In re G.S. CA2/5

Filed 3/14/23 In re G.S. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re G.S., A Person Coming B322367
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No.
AND FAMILY SERVICES, 20CCJP02740A)
Plaintiff and Respondent,
v.
B.S.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Gabriela H. Shapiro, Judge Pro Tempore. Conditionally
affirmed and remanded.
David M. Yorton, Jr., under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Interim County Counsel, Kim Nemoy,
Assistant County Counsel, and Stephen D. Watson, Senior
Deputy County Counsel, for Plaintiff and Respondent.
The juvenile court assumed dependency jurisdiction over
G.S. (Minor) after sustaining allegations that her parents, B.S.
(Mother) and M.L. (Father), engaged in domestic violence and
substance abuse. Termination of the parents’ reunification
services and, ultimately, parental rights ensued. Mother appeals
from the parental rights termination order and we consider (1)
whether the juvenile court erred in denying her change of
circumstances petition without holding an evidentiary hearing,
(2) whether the juvenile court erred in finding inapplicable the
parental benefit exception to law otherwise requiring termination
of parental rights, and (3) whether reversal is required because
no sufficient inquiry was made into whether G.S. is an Indian
child under the Indian Child Welfare Act (ICWA) (25 U.S.C.
§ 1901 et seq.) and related California law.1
I. BACKGROUND
A. The Department’s Initial Investigation
In April 2020, the Department received a referral alleging
recurring domestic violence between Mother and Father.
Department social workers investigated by interviewing Mother,
Father, and several other family members: maternal
grandmother C.S. (Maternal Grandmother); maternal uncle A.S.
(Maternal Uncle); paternal grandmother M.C. (Paternal
Grandmother); and paternal step-grandfather M.S.
The Department learned Mother was seventeen years old
when she gave birth to Minor, who was approximately 21 months
old at the time dependency proceedings commenced. According to
1
Father, whose parental rights were also terminated by the
juvenile court, is not a party to this appeal.
2
those interviewed, Mother and Father would frequently yell at
each other, sometimes in Minor’s presence. Not long before the
Department began investigating, the parents fought in Minor’s
presence and Father broke Mother’s cell phone. During an
earlier fight in Minor’s presence, Father broke Mother’s bedroom
window. In 2019, Mother hit Maternal Grandmother while she
was holding Minor. Maternal Grandmother and Maternal Uncle
told Department social workers that Mother and Father
sometimes neglect to feed Minor, which forces other family
members to ensure she is fed.
Mother admitted she and Father had verbal arguments,
but she denied there had been any physical violence between her
and Father or Maternal Grandmother. Father similarly
admitted to arguing with Mother, but he stated they do not really
argue in front of Minor. Father admitted he slammed Mother’s
phone on the floor during an argument. He also admitted to
breaking Mother’s window, but both he and Mother asserted it
was an accident. Mother and Father each denied failing to feed
Minor. Father admitted to smoking marijuana and drinking
alcohol, but he asserted he had never been drunk or high around
Minor.
During her first interview with the Department, Mother
agreed to complete a 52-week domestic violence program,
individual and family counseling, and a parenting program.
Mother made arrangements to begin therapy in May 2020.
Minor was removed from Father’s custody that same month and
released to Mother’s care.
3
B. The Dependency Petition and Early Hearings
The Department filed a five-count dependency petition
alleging Minor was at risk based on Mother and Father’s
domestic violence, Mother’s violence against Maternal
Grandmother, and Father’s marijuana abuse. Shortly thereafter,
Mother and Father both completed ICWA-020 Parental
Notification of Indian Status forms and informed a Department
investigator they did not have any Indian ancestry.
After the juvenile court held an initial detention hearing,
the Department filed an ex parte application seeking to have
Minor removed from Mother’s care. The petition alleged Mother
was in contact with Father, was allowing him to have
unmonitored visits with Minor in Maternal Grandmother’s home
(in contravention of the orders made by the juvenile court at the
detention hearing), was otherwise spending time with Father,
and had terminated her counseling sessions. The juvenile court
held a hearing, detained Minor from Mother, and released her to
Maternal Grandmother. The court ordered monitored visitation
for Mother of at least two times per week for two hours.
As of June 2020, Mother was enrolled in a parenting class
and had restarted individual counseling. Maternal Grandmother
reported Mother was visiting Minor twice a week for two hours.
Father had not contacted Maternal Grandmother about any
visits. Mother also later enrolled in a domestic violence course.
