In re O.E. CA2/7

Filed 9/14/22 In re O.E. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
In re O.E., a Person Coming Under B314713
the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. DK23763)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
KIMBERLY M. et al.,
Defendants and Appellants.
APPEAL from orders of the Superior Court of Los Angeles
County, Susan Ser, Judge; Steven Ipson, Juvenile Court Referee.
Reversed with directions.
Jacques Alexander Love, under appointment by the Court
of Appeal, for Defendant and Appellant Kimberly M.
Elizabeth Klippi, under appointment by the Court of
Appeal, for Defendant and Appellant Orlando E.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Tracey Dodds, Principal Deputy
County Counsel, for Plaintiff and Respondent.
____________________________________
INTRODUCTION
Kimberly M. and Orlando E., mother and father of five-
year-old O.E., appeal from the juvenile court’s orders terminating
their parental rights under Welfare and Institutions Code section
366.26.1 They contend the court erred in ruling the parental-
benefit exception to adoption in section 366.26,
subdivision (C)(1)(b)(i), did not apply. They also contend the Los
Angeles County Department of Children and Family Services
failed to comply with the inquiry requirements of the Indian
Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and related
California law.
Because the juvenile court did not follow the analysis the
Supreme Court prescribed in In re Caden C. (2021) 11 Cal.5th
614 for determining whether the parental-benefit exception
applies, we agree with Kimberly and Orlando the court erred in
ruling it did not apply. We also agree with Kimberly, Orlando,
and the Department that neither the Department nor the
juvenile court complied with ICWA’s inquiry requirements.
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2
Therefore, we reverse the orders terminating parental rights,
remand for a new hearing under section 366.26, and direct the
juvenile court to ensure the Department complies fully with the
inquiry and, if necessary, notice provisions of ICWA and related
California law.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Juvenile Court Sustains a Petition Under
Section 300 and Removes O.E.
In August 2017, when O.E. was not quite two months old,
the Department detained him from Kimberly and Orlando and
filed a petition asserting juvenile court jurisdiction under
section 300, subdivision (b)(1). The Department alleged O.E. was
at substantial risk of serious physical harm as a result of, among
other things, his positive toxicology screen for marijuana after his
birth, Kimberly’s history of substance abuse, her current use of
marijuana that rendered her incapable of providing regular care
and supervision of O.E., Orlando’s history of illicit drug use, and
Orlando’s current use of amphetamine and methamphetamine
that rendered him, too, incapable of providing regular care and
supervision of O.E.
At the detention hearing, the juvenile court found the
Department made a prima facie showing O.E. was a person
described by section 300 and ordered him to remain detained.
The court ordered monitored visits for Kimberly and Orlando
with O.E. a minimum of three times a week for three hours each
visit. The court also ordered weekly random and on-demand
drug testing for Kimberly and Orlando.
3
In a jurisdiction and disposition report filed in September
2017, the Department indicated that since the detention hearing
Kimberly had missed two drug tests and on one occasion tested
positive for amphetamine, methamphetamine, and cannabinoids.
Orlando had also missed two drug tests. The Department stated
that on September 21, 2017 Kimberly and Orlando reported they
“had weekly monitored visits with [O.E.] . . . each Tuesday,
Thursday, and Friday from 9am to 12pm.”
In October 2017 the juvenile court held a combined
jurisdiction and disposition hearing. The court sustained all
allegations in the petition, found O.E. came within its jurisdiction
under section 300, subdivision (b)(1), declared him a dependent
child of the court, and removed him from Kimberly and Orlando.
The court ordered reunification services for both parents that
included a drug and alcohol program and continued weekly drug
testing. The court also ordered that both parents could have
monitored visits with O.E. three times a week for three hours
each visit.
