In re M.Y. CA2/3

Filed 3/15/23 In re M.Y. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
In re M.Y., a Person Coming B319662
Under the Juvenile Court Law.
Los Angeles County
LOS ANGELES COUNTY Super. Ct. No.
DEPARTMENT OF CHILDREN 19CCJP05288A
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
R.Y.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Lisa A. Brackelmanns, Judge Pro Tempore
of the Juvenile Court. Affirmed.
Aida Aslanian, under appointment by the Court of Appeal,
for Defendant and Appellant.
Dawyn R. Harrison, Interim County Counsel, Kim Nemoy,
Assistant County Counsel, Navid Nakhjavani, Principal Deputy
County Counsel, for Plaintiff and Respondent.
_________________________
Mother appeals the juvenile court’s order terminating her
parental rights to her daughter M.Y. She contends the juvenile
court erred in finding the beneficial parent relationship exception
to adoption did not apply under In re Caden C. (2021) 11 Cal.5th
614 (Caden C.). She also contends the court and the Los Angeles
County Department of Children and Family Services (DCFS)
failed to make an adequate inquiry under the Indian Child
Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) and related
California law (Welf. & Inst. Code, § 224 et seq.).1 We find no
prejudicial error and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Child welfare history
Mother and father have a history with the dependency
court.2 M.Y.’s three older siblings C.Y., J.Y., and T.Y. were
declared dependents of the juvenile court, primarily due to
parents’ substance abuse, between May 2003 and May 2009.
The court granted legal guardianship of C.Y. and J.Y. to paternal
grandmother, and terminated parents’ parental rights as to T.Y.,
who was adopted.
In May 2012, M.Y. (born April 2012) was declared a
dependent of the juvenile court after her meconium tested
positive for methamphetamine. The court granted parents,
1 Undesignated statutory references are to the Welfare
and Institutions Code. Because ICWA uses the term “Indian,”
we do the same for consistency, although we recognize other
terms are preferred. (In re Benjamin M. (2021) 70 Cal.App.5th
735, 739, fn. 1 (Benjamin M.).)
2 Father is not a party to this appeal.
2
who were married, family reunification services and placed M.Y.
with paternal cousin Lisa and her husband. Parents reunified
with M.Y., and the court terminated its jurisdiction in December
2013.
2. Current petition
M.Y. again came to DCFS’s attention on August 10, 2019,
when she and mother were seen walking around a mall parking
lot. Mother appeared disheveled and did not know what day
it was; M.Y. had blisters on her feet and her clothes were dirty.
Mother was homeless. She had been using vouchers to stay at
hotels but had checked out of the last one.
The responding DCFS social worker (CSW) spoke to
relatives but could not reach mother. According to paternal
cousin Kristen, mother had a history of bipolar disorder, alcohol
abuse, and methamphetamine use. In 2018, the family had
become homeless. Lisa and her husband let the family stay in
a camper parked in their yard—M.Y. slept in the house with Lisa
and her husband and parents stayed in the camper. The family
left in November 2018 after Lisa and her husband found drug
paraphernalia in the camper. Kristen said DCFS was going to
open a new case with the family, but mother sent M.Y. to live
with maternal uncle in Oregon.
Maternal uncle confirmed mother brought M.Y. to Oregon
in January 2019 to stay with him and his wife. Mother returned
to Oregon in March and stayed until July 3, 2019, when she
and M.Y. left. In June 2019, mother was arrested. Uncle had
called the police, believing mother was having a bipolar episode,
when he found her screaming and smashing the windows of her
car. Mother and M.Y. returned to California after the incident.
3
Maternal uncle asked that he and his wife be considered for
placement.
Mother and M.Y. had “show[n] up” at Lisa’s house on
August 11. A CSW interviewed mother and M.Y. there. On
returning from Oregon, mother and M.Y. stayed with maternal
grandmother and then lived in hotels. Mother had separated
from father in January 2019. M.Y. said father sometimes stayed
the night at their hotel.
Mother denied current drug use, stating she last used
methamphetamine nine months earlier. She said she’d used
methamphetamine “ ‘on and off’ ” since 2005––she “would get
clean and then relapse.” Mother last had been in an inpatient
treatment program in 2014. She told the CSW she drank alcohol
only “ ‘sporadically’ ” and denied any mental health diagnoses.
She said homelessness was the only issue impacting the family.
M.Y. confirmed she’d been living in Oregon with her uncle
and was not sure why she returned to California. She denied
having to sleep outside. M.Y. felt happy and safe with mother
and father.
Lisa and her husband had agreed to allow mother to live
in the camper again if she enrolled in Narcotics Anonymous.
Mother was willing to do so and to drug test that day for DCFS.3
On August 14, 2019, DCFS obtained an expedited removal
order detaining M.Y. from parents. Mother asked that M.Y. be
left in Lisa’s and her husband’s custody. Lisa and her husband
3 Mother’s August 12, 2019 drug test results were negative
for all substances, but her test was diluted.
4
were willing to adopt M.Y. if parents did not reunify with the
child.
On August 16, 2019, DCFS filed a section 300 petition
on behalf of M.Y. alleging parents’ substance abuse rendered
them incapable of caring for M.Y. and had led to the permanent
placement of M.Y.’s older siblings. At the August 19 detention
hearing, the court detained M.Y. from parents and ordered
they have monitored visitation.4
3. Jurisdiction and disposition
A DCFS dependency investigator (DI) interviewed M.Y.
at Lisa’s home on September 5, 2019. M.Y. missed her parents.
She last had seen father in court and had not talked to her
mother “since she left.” M.Y. stated, “ ‘[M]aybe I can see my mom
and dad for an hour or two and when they get a house, maybe I’d
like to see them more[;] I only like to visit them.’ ” M.Y. changed
the subject when asked about staying in hotels and parents’
behaviors. She denied any physical or sexual abuse.
On September 17, 2019, the CSW met with mother at
her treatment center, where she had been voluntarily admitted
earlier that month. Mother told the CSW she had taken
methamphetamines “right before coming” because she feared
the facility otherwise would not deem her in need of treatment.
Mother denied having used any type of substance in the weeks
leading up to M.Y.’s detention. Mother wanted to divorce father,
whom she described as a “functional addict.” She believed father
was “toxic” for her, and she had stayed with him because he
4 Father appeared at the hearing, but mother did not. She
was arraigned on October 11, 2019.
5
was her “ ‘dealer.’ ” Mother said father had hit her in the past,
including when she had returned to California while M.Y. was
in Oregon. Mother said she would do whatever was necessary
to reunify with M.Y.
On October 1, 2019, mother transitioned to an outpatient
program. The DI interviewed her the next day. Mother appeared
“scattered in her thoughts,” but was cooperative and able to
maintain eye contact. Mother, then 52 years old, said she began
“smoking pot” at 12 and began experimenting with other drugs
and alcohol at 19. She tried methamphetamine in 2001 when
she met father. Mother had been using meth off and on since
then; she said she’d been sober about five years over the years.
She had a “ ‘[h]ard time’ ” getting off meth and into a treatment
program.
Mother told DCFS her parents divorced when she was
about one year old. Her stepfather raised her; she had minimal
contact with her biological father. Mother left home at age 11
and lived with an aunt, moving to an adolescent home when
she was 12.
Mother had a monitored visit with M.Y. at her inpatient
facility in late September. Mother was appropriate and told M.Y.
she loved her; M.Y. appeared comfortable.