At a jurisdiction and disposition hearing in August 2020,
the juvenile court sustained an amended count a-1 alleging Minor
was at substantial risk of suffering serious physical harm
inflicted non-accidentally by a parent, a count b-2 alleging Minor
was at substantial risk of suffering serious physical harm from
Mother’s physical altercation with Maternal Grandmother, and a
4
count b-3 alleging Minor was at substantial risk of suffering
serious physical harm from Father’s marijuana abuse. The court
ordered Mother to participate in a domestic violence support
group for victims, conjoint counseling with Father, parenting
courses, and individual counseling to address anger management.
Father was also ordered to participate in services, and Mother
and Father were each granted monitored visitation with Minor.
C. Termination of Reunification Services
In the first review period following the court’s assumption
of jurisdiction over Minor, Mother fell out of contact with the
Department for several months. By January 2021, Mother had
attended visits with Minor monitored by Maternal Grandmother,
but her attendance had become increasingly sporadic. Mother
had also participated in a parenting program, but she had not
received a completion certificate because her participation was
minimal. She had enrolled in a domestic violence course and
attended 14 victim support group sessions. She had not
participated in conjoint counseling with Father because she did
not want contact with him. Additionally, though Mother and
Maternal Grandmother were referred to conjoint counseling,
Mother did not appear for the first session. Mother also did not
act on the Department’s suggestion that she re-enroll in
parenting and domestic violence classes.
At the 6-month review hearing, the juvenile court
continued reunification services for Mother and set the matter for
a 12-month review hearing.
5
In July 2021, the counselor conducting conjoint counseling
reported Mother had only attended two or three sessions.2
According to the counselor, Mother’s lack of participation was
getting in the way of bonding with Minor and learning skills to
address Minor’s needs. The counselor also reported Minor
routinely experienced an increase in anxiety during and after
visits with Mother, which resulted in increased tantrums, biting,
screaming, and crying. Mother’s apparent lack of respect for
Maternal Grandmother also had a negative effect on Minor and
heightened her anxiety.
As of September 2021, Mother’s visitation with Minor was
inconsistent. Mother attended some visits, but she sometimes
missed visits without advance notice, showed up late, or left
early. She was often on her phone during visits and would
sometimes go the majority of a visit without engaging with
Minor. A Department social worker observed Minor refer to
Mother by her given name during a visit, and observed that
Minor sought out Maternal Grandmother when she needed
assistance or wanted attention.
Mother had also made minimal progress with her case
plan. She reenrolled in a domestic violence support group in July
2021 but she delayed attending. Mother joined the waiting list
for another parenting class, but she had not completed the intake
process or attended classes. She was enrolled in individual
2
The sessions were held at Maternal Grandmother’s home,
and were scheduled such that Mother could have the session at
the beginning of her visit with Minor, and then continue to visit
with Minor afterward.
6
counseling, but she had not enrolled in conjoint counseling with
Father, whose whereabouts were unknown.
At a review hearing in October 2021, the juvenile court
found the parents’ progress toward alleviating the conditions that
necessitated placement was not substantial. It terminated
reunification services and ordered the Department to provide
permanent placement services to Minor.
D. Developments Following the Termination of
Reunification Services and Termination of Parental
Rights
Following termination of reunification services, Maternal
Grandmother petitioned to adopt Minor. Mother was visiting
Minor approximately once per week. A Department social worker
observed a visit between Mother and Minor in November 2021
during which Minor hugged Mother, and the two sat at a table
and read books together. Mother appeared attentive to Minor
and interacted with her appropriately. Maternal Grandmother
reported that during other visits Mother would sometimes
become impatient with Minor and yell when she did not listen.
In July 2022, Mother filed a change of circumstances
petition requesting reinstatement of reunification services.
Mother represented she had completed a domestic violence class,
she had been visiting with Minor four to five times per week and
the visits were going well, and she was pursing counseling.
Mother sought an additional six months of reunification services
to complete more of the case plan and continue to build a bond
with Minor. The court denied the petition without a hearing.
That same day, the court held a Welfare and Institutions
Code section 366.26 permanency planning hearing. At the
7
hearing, the juvenile court inquired as to the status of ICWA
inquiry efforts in light of the record that reflected only a
statement and inquiry in 2020, with no further update. The
Department represented it did not have any new information,
explaining the case had always been treated as a non-ICWA case.
The court then inquired directly of Mother, asking whether she
had any other information regarding any Native American
heritage, or whether she had any family members who received
benefits or lived on a reservation. Mother responded, “No, not
really.” The court asked Mother to clarify what she meant,
ultimately asking whether anyone ever told her they belonged to
a tribe or lived on a reservation. Mother responded “No, no. No
one.” The court then asked whether Mother had any information
about her father’s ancestry, and Mother responded he had been
deported to “T.J.” The court thereafter found this appeared to
not be an ICWA case, and ICWA did not apply.