B. The Juvenile Court Returns O.E. to Kimberly
For the six-month review hearing in April 2018, the
Department reported that Kimberly and Orlando had monitored
visits with O.E. three days a week for three hours each visit, that
both parents were consistent with their visitation, and that the
visits were “going well.” At the hearing, the juvenile court found
that Kimberly and Orlando were in partial compliance with their
case plans and that returning O.E. to his parents’ physical
custody would create a substantial risk of detriment to his safety,
protection, or physical or emotional well-being. The court ordered
family reunification services to continue.
4
For the 12-month review hearing in October 2018, the
Department reported that Kimberly was “progressing well with
her Court ordered services,” including her drug treatment
program, and that on September 1, 2018 the Department had
liberalized her visits with O.E. so that they were unmonitored
and occurred an additional day each week. Orlando had
monitored visits two days a week for three hours each visit. At
the hearing the juvenile court found that Kimberly’s compliance
with her case plan was “substantial, but not absolutely complete,”
that Orlando’s was “partial,” and that returning O.E. to his
parents’ physical custody would create a substantial risk of
detriment to his safety, protection, or physical or emotional well-
being. The court ordered family reunification services to continue
for both parents and granted the Department discretion to
liberalize both parents’ visits with O.E., as well as discretion to
return O.E. to either parent.
For the 18-month review hearing in April 2019, the
Department reported that Kimberly was living in a sober living
home where she had “had six unmonitored overnight weekend
visits with” O.E., which went well. The Department stated that
Kimberly “demonstrate[d] the parenting skills she [had] learned
effectively” and that O.E. appeared “to have a healthy
attachment” to her. The Department recommended placing O.E.
with Kimberly at the sober living home and providing her family
preservation services. The Department recommended against
returning O.E. to Orlando because, though Orlando was visiting
O.E. consistently, he had only partially complied with his case
plan. At the hearing the juvenile court returned O.E. to
5
Kimberly and ordered family maintenance services for Kimberly
and enhancement services for Orlando.2
C. The Department Files a Supplemental Petition Under
Section 387, and the Juvenile Court Detains O.E.
from Kimberly
For a section 364 review hearing in October 2019, the
Department reported Kimberly had “struggled with her sobriety
and relapsed twice,” testing positive for methamphetamine in
May and June 2019. Kimberly admitted she had “‘used’ again”
and stated, “I just wanted to numb myself because I have been
having some problems with [O.E.’s] dad.” Kimberly had moved
out of the sober living home and was “disconnected from her
recovery supports.” She and O.E. were living in the home of
Orlando’s father. At a meeting with the Department, Kimberly
agreed to participate in family preservation services to avoid
having O.E. removed from her again. The Department reported
that Orlando was not in compliance with his case plan and was
not cooperating with the Department, but that, according to
Kimberly, he visited O.E. weekly. At the hearing the juvenile
court found Kimberly and Orlando were in partial compliance
with their case plans and ordered O.E. to remain placed with
Kimberly.
2 “Enhancement services” are “‘child welfare services offered
to the parent not retaining custody, designed to enhance the
child’s relationship with that parent.’” (In re Destiny D. (2017)
15 Cal.App.5th 197, 212; see In re A.C. (2008) 169 Cal.App.4th
636, 642, fn. 5 [“‘enhancement’ services are ‘not designed to
reunify the child with that parent, but instead to enhance the
child's relationship with that parent by requiring that parent to
address the issues that brought the child before the court’”].)
6
In July 2020 (after the juvenile court continued a second
section 364 review hearing) the Department filed a supplemental
petition under section 387, asking the court to place O.E. with a
foster caregiver. The Department alleged Kimberly was
incapable of providing regular care and supervision of O.E.
because, among other things, she was currently abusing
marijuana, methamphetamine, and alcohol; was not participating
in a drug program with weekly testing, as ordered by the court;
and in June 2020 was arrested for bringing controlled substances
into a prison, in violation of Penal Code section 4573.