DCFS filed its jurisdiction/disposition report on October 10,
2019. It asserted parents had “an unresolved history of illicit
drug abuse,” and suspected current methamphetamine use,
that rendered them incapable of caring for M.Y. Mother
appeared to be “extremely codependent on father”; she told
the DI “every time she completes a program, she returns to
father.” DCFS expressed concern that parents’ issues were not
“one-time incidents, but are indicative of a chronic, long-term
6
pattern of abuse for both of them.” DCFS concluded M.Y. could
not safely remain with either parent. It recommended parents
receive no reunification services.
At the jurisdiction hearing on October 22, 2019, the court
sustained the section 300 petition as to mother and father and
continued the disposition hearing.
Mother was visiting M.Y. consistently every Sunday.
The CSW had no concerns. During a monitored visit in a park
on November 9, mother “displayed a positive behavior and
engaged properly with [M.Y.]” However, M.Y.’s caregiver said
M.Y. “is always concerned about her mother.”
Mother’s counselor at her outpatient program confirmed
mother had attended all group sessions and completed all
assignments, had attended more than the required number
of AA meetings per week, and had a sponsor. Mother’s weekly
drug tests had been negative.
At the contested November 18, 2019 disposition hearing,
DCFS asked the court to take judicial notice of the sustained
petitions, case plans, and minute orders in the earlier
dependency case file concerning M.Y. and her siblings. The
court admitted those electronic files into evidence, as well as
DCFS’s most recent report. The court also admitted mother’s
exhibits, including: a letter from her outpatient program that
she was actively engaged in the 12-step program and doing well
in treatment; a letter from mother’s psychologist that she had
been attending weekly sessions since October 8 and had made
good progress; and divorce paperwork mother had filed.
DCFS asked the court to bypass reunification services
for parents. But M.Y.’s counsel recommended the court provide
mother with reunification services. The court ordered M.Y.
7
removed from parents. It bypassed reunification services for
father but granted them for mother. The court ordered mother
to participate in a full drug/alcohol program with aftercare,
weekly drug testing, a 12-step program, a domestic violence
victims support group, parenting classes, individual counseling,
and mental health counseling, and to undergo a psychiatric
evaluation. Mother was to have monitored visitation for
a minimum of six hours per week.
4. Six-month review period
In a status review report filed April 24, 2020, DCFS
noted M.Y. was doing well with Lisa and her husband. She
had begun weekly mental health services and was to receive
special education services in reading. Lisa and her husband
wanted to adopt M.Y. if mother failed to reunify. They loved
M.Y. and wanted to give her a loving and stable home.
Mother remained in the outpatient, residential treatment
program she had entered on October 1, 2019. She was working
at a Wal-Mart and looking for housing outside the program.
Mother continued to test negative for drugs and alcohol each
week. She also was participating in her other court-ordered
services and in the process of beginning individual counseling.
Mother had visited M.Y. for two hours each Saturday at
a park near her treatment facility, traveled to visit with M.Y. for
special occasions, and called M.Y. daily. The report noted mother
and M.Y. appeared “to have a strong bond and [M.Y.] appear[ed]
to be comfortable in the mother’s presence.” With the onset
of the pandemic, mother began to visit with M.Y. daily through
FaceTime. Mother was concerned about exposing M.Y. to the
virus. Mother visited M.Y. in person for her birthday, however,
which was important to M.Y.
8
DCFS assessed mother as in “partial compliance” with
her court-ordered programs, as she had yet to participate in
individual counseling. DCFS also wanted more time to assess
whether mother would remain sober outside the structure
and support of her residential program. DCFS recommended
the court continue reunification services.
Due to COVID-19-related court closures, the court
continued the six-month review hearing from May 2020 to
September 2020. DCFS’s status review report, filed August 14,
noted DCFS had liberalized mother’s visits to unmonitored for
two hours each (in April), and then increased the time to four
hours (in June), and eight hours (in August). Due to mother’s
work schedule, she could visit M.Y. only one day per week. She
telephoned or video called M.Y. on the other days. Mother and
M.Y. had “been observed to have a strong bond.” DCFS noted
M.Y. said she would like to live with mother, but if she couldn’t,
then she would like to live with her caregivers or for mother
to live with M.Y. and her caregivers.
Mother had made substantial progress. She’d completed
her full treatment program and continued to remain sober for a
year. Mother left the facility in June 2020. She was living with
a friend and working full time. She had a driver’s license and
had saved money to buy a car.5
DCFS said “the only obstacle at this time to reunification
is housing for the mother.” It noted the case was eligible for
housing assistance. DCFS recommended the court continue
5 Mother had stopped taking psychotropic medication,
however, believing the medication was not necessary now that
she was clean and sober.
9
reunification services and set a progress hearing in three months
to discuss mother’s housing and the return of M.Y. to her care.
The court found mother had substantially complied with
her case plan. The court ordered DCFS to assess mother for
overnight visits. It continued reunification services and set a
combined 12-month/18-month review hearing.
5. Combined 12- and 18-month review period
In its interim review report filed November 10, 2020, DCFS
recommended the court return M.Y. to mother’s custody, with
DCFS to provide family maintenance services. Mother was living
with maternal step-grandfather and on a waiting list for housing.
She continued to work full time.
On October 2, 2020, mother began overnight visits with
M.Y. at step-grandfather’s home each weekend, except for a
weekend after she had surgery.6 She began extended weekend
visits with M.Y. on November 6. Mother called M.Y. nightly
when not visiting.
M.Y. completed therapy in October 2020; she had met
her therapy goals. She participated in a conjoint therapy session
with mother and mother’s therapist in October.
In a report filed December 3, 2020, however, DCFS
told the court it had seen a change in mother’s behavior that
concerned it. Despite DCFS’s earlier home-of-mother
recommendation, mother believed DCFS and paternal relatives
were colluding against her reunification with M.Y. so M.Y.
6 Mother took a leave of absence from her job after her
mid-October surgery and apparently did not return to work.
10
could be adopted. Mother repeatedly called and/or texted
the CSW and paternal cousin Kristen about this belief.
Mother was to have an extended Thanksgiving visit
with M.Y. from November 25 through November 29, 2020, but
maternal step-grandfather had a heart attack on November 24.
She told the CSW she might have to change the time she picked
up M.Y. M.Y. waited for hours, however, before mother called
Lisa, crying. She said she would not be able to pick up M.Y. until
that Friday morning. On that morning, however, mother texted
Lisa, “ ‘[M.Y.] is having so much fun there, I will not be picking
her up today.’ ”
Over the next several days, the CSW, the caregivers,
and Kristen received several telephone calls and texts from
mother. Mother said she was going to leave step-grandfather’s
home (where she had fought with another relative) because it
didn’t matter where she lived—she knew M.Y. would not be
returned to her. Mother said she planned to live under
the freeway in a tent. Mother continued to accuse DCFS of
planning for M.Y. to be adopted, alleging it would receive a
$40,000 bonus if she were. She did not attend the scheduled
team meeting despite the CSW’s encouragement. The CSW
asked mother to drug test, but mother said she was sick, and
her doctor had told her to quarantine.
Based on mother’s behavior, DCFS believed her issues
had resurfaced or no longer were being addressed. Mother’s
mental health appeared to be deteriorating, and DCFS also was
concerned mother might be using drugs again. M.Y. appeared
to be “picking up on” mother’s decline; Kristen and Lisa reported
M.Y. was establishing an “ ‘escape route’ ” by memorizing the
11
way back to her relatives’ homes. M.Y. had been “exhibiting
signs of concern and sadness.”
At the scheduled December 9, 2020 progress hearing, the
juvenile court ordered M.Y. remain in her placement. DCFS
was to ensure mother received monitored visits with M.Y. at
a minimum of six hours per week. Mother was to continue in
her programs and to test.
DCFS learned that, on December 26, 2020, mother had
enrolled herself in a 30-day residential treatment program at
Discovery House, which she completed on January 25, 2021.
