In re J.C. CA2/2

Filed 6/10/22 In re J.C. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 J.C., a Person Coming B314696
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No.
19CCJP01343A)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY ORDER MODIFYING
SERVICES, OPINION AND DENYING
REHEARING
Plaintiff and Respondent,
CHANGE IN JUDGMENT
v.
S.P.,
Defendant and Appellant.
THE COURT:
The opinion filed herein on May 20, 2022, is modified as
follows:
1. On pages 26 and 27, the second through fourth
sentences of the Disposition paragraph are deleted and replaced
with the following language:
We remand to the juvenile court for the Department and
the court to comply with the inquiry—and, if applicable,
notice—provisions of ICWA and California law consistent
with this opinion, including inquiring of the maternal
extended family members. After ensuring the Department
has complied with the inquiry—and, if applicable, notice—
provisions of ICWA and California law, the juvenile court
shall determine whether son is an Indian child. If the
juvenile court determines son is not an Indian child, the
order terminating parental rights shall remain the order of
the court. If the juvenile court determines son is an Indian
child and ICWA applies, the court shall vacate the order
terminating mother’s and father’s parental rights and
proceed consistent with ICWA and California law.
Accordingly, the Disposition paragraph on pages 26 and 27
now reads in full:
The August 17, 2021 order is conditionally affirmed. We
remand to the juvenile court for the Department and the court to
comply with the inquiry—and, if applicable, notice—provisions of
ICWA and California law consistent with this opinion, including
inquiring of the maternal extended family members. After
ensuring the Department has complied with the inquiry—and, if
applicable, notice—provisions of ICWA and California law, the
juvenile court shall determine whether son is an Indian child. If
the juvenile court determines son is not an Indian child, the order
terminating parental rights shall remain the order of the court.
2
If the juvenile court determines son is an Indian child and ICWA
applies, the court shall vacate the order terminating mother’s
and father’s parental rights and proceed consistent with ICWA
and California law.
This modification order changes the judgment.
Respondent’s petition for rehearing is denied.
NOT TO BE PUBLISHED.
LUI, P. J. ASHMANN-GERST, J. HOFFSTADT, J.
3
Filed 5/20/22 In re J.C. CA2/2 (unmodified opinion)
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 J.C., a Person Coming B314696
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No.
19CCJP01343A)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
S.P.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Tamara E. Hall, Judge. Conditionally affirmed
and remanded with directions.
Darlene Azevedo Kelly, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Brian Mahler, Deputy County
Counsel, for Plaintiff and Respondent.
__________________________________________
In this juvenile dependency appeal, S.P. (mother)
challenges the juvenile court’s order terminating her parental
rights to her 3-year-old son J.C. (son). Mother makes two
arguments on appeal. First, she argues the juvenile court erred
when it refused to apply the beneficial parental relationship
exception to termination of parental rights. We conclude both
that the juvenile court did not run afoul of our Supreme Court’s
recent decision addressing this exception to the termination of
parental rights (In re Caden C. (2021) 11 Cal.5th 614 (Caden C.))
and that substantial evidence supports the juvenile court’s
decision.
Second, mother argues the order terminating parental
rights must be reversed because the Los Angeles County
Department of Children and Family Services (Department) and
the juvenile court failed to satisfy their initial inquiry obligations
under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et
seq. (ICWA)) and related California law. In particular, mother
claims the Department failed to ask extended family members if
son is or may be an Indian Child and, therefore, the juvenile
court’s order finding ICWA inapplicable is not supported by
substantial evidence. We agree with mother that the
Department and the juvenile court erred under ICWA and that
those errors were prejudicial.
2
Accordingly, we conditionally affirm the juvenile court’s
order terminating parental rights and remand for the juvenile
court and the Department to comply expeditiously with their
initial inquiry obligations under ICWA and California law.
BACKGROUND
1. The Family
When the underlying proceedings began, mother was a
minor dependent of the juvenile court living in a group home.
She entered foster care when she was 14 years old and lived with
a foster family until she became pregnant with son. When
mother was approximately 17 years old, her mother died after
having a stroke. Mother has three sisters, with whom she has
supportive relationships.
Mother gave birth to son while she was a minor dependent
of the court. Son is her first child. When the underlying
proceedings began, mother was two months pregnant with her
second child, and when her parental rights to son were
terminated she was pregnant again. Son is the only child
involved in this appeal.