The court then addressed adoption readiness, stating
Maternal Grandmother had been caring for Minor for
approximately two years at that point. The court found there
was no evidence of sufficient contact between Father and Minor
such that the court could find it would be detrimental to Minor to
terminate Father’s parental rights. With respect to Mother, the
juvenile court acknowledged that Mother had been visiting with
Minor and contact between Minor and Mother did provide some
sort of a bond and relationship. The court acknowledged that
Minor resided with Mother for the first half of her life, but
emphasized Mother had not been living with Minor more
recently. The court recognized that under recent Supreme Court
authority, “there is to be a delicate balancing” that requires the
8
court to look closely at Mother’s contact with Minor within the
confines of the visitation order.
The juvenile court believed Mother’s more consistent
visitation of late was “a new development” and stated on the
record that there was “no evidence before me that [Minor] won’t
continue to have contact with her mother if the court were to
terminate parental rights today, because the maternal
grandmother is the prospective adoptive parent.” Even assuming
Mother was visiting consistently and there was a strong positive
emotional attachment between Minor and Mother, however, the
court still found terminating parental rights would not be
detrimental when balanced against the benefits of an adoptive
home. In so finding, the court again stated that “because the
maternal grandmother is the prospective adoptive parent, I don’t
see how that incidental relationship or that continuing conduct
won’t occur. The same way that I’m not seeing examples of the
depth of that bond and the emotional attachment, I’m also not
hearing that the maternal grandmother won’t allow contact and
won’t engage with the Mother to allow the Mother to see
[Minor].”
Having found the parental benefit exception inapplicable,
the juvenile court found Minor adoptable and ordered Mother’s
parental rights terminated.
II. DISCUSSION
We shall affirm the juvenile court’s orders. The court was
not required to hold an evidentiary hearing on Mother’s change of
circumstances petition under Welfare and Institutions Code
section 388 because there is no evidence that restarting
9
reunification services would be in Minor’s best interests.3 As to
the parental benefit exception, Mother is correct that the juvenile
court should not have considered potential future visitation
between Mother and Minor, but such consideration was harmless
because the dearth of evidence that Minor would benefit from
continuing the relationship with Mother means parental rights
would have been terminated even without such consideration.
Finally, no reversal on ICWA grounds is warranted because
substantial evidence supports the juvenile court’s finding that
adequate inquiry was made to determine Minor is not an Indian
child and, in any event, Minor’s placement with her grandmother
means any assumed inquiry deficiency was harmless.
A. The Juvenile Court Did Not Err in Summarily
Denying Mother’s Section 388 Change of
Circumstances Petition
“Section 388 accords a parent the right to petition the
juvenile court for modification of any of its orders based upon
changed circumstances or new evidence. [Citations.] To obtain
the requested modification, the parent must demonstrate both a
change of circumstances or new evidence, and that the proposed
change is in the best interests of the child. [Citations.]
[¶] . . . [¶] To obtain an evidentiary hearing on a section 388
petition, a parent must make a prima facie showing that
circumstances have changed since the prior court order, and that
the proposed change will be in the best interests of the child.
[Citations.] To make a prima facie showing . . . the allegations of
3
Undesignated statutory references that follow are to the
Welfare and Institutions Code.
10
the petition must be specific regarding the evidence to be
presented and must not be conclusory. [Citation.]” (In re Alayah
J. (2017) 9 Cal.App.5th 469, 478, fn. omitted (Alayah J.).)
“In determining whether a parent has made a prima facie
showing under section 388, we may consider the entire factual
and procedural history of the case.” (In re Daniel F. (2021) 64
Cal.App.5th 701, 711.) We review the grant or denial of a section
388 petition for an abuse of discretion. (Alayah J., supra, 9
Cal.App.5th at 478; In re C.J.W. (2007) 157 Cal.App.4th 1075,
1079.)
Mother’s section 388 petition alleged she had completed a
domestic violence class, had been visiting with Minor four to five
times per week with no issues, and was pursuing counseling.
Mother’s petition was silent as to another incomplete portion of
her prior case plan—namely the requirement that she complete a
parenting course.
