for drugs and positive for alcohol.
She continued to deny Steven had physically abused Derek.
3 The court dismissed allegations relating to a violent
altercation between Mother and the maternal grandmother.
4 In January 2021, the court terminated jurisdiction over
Derek, granting Michael sole legal and physical custody.
5
In January 2020, she refused to provide DCFS with her
residence address. In May 2020, after D.O.’s foster parents
stated they were not interested in providing a permanent
home for D.O., she was moved to a new foster home.
Though the six-month review hearing was originally
set for January 2020, it was delayed and continued for
various reasons until it was eventually set as a 12-month
review hearing in December 2020. At the hearing, Mother
testified that she visited D.O. weekly and called her daily.
During the visits, Mother would bring food and try to do the
typical things a parent would do with a child that age, such
as teach her the alphabet, draw a picture, or teach her about
cleaning her hands. Mother claimed D.O. loved the visits
and called her “‘momma.’” Mother confirmed she did not
believe Steven had physically abused Derek. No other
witnesses testified.
After argument from all counsel, the court found that
returning D.O. to her parents would be unsafe and
terminated family reunification services for both parents.
The court found Mother had only partially complied with her
case plan and had made insufficient progress in
understanding the potential risks to D.O., citing Mother’s
continued denial of Steven’s abuse of Derek and her failure
to undergo individual counseling. The court set both a
hearing to terminate parental rights under section 366.26
and a Permanency Planning Review Hearing. At the request
of both parents’ counsel, the court ordered a bonding study.
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C. The Bonding Study and Other Reports
The bonding study evaluator observed one visit
between D.O. and Mother in July 2021. She noted that
when D.O. was dropped off for her visit with Mother, she
excitedly went to Mother and focused her attention on
Mother, but also pointed to the door where the foster mother
had just exited and said, “‘Momma.’” D.O. appeared happy
to see Mother, and the evaluator noted that while D.O.
sought the evaluator out several times during the visit, it
was clear she favored Mother. The evaluator also noted an
incident in which D.O. was playfully hitting Mother in the
face with a small package of crackers and when Mother
asked her to stop, D.O. did not comply. D.O. also did not
comply with Mother’s requests to not hit the evaluator.
However, in other reports submitted to the court by
DCFS after the 12-month review hearing, a monitor for
Mother’s previous visits with D.O. opined that D.O. was a
“‘happy kid’” who “‘would already be happy (prior to [the]
visit)’” with Mother, supplementing the evaluator’s
observation that D.O. was happy to see Mother. The
monitor also related that D.O. would seek out others (such
as the monitor) during the visits, and that while D.O.
enjoyed the visits with Mother, she was also happy and
smiling when returned to the foster mother. Similarly, a
CSW noted that while D.O. had healthy visits with her
parents, she “was not strongly bonded with either parent,”
did not cry at the end of the visits, and at times even wanted
the visits to end early. The CSW also noted that in previous
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visits, D.O. was receptive to Mother when Mother played
with her, but when Mother attempted to instruct her, she
was “not wholeheartedly receptive . . . .” A DCFS addendum
report opined that the monitored visits were “comparable to
play dates and not a parent[-]child relationship.” A status
report submitted by DCFS noted that D.O. “ha[d] been
thriving” in the care of her foster parent and appeared to
have a “healthy and affectionate relationship” with her.
D. The Court Terminates Mother’s Parental
Rights
The hearing to terminate parental rights was
continued several times and, at an August 2021 hearing at
which Mother was present virtually, Mother’s counsel
requested a continuance, indicating Mother would likely
testify at the continued hearing. The request was granted,
but Mother did not appear at the continued September 2021
hearing. No witnesses testified, and the court heard
argument.
D.O.’s counsel agreed with DCFS’s recommendation to
terminate parental rights. Mother’s counsel asked the court
not to terminate parental rights, arguing that Mother had
regularly visited with D.O., that D.O. would benefit from
continuing the relationship, and that terminating it would
be detrimental to D.O. Steven’s counsel joined in the
argument of Mother’s counsel, adding that Steven cared
deeply for D.O. DCFS’s counsel acknowledged a bond
8
between D.O. and Mother but argued the court should
nevertheless terminate both parents’ rights because the
bond did not outweigh the other factors the court should
consider, such as the fact that D.O. was bonded to the foster
mother, who provided for her daily needs. D.O.’s counsel
agreed with DCFS’s counsel, pointing out that Mother’s
relationship with D.O. was more friendly than parental, and
arguing that the benefits of providing D.O. with a stable and
permanent home outweighed the detriments of terminating
parental rights.