Mother had relapsed after step-grandfather died.7 Her substance
abuse counselor wrote DCFS, stating mother had tested negative
for all substances at discharge and had been a model client.
The counselor noted mother had been diagnosed with PTSD
and depression and had been prescribed Prozac. Mother was
to enroll in an outpatient program.
The day after her discharge, mother called the CSW and
said she was not attending an outpatient program because she
“ ‘knew that she would not be able to reunify with [M.Y.].’ ”
Mother said she was staying with a friend but would not provide
the address. The CSW encouraged mother to enroll in aftercare.
In early February, the CSW went to father’s apartment
to try to visit mother. No one answered the door, but father’s
neighbors confirmed mother was staying there. A week later,
father responded to a message the CSW had left. He said he
7 According to the substance abuse counselor, mother also
had lost her own mother (maternal grandmother) in the past
six months.
12
didn’t know where mother was. As of DCFS’s February 16, 2021
status review report, mother’s whereabouts were unknown.
M.Y. continued to live with Lisa, appeared to be
“very happy” in her caregivers’ home, and had formed a close
relationship with other nearby paternal relatives. She had
begun group counseling sessions at her school and was to
resume individual therapy on February 3. M.Y. told the CSW
she’d like to continue living with her caregivers.
Mother had three monitored visits with M.Y. during this
reporting period: two at a park in December and one at mother’s
treatment facility in January. No concerns were reported.
Mother had not contacted M.Y. since she left the treatment
facility on January 25, 2021, however. DCFS recommended
the court terminate mother’s reunification services.
In a March addendum for the 18-month review hearing,
DCFS reported that, on February 9, 2021, mother and her
substance abuse counselor called and told the CSW mother
had returned to Discovery House and was re-enrolled in its
residential treatment program.8
On February 16, the CSW met with M.Y. and her
caregivers to discuss mother’s return to treatment and the
upcoming hearing. M.Y. said she wanted to continue to live with
her caregivers but to have visits with mother. DCFS noted M.Y.
seemed to like the stability and routine of her caregivers. M.Y.
also enjoyed spending time with Kristen and paternal great aunt.
8 A February 24, 2021 letter from the director of outpatient
services confirmed mother voluntarily entered the residential
treatment program from January 31 to February 22 and then
was admitted to the outpatient program.
13
M.Y. was concerned she wouldn’t be able to see them if she lived
with mother.
The CSW monitored two visits between mother and M.Y.
at a park on February 21 and March 2, 2021. No concerns were
reported. Mother was to have two-hour, weekly visits on Tuesday
afternoons at the park. Mother also called M.Y. daily.
The court continued the March review hearing to May 2021
for mother’s contest. DCFS updated the court on mother’s
progress in an April 22, 2021 addendum. As of April 15, mother
was a few weeks away from completing her 90-day program. She
planned to move to a sober living home that accepted mothers
with children. Mother’s sponsor told the CSW mother had gained
insight into her past and now was taking responsibility for her
actions after having been resistant at first. On April 21, 2021,
mother’s outpatient program reported she was in good standing
and all her drug tests had been negative. Mother was attending
several 12-step meetings per week and demonstrated “a strong
resolve to stay sober.” She also had resumed individual
counseling on March 18. Mother continued to visit M.Y. weekly
with no reported concerns.
For the May 5, 2021 review hearing, mother submitted
letters of support from her counselor at Discovery House, her
individual therapist, and her adult son. The son wrote a letter
in support of her regaining custody of M.Y. Mother’s drug
counselor and therapist described her positive progress in her
recovery. The therapist also noted mother had been successfully
addressing her grief from the deaths of her parents. Both noted
mother was dedicated to M.Y. and to providing her with a safe
and loving home. The therapist also concluded “a mutual caring,
loving, and respectful relationship exists” between mother and
14
M.Y. She had observed mother and M.Y. together in two
sessions, and in both had seen “a strong bond” between them,
including their laughing and joking together.
The court found mother’s progress toward alleviating
or mitigating the issues that led to M.Y.’s removal had been
“substantial[ ] ([p]artial).” The court continued reunification
services and set the matter for a section 366.25 hearing on
September 21, 2021.
6. Termination of reunification services
In its status review report filed August 25, 2021, DCFS
noted M.Y.’s wishes—to remain in paternal cousin’s home
but be able to visit mother—had not changed. In July, when
the CSW probed M.Y. about her “worries and wishes,” M.Y.
expressed concerns “ ‘about Court’ ” and “ ‘going back home
to my mom’s.’ ” She said she wanted “ ‘to stay at Lisa’s.’ ”
On further questioning, M.Y. explained she was worried about
mother “ ‘possibly getting back on drugs’ ” or “ ‘los[ing] our
apartment or house again.’ ” M.Y. gave the CSW consent to tell
the court she had “ ‘really big worries’ about living with mother.”
Mother had been living at a sober living facility since
the end of February 2021. She planned to move to a different
sober living facility for families on September 1, in anticipation
of M.Y. living with her. Mother expected to graduate from her
program soon. Mother continued to attend several meetings
each week and to consult with her sponsors. Mother’s counselor
reported she tested randomly for drugs 43 times during her
outpatient program and each test had been negative.
Mother consistently visited M.Y. At the beginning of July
2021, mother’s weekly visits with M.Y. were extended by an hour.
The monitor continued to report no concerns. Mother and M.Y.
15
“appear[ed] to get along well and have an enjoyable time during
their visits.”
Mother appeared “to be doing well in her sobriety,” and
continued “to have heavy support from her sponsor, drug
counselor, and sober living program.” The report went on,
however, to describe mother’s “yo-yo pattern” of recovery and
relapse, noting her struggle to remain sober after completing
each treatment program had resulted in the detention and
re-detention of her children. DCFS thus found the likelihood of
mother relapsing—and the risk of harm to M.Y.—remained high.
It recognized “the extraordinary efforts” mother made to regain
sobriety but nevertheless recommended the court terminate
reunification services.
At the September 21, 2021 hearing, the court found
mother’s progress in alleviating or mitigating the issues
requiring M.Y.’s placement had “not been substantial” and
terminated mother’s reunification services. The court signed
a stipulated attorney order, prepared by M.Y.’s counsel,
that mother have six hours of weekly visitation with M.Y.:
three hours monitored and three hours unmonitored—with
conditions—in a public setting. The court gave DCFS discretion
to liberalize visitation.
7. Permanency planning
DCFS’s section 366.26 report, filed December 30, 2021,
summarized the type and frequency of visits between mother and
M.Y. throughout the case; it included about 35 pages of visitation
case notes. The visits were positive and M.Y. was happy to see
and engage with mother. Mother played, sang, danced, and
exercised with M.Y., read with her and helped her with
homework, brought her gifts, activities, and healthy snacks,
16
encouraged and asked about her, attended to her needs and
comforted her, appropriately disciplined and redirected her,
and generally interacted positively with her. M.Y. and mother
were affectionate with and expressed their love for one another.
DCFS intended to liberalize mother’s second weekly visit from
monitored to unmonitored, beginning in January, as she had
been doing well and continued to test negative.
The report also included DCFS’s analysis of the
inapplicability of the beneficial parent relationship exception
to adoption. DCFS found there was “no doubt that mother and
child are bonded.” Nevertheless, it “question[ed]” how mother’s
interaction with M.Y. could “rise to the level of a parental role
through weekly brief visits in the park.” (Bold type omitted.)