Assuming for the sake of argument that this evidence was
sufficient to demonstrate changed circumstances, Mother’s
petition was still insufficient to warrant a hearing because
Mother provided no evidence that restarting reunification
services would be in Minor’s best interests. Incremental
compliance with her prior case plan and assertions that renewed
services would provide her more time to build a bond with Minor
did not constitute evidence that a revival of reunification services
would have been in Minor’s best interests. (See, e.g., In re Angel
B. (2002) 97 Cal.App.4th 454, 463 [“simple completion” of a
course is not evidence that a changed order would be in the
child’s best interests].) Particularly when Minor had been in
Maternal Grandmother’s sole care for approximately two years
and was happy and bonded to Maternal Grandmother, the
11
juvenile court did not abuse its discretion in summarily denying
mother’s section 388 petition.
B. The Juvenile Court Should Not Have Remarked on
Future Visitation, but the Error Was Harmless
A juvenile court holds a hearing under Welfare and
Institutions Code section 366.26 to determine “whether to
terminate parental rights, making way for adoption, or to
maintain parental rights and select another permanent plan.”
(In re Caden C. (2021) 11 Cal.5th 614, 625 (Caden C.).) “To ease
the court’s difficult task in making this important decision, the
statute provides a carefully calibrated process. Even if a court
finds by clear and convincing evidence that the child is likely to
be adopted, the parent may avoid termination of parental rights
by establishing at least one of a series of enumerated exceptions.”
(Ibid.)
One of these exceptions is the parental benefit exception.
(§ 366.26, subdivision (c)(1)(B)(i).) The exception is “limited in
scope” and applies where “‘[t]he court finds a compelling reason
for determining that termination would be detrimental to the
child due to one or more of the following circumstances: [¶] (i)
The parents have maintained regular visitation and contact with
the child and the child would benefit from continuing the
relationship.’ (§ 366.26, subd. (c)(1)(B)(i).) From th[is] statute,
[our Supreme Court] readily discern[ed] three elements the
parent must prove to establish the exception: (1) regular
visitation and contact, and (2) a relationship, the continuation of
which would benefit the child such that (3) the termination of
parental rights would be detrimental to the child.” (Caden C.,
12
supra, 11 Cal.5th at 631, third, fourth, and fifth alterations
added.)
The second element—whether the child would benefit from
continuing the relationship—depends on “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., supra, 11 Cal.5th at 632, citing In re Autumn H.
(1994) 27 Cal.App.4th 567, 576 (Autumn H.).) As emphasized in
Autumn H., cited in Caden C. as “the seminal decision
interpreting the exception” (Caden C., supra, at 631), the
parental benefit exception is not concerned with the “incidental
benefit” that “[i]nteraction between natural parent and child will
always confer.” (Autumn H., supra, at 575-576 [holding that a
relationship comparable to that of a “‘friendly visitor’” or “‘family
friend’” is insufficient to trigger the exception].) Nonetheless,
juvenile courts “must remain mindful that rarely do ‘[p]arent-
child relationships’ conform to an entirely consistent pattern.
[Citations.]” (Caden C., supra, at 632, second alteration added.)
We review the juvenile court’s determination of the
existence of a beneficial relationship for substantial evidence.
(Caden C., supra, 11 Cal.5th at 639.) “[T]he 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.” (Id.
at 640.)
The Department argues Mother forfeited the ability to
complain about the juvenile court’s consideration of the likelihood
of post-adoption contact between her and Minor because she did
not object to that consideration below. The Department may well
13
be right about that, but we would exercise our discretion to
explain why Mother is not entitled to reversal regardless.
The juvenile court here expressly considered the likelihood
that Mother would continue to have contact with Minor when
making its ruling on the parental benefit exception. That should
not have happened. “Considering a potential future relationship
between the parents and the minors, for any reason, is
impermissible at a section 366.26 hearing.” (In re D.P. (2022) 76
Cal.App.5th 153, 169; see also Caden C., supra, 11 Cal.5th at 633
[“courts must assume that terminating parental rights
terminates the relationship”].)
The error, however, was harmless. (See generally In re
Celine R. (2003) 31 Cal.4th 45, 59-60; In re J.R. (2022) 82
Cal.App.5th 526, 533 [where “the proper legal standard is already
established and a party has had a full and fair opportunity to
present all of their evidence on a contested issue, and yet in the
end there is simply no evidence that could support a favorable
finding for them, then any legal error in the court’s reasoning or
basis for its decision quite obviously is harmless”].) It was
Mother’s burden to prove the elements of the parental-benefit
exception, including that Minor would benefit from a continuing
relationship with her. (§ 366.26, subd. (c)(1)(B)(i); Caden C.,
supra, 11 Cal.5th at 635). Mother could have done so by
adducing evidence Minor had a substantial, positive, and
emotional attachment to her (see, e.g., In re D.M. (2021) 71
Cal.App.5th 261, 271 [father testified his children wanted to
return to him and that the youngest child cried when visits
ended]; In re J.D. (2021) 70 Cal.App.5th 833, 856 [mother
introduced logs of virtual visits with her son detailing their
bond]) or pointing to evidence otherwise in the record (e.g., In re
14
B.D. (2021) 66 Cal.App.5th 1218, 1229, fn. 4 [evidence that
children greeted parents with hugs and expressed sadness at end
of visits suggested they had a “beneficial relationship”].) Mother
did neither, and our own review of the record confirms that there
is no substantial evidence of the requisite beneficial relationship.