Stating that it had read and considered the social
worker’s report, as well as DCFS’s exhibits 1 through 8
(exhibit 6 was the bonding study), the court found the
parental-benefit exception did not apply because D.O. had
“been with the caregiver since birth,” because her “daily
needs are being met by the caregiver,” and because D.O. was
two years old and therefore “the benefits of permanency and
stability through[] adoption are significant due to her age.”
The court expressly found that “any benefit accruing to the
child from . . . her relationship with the parents is
outweighed by the physical and emotional benefit the child
will receive through the permanency and stability of
adoption and that adoption is . . . in the best interest of the
child.”5 Having found D.O. adoptable, the court terminated
the parents’ rights. Mother timely appealed.
5 The minute order also contained the finding that “the
parent has not maintained regular visitation with the child and
(Fn. is continued on the next page.)
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DISCUSSION
A. The Court Did Not Err in Failing to Apply
the Parental-Benefit Exception
“Even when a court proceeds to select a permanent
placement for a child who cannot be returned to a parent’s
care, the parent may avoid termination of parental rights in
certain circumstances defined by statute. One of these is the
parental-benefit exception.” (In re Caden C. (2021) 11
Cal.5th 614, 629.)6 Our Supreme Court articulated “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.” (Id. at 631.)
On appeal from an order terminating parental rights,
we review factual findings for substantial evidence and the
decision whether termination of parental rights would be
detrimental for an abuse of discretion. (In re Caden C.,
has not established a bond with the child,” though the order does
not specify whether “parent” refers to Steven, Mother, or both.
6 Section 366.26, subd. (c)(1) “If the court determines . . . that
it is likely the child will be adopted, the court shall terminate
parental rights and order the child placed for adoption. . . unless .
. . [¶] . . . [¶] (B) The court finds a compelling reason for
determining that termination would be detrimental to the child”
because “(i) The parents have maintained regular visitation and
contact with the child and the child would benefit from
continuing the relationship.”
10
supra, 11 Cal.5th at 630.) “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.’”
(Id. at 640.) Further, “[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 reviewing court has no authority to substitute its
decision for that of the trial court.’”’” (Id. at 641.)
1. Substantial Evidence Supports the
Court’s Findings
When considering whether a child would benefit from
maintaining the relationship with the parent, “the focus is
the child. And the relationship may be shaped by a slew of
factors, such as ‘[t]he age of the child, the portion of the
child’s life spent in the parent’s custody, the “positive” or
“negative” effect of interaction between parent and child, and
the child’s particular needs.’ ([In re] Autumn H. [(1994)] 27
Cal.App.4th [567,] 576.) . . . [C]ourts often consider how
children feel about, interact with, look to, or talk about their
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parents.” (In re Caden C., supra, 11 Cal.5th at 632-633.)
Further, “when examining whether the parent-child
relationship exception applies[,] it is critical for the juvenile
court at the second step of the analysis to consider the
evidence showing whether the parent’s actions or inactions
‘continued or developed a significant, positive, emotional
attachment from child to parent.’” (In re B.D. (2021) 66
Cal.App.5th 1218, 1230.) An “emotional attachment is one
where the child views the parent as more than a mere friend
or playmate and who[se] interactions with the parent were
not ambivalent, detached, or indifferent.” (Ibid.)
The court found that D.O. was adoptable, that “any
benefit accruing to [D.O.] from . . . her relationship with the
parents is outweighed by the physical and emotional benefit
[she] will receive through the permanency and stability of
adoption[,] and that adoption is . . . in the best interest of
[D.O.]” Mother contends that substantial evidence did not
support the court’s findings. We disagree.
While it appears undisputed that Mother visited D.O.
on a weekly basis and the two shared an affectionate bond,
substantial evidence supported a finding that D.O. would not
benefit from maintaining the relationship with Mother. D.O.
had never lived with Mother, and several social workers
characterized their interaction as “comparable to play dates
and not a parent[-]child relationship.” The bonding study
evaluator noted that Mother had difficulty instructing D.O.
to stop inappropriate behavior. A social worker noted that
D.O. was generally a “‘happy kid’” who was happy to see
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Mother, but was also happy to return to the foster mother,
and at times even wanted the visits with Mother to end
early. There was also evidence that D.O. referred to her
foster mother as “‘Momma.’” On this record, we find
substantial evidence supported the court’s finding that
maintaining the parental relationship would not benefit
D.O.7
7 Mother argues that In re B.D., supra, 66 Cal.App.5th 1218supports reversal. We find the case inapposite. There, in
reviewing a juvenile court’s finding that the parents had not
shown that their children would benefit from a continued
relationship, the appellate court found the juvenile court had
improperly “relied heavily, if not exclusively, on the fact that the
parents had not completed their reunification plans and were
unable to care for the children based on their long-term and
continued substance abuse” without “examin[ing] how the
parents’ continued substance abuse impacted the nature of the
parent-child relationship.” (Id. at 1228.) The appellate court also
noted that “the record does not convince us that the juvenile court
examined the nature of the parent-child relationship before the
dependency proceeding or the visits and contact between the
parents and children during the dependency proceeding, to
evaluate whether a significant positive emotional attachment
existed between the parents and children.” (Ibid.)