The analysis included M.Y.’s earlier statements that she
had concerns about living with mother and wanted to stay with
her caregivers “ ‘because she likes her home, her life, her school
and does not want to leave.’ ” M.Y. had said she “loves her
mother[ ] and is ‘worried’ about returning to live with her mother,
because ‘What if she starts doing drugs again? What if she loses
our house again? What happens to me?’ ” DCFS found M.Y.
thus “d[id] not view mother as a safe, stable, parental figure
in her life.”9
DCFS recommended adoption by the current caregiver as
M.Y.’s permanent plan: “[M.Y.] is very attached to her caregiver,
9 In an addendum filed January 11, 2022, DCFS noted,
under a heading about the child’s statement about the
prospective adoption, “The child is too young and not required
to make a statement.” M.Y. was a few months shy of her tenth
birthday at the time.
17
who is eager to provide a permanent, nurturing and stable home
for her through adoption. [¶] . . . The child has demonstrated a
strong, loving bond with caregivers.” The caregivers intended
to support “ongoing contact” between mother and M.Y., as long
as mother maintained sobriety.
On January 10, 2022, mother filed a section 388 petition.
She asked the court to reinstate reunification services,
return M.Y. to her custody when she found housing, or order
unmonitored visits for nine hours each week, with overnight
visits when mother secured housing. Mother attached various
letters of support, her own statements, and a 2020 permanency
planning report that noted M.Y. said “she would like to go home
with her mother, but that she likes living with Lisa [and her
husband] and wants to stay there if she does not go back home
to the mother.” The court set a hearing on mother’s petition
and M.Y.’s permanent plan for February 23, 2022, which
ultimately was continued to March 23, 2022.
DCFS responded to the section 388 petition in an interim
report filed February 14. A DI spoke to M.Y. about mother’s
petition. M.Y. responded, “ ‘I want to stay with Lisa.’ ” M.Y.
“ ‘fe[lt] safer with her.’ ” The DI asked M.Y. about her visits
with mother. She said, “ ‘They are fine[;] we visit only in parks.’ ”
M.Y. said she felt safe visiting with mother but “ ‘only if [the
visits] are in the parks near the home.’ ” The DI asked M.Y.
how she felt about mother wanting to reunify with her. M.Y.
“looked down and became quiet. She [then] looked up and
appeared hesitant,” stating, “ ‘I only want to visit with my
mom[,]’ ” adding, “ ‘Will you make sure my mom does not
know it is from me[?]’ ” The child clarified she was not afraid
of mother; rather, she did not want to hurt mother’s feelings.
18
M.Y. reiterated she wanted “ ‘to stay with Lisa and visit my
mom.’ ” The DI also spoke to Lisa, who relayed that M.Y. “ ‘loves
her mom but she worries about going back. She is worried that
her mother is uncertain.’ ”
According to the report, the next day the CSW gave
the DI a letter M.Y. wanted to give to the judge. She wrote,
“ ‘Dear Jadge Can you stop givieng more and more expanding
the time Make a dison soon Love, [M.Y.]’ ”10 M.Y. apparently
had given the note to the CSW the month before.
The DI interviewed mother by telephone. Mother had been
clean for over a year, had completed her programs, and was living
with a friend while wait-listed for housing. Mother admitted she
was in contact with father, however, and they believed Lisa was
“ ‘a monster.’ ” Mother accused Lisa of lying and blocking contact
between M.Y. and father and her brothers. She insisted Lisa
would “ ‘cut [her] off’ ” from M.Y. if adoption were granted.
Mother accused DCFS of failing to consider the strength of her
bond with M.Y. The DI also contacted mother’s former neighbors
and “sober living sister.” They described mother’s bond with
M.Y. and perseverance in maintaining her sobriety.
DCFS “strongly recommend[ed]” the court honor M.Y.’s
wishes and deny mother’s section 388 petition, and the
permanent plan of adoption “go forward.” In a last minute
information, DCFS reproduced a text message mother had
sent Lisa, essentially accusing her of having manipulated M.Y.
to write the letter to the court. Mother called Lisa a “f---ing
10 The copy of the note attached to the report cuts off after the
“ex” in “expanding.”
19
monster,” declared they were “open enemies,” and accused Lisa
of dissolving M.Y.’s “entire family of origin.”
8. Combined section 388 and section 366.26 hearing
DCFS filed its final status review report on March 8, 2022.
It noted M.Y. was happy and comfortable living with Lisa and
her husband, and had “a strong bond with the prospective
adoptive parents.” M.Y. had made progress in school, where
she attended weekly group counseling sessions. Lisa had not
reported any concerns about M.Y.’s mental or emotional health.
At the combined hearing on March 23, the court admitted
into evidence DCFS’s reports with attachments and took judicial
notice of the case file, as well as the file in the earlier dependency
case. Mother did not object. The court also admitted mother’s
exhibits: mostly letters from friends, relatives in Oregon, her
doctor and therapist, and personnel from her treatment program.
Mother testified in support of her section 388 petition
and M.Y.’s permanent plan. She spoke about completing her
treatment program, her continued participation in aftercare,
and her living arrangements. She also testified about her bond
with M.Y. and her twice weekly visits with M.Y. in the park—
both unmonitored since January 2022. Mother described her
interactions with M.Y. during those visits and their nightly calls.
She also testified about attending M.Y.’s doctor’s appointment
and participating in a telephonic teacher-parent conference.
Mother wanted to remain involved in M.Y.’s life even if M.Y.
continued to live with Lisa. She believed she could provide M.Y.
with continued emotional support. Mother also addressed her
concerns about M.Y.’s caretakers.
After mother testified, the court heard argument on
the section 388 petition and denied it. The court commended
20
mother on her hard work to maintain her sobriety but found
her circumstances were still changing, and it was not in M.Y.’s
best interest to offer more reunification services.
As to M.Y.’s permanent plan, mother’s counsel argued the
beneficial parent relationship exception to adoption applied and
asked the court to order DCFS to assess legal guardianship as
M.Y.’s permanent plan. Counsel argued mother had visited M.Y.
regularly, and mother’s interactions with M.Y. were beneficial
to M.Y. As to detriment to M.Y.—the final element of the
exception—counsel explained the court must assume M.Y.
would never see mother again if parental rights were terminated.
Counsel noted M.Y. consistently asserted she wanted to continue
visiting mother and argued it would not be in M.Y.’s best interest
to “terminate mother’s parental rights and to cut off this loving,
caring parental relationship.”
M.Y.’s counsel, who also represented M.Y. in her first
dependency case, asked the court to terminate parental rights.
Counsel acknowledged mother and M.Y. had “really great visits,”
but the visitation notes did not indicate M.Y. had a “substantial,
positive emotional attachment to her mother.” Counsel
noted M.Y. never had issues ending visits and never asked
for more extensive visits with mother. Counsel argued M.Y.
had expressed “time and time again, throughout the last two
years, that she doesn’t want to live with her mom. She wants
to be adopted and have a more stable, predictable childhood.”
DCFS’s counsel joined in minor’s counsel’s arguments, adding
the unmonitored visits had been very limited and in a structured
setting, and mother’s recent behavior of lashing out at the
caretakers seemed to be placing M.Y. at risk.
21
The court agreed mother had visited M.Y. consistently
and loved M.Y. But, the court noted, M.Y. had been removed
once before, followed by a period of instability while in parents’
care due to their substance abuse and unstable housing. The
court also noted M.Y. had been out of mother’s care for the past
two and a half years. The court continued,11
“And I do agree that although mother
has had good visits, and the child seems to
enjoy those visits, they’ve been in a structured
setting and have been limited in terms of their
time that they’ve been able to spend together,
and I don’t see any evidence that shows such
a substantial, emotional positive attachment
that would satisfy prong two.