The Department reported that on June 29, 2020 Orlando’s
father informed the Department that law enforcement had
executed a search warrant at his home that morning and
arrested Kimberly. The search warrant was for
methamphetamine and related paraphernalia. O.E. was not with
Kimberly at the time, but with his previous foster parents,
Jessica and Malia R. The Department spoke with Kimberly’s
roommate, Connie, who said Kimberly had “not been honest”
about her drug use and knew “how to manipulate the system,” for
example by getting high only immediately after her drug tests.
Connie stated that Kimberly’s drug of choice was
methamphetamine and that when Kimberly used drugs she
would keep O.E. in the room with her all day and not let him out,
though O.E. cried and said, “I want out.” Asked about the search
warrant and Kimberly’s arrest, Connie said Kimberly had been
smuggling drugs to Orlando, who was in jail after having been
arrested in January 2020 for drug-related offenses. The
Department confirmed Kimberly had been arrested for violating
Penal Code section 4573.
7
On July 22, 2020 the juvenile court held a detention
hearing on the supplemental petition. Kimberly and Orlando
were incarcerated and not present. Finding O.E.’s continued
placement with Kimberly would create a substantial risk of
detriment to his safety, protection, or physical or emotional well-
being, the court detained O.E. from Kimberly and ordered family
reunification services for her and Orlando.
D. The Juvenile Court Sustains the Supplemental
Petition and (Again) Removes O.E.
In a September 2020 jurisdiction and disposition report, the
Department indicated O.E. was again living in the home of
Jessica and Malia R., where he appeared happy, comfortable, and
affectionate toward his caregivers. Kimberly and Orlando
remained incarcerated. The Department reported that, in
searching the home of Orlando’s father, law enforcement found
methamphetamine, scales, and baggies, which resulted in
Kimberly’s arrest. A Los Angeles County Sheriff’s Department
report reflected that Kimberly admitted smuggling
methamphetamine into a jail facility for Orlando. Kimberly was
released shortly after her June 29, 2020 arrest, but she was
arrested again on July 22, 2020, this time for violating probation
conditions related to a previous offense. She was now serving a
three-year sentence, with a scheduled release date of (as the
Department later reported) October 2021. Orlando was
scheduled for release on March 6, 2021.
In March 2021 the juvenile court held a jurisdiction
hearing on the supplemental petition and sustained it, finding all
allegations true. The court continued the disposition hearing for
the Department to file a last minute information regarding
8
Kimberly’s and Orlando’s progress in their programs. The
Department did so, reporting that Kimberly was participating in
several programs at her place of incarceration. The Department
also reported that, after Orlando was released from incarceration
on March 6, 2021, the Department monitored a visit between him
and O.E., during which both appeared “very happy.” Three days
after the visit, Orlando tested positive for amphetamine and
methamphetamine.
At the disposition hearing, held later in March 2021, the
juvenile court removed O.E. from Kimberly, declined under
section 361.5, subdivision (a)(3)(A), to order family reunification
services for her or Orlando, and ordered monitored visitation for
both parents. The court set the matter for a selection and
implementation hearing under section 366.26.
E. The Juvenile Court Terminates Kimberly’s and
Orlando’s Parental Rights
In a July 2021 report for the section 366.26 hearing, the
Department indicated O.E. was having weekly monitored visits
with Orlando and weekly monitored telephone visits with
Kimberly. The Department reported that Orlando’s visits with
O.E. were “appropriate and productive,” with O.E. appearing
“happy and comfortable around” Orlando. In the one telephone
visit between Kimberly and O.E. the Department described, O.E.
appeared reluctant to talk with his mother. When his caregivers
prompted him to speak with her on the telephone, he answered,
“I don’t want to. Do I have to?” When they answered yes, O.E.
and Kimberly had a short conversation in which Kimberly
“inquired as to his wellbeing.” O.E. answered her questions with
“yes” or “no” and did not appear “engaged” in the conversation.
9
The Department recommended the court terminate Kimberly’s
and Orlando’s parental rights.