Son’s father, N.C. (father), also was a minor when son was
born. When the underlying proceedings began, father was a
ward of the juvenile court on mandatory supervision for
possessing narcotics on school property. His whereabouts were
unknown, he was believed to be homeless, and a juvenile warrant
had been issued for him. For much of the underlying
proceedings, father was incarcerated. His mother raised him
until he was five years old, at which time his great grandmother
took legal guardianship of him and his older brothers. Father is
not a party to this appeal.
3
Both mother and father have a history of drug abuse.
Mother was diagnosed with and prescribed medication for
depression and ADHD. At some point, mother stopped taking
medication but participated in therapy.
2. Petition and Detention
In February 2019 when son was 10 months old and in his
stroller with mother, mother engaged in a physical altercation
with other residents of the group home where she lived. As a
result, mother was taken to the hospital. Father picked up son
and dropped him off with father’s mother (paternal grandmother)
at the home of father’s grandmother (paternal great
grandmother). Father left no provisions or plan for son’s support.
Paternal grandmother did not know where father went after he
left son with her and did not know how to contact father or
mother. Because neither parent could be located, son was
detained and placed in a foster home.
On March 1, 2019, the Department filed a Welfare and
Institutions Code section 300 petition on behalf of son (petition).1
The petition’s six counts were brought under section 300
subdivisions (a), serious physical harm, and (b), failure to protect.
The counts alleged son was at risk of serious physical harm due
to mother’s history of violent altercations in son’s presence,
mother’s mental and emotional problems, including depression,
and her failure to take her medication as prescribed, mother and
father’s history of substance abuse and their current abuse of
marijuana, and father’s failure to make a plan for son’s care and
supervision. The petition also included ICWA form-010, which
1 Undesignated statutory references are to the Welfare and
Institutions Code.
4
indicated mother had been asked about Indian ancestry and had
“[d]enied any Native American Ancestry in the family.”
Mother was present at the detention hearing, which was
held a few days later. Father did not appear. At the hearing, the
juvenile court ordered son detained and ordered monitored visits
for both parents. The court noted mother had completed her
“parental notification of Indian status” form (ICWA-020), on
which she checked the box stating, “I have no Indian ancestry as
far as I know.” The court asked mother and paternal relatives
who were present whether father had any American Indian
ancestry. One or two unidentified paternal relatives responded,
“No, he doesn’t.” The court found it had “no reason to know that
ICWA applies to this matter” at the time. The court’s minute
order from the detention hearing stated, “The Court does not
have a reason to know that this is an Indian Child, as defined
under ICWA, and does not order notice to any tribe or the BIA.
Parents are to keep the Department, their Attorney and the
Court aware of any new information relating to possible ICWA
status.”
In late March 2019, father signed and filed his “parental
notice of Indian status” form (ICWA-020), on which he also
checked the box indicating he had “no Indian ancestry as far as I
know.” At the March 27, 2019 arraignment hearing for father
(for which both mother and father were present), the juvenile
court stated, “I have paperwork from the father stating that he
does not have Indian ancestry and the mother has no Indian
ancestry; right? American Indian ancestry?” Counsel for mother
responded, “The paperwork submitted at the detention hearing,
we had indicated that she does not.” The juvenile court then
found “ICWA does not apply in this case.” The court’s minute
5
order for the March 27 hearing stated, “The court does not have a
reason to know that this is an Indian Child, as defined under
ICWA, and does not order notice to any tribe or the BIA.” The
court ordered mother and father to advise the Department, court,
and their attorneys of any new information related to their ICWA
status.
As part of the Department’s continued investigation, a
Department social worker spoke with, among others, paternal
great grandmother. Paternal great grandmother indicated father
had serious substance abuse issues and often engaged in
arguments with mother.
3. Adjudication, Disposition, and Reunification
The jurisdiction hearing was held in April 2019. Both
mother and father attended the hearing. At the time, son was
placed with mother’s former foster parents, with whom mother
had maintained a close relationship. The juvenile court amended
the petition and mother entered a plea of no contest. The court
sustained four of the counts based on mother and father’s failure
to protect son related to mother’s violent altercations, father’s
failure to make an appropriate plan for son, and both parents’
substance abuse. The court dismissed the remaining counts. The
juvenile court declared son a dependent of the court and
continued its detention order.