“The court is also noting that [M.Y.]
does not want to return to her mother. She has
not even asked for more time with her mother
other than what has been ordered by the court.”
The court did not give great weight to mother’s therapist’s
letter about the bond between mother and M.Y., noting the
therapist’s limited contact with M.Y.12 The court continued,
“And I’m also noticing [M.Y.’s] desire for permanency and
11 Mother became upset and repeatedly interrupted the court
during its ruling. She left the courtroom before the court
finished.
12 M.Y.’s counsel had argued the therapist, who was not a
bonding expert, was not qualified to determine mother and M.Y.
shared a bond, having observed them together only twice.
22
stability, which her parents have not been able to give her, so far,
and she’s been getting with the caregiver; and the anxiety and
the worries that she has about living with her mother, her
mother relapsing again and . . . not knowing what her housing
situation is going to be like.”
Finally, as to detriment, the court did “not find that the
termination of this [parent-child] relationship outweigh[ed]
the potential benefit to [M.Y.] being adopted.” The court found
any harm “or trauma” M.Y. may experience from the termination
of the relationship with mother “is outweighed by the benefits
of stability and permanency provided by her current caregivers.”
The court recognized M.Y. knew mother was her mother but
explained M.Y. also knew “what it’s been like living with her
mother and father, and that has, in the past, been very uncertain
and traumatic and unstable.”
Accordingly, the court found mother had failed to
demonstrate the second and third prongs of the beneficial
parent relationship exception to adoption. Specifically, mother
had maintained regular visitation but “the benefit accruing to
the child from the relationship with the parent is outweighed by
the physical and emotional benefit the child will receive through
the permanency and stability of adoption and that adoption is in
the best interests of the child.” Finding M.Y. was adoptable and
no exception to adoption applied, the court terminated mother’s
and father’s parental rights and designated the current caregiver
as the prospective adoptive parent. Mother appealed.13
13 In her opening brief, mother states this appeal addresses
only the order terminating parental rights.
23
9. Facts relating to ICWA
On August 19, 2019, father signed and filed an ICWA-020
form indicating he had “no Indian ancestry as far as [he] kn[e]w.”
At the detention hearing, the court confirmed with father that
he had no Indian ancestry. The court found it had no reason
to know ICWA applied as to father. Father also told the
investigator, in September 2019, he had no Indian ancestry.
As to mother, an ICWA-010(A) form attached to the
August 16, 2019 petition stated DCFS questioned mother on
August 12 about the child’s Indian status. The form states,
“Mother reports the maternal grandmother is Cherokee Indian.
On 9/20/12, the Court found ICWA does not apply.” The
detention report included a similar note, adding, “Mother stated
that she is not certain if the child is registered with the Tribe.”
On October 2, 2019, mother told the DI that she had no
American Indian ancestry. The October 10 jurisdiction report
stated ICWA “does or may apply.” The report again noted that,
in September 2012, the court had found ICWA did not apply to
M.Y.
Mother signed and filed an ICWA-020 form on October 11,
2019, indicating she had “no Indian ancestry as far as [she]
kn[e]w.” At mother’s arraignment that same day, the court
noted mother had indicated she had no Indian ancestry and
found ICWA did not apply as to her. DCFS’s subsequent status
review report noted the court found it had no reason to know
M.Y. is an Indian child as defined under ICWA and had not
ordered notice to any tribe or the Bureau of Indian Affairs (BIA).
A June 20, 2011 minute order from the earlier dependency
case, of which the court took judicial notice at the disposition
24
hearing,14 states that, on May 6, 2011, the court had ordered
ICWA notices be sent to two “other” Cherokee tribes. The court
already had received responses to ICWA notices from the BIA
and Cherokee Nation Oklahoma, and now had responses from
the United Keetowah tribe, Eastern Band Cherokee, and
Cherokee Nation Oklahoma. The court found the ICWA notices
were “proper and complete,” and the child—one of M.Y.’s older
full siblings—did not “fall within the provisions of the ICWA
statute,” and the court had “no reason to know the child [was]
an Indian child as defined by [ICWA].” The court found ICWA
did not apply.15
DISCUSSION
1. The court did not err in terminating mother’s
parental rights
a. Applicable law and standards of review
Under section 366.26, once the juvenile court terminates
reunification services and determines a dependent child is
adoptable—a finding not in dispute here—it must select adoption
as the permanent plan and terminate parental rights unless
it finds doing so would be detrimental to the child under one
of several statutory exceptions. (§ 366.26, subd. (c)(1); Caden C.,
supra, 11 Cal.5th at pp. 630–631.)
The beneficial parent relationship exception applies
where the parent has “maintained regular visitation and contact
14 The court also took judicial notice of the judicial file of the
earlier case at the section 366.26 hearing.
15 That minute order relates to the hearing at which the court
terminated parents’ rights to M.Y.’s full sibling T.Y.
25
with the child and the child would benefit from continuing the
relationship.” (§ 366.26, subd. (c)(1)(B)(i).) Our Supreme Court
recently clarified the three elements a parent must prove, by
a preponderance of the evidence, to establish the exception:
(1) the parent’s regular visitation and contact with the child;
(2) the child’s “substantial, positive, emotional attachment to
the parent,” “the continuation of which would benefit the child”;
and (3) that the termination of “that attachment would be
detrimental to the child even when balanced against the
countervailing benefit of a new, adoptive home.” (Caden C.,
supra, 11 Cal.5th at pp. 631, 636.)
In assessing whether terminating parental rights would
be detrimental to the child, the court must perform a “case-
specific inquiry,” asking, “does the benefit of placement in a new,
adoptive home outweigh ‘the harm [the child] would experience
from the loss of [a] significant, positive, emotional relationship
with [the parent?]’ [Citation.] 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., supra, 11 Cal.5th at pp. 633–634.)
“A showing the child derives some benefit from the
relationship is not a sufficient ground to depart from the
statutory preference for adoption.” (In re Breanna S. (2017)
8 Cal.App.5th 636, 646, disapproved on another ground in
Caden C., supra, 11 Cal.5th at pp. 637–638, fns. 6–7.) Rather,
the parent must show the relationship “promotes the well-being
of the child to such a degree as to outweigh the well-being
the child would gain in a permanent home with new, adoptive
parents.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
26
In evaluating the existence of a beneficial parental
relationship, courts consider several factors, including “[t]he age
of the child, the portion of the child’s life spent in the parent’s
custody, the ‘positive’ or ‘negative’ effect of interaction between
parent and child, and the child’s particular needs.” (In re
Autumn H., supra, 27 Cal.App.4th at p. 576.) The Caden C.
court clarified, however, that a parent’s failure to make adequate
progress with her case plan or “continued struggles” with issues
that led to the dependency—standing alone—do not preclude
application of the exception. (Caden C., supra, 11 Cal.5th at
pp. 637–638.)
We review the court’s findings as to whether the parent
has maintained regular visitation and whether the child
would benefit from continuing the parent-child relationship
for substantial evidence. (Caden C., supra, 11 Cal.5th at pp. 639–
640.) In so doing, we do “ ‘not reweigh the evidence, evaluate
the credibility of witnesses, or resolve evidentiary conflicts,’ ” and
we will uphold the juvenile court’s determinations even where
substantial evidence to the contrary also exists. (Id. at p. 640.)
Where, as here, a parent contends the court erred in finding she
did not meet her burden of proof, we must determine whether
“the evidence compels a finding in favor of the appellant as a
matter of law. [Citations.] Specifically, the question becomes
whether the appellant’s evidence was (1) ‘uncontradicted and
unimpeached’ and (2) ‘of such a character and weight as to leave
no room for a judicial determination that it was insufficient to
support a finding.’ [Citation.]” (In re I.W. (2009) 180 Cal.App.4th
1517, 1528, disapproved on another ground in Conservatorship
of O.B. (2020) 9 Cal.5th 989, 1003, fn. 4, 1010, fn. 7.)