Orlando, for his part, filed a section 388 petition, seeking to
have the court return O.E. to his care or, in the alternative, to
have the court reinstate Orlando’s family reunification services
or, as another alternative, to have his visits with O.E. liberalized.
Orlando cited, among other things, his completion of parenting
classes and a 12-step recovery program, and argued O.E. had
“developed a close bond with” him and loved to spend time with
him. In an attached declaration, Orlando described his progress
in programs relating to parenting and substance abuse and his
current weekly visits with O.E. Orlando stated: “Our weekly
monitored visits are great and productive. The social worke[r]
has observed that my son and I have a strong bond and that we
enjoy spending time together. My son demonstrates how much
he wants me in his life, as well as how much he looks up to me.”
Orlando also requested a bonding study for him and O.E., which
the juvenile court denied.
On August 31, 2021 the juvenile court held an evidentiary
hearing on Orlando’s section 388 petition and the hearing under
section 366.26. Orlando was present, and Kimberly, who
remained incarcerated, appeared telephonically. The court began
by addressing the section 388 petition, admitting into evidence,
among other items, Orlando’s petition and attachments. Orlando
testified, summarizing his progress in programs relating to
parenting and substance abuse and describing his recent weekly
visits with O.E. He testified that at the start of these visits O.E.
would smile and run to him, give him a hug, and then remain by
him, not letting Orlando out of his sight. During the visits O.E.
also invited Orlando to his house and wanted to show him “things
10
in his room.” Orlando stated O.E. looked up to him “as a strong
male role model.” The court denied Orlando’s petition.
Turning to the section 366.26 hearing, the juvenile court
received into evidence Orlando’s section 388 petition and his
testimony from the hearing on the petition and heard testimony
from Kimberly. Kimberly testified she was scheduled for release
on September 12, 2021. She stated that, before she was
incarcerated, O.E. lived with her for “about a year and a half.”
She also testified that, while incarcerated, she visited with O.E.
twice each week by telephone and that, during these visits, O.E.
would tell her that he loved her and missed her. Counsel for
Kimberly and counsel for Orlando argued the court should not
terminate their clients’ parental rights because of the parental-
benefit exception under section 366.26, subdivision (c)(1)(B)(i).
The juvenile court terminated Kimberly’s and Orlando’s
parental rights, finding no exception to adoption applied. The
court stated: “The court notes that mother and father’s visitation
has been seemingly appropriate and pleasant. No issues with the
visitation. But the court also finds that, as to father, he has not
served a parental role in this minor’s life. . . . Since the minor
was two months old, when this case started, the father has not
been, really, a father to the minor. But the court does note that
recently father’s visits have been appropriate. But the court
cannot find that the father’s bond with the child is more than just
an emotional bond. The court cannot find that he serves [a]
parental role in this child’s life.”
The juvenile court continued: “As to mother, the court is
very concerned with what happened when the child was in the
mother’s care. Mother had an opportunity, a very great
opportunity, to keep the child in her care when child was
11
returned to her. But she squandered that when she diced by
bringing narcotics to the father while in custody while the child
was in her care. I think that decision is revealing as to how
committed she is to the child’s welfare.”3
The juvenile court concluded: “The court cannot find that
terminating parental rights would be detrimental to the child,
when the child is in a safe home with caregivers that love him
and want to give him stability. And the court cannot find that
the child would be greatly harmed by terminating parental
rights. . . . Court finds that any benefit to the child from the
relationship with mother and father is outweighed by the
physical and emotional benefit of adoption and stability and
permanency of the adoption and that adoption is in the best
interests of the child.” Kimberly and Orlando timely appealed.4
3 The juvenile court appeared to use the word “diced” to
mean “gambled” or “gambled away.”
4 In addition to appealing from the juvenile court’s order
terminating his parental rights, Orlando appealed from the order
denying his section 388 petition. Because he raises no arguments
in his briefs concerning the latter order, however, he has
abandoned that aspect of his appeal. (See In re M.B. (2022) 80
Cal.App.5th 617, 620, fn. 1.)