The disposition hearing was held in June 2019. Both
mother and father were present. The juvenile court ordered son
removed from mother and father’s custody. The court ordered
mother to submit to weekly random or on-demand drug testing
and to participate in a substance abuse education program,
parenting program, anger management, and individual
counseling. Mother also was granted monitored visits with son.
6
In July 2019, son was replaced into the home of maternal
aunt and her husband.
In September 2019, mother gave birth to her second child,
another son (younger son). Her younger son was not a dependent
of the court and mother cared for him while living at her group
home. When her younger son was two months old, it was
reported mother had “been doing a good job taking care of [her
younger son] and is very attentive to him.” By that time, mother
also had enrolled in all court-ordered services and her visits with
son had progressed to overnight visits with no concerns.
At a December 2019 review hearing, the juvenile court
found mother’s progress in her case plan had been “substantial.”
On the Department’s recommendation, the juvenile court ordered
son returned to mother’s custody and care with family
maintenance services in place.
4. Subsequent Petitions, Removal, and Reunification
Period
In a status report filed May 22, 2020, the Department
reported, “within the last couple months mother appears to have
been gradually spiraling out of control.” The Department stated,
among other things, mother stopped drug testing, again began
displaying aggressive behavior toward peers both verbally and
physically, would be away without leave and not inform the
Department of her whereabouts, did not follow the rules of her
group home, and participated in a drug deal during which she
attempted to pay for drugs with fake money and her car was
“shot up.” Although mother had missed many drug tests and two
of her more recent tests were positive for marijuana, mother
denied any substance abuse and denied being involved in a drug
deal. Nonetheless, mother appeared to be attentive to her
7
children, had a strong relationship with son, and had been
consistent with her parenting classes.
The following week, the Department filed and the juvenile
court granted an application for the removal of son and his
younger brother from mother’s care. In its application, the
Department stated that a few weeks earlier, mother had been
found unresponsive in her car while her two young children were
in the back seat. Paramedics were called and administered
Narcan to mother, who regained consciousness and was taken to
an emergency room. Mother told doctors at the hospital she had
taken one Tylenol oxycodone that night. Later, however, when
speaking with a Department social worker, mother denied taking
anything other than Motrin and insisted she passed out in her
car because she had a headache. She refused medical treatment
at the hospital and walked out when the doctor left her alone.
She was diagnosed with an accidental oxycodone overdose. In its
application for removal, the Department also noted mother
recently had tested positive for marijuana and was driving with
her children “in a car without a license, insurance, or car
registration.” The Department detained the children and placed
them with mother’s former foster parents (collectively,
caregivers), with whom son already had spent some time and
with whom mother maintained a positive relationship.
A few days later, on June 2, 2020, the Department filed a
section 342 subsequent petition and a section 387 supplemental
petition on behalf of son.2 The one-count subsequent petition
2 The Department also filed a section 300 petition on behalf
of mother’s younger son, who was not yet a dependent of the
court. Because her younger son is not a party to this appeal we
discuss that case only to the extent relevant.
8
alleged son was at risk of harm under subdivision (b) of section
300 due to mother’s mental and emotional problems. In the
supplemental petition, the Department requested a more
restrictive placement for son based on mother’s alleged drug use,
including her oxycodone overdose in son’s presence and failure to
drug test as ordered by the court.
At the initial hearing on the new petitions (for which
mother but not father appeared), the juvenile court detained both
children from mother and ordered them to remain placed with
the caregivers. Mother was granted monitored visits with her
children. The court also reviewed the parents’ earlier ICWA
forms, through which they each had denied Indian ancestry. The
court again held ICWA did not apply.
In late June 2020, the day before her 19th birthday, mother
was discharged from her group home because she was “coming of
age.” She indicated her desire to participate in a transitional
housing program.
In July 2020, the juvenile court sustained the section 387
supplemental petition (regarding mother’s drug use and failure to
test). The court dismissed the section 342 subsequent petition
(regarding mother’s alleged mental and emotional problems).
The court declared mother’s younger son a dependent of the court
and ordered both children removed from mother. They remained
placed with the caregivers, i.e., mother’s former foster parents.
The court ordered mother to submit to weekly drug testing, a
drug and alcohol program, individual counseling, and a
psychological assessment. Mother was granted monitored
visitation generally and unmonitored visits in the home of the
caregivers.