Rather, the evidence in the record suggests that while the
visits between Mother and Minor were generally positive, Mother
barely engaged with Minor during some visits, Minor at least
sometimes referred to Mother by her given name, and Minor
often sought out Maternal Grandmother, not Mother, for
assistance or attention during visits. There is no indication in
the record that the visits conferred upon Minor anything more
than the “incidental benefit” that “[i]nteraction between natural
parent and child will always confer.” (Autumn H., supra, 27
Cal.App.4th at 575.) Because there was no evidence that could
support a favorable finding for Mother, the juvenile court’s error
was harmless, and reversal is unwarranted.4
C. Substantial Evidence Supports the Juvenile Court’s
ICWA Findings and, Regardless, Any Assumed Error
Was Harmless
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 a state court must follow before removing an Indian
4
In light of our holding on this score, we need not address
Mother’s contention that the juvenile court also utilized improper
factors to analyze whether termination of parental rights would
be detrimental to Minor.
15
child from his or her family. (25 U.S.C. § 1902; In re Isaiah W.
(2016) 1 Cal.5th 1, 7-8; In re Elizabeth M. (2018) 19 Cal.App.5th
768, 784.) Under ICWA, the Department and the juvenile court
have “an affirmative and continuing duty to inquire whether a
child . . . is or may be an Indian child.” (§ 224.2, subd. (a); see
also Cal. Rules of Court, rule 5.481(a).) We review the juvenile
court’s ICWA findings for substantial evidence. (In re Hunter W.
(2011) 200 Cal.App.4th 1454, 1467; In re Barbara R. (2006) 137
Cal.App.4th 941, 950.)
Here, both Mother and Father signed ICWA-020 forms
indicating they had no Indian ancestry and made similar
assertions to Department employees. The juvenile court also
questioned Mother at the termination hearing, inquiring as to
whether any family members had ever said anything like “I
belong to a tribe” or “I live on a reservation.” Mother responded
no one had, and there is no contrary evidence in the record. The
juvenile court’s ICWA finding was thus supported by substantial
evidence. (In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1014.)
Furthermore, in readily conceding error, the Department
neglects to discuss the significance of Minor’s placement with
Maternal Grandmother (and her status as the prospective
adoptive parent). As another court has held, and as holds true
here, placement of a minor with a family member who necessarily
shares any assumed maternal Indian ancestry that Minor has5
means any posited deficiency in conducting ICWA-related inquiry
would be harmless. (In re J.W. (2022) 81 Cal.App.5th 384, 390
[“Assuming for the sake of argument that an inquiry would have
5
When asked on the record, Mother said Father’s parents
were Mexican.
16
discovered that J.W.’s maternal family held Indian roots, the
purpose of ICWA—to prevent the removal of Indian children from
their Indian families—is not implicated by the juvenile court’s
final disposition. When J.W. was found adoptable, her
prospective adoptive parent was her maternal grandmother, who
had already adopted J.W.’s half-brother. J.W. was not facing
alienation or separation from any assumed Indian ancestry”].)
BAKER, Acting P. J.
17
In re G.S.
B322367
Separate Opinion of Kim, J.
I join all but Section II.C. of Justice Baker’s opinion. As to
the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et
seq.) issue raised and discussed in that section, I conclude the Los
Angeles County Department of Children and Family Services
(Department) did not comply with the requirements of ICWA and
related California law because the Department did not interview
maternal grandmother and maternal uncle about Indian
ancestry. (In re H.V. (2022) 75 Cal.App.5th 433, 438.) Further,
the Department’s placement of the child with the maternal
grandmother does not render the failure to comply harmless. (In
re J.W. (2022) 81 Cal.App.5th 384, 392–393 (dis. opn. of Wiley,
J.).)
The disposition of the appeal is accordingly this: the
juvenile court’s orders are conditionally affirmed and the cause is
remanded for additional ICWA-related inquiry of available
maternal relatives, including maternal grandmother and
maternal uncle.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
I concur:
MOOR, J.
2