12
DISCUSSION
A. The Juvenile Court Erred in Determining Whether the
Parental-benefit Exception Under Section 366.26,
Subdivision (c)(1)(B)(i), Applied
1. Applicable Law and Standard of Review
“To guide the court in selecting the most suitable
permanent arrangement” for a dependent child “who cannot be
returned to a parent’s care,” section 366.26 “lists plans in order of
preference and provides a detailed procedure for choosing among
them.” (In re Caden C., supra, 11 Cal.5th at p. 630; see § 366.26,
subd. (b); In re A.L. (2022) 73 Cal.App.5th 1131, 1149.) If the
court finds that the child “is likely to be adopted” and that “there
has been a previous determination that reunification services be
terminated, then the court shall terminate parental rights to
allow for adoption.” (Caden C., at p. 630; see § 366.26, subd.
(c)(1); In re Katherine J. (2022) 75 Cal.App.5th 303, 316.) “But if
the parent shows that termination would be detrimental to the
child for at least one specifically enumerated reason, the court
should decline to terminate parental rights and select another
permanent plan.” (Caden C., at pp. 630-631; see § 366.26, subd.
(c)(1)(B)(i)-(vi), (4)(A); In re B.D. (2021) 66 Cal.App.5th 1218,
1225.)
One of those reasons, the parental-benefit exception,
requires the parent to establish by a preponderance of the
evidence (1) “the parent has regularly visited with the child,”
(2) “the child would benefit from continuing the relationship,”
and (3) “terminating the relationship would be detrimental to the
child.” (In re Caden C., supra, 11 Cal.5th at p. 629; see § 366.26,
13
subd. (c)(1)(B)(i); In re L.A.-O. (2021) 73 Cal.App.5th 197, 206.)
“The first element—regular visitation and contact—is
straightforward. The question is just whether ‘parents visit
consistently,’ taking into account ‘the extent permitted by court
orders.’” (Caden C., at p. 632; see In re Katherine J., supra,
75 Cal.App.5th at p. 316.)
To establish the second element, that the child would
benefit from continuing the parental relationship, the parent
must show the child has a “substantial, positive, emotional
attachment to the parent—the kind of attachment implying that
the child would benefit from continuing the relationship.” (In re
Caden C., supra, 11 Cal.5th at p. 636; see In re J.D. (2021)
70 Cal.App.5th 833, 854.) 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.’” (Caden C., at
p. 632; see J.D., at p. 854.) “[C]ourts often consider how children
feel about, interact with, look to, or talk about their parents.”
(Caden C., at p. 632; see J.D., at p. 854.)
“Concerning the third element—whether ‘termination
would be detrimental to the child due to’ the relationship—the
court must decide whether it would be harmful to the child to
sever the relationship and choose adoption.” (In re Caden C.,
supra, 11 Cal.5th at p. 633; see In re Katherine J., supra,
75 Cal.App.5th at p. 317.) “When it weighs whether termination
would be detrimental, the court is not comparing the parent’s
attributes as custodial caregiver relative to those of any potential
adoptive parent(s) . . . . Accordingly, courts should not look to
whether the parent can provide a home for the child.” (Caden C.,
14
at p. 634; see Katherine J., at p. 317.) “When the relationship
with a parent is so important to the child that the security and
stability of a new home wouldn’t outweigh its loss, termination
would be ‘detrimental to the child due to’ the child’s beneficial
relationship with a parent.” (Caden C., at pp. 633-634; see
Katherine J., at p. 317.)
A “substantial evidence standard of review applies to the
first two elements. The determination that the parent has visited
and maintained contact with the child ‘consistently,’ taking into
account ‘the extent permitted by the court’s orders’ [citation] is
essentially a factual determination. It’s likewise essentially a
factual determination whether the relationship is such that the
child would benefit from continuing it.” (In re Caden C., supra,
11 Cal.5th at pp. 639-640; see In re Katherine J., supra,
75 Cal.App.5th at p. 317; In re L.A.-O., supra, 73 Cal.App.5th at
p. 206.)