9
In an August 2020 report for the court, the Department
reported mother struggled to find housing and at times was
difficult to contact. Although the Department was working with
mother to find transitional housing, significant challenges existed
in that many programs were not taking applicants due to the
Covid-19 pandemic, and mother lacked follow through and
refused to accept support. Mother continued to skip her court-
ordered drug testing and it did not appear she had enrolled in a
substance abuse education program. Since leaving her group
home, mother no longer participated in anger management
classes, but she continued, albeit inconsistently, with individual
therapy. Because mother was difficult to contact, the
Department asked the juvenile court to appoint caregivers as
partial educational rights holders for son so “critical services” for
son could be obtained in a timely manner. This report does not
address mother’s visits.
5. Termination of Reunification Services
In September 2020, the juvenile court terminated mother’s
reunification services and set the matter for a permanency
planning hearing.
The following month, mother enrolled in a substance abuse
program, which included random drug testing, group therapy,
and individual counseling. Approximately one month later,
however, mother was discharged from the program for lack of
consistent participation. Although the Department had provided
mother with additional referrals for court-ordered programs, by
February 2021, she had not enrolled in any. Nonetheless, mother
continued to attend weekly individual counseling sessions. In
April 2021, after mother was found in a car with her current
10
boyfriend and a loaded weapon, she was arrested for carrying a
concealed weapon.
In December 2020, the Department reported son “continues
[to] thrive in the home of the [caregivers]” and had developed “a
close bond and attachment to” them. The caregivers stated they
“have a family like relationship” with son and his younger
brother, both of whom the caregivers wanted to adopt if mother
and father failed to reunify with them. The Department also
reported that, although mother continued to visit with son, her
visits were “not consistent at this time.” When mother did visit,
the caregivers reported her visits were appropriate.
In February 2021, the Department again reported son was
“comfortable and happy around caregivers and appears to have a
close bond with [them].” The caregivers reported mother had
monitored visits with the children at their home. Because of the
Covid-19 pandemic, she saw the children less, but called or had
video chats with them when possible. At some point, mother was
able to resume regular monitored visits on weekends. Her visits
were appropriate and “the children enjoy spending time with
their mother.”
The Department consistently reported the caregivers
wanted to adopt son. The caregiver husband told a Department
social worker, “ ‘We want what is best for the children. We are
ready to proceed with adoption. My wife is in agreement as well.
We love the children and treat them like our grandchildren.’ ”
The husband also noted that, in the past, “his family had tried to
help [mother] change but everything was in vain” and “because of
experiences with [mother], he was uncertain if she would indeed
change.” The husband also stated, “ ‘We feel like the children are
our family. I feel like I’m their grandfather. We want the best
11
for them. I wouldn’t want them to live in another foster home or
not be safe somewhere else.’ ”
In August 2021, the Department filed a report for the court
regarding son’s younger brother, which report the juvenile court
admitted without objection as an exhibit for son’s permanency
planning hearing. In that report, the Department stated mother
“has not been in compliance with the court ordered services [in
her younger son’s case] . . . . Mother has not kept contact with
the department as her phone has been disconnected causing
issues with contacting her. Mother throughout this period of
supervision [February 2021 to August 2021] has changed her
number roughly 3 times and has failed to provide [the
Department social worker] with an updated contact. Mother has
not provided [the social worker] with information as to where she
is staying or living. Mother’s lack of communication and
transparency have made supporting her through her case plan
difficult as [the social worker] is unable to locate or reach her via
phone. [¶] . . . [M]other has not enrolled into any other program
to comply with her court ordered services [as to her younger
son].” The Department also reported mother had failed to follow
through with housing referrals, missed almost all of her court-
ordered drug tests, was “homeless and sleeps at her friend’s
house,” and was pregnant with her third child.
The Department also reported mother’s visits with her
children were inconsistent. When mother did visit, the caregivers
supervised, the visits went well, and there were no concerns. The
Department also noted, however, “Mother is not consistent with
her visitation and will go weeks without visiting or calling the
children.” In May 2021, mother told a Department social worker
“she had stopped visiting the children regularly and she was
12
avoiding contact with people because she was going through a lot.
Mother reported she would only send the children gifts via mail.
Mother reported she was ‘up to no good because I was dealing
with things.’ ” The Department stated, “Mother has a tendency
of not visiting the children when she is dealing with an emotional
stressor. Not visiting the children consistently causes the
children to question the caregiver as to the mother’s next visit
and when she will be coming to see them.” There was no report
of mother visiting her children after May 2021.