Here, by contrast, there is no evidence the juvenile court
relied on Mother’s failure to complete her reunification plan, and
nothing suggests the court failed to consider the nature of her
relationship with D.O. In fact, the court made clear it had read
and considered the bonding study.
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2. The Court Did Not Abuse Its Discretion
“[I]n assessing whether termination [of the parental
relationship] 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.” (In re Caden C.,
supra, 11 Cal.5th at 632.) “[T]he question is just whether
losing the relationship with the parent would harm the child
to an extent not outweighed, on balance, by the security of a
new, adoptive home.” (Id. at 634.) “When the benefits of a
stable, adoptive, permanent home outweigh the harm the
child would experience from the loss of a continued parent-
child relationship, the court should order adoption.” (In re
B.D., supra, 66 Cal.App.5th at 1225.) Because “[i]nteraction
between natural parent and child will always confer some
incidental benefit to the child,” “we interpret the ‘benefit
from continuing the [parent/child] relationship’ exception to
mean the relationship promotes the well-being of the child to
such a degree as to outweigh the well-being the child would
gain in a permanent home with new, adoptive parents.” (In
re Autumn H., supra, 27 Cal.App.4th at 575.)
In deciding that it would not be detrimental to D.O. to
terminate Mother’s parental rights, the court stated that
D.O. had “been with the caregiver since birth,” that her
“daily needs are being met by the caregiver,” and that D.O.
was two years old and therefore “the benefits of permanency
and stability through[] adoption are significant due to her
age.” The court expressly found that “any benefit accruing to
14
the child from . . . her relationship with the parents is
outweighed by the physical and emotional benefit the child
will receive through the permanency and stability of
adoption and that adoption is . . . in the best interest of the
child.”
Mother argues the court abused its discretion because
its comments demonstrated it was improperly comparing
whether the foster mother would be a better caregiver.
Specifically, Mother points to the court’s statement that D.O.
had been with her caregiver since birth, and that her daily
needs were being met by the caregiver.8 We are
unpersuaded.
We interpret the significance of the court’s comment
regarding D.O.’s placement since birth as a finding that
Mother and D.O. had never developed a parental
relationship because they had never lived together.
Similarly, we interpret the comment regarding D.O.’s daily
needs being met by the caregiver as recognition that
severing the parental relationship with Mother would
deprive D.O. only of a playmate and not a caregiver. We do
not find these comments evidence of an improper comparison
between Mother and the foster mother. Based on the factors
discussed above, we conclude the court’s determination that
terminating Mother’s parental rights would not be
8 Mother also notes correctly that D.O. had been with her
current caregiver only since May 2020, approximately half the
child’s life.
15
detrimental to D.O. was a reasonable one, and thus within
its discretion.
B. A Limited Remand to Correct ICWA Defects
Is Appropriate
Mother argues the court erred in finding ICWA
inapplicable when DCFS conducted an insufficient
investigation and issued inadequate notices. DCFS does not
oppose a limited remand to address the deficiencies in its
investigation. Because the record contains little information
about the investigation that was conducted about Mother’s
potential tribal membership, and no information that any
investigation was conducted about Steven’s potential tribal
membership, we agree a limited remand is appropriate.
DISPOSITION
The court’s order terminating Mother’s parental rights
is conditionally affirmed. The matter is remanded to the
juvenile court with directions to order DCFS to investigate
Mother’s and Steven’s potential Indian heritage and, if
relevant information not contained in previous notices sent
in this case is discovered, send out new notices to the
relevant tribes in accordance with ICWA and California law.
DCFS shall thereafter inform the juvenile court of its
findings and actions, and the court shall hold a hearing to
determine whether the ICWA inquiry and notice
requirements have been satisfied and whether D.O. is an
Indian child. If the court finds she is an Indian child, it shall
16
proceed in conformity with ICWA and related California law.
Mother shall be notified of all hearings related to this
remand and shall have the right to appear and be
represented by counsel.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
MANELLA, P. J.
We concur:
COLLINS, J.
CURREY, J.
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