“The third element—whether termination of parental
rights would be detrimental to the child—is somewhat different.
As in assessing visitation and the relationship between parent
and child, the court must make a series of factual
determinations. . . . [¶] Yet the court must also engage in a
delicate balancing of these determinations as part of assessing
the likely course of a future situation that’s inherently
uncertain. . . . The court makes the assessment by weighing the
harm of losing the 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.” (In re Caden C.,
supra, 11 Cal.5th at p. 640; see In re Katherine J., supra,
15
75 Cal.App.5th at p. 318; In re L.A.-O., supra, 73 Cal.App.5th at
p. 206.)
2. The Juvenile Court Failed To Consider the
Second Element of the In re Caden C. Analysis
The first element of the parental-benefit exception
identified in In re Caden C.—that the parent regularly visited
with the child—is not in dispute; the juvenile court appears to
have ruled Kimberly and Orlando met their burden on that
element. What the parties dispute is whether the court properly
analyzed the second element: that the child would benefit from
continuing the parental relationship. And we agree with
Kimberly and Orlando the court erred in analyzing that element.
More accurately: The court skipped the second-element analysis
for Kimberly, and to the extent it conducted the analysis for
Orlando, the court’s analysis was not consistent with In re
Caden C.
As the Supreme Court in Caden C. emphasized, “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.,
supra, 66 Cal.App.5th at p. 1230.) And evaluating whether such
an attachment existed between the parent and the child is, in
turn, “crucial to the third step of the analysis, weighing the harm
of severing the natural parent/child relationship to the benefits of
a new adoptive home.” (Id. at p. 1228.)
Here, the juvenile court’s statements at the selection and
implementation hearing under section 366.26 suggest the court
16
wholly neglected to examine the nature of the relationship
between Kimberly and O.E., as required in the second step of the
analysis prescribed by In re Caden C. The court made no
comment whatsoever on the existence or nature of O.E.’s
attachment to Kimberly. Instead, the court expressed concern
about Kimberly’s smuggling drugs to Orlando, which the court
suggested reflected her lack of commitment to O.E.’s welfare.
But even assuming that suggestion was well taken, it established
nothing about O.E.’s attachment to Kimberly. (See In re D.M.
(2021) 71 Cal.App.5th 261, 270 [the Supreme Court in In re
Caden C. “made clear the beneficial relationship exception is not
focused on a parent’s ability to care for a child”].)
Similarly, the juvenile court did not properly examine
O.E.’s attachment to Orlando. Again, the court made no
comment on the existence or nature of such an attachment.
Rather, without indicating what it meant by the phrase, the court
found Orlando had not “served a parental role” in O.E.’s life.
“Unfortunately, the words ‘parental role’ standing alone, can
have several different meanings. . . . [¶] They can mean being a
good parent—nurturing, supportive, and guiding. Caden C.,
however, tells us that the parental-benefit exception does not
require being a good parent . . . .” (In re L.A.-O., supra,
73 Cal.App.5th at p. 210; see In re Caden C., supra, 11 Cal.5th at
p. 634; In re Katherine J., supra, 75 Cal.App.5th at p. 319 [In re
Caden C. “requires juvenile courts to do more than summarily
state that a parent has not occupied a parental role in his child’s
life”]; In re D.M., supra, 71 Cal.App.5th at p. 270 [juvenile court’s
decision that parental-benefit exception did not apply was based
on improper factors where, “[w]hile focusing on whether father
occupied a ‘parental role’ in the children's lives, . . . the court said
17
nothing about the attachment between father and his children”].)