In its August 2021 report, the Department assessed the
younger son’s risk to be “high” if returned to his parents’ care.
The Department asked the juvenile court to terminate mother
and father’s reunification services as to their younger son.
Among other things, the Department noted mother had “shared
wanting her children . . . to be adopted by the caregiver so the
case can close and the baby she is expecting is not removed from
her care.” The Department also explained, “Mother is currently
expecting her third child and is already engaging in concerning
behaviors. Mother is not ensuring her safety let alone the safety
of her unborn child by driving in a car with a loaded gun.
Mother’s decisions are of concern as she is not demonstrating her
ability to care for her children or wanting to provide her children
with a safe or stable environment. Instead mother is engaging in
criminal activity and not testing for the department.”
6. Termination of Parental Rights
Son’s permanency planning hearing was held on August 17,
2021.
At the hearing, counsel for mother asked the juvenile court
either to grant mother more time because mother was “turning
her life around and very much does wish to continue her role as
13
[son’s] mother” or to find the beneficial parental relationship
exception to termination of parental rights (§ 366.26,
subd. (c)(1)(B)(i)) existed. Counsel represented that, for the past
two months, mother had resumed visiting her children at the
caregivers’ home “about two times a week.” According to counsel,
mother had confirmed “she was going through a difficult
emotional time [when she stopped visiting her children] and she
simply did not want her children to see her like that.” Counsel
also noted mother was very close with the caregivers, stating
“[s]he calls them mom and dad herself.”
On the other hand, counsel for the Department and for son
urged the court to terminate parental rights to son. Counsel for
the Department argued there was “no parent-child bond” between
mother and son that would prevent the court from terminating
her parental rights as to son. Counsel stated mother “does not
take a parental role in [son’s] life. The primary caretaking role is
taken by the caretakers.” Counsel for son similarly noted that,
although “mother does visit [son], the benefits of adoption
outweigh the connection. [Son] is just three years old. He’s lived
with the current caregivers for the majority of his life.”
At the conclusion of the hearing, the juvenile court found
no exception to adoption existed. Among other things, the court
noted mother had been unable to stabilize her life, had stopped
visiting her children, and when she did visit “it was more of a
friendship as opposed to a parental role.” The court also
considered and relied on the arguments made by counsel for the
Department and son. The court found mother “has not
maintained regular visitation with [son] and has not established
a bond with [son]” and “any benefit accruing to [son] from [his]
relationship with [mother] is outweighed by the physical and
14
emotional benefit [son] will receive through the permanency and
stability of adoption, and that adoption is in the best interests of
[son].” Accordingly, the court terminated mother and father’s
parental rights as to son. The court designated caregivers as
son’s prospective adoptive parents.
ICWA was neither raised nor discussed at the hearing.
7. Appeal
Mother appealed the juvenile court’s findings and orders
made at the permanency planning hearing.
DISCUSSION
Mother makes two arguments on appeal. First, she argues
the juvenile court erred when it determined she could not claim
the beneficial parental relationship exception to termination of
parental rights. Second, mother argues the Department and the
juvenile court committed reversible error by failing to satisfy
their initial duty of inquiry under ICWA and related California
law. We address each argument in turn.
1. Beneficial Parental Relationship Exception
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 son
was likely to be adopted. Thus, our focus is whether a statutory
exception to 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
terminate parental rights unless . . . [¶] . . . [¶] (B) The court
finds a compelling reason for determining that termination would
15
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.”
As our Supreme Court recently explained, 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.”
(Caden C., supra, 11 Cal.5th at p. 631.) “[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.) 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
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
16
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
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
17
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. The juvenile court did not err in determining
the beneficial parental relationship exception
did not apply.
Mother argues the juvenile court erred in assessing the
first element of the beneficial parental relationship exception. In
particular, she claims the court improperly found she had
“stopped” visiting son and had not maintained regular and
consistent visitation.
“The first element—regular visitation and contact—is
straightforward. The question is just whether ‘parents visit
consistently,’ taking into account ‘the extent permitted by court
orders.’ [Citation.] Visits and contact ‘continue[ ] or develop[ ] a
significant, positive, emotional attachment from child to parent.’
[Citation.] Courts should consider in that light whether parents
‘maintained regular visitation and contact with the child’
(§ 366.26, subd. (c)(1)(B)(i)) but certainly not to punish parents or
reward them for good behavior in visiting or maintaining
contact—here as throughout, the focus is on the best interests of
the child.” (Caden C., supra, 11 Cal.5th at p. 632.)