27
“[T]he ultimate decision—whether termination of parental
rights would be detrimental to the child due to the child’s
relationship with [her] parent—is discretionary and properly
reviewed for abuse of discretion.” (Caden C., supra, 11 Cal.5th
at p. 640.)
b. The court did not err in finding the beneficial parent
relationship exception did not apply
It is undisputed mother regularly visited M.Y., as the
court found. As to the second and third elements, the court
found mother had not demonstrated her parent-child relationship
with M.Y. was so substantial and positive that its termination
would be detrimental to M.Y. The court found that any “trauma”
or detriment M.Y. may experience from its loss was outweighed
by the benefits of stability and permanence M.Y. would receive
through adoption.
Mother contends the court relied on improper factors under
Caden C., including considering M.Y.’s earlier dependency case,
“inferring that [m]other’s sobriety problems were ongoing,”
failing to consider the parent-child relationship within the
visitation that had been allowed, and comparing mother’s bond
to M.Y.’s bond with her caregivers through their day-to-day
interaction. Mother also argues that, because DCFS never
asked M.Y. how she felt about being adopted and the possibility
of not seeing mother again, the juvenile court could not properly
have weighed the detriment to M.Y. from severing the parent-
child relationship against the benefits of adoption.
The record demonstrates mother and M.Y. had consistently
positive visits—most recently, twice a week, usually at a park,
for two to three hours. Mother and M.Y. also talked on the phone
or by FaceTime almost daily. DCFS and its counsel, M.Y.’s
28
counsel, and the court all agreed mother’s visits with M.Y were
positive—“great” even—and M.Y. enjoyed them. DCFS also had
reported there was “no doubt that mother and child are bonded.”
M.Y.’s counsel argued, however, the visitation notes did
not demonstrate M.Y. had a “substantial, positive emotional
attachment to her mother.” Counsel noted M.Y. “was perfectly
fine leaving the visits” and had “never asked the worker, her
mom, her caregiver[,] or even [counsel] for more time with her
mom, for overnight visits, for weekend visits, for [a] longer
period[ ] of time rather than those two to four hours a week.”
Counsel argued M.Y.—who was almost 10 years old and could
voice her desires to the CSW—had “not once questioned those
visits, and why she’s not getting more.” DCFS’s counsel added
mother had only three hours of unmonitored visits a week, and
asserted, “it’s very hard to build a true bond with the minor
in such a short, limited structured setting.”
The court agreed with counsel that the visits were positive
but had been “in a structured setting” and “limited” in terms of
the time mother and M.Y. were able to spend together. The court
found the evidence did not show “such a substantial, emotional
positive attachment that would satisfy prong two.”
We agree with mother the evidence describing her
visits with M.Y. demonstrated she and M.Y. shared a positive
relationship that benefitted M.Y. Contrary to DCFS’s
questioning of how mother’s interaction with M.Y. during
visits in the park could “rise to the level of a parental role,”
the monitor’s notes show mother in fact parented M.Y. during
their visits. (See, e.g., In re J.D. (2021) 70 Cal.App.5th 833, 856–
857 [visitation logs demonstrated mother acted in parental role
during visits by comforting child, encouraging him, teaching him,
29
setting limits, and expressing love and affection].) Mother also
went to M.Y.’s doctor’s appointment and participated in a parent-
teacher conference. And, as the court acknowledged, M.Y. knew
mother was her mother. The visitation logs reflect M.Y. called
mother “ ‘mommy,’ ” appeared happy and comfortable with
mother, and looked forward to visits.
That their visits were structured and limited to a few hours
each visit, does not—on its own—support a finding M.Y. did not
have a positive emotional attachment to mother or that she
would not benefit from continuing their relationship. As our
high court explained, “it is not necessary—even if it were possible
—to calibrate a precise ‘quantitative measurement of the specific
amount of “comfort, nourishment or physical care” [the parent]
provided during [his or] her weekly visits’ ” in assessing whether
“ ‘the child would benefit from continuing the relationship.’ ”
(Caden C., supra, 11 Cal.5th at p. 632.) Although mother’s visits
with M.Y. were limited to a setting primarily conducive to play––
and M.Y. described the visits as “fun”––the logs show mother
engaged with M.Y. on a level beyond that of a “friendly visitor.”
(In re Katherine J. (2002) 75 Cal.App.5th 303, 318–319.)
Further, the record shows M.Y., who had spent at least
half her life with mother, derived a benefit from their continued
relationship. Even when M.Y. was emphatic that she did not
want to return to mother’s care, she clearly—and repeatedly—
expressed her wish to continue visits with mother.
M.Y.’s counsel noted M.Y nevertheless was perfectly fine
leaving her visits with mother. True, but the case notes indicated
M.Y. became upset or was disappointed when mother had to take
calls from her sponsor and her attorney during visits, as well as
when mother told M.Y. she would have to reschedule a visit due
30
to the monitor’s unavailability. When M.Y. learned there would
be a makeup visit, the monitor described her as “giddy.”
And, as mother notes, contrary to DCFS’s assertions and
M.Y.’s counsel’s argument at the hearing—repeated by the court
—M.Y. did ask for more visits with mother, at least once, in the
first year of her dependency. As evidenced in DCFS’s section
366.26 report, in July 2020, M.Y. told the CSW “ ‘she would like
to see her mother more [often].’ ” The CSW responded “ ‘she
would like that too, but that . . . mother worked a lot.’ ” Around
that time, M.Y. also said she wanted to live with mother or
have mother live with her and her caregivers. In May 2020,
M.Y. had told the CSW she liked having unmonitored visits
with mother “ ‘because it could just be her and her mother.’ ”
Nevertheless, there is no evidence M.Y. asked about more
time with, or living with, mother over the next year and a half,
as the dependency continued, and mother relapsed.
In any event, to the extent the court erred in finding
mother and M.Y. did not share “such a substantial, emotional
positive attachment” (italics added) because their visits were
limited in nature and structure, that error is harmless. That
mother’s relationship with M.Y. may have met the threshold
of constituting a “substantial, positive, emotional attachment”
does not mean M.Y.’s attachment to mother was of such a
degree as to outweigh the benefits of adoption. The court
here specifically considered whether the harm of severing the
parent-child relationship outweighed the benefits of stability
and permanency that adoption would provide and found it
did not. (Caden C., supra, 11 Cal.5th at pp. 633–634 [termination
of parental rights is “ ‘detrimental to the child due to’ the child’s
beneficial relationship with a parent” when “the harm of severing
31
the relationship outweighs ‘the security and the sense of
belonging a new family would confer’ ”].)
As the record demonstrates the court did not base its
evaluation of the strength of M.Y.’s emotional attachment
to mother on the limited nature of their visits alone—which we
address below—we are convinced the court properly examined
the degree of that attachment when finding the termination
of mother’s parental rights would not be detrimental to M.Y.,
as compared to the benefits of adoption. Nor did the court run
afoul of the directives in Caden C. in so finding, as we discuss.
(Cf. In re B.D. (2021) 66 Cal.App.5th 1218, 1228 [remanding
for new section 366.26 hearing where record did not convince
reviewing court that juvenile court examined the nature of
the relationship before the dependency or visits during the
proceeding, and the court relied on improper factors in finding
lack of substantial, positive, emotional attachment].)