The court’s comment that Orlando’s bond with O.E. was “just an
emotional bond” further suggests the court did not apply the
proper legal standard: It is precisely a substantial and positive
“emotional attachment to the parent” (In re Caden C., at p. 636)
that a court must look for.
Thus, the juvenile court did not apply the correct legal
standard, as set forth in In re Caden C., when the court evaluated
(or failed to evaluate) the second element of the parental-benefit
exception. In some cases, such an error might be harmless:
“[W]hen a juvenile court applies the wrong legal standard in
rejecting the beneficial relationship exception, reversal is not
warranted if the parent did not introduce evidence that would
permit a finding in their favor under the correct legal standard.”
(In re J.R. (Aug. 22, 2022, A164334) __ Cal.App.5th __, __ [2022
WL 3582652, at p. 1].) But not here.
The record shows that, at various points in the case, the
Department observed O.E. had developed “a healthy attachment”
to, “a strong bond” with, and “a strong attachment” to Kimberly.
Kimberly testified at the section 366.26 hearing that, at the
conclusion of her telephone visits with O.E. while she was
incarcerated, O.E. would say, “I love you. I miss you.” (See In re
Caden C., supra, 11 Cal.5th at p. 632 [“courts often consider how
children feel about, interact with, look to, or talk about their
parents”].) Similarly, at the section 366.26 hearing, Orlando
testified that, during his visits with O.E., O.E. greeted him
enthusiastically and wanted Orlando to come to his house and
that O.E. looked to him as a role model. Orlando also presented
evidence a social worker had observed that he and O.E. had “a
strong bond” and that O.E. demonstrated he wanted Orlando in
18
his life.5 Given this evidence, the juvenile court’s error in
analyzing the second element of the parental-benefit exception
was not harmless.
Nor was the juvenile court’s error harmless because the
court recited, in conclusory fashion, that “any benefit to the child
from the relationship with mother and father is outweighed by
the physical and emotional benefit of adoption and stability and
permanency of the adoption.” (Italics added.) As the Supreme
Court explained in In re Caden C., a determination on the third
element of the parental-benefit exception rests on “a series of
factual determinations” and requires “a delicate balancing of
these determinations,” “weighing the harm of losing the
[parental] relationship against the benefits of placement in a
new, adoptive home.” (In re Caden C., supra, 11 Cal.5th at
p. 640.) A court cannot accurately weigh the harm to a child of
losing a parental relationship without first evaluating the nature
of that relationship—in particular, the nature of the child’s
attachment, if any, to the parent.
5 As stated, Orlando requested—and the juvenile court
denied—a bonding study. Orlando does not argue the court erred
in denying his request. As the Supreme Court observed,
however, “often expert psychologists who have observed the child
and parent and can synthesize others’ observations will be an
important source of information about the psychological
importance of the relationship for the child.” (In re Caden, supra,
11 Cal.5th at pp. 632-633.) Consequently, “[t]rial courts should
seriously consider, where requested and appropriate, allowing for
a bonding study or other relevant expert testimony.” (Id. at
p. 633, fn. 4.)
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B. The Juvenile Court and the Department Failed To
Comply with the Inquiry Requirements Under ICWA
and Related California Law
ICWA provides that, “where the court knows or has reason
to know that an Indian child is involved, the party seeking the
foster care placement of, or termination of parental rights to, an
Indian child shall notify the parent or Indian custodian and the
Indian child’s tribe . . . of the pending proceedings and of their
right of intervention.”6 (25 U.S.C. § 1912(a); see In re Isaiah W.
(2016) 1 Cal.5th 1, 5; In re J.C. (2022) 77 Cal.App.5th 70, 76.)
“This notice requirement, which is also codified in California law
[citation], enables a tribe to determine whether the child is an
Indian child and, if so, whether to intervene in or exercise
jurisdiction over the proceeding.” (Isaiah W., at p. 5; see § 224.3;
In re Y.W. (2021) 70 Cal.App.5th 542, 551; In re T.G. (2020) 58
Cal.App.5th 275, 288.)