We conclude substantial evidence supports the juvenile
court’s finding that mother did not maintain regular and
consistent visitation. Although the record reveals mother’s visits
with son were positive, the record also reveals her visits were not
consistent. The inconsistency of mother’s visits is supported both
by the caregivers’ statements and mother’s own statements. At
the time of the permanency planning hearing as well as in a
18
report dated approximately eight months earlier, the evidence
was that mother’s visits were inconsistent. Further, it was
undisputed she had stopped visiting her children a few months
before the permanency planning hearing. There was no evidence
she resumed visiting her children, let alone consistently.
Although at the permanency planning hearing mother’s counsel
stated mother had resumed regular visits with son, the parties
agree statements by counsel are not evidence. (In re Zeth S.
(2003) 31 Cal.4th 396, 413, fn. 11.) To the extent mother points
to evidence in the record supporting her position on appeal, it is
not our role to “ ‘reweigh the evidence, evaluate the credibility of
witnesses, or resolve evidentiary conflicts.’ ” (Caden C., supra, 11
Cal.5th at p. 640.)
Nonetheless, even if the court’s finding on the first element
was not supported by substantial evidence and mother did in fact
maintain regular and consistent visits with son, the beneficial
parental relationship exception still would not apply because
mother failed to prove the third element.3 In other words, it was
not an abuse of discretion to conclude the benefits to son of an
adoptive home outweighed the harm from terminating mother’s
parental rights. (Caden C., supra, 11 Cal.5th at pp. 631–632.)
On the one hand, the evidence amply supports a finding
that son would benefit from adoption by the caregivers. For
example, son was three years old at the time of the permanency
planning hearing, he had lived a majority of his young life outside
of mother’s care, including more than one year in the caregivers’
home. The caregivers were willing to adopt son, were bonded
3We assume mother met the second element—i.e., son
would benefit from continuation of his relationship with mother.
(Caden C., supra, 11 Cal.5th at p. 632.)
19
with him, and already considered him a member of their family.
On the other hand, son enjoyed his visits with mother and
presumably would suffer some detriment if he no longer saw her.
It was reported he would ask about mother when she failed to
visit.
However, despite the two-and-a-half-year length of the
underlying proceedings, mother had been unable to alleviate
issues that contributed both to her inability to visit son regularly
as well as her inability to care for him. Mother stated she
stopped visiting her children because she had been “ ‘dealing with
things’ ” and “was going through a lot.” The Department stated,
“Mother has a tendency of not visiting the children when she is
dealing with an emotional stressor.” As the juvenile court stated
at the permanency planning hearing, mother continued to
struggle with stabilizing her life. For example, the record reveals
mother continued to use drugs, engaged in criminal activity, and
repeatedly failed to follow through with viable housing options
(thus, leaving her homeless). Of course, any one of these issues
let alone all of them together constitute emotional stressors.
Perhaps most telling, mother told a Department social worker in
May 2021, a few months before her parental rights were
terminated, that she wanted the caregivers to adopt son so that
the case would be closed and the child she was then-expecting
would not be removed from her.
Thus, given on the one hand the stability and permanence
offered by the caregivers and, on the other hand, mother’s
consistently unstable lifestyle which interfered with her ability to
maintain a consistent relationship with son and her seemingly
callous attitude toward son’s adoption, we conclude the juvenile
court did not abuse its discretion in determining the harm to son
20
in losing his relationship with mother did not outweigh the
benefits to son of placement in the adoptive home with the
caregivers. (Caden C., supra, 11 Cal.5th at p. 640.)
Relying on Caden C., mother argues the court erred when,
in rejecting the beneficial parental relationship exception, it
relied on “inapplicable” factors, such as mother’s noncompliance
with her case plan, the notions mother “had not changed” and her
life was unstable, her visits had stopped, and her visits were
“more of a friendship as opposed to a parental role.” Mother
misreads our Supreme Court’s ruling in Caden C. Contrary to
mother’s position, Caden C. does not prohibit a juvenile court
from considering “a parent’s continued struggles with the issues
that led to dependency.” Rather, our Supreme Court stated those
issues may not be used as “a categorical bar to applying the
exception,” but can be relevant to the juvenile court’s decision.