The court also considered “the overall impact mother’s
past behavior had on [M.Y.].” (Cf. In re J.D., supra, 70
Cal.App.5th at p. 863 [remanding in part because record
contained “no assessment of the overall impact mother’s
past behavior had on” child where juvenile court did not have
the benefit of Caden C. when it found the beneficial parental
relationship exception did not apply].) Addressing M.Y.’s
relationship with mother before the current dependency,
the court noted that period was “unstable and rocky due to
the parents’ substance abuse issues and unstable housing.”
The record supports the court’s observation. Even before DCFS
became reinvolved with the family in August 2019, M.Y. had
experienced instability and been intermittently out of mother’s
care. When parents became homeless in 2018, M.Y. spent
32
nights in Lisa’s home while parents stayed in a camper out front.
Mother relapsed, was homeless again, and left M.Y. with
relatives in Oregon. After returning to California, M.Y. and
mother stayed with a relative and then lived in different hotel
rooms. M.Y. did not understand why she left Oregon.
These events clearly traumatized M.Y. The court noted
M.Y.’s anxieties. M.Y. feared mother would relapse and again
lose her housing. Given M.Y.’s repeated concerns and express
desire not to return to mother’s care, the court reasonably could
infer mother’s pattern of sobriety and relapse, and continued
inability to find stable housing, negatively affected M.Y.’s
emotional attachment to mother, or at least diluted the strength
of that attachment. (See Caden C., supra, 11 Cal.5th at p. 634
[“[i]n many cases ‘the strength and quality of the natural parent/
child relationship’ will substantially determine how detrimental
it would be to lose that relationship, which must be weighed
against the benefits of a new adoptive home”].)
Contrary to mother’s contention, the court’s consideration
of mother’s struggles was not impermissible under Caden C.
While a parent’s issues are not “a categorical bar” to applying
the beneficial parent relationship exception, Caden C. made clear
that “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.” (Caden C., supra, 11 Cal.5th at pp. 637, 639.)
The court here considered how mother’s issues that led to the
dependency and termination of reunification services affected
M.Y.’s relationship with mother. In other words, mother’s
struggles informed the court’s analysis as to whether M.Y.
would “benefit from continuing the relationship and be harmed,
33
on balance, by losing it”—a question to which a parent’s case
issues are relevant under Caden C. (Id. at p. 638.)
We also can infer from the record that the court considered
how M.Y. “would be affected by losing the parental relationship”
when it determined any harm M.Y. might experience was
outweighed by the benefits she would receive through adoption.
(Caden C., supra, 11 Cal.5th at p. 633.) The court noted M.Y.
desired permanency and stability, which her parents had been
unable to give her, but that she had been getting from her
caregivers. The court commented on “the anxiety and the worries
[M.Y.] has about living with her mother,” as well as the fact M.Y.
did not want to return to mother and had not asked for more time
with her.16
As an initial matter, we do not view the court’s remark
as improperly “comparing the parent’s attributes as custodial
caregiver relative to those of any potential adoptive parent(s).”
(Caden C., supra, 11 Cal.5th at p. 634.) Rather, the court was
assessing the importance to M.Y.’s wellbeing of permanence
and stability. That assessment directly related to the court’s
evaluation of whether any harm M.Y. would experience if mother
no longer were in her life outweighed those benefits M.Y. would
receive from adoption. (Ibid.)
Substantial evidence supports the juvenile court’s finding
that the benefits of adoption—permanency and stability—
outweighed the benefit M.Y. would receive from maintaining her
parental relationship with mother. As DCFS’s reports and the
16 M.Y. asked for more time with mother at one point in 2020,
but there is no evidence that she asked for more visits, or a
different arrangement, after that.
34
court noted, M.Y. decidedly did not want to reunify with mother
and repeatedly expressed her anxiety about returning to mother’s
care. She wanted permanency. She consistently stated she
wanted to live with Lisa (and her husband). M.Y. felt “ ‘safer
with her.’ ” Yet, she didn’t want mother to know her wishes
so as not to hurt her feelings. M.Y.’s caregivers in turn were
committed to giving her a stable, permanent home. Mother
presented no evidence they could not provide for M.Y.’s needs
other than to testify to “minor” concerns she had about their
not taking seriously M.Y.’s predisposition toward diabetes and
sun sensitivity inherited through mother’s family. Moreover,
the court found credible M.Y.’s letter to the court, describing it
as “calling out for . . . a decision . . . and . . . to be able to have
a stable environment where she knows what’s going to happen
from day-to-day.”
Undisputedly, M.Y. also consistently said she wanted to
have visits with mother. She wanted “ ‘to stay with Lisa and
visit my mom.’ ” Mother contends the court failed to consider
the detrimental effect terminating her parental rights would
have on M.Y. given her desire to continue to visit mother, even
if she stayed with Lisa. Mother argues that, because DCFS failed
to ask M.Y. about adoption––that it could mean never seeing
mother again—as opposed to with whom she wanted to live,
the court could not properly assess whether terminating parental
rights would be detrimental to M.Y. when balanced against the
benefits of adoption.17
17 Mother’s counsel seems to contend DCFS purposefully
did not ask M.Y. about her feelings about adoption—stating
she was too young to make a statement on the subject––
35
We disagree. DCFS’s reports were before the court. It was
aware M.Y. wanted to visit mother. We can infer it took M.Y.’s
wishes into account when considering possible detriment from
losing her relationship with mother. Moreover, although M.Y.
wanted to visit mother, she wanted to do so within limited
parameters. In the month before the section 366.26 hearing,
the social worker asked M.Y. if she felt safe visiting mother.
M.Y. responded, “Yes, only if they [the visits] are in the parks
near the home.” In other words, M.Y. felt comfortable having
temporary contact with mother only in a neutral setting close
to her caregivers.
“to . . . avoid allowing [M.Y.] to repeat her wishes to keep visiting
with mother.” We disagree. DCFS fully documented M.Y.’s
wish to visit with mother. We find it curious DCFS deemed M.Y.
unable to state her feelings about adoption given her other
statements. Indeed, M.Y.’s counsel argued M.Y. was old enough
to make her wishes known to the CSW. But the record does
not support counsel’s insinuation.
We agree with mother, however, that DCFS’s “assessment”
in its section 366.26 report of the inapplicability of the beneficial
parent relationship exception—and other areas of DCFS’s reports
—took on the role of an advocate rather than an objective
reporter. Nor, as mother asserts, did the analysis always abide
by the directives in Caden C. Nothing suggests the juvenile court
blindly followed that analysis, however. We have concluded the
court adhered to Caden C. in assessing whether termination of
parental rights would be detrimental to M.Y. Moreover, at the
hearing, mother’s counsel went through what the court was and
was not to consider under Caden C., M.Y.’s counsel discussed
Caden C. and one of its progeny, and the court itself referred
to Caden C. when issuing its ruling.
36
Thus, the juvenile court implicitly found that, even if M.Y.
were upset if she could not see mother again, her statements
demonstrated her emotional attachment to mother was not
significant enough to cause detriment if severed when balanced
against the security and sense of wellbeing M.Y. would gain
from adoption by her caregivers of two and half years. (See
In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Mother’s
testimony, and letters of support describing her bond with M.Y.,
did not compel a different result. (In re I.W., supra, 180
Cal.App.4th at p. 1528.) We will not reweigh that evidence.
(Caden C., supra, 11 Cal.5th at p. 640.)
Finally, we address the notion that implementing legal
guardianship as M.Y.’s permanent plan would preserve the
parent-child relationship and ensure M.Y. continues to have
visits with mother, while allowing M.Y. to remain with her
caregivers. Even though M.Y.’s return to mother’s custody was
not a consideration at this stage of the proceeding (Caden C.,
supra, 11 Cal.5th at p. 638), the court reasonably could conclude
that, unless adopted, M.Y. would continue to be plagued by
her “ ‘big worries’ ” about returning to mother’s care. “The . . .