“[J]ust as proper notice to Indian tribes is central to
effectuating ICWA’s purpose, an adequate investigation of a
family member’s belief a child may have Indian ancestry is
essential to ensuring a tribe entitled to ICWA notice will receive
it.” (In re T.G., supra, 58 Cal.App.5th at p. 289.) Section 224.2,
subdivision (a), provides that courts and child protective agencies
“‘have an affirmative and continuing duty to inquire whether a
6 “‘ICWA defines an “Indian child” as “any unmarried person
who is under age eighteen and is either (a) a member of an
Indian tribe or (b) is eligible for membership in an Indian tribe
and is the biological child of a member of an Indian tribe.”’” (In
re H.V. (2022) 75 Cal.App.5th 433, 437; see 25 U.S.C. § 1903(4);
§ 224.1, subd. (a).)
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child for whom a petition under Section 300 . . . is to be, or has
been, filed is or may be an Indian child.’”7 (See In re Isaiah W.,
supra, 1 Cal.5th at p. 9; In re H.V. (2022) 75 Cal.App.5th 433,
437.) Section 224.2, subdivision (b), requires the child protective
agency to ask the child, parents, legal guardian, and “extended
family members,” among others, “whether the child is, or may be,
an Indian child.” (In re J.C., supra, 77 Cal.App.5th at p. 77; see
In re Antonio R. (2022) 76 Cal.App.5th 421, 429-430; In re Y.W.,
supra, 70 Cal.App.5th at p. 552; Cal. Rules of Court, rule
5.481(a)(1).) “Thus, a juvenile court errs in making a finding
ICWA does not apply to the proceedings without first ensuring
that the Department has made an adequate inquiry under ICWA
and California law, and if necessary, the court must continue the
proceedings and order the Department to fulfill its
responsibilities.” (Antonio R., at p. 431; see § 224.2, subd. (i)(2).)
The record reflects that early in this case Kimberly and
Orlando reported to the Department and the juvenile court that
neither they nor O.E. had any Indian ancestry.8 Thereafter, at
the August 2017 detention hearing, the juvenile court found it did
not have a reason to know O.E. was an Indian child. In August
2021, at the section 366.26 hearing, the court found it had no
7 Federal regulations implementing ICWA also require the
court to “‘“ask each participant in an emergency or voluntary or
involuntary child-custody proceeding whether the participant
knows or has reason to know that the child is an Indian child”’”
and to “‘“instruct the parties to inform the court if they
subsequently receive information that provides reason to know
the child is an Indian child.”’” (In re Y.W., supra, 70 Cal.App.5th
at p. 551; see 25 C.F.R. § 23.107(a).)
8 They also denied having “any Native American Heritage.”
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reason to believe O.E. was an Indian child and no reason to know
ICWA applied.
But Kimberly and Orlando contend, the Department
concedes, and we agree the Department did not comply with its
duty of inquiry because it failed to ask known and readily
available members of O.E.’s extended family about whether O.E.
was or might be an Indian child. Those family members include
O.E.’s paternal grandfather, a paternal aunt, and two maternal
aunts. Therefore, the juvenile court erred in finding ICWA did
not apply, and we direct the court to ensure the Department
conducts a proper inquiry. (See In re J.C., supra, 77 Cal.App.5th
at p. 74; In re Antonio R., supra, 76 Cal.App.5th at p. 426.)
DISPOSITION
The juvenile court’s orders terminating Kimberly’s and
Orlando’s parental rights under section 366.26 are reversed. The
juvenile court is directed to conduct a new section 366.26 hearing
and a proper analysis of the parental-benefit exception consistent
with In re Caden C., supra, 11 Cal.5th 614. The juvenile court is
also directed to ensure the Department complies fully with the
inquiry and, if necessary, notice provisions of ICWA and related
California law.
SEGAL, J.
We concur:
PERLUSS, P. J. FEUER, J.
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