(Caden C., supra, 11 Cal.5th p. 637.) “Though there is no reason
for a court to consider ‘a second time’ the same struggles in the
same way, a parent’s struggles with substance abuse, mental
health issues, or other problems could be directly relevant to a
juvenile court’s analysis in deciding whether termination would
be detrimental.” (Id. at p. 639.)
As noted above, the juvenile court here did not categorically
bar application of the beneficial parental relationship exception
simply because mother had not sufficiently addressed the issues
that led to the court excising its jurisdiction in the first place.
Rather, the court properly considered son’s best interests in
weighing whether severing his relationship with mother—a
generally positive relationship that the court found to be more
akin to a friendship than a parent-child bond—would outweigh
the benefit of adoption by the caregivers, with whom son was
21
bonded and with whom he had lived for much of his young life.
The court determined, on balance, maintaining the parent-child
relationship did not outweigh the benefits of adoption. We do not
read Caden C. as prohibiting this analysis. Indeed, Caden C.
requires it. (Caden C., supra, 11 Cal.5th at pp. 632, 633, 638.)
2. ICWA
a. Applicable Law
“[The] ICWA reflects a congressional determination to
protect Indian children and to promote the stability and security
of Indian tribes and families by establishing minimum federal
standards that a state court, except in emergencies, must follow
before removing an Indian child from his or her family.” (In re
Austin J. (2020) 47 Cal.App.5th 870, 881–882; see also 25 U.S.C.
§ 1902.) For purposes of ICWA, an “Indian child” is an
unmarried individual under age 18 who is either (1) a member of
a federally recognized Indian tribe or (2) eligible for membership
in a federally recognized tribe and is the biological child of a
member of a federally recognized tribe. (See 25 U.S.C. § 1903(4)
[definition of “ ‘Indian child’ ”] & (8) [definition of “ ‘Indian
tribe’ ”]; see also Welf. & Inst. Code, § 224.1, subd. (a) [adopting
federal definitions].)
Under California law, the Department and the juvenile
court “have an affirmative and continuing duty to inquire” into
whether a dependent child “is or may be an Indian child.”
(§ 224.2, subd. (a); see also In re Benjamin M. (2021) 70
Cal.App.5th 735, 741–742.) “ ‘Following changes to the federal
regulations concerning ICWA compliance, California made
conforming amendments to its statutory scheme regarding
ICWA, effective in 2019. [Citation.] . . . [T]he resulting
clarification of law, found in part in section 224.2, “creates three
22
distinct duties regarding ICWA in dependency proceedings.” ’ ”
(In re H.V. (2022) 75 Cal.App.5th 433, 437.) The first duty—an
initial duty of inquiry—is at issue here.
The initial duty of inquiry requires “ ‘from the
[Department’s] initial contact with a minor and his family, . . . a
duty of inquiry to ask all involved persons whether the child may
be an Indian child. (§ 224.2, subds. (a), (b).)’ ” (In re H.V., supra,
75 Cal.App.5th at p. 437.) This includes the Department “asking
the child, parents, legal guardian, Indian custodian, extended
family members, others who have in interest in the child, and the
party reporting child abuse or neglect, whether the child is, or
may be, an Indian child” (§ 224.2, subd. (b); see also Cal. Rules of
Court, rule 5.481(a)(1)), as well as the juvenile court inquiring at
each party’s first appearance in the proceedings whether he or
she knows or has reason to know that the child is an Indian child
(§ 224.2, subd. (c); see also Cal. Rules of Court, rule 5.481(a)(2)).
Further inquiry and notice to the tribes (i.e., the second and third
ICWA duties) may be required only if there is “reason to believe”
or “reason to know” that the child is an Indian child based upon
this initial inquiry. (§ 224.2, subds. (d), (e) & (f); 25 C.F.R.
§ 23.107(c) (2019).) These further inquiry and notice
requirements are not at issue here.
b. Standard of Review
“We review claims of inadequate inquiry into a child’s
Indian ancestry for substantial evidence.” (In re H.V., supra, 75
Cal.App.5th at p. 438.) Where the facts are undisputed, we must
independently determine whether ICWA’s requirements have
been satisfied. (In re D.S. (2020) 46 Cal.App.5th 1041, 1051.)
23
c. The Department’s deficient initial inquiry
resulted in prejudicial error.
The Department did not satisfy its initial inquiry obligation
because it failed “ ‘to make a meaningful effort to . . . interview
extended family members to obtain whatever information they
may have as to the child’s possible Indian status.’ ” (In re A.C.
(2022) 75 Cal.App.5th 1009, 1015.) Although the Department
inquired of mother and father as to son’s potential status as an
Indian child, the Department did not ask the same of extended
family members, such as maternal aunts, paternal grandmother,
and paternal great grandmother, all of whom the Department
had contact with during the underlying proceedings. (§ 224.2,
subd. (b); see also Cal. Rules of Court, rule 5.481(a)(1).) To the
extent the juvenile court inquired of paternal relatives who
attended the initial detention hearing, that was insufficient
because we do not know who those relatives were or whether they
represent the whole of father’s extended relatives whom the
Department could contact. And of course, that in-court inquiry
does not address mother’s extended family members.
In light of the Department’s failings in this regard, we
must determine whether the juvenile court committed reversible
error when, based on insufficient evidence, it held ICWA did not
apply. The courts—including those within our Second District—
are at odds over whether and when such an error is prejudicial
and, therefore, reversible. As our colleagues in Division One
recently noted, “appellate jurisprudence has adopted a continuum
of tests for prejudice stemming from error in following California
statutes implementing ICWA ranging from a per se rule that any
error is always prejudicial, to a test . . . finding no prejudice
unless the appealing parent makes a proffer that interviewing
24
extended family members would yield information about
potential Indian ancestry.” (In re A.C., supra, 75 Cal.App.5th at
p. 1011.)
This case is similar to Division One’s recent decision in In
re A.C., supra, 75 Cal.App.5th at page 1009, where the court
found the Department’s “failure to ask extended family members
about potential Indian ancestry was prejudicial.” (Id. at p. 1011.)
Like the dependent children in In re A.C., son was placed for a
time during the underlying proceedings with extended family
members. (Id. at p. 1015.) When the initial referral was made,
son was in paternal grandmother’s and paternal great
grandmother’s care and, later, was placed for months with a
maternal aunt and uncle. Yet, in both cases the Department
failed to ask those extended family members—who were readily
available—about potential Indian child status. (Ibid.) Also, in
both cases, “[t]he juvenile court merely relied on mother’s and
father’s ICWA forms in concluding” the children were not Indian
children. (Ibid.) Although the court here also inquired of
unidentified paternal relatives at the detention hearing, as noted
above, we find that insufficient. Finally, like the mother in In re
A.C., mother here “was the product of foster care and thus may
not have known her cultural heritage. [Citation.] The same may
not have been true of her biological relatives.” (Id. at pp. 1015–
1016.)
Thus, under the specific facts of this case, we conclude the
Department’s failure to satisfy its initial inquiry obligations and
the juvenile court’s reliance on the insufficient information
resulted in prejudicial error. We acknowledge our conclusion is
less than ideal in that it delays son’s adoption and ultimate
stability and permanency. However, this is a case where
25
extended family members, particularly on mother’s side, may in
fact have meaningful information as to a child’s Indian ancestry
that the child’s parent might not have. As our Supreme Court
has explained, “We are mindful of the child’s need for a
permanent and stable home, and we agree that swift and early
resolution of ICWA notice issues is ideal. But the federal and
state statutes were clearly written to protect the integrity and
stability of Indian tribes despite the potential for delay in placing
a child. The provisions of the California statute just discussed, as
well as others, recognize the importance of properly determining
a child’s Indian status, even when a dependency proceeding has
progressed beyond the initial stages.” (In re Isaiah W. (2016)
1 Cal.5th 1, 12; see also In re A.C., supra, 75 Cal.App.5th at
pp. 1016–1017.)
Accordingly, although we affirm the juvenile court’s
decision to terminate parental rights, we conclude the matter
must be remanded so that proper ICWA inquiry may be made.
DISPOSITION
The August 17, 2021 order is conditionally affirmed. We
remand to the juvenile court for the Department and the court to
comply with the inquiry provisions of ICWA and California law
consistent with this opinion, including inquiring of the maternal
extended family members. If the juvenile court determines after
additional inquiry and a hearing that the Department has
satisfied its inquiry obligations under ICWA and California law
and there is no reason to believe son is an Indian child, the order
terminating parental rights shall remain the order of the court.
If after complying with the inquiry requirements of ICWA and
California law, the Department or the court has reason to believe
that son is an Indian child, the court shall vacate the order
26
terminating mother’s and father’s parental rights and proceed
consistent with this opinion and the inquiry and notice provisions
of ICWA and California law.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.
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