Legislature recognized that, ‘Although guardianship may be a
more stable solution than foster care, it is not irrevocable and
thus falls short of the secure and permanent placement intended
by the Legislature.’ ” (In re Beatrice M. (1994) 29 Cal.App.4th
1411, 1419.) Accordingly, only through adoption could M.Y.
be assured of receiving the stability and permanence she had
“call[ed] out” to the court to provide her.
We commend mother on maintaining her sobriety, and we
have no doubt mother and M.Y. love each other. But the issue
here is not simply whether a bond existed between mother and
37
her daughter. (In re Anthony B. (2015) 239 Cal.App.4th 389, 396,
disapproved on another ground in Caden C., supra, 11 Cal.5th at
p. 638, fn. 7.) Rather, “[t]he question is whether that relationship
remained so significant and compelling in [the child’s] life that
the benefit of preserving it outweighed the stability and benefits
of adoption.” (Ibid.) We cannot say the juvenile court abused
its discretion in finding the benefit M.Y. received from her
relationship with mother did not. Accordingly, the court did
not err in finding the beneficial parent relationship exception
inapplicable.
2. Any ICWA error is harmless
a. Applicable law and standard of review
Congress enacted ICWA “ ‘to protect the best interests
of Indian children and to promote the stability and security of
Indian tribes and families by the establishment of minimum
Federal standards for the removal of Indian children from their
families and the placement of such children in foster or adoptive
homes which will reflect the unique values of Indian culture.’ ”
(In re Isaiah W. (2016) 1 Cal.5th 1, 7–8; see 25 U.S.C. § 1902.)
Both ICWA and state law define 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.” (25 U.S.C. § 1903(4); § 224.1, subd. (a) [adopting
federal definition].)
State law and federal regulations implementing ICWA
require juvenile courts to ask all participants in a dependency
case whether they know or have reason to know the child is
an Indian child and to instruct the parties to inform the court
“if they subsequently receive information that provides
38
reason to know the child is an Indian child.” (25 C.F.R.
§ 23.107(a) (2022); § 224.2, subds. (b), (c); Cal. Rules of Court,
rule 5.481(a)(2).18) The rules also require courts to order the
parents to complete an ICWA-020 form. (Rule 5.481(a)(2)(C).)
Under California law, the juvenile courts and the child
protective agencies, “(but not parents)[, have] an ‘affirmative and
continuing duty to inquire’ whether a child in the dependency
proceeding ‘is or may be an Indian child.’ ” (Benjamin M., supra,
70 Cal.App.5th at pp. 741–742, quoting § 224.2, subd. (a).) That
duty to inquire “begins with [the] initial contact . . . and obligates
the juvenile court and child protective agencies to ask all relevant
involved individuals whether the child may be an Indian child.”
(In re T.G. (2020) 58 Cal.App.5th 275, 290, citing § 224.2, subds.
(a)–(c).)
As of January 1, 2019, whenever DCFS takes a child
into its temporary custody, its duty of initial inquiry “includes,
but is not limited to, asking the child, parents, legal guardian,
Indian custodian, extended family members, others who have
an 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); Benjamin M., supra, 70 Cal.App.5th at p. 742.)
Extended family members include adults who are the child’s
“grandparent, aunt or uncle, brother or sister, brother-in-law
or sister-in-law, niece or nephew, first or second cousin, or
stepparent.” (25 U.S.C. § 1903(2); § 224.1, subd. (c) [adopting
federal definition].)
If that initial inquiry gives the juvenile court or DCFS
a “reason to believe that an Indian child is involved,” then their
18 References to rules are to the California Rules of Court.
39
duty to “make further inquiry regarding the possible Indian
status of the child” is triggered, which includes contacting,
among others, the BIA and tribe(s). (§ 224.2, subd. (e) & (e)(2);
Benjamin M., supra, 70 Cal.App.5th at p. 742.) And, once
there is a “reason to know” an Indian child is involved, formal
notice under ICWA must be given to the child’s “parents or
legal guardian, Indian custodian, if any, and the child’s tribe.”
(§ 224.3, subd. (a); rule 5.481(c)(1); 25 U.S.C. § 1912(a).)
The juvenile court may find ICWA does not apply to a
child’s proceeding if it finds DCFS’s duty of inquiry has been
satisfied and there is no reason to know that child is an Indian
child. (§ 224.2, subd. (i)(2); rule 5.481(b)(3)(A).) The court’s
finding that ICWA does not apply thus “ ‘ “implies that . . .
social workers and the court did not know or have a reason to
know the children were Indian children and that social workers
had fulfilled their duty of inquiry.” ’ ” (In re Josiah T. (2021)
71 Cal.App.5th 388, 401.)
We generally review the juvenile court’s ICWA findings
for substantial evidence, “ ‘which requires us to determine if
reasonable, credible evidence of solid value supports’ the court’s
ICWA finding.” (In re Dezi C. (2022) 79 Cal.App.5th 769, 777
(Dezi C.), review granted Sept. 21, 2022, S275578; cf. In re
Ezequiel G. (2022) 81 Cal.App.5th 984, 1004–1005, review den.
Nov. 22, 2022, S276223 [reviewing court’s finding that it had
no reason to know a child is an Indian child for substantial
evidence but reviewing decision that ICWA inquiry was
adequate for abuse of discretion].)
b. Analysis
Mother asserts the court erred when it did not
independently inquire of mother to reconcile her initial claim of
40
Cherokee heritage, followed by her denial of it in her ICWA-020
form. She argues that—despite DCFS’s reference to the court’s
2012 finding that ICWA did not apply to M.Y.—“[i]t remains
unknown why mother initially claimed . . . Cherokee Indian
ancestry through maternal grandmother, and thereafter denied
it.” Mother notes the ICWA inquiry requirements in 2011 and
2012 were more limited than those in effect in 2019.
Mother also asserts error based on DCFS’s failure to ask
extended family members with whom it had contact about M.Y.’s
possible Indian ancestry: specifically, paternal cousins Kristen
and Lisa, paternal great aunt and uncle, and maternal uncle
in Oregon.
First, we see no error in the court not asking mother
directly about her Indian status. Speaking to mother, the court
stated, “[Y]ou’ve indicated in your ICWA-020 form that you
do not have any Indian ancestry as far as you know; so the court
is going to find that ICWA does not apply as to the mother.”
Mother was present at the hearing and represented by counsel.
Neither counsel nor mother corrected the court. The court’s
minute order from that hearing also ordered mother to inform
DCFS, her attorney, and the court if she learned of “any new
information relating to possible ICWA status.” She never did.
More importantly, the record shows that, in connection
with the earlier dependency case, the court had ordered, and
DCFS had sent, notices to the Cherokee tribes and the BIA, all
of whom had responded. The court found the notices were proper
and complete and the responses indicated ICWA did not apply.
The court here took judicial notice of the case file in the earlier
case, including that order and finding. It is undisputed M.Y.
and her siblings share the same biological parents. Thus, this
41
no-ICWA finding based on the BIA’s and Cherokee tribes’
responses in 2011 applies equally to M.Y. despite her later birth.
And, in 2012 the court found ICWA did not apply to M.Y. The
earlier finding, combined with parents’ denials of Indian ancestry
in the current case, provides substantial evidence to support the
court’s finding that it had no reason to know M.Y. is an Indian
child.
DCFS apparently did not ask M.Y.’s extended family
members about her possible Indian status under section 224.2,
subdivision (b). We conclude any purported error from DCFS’s
failure to do so is harmless. (Cal. Const., art. VI, § 13 [state
law error must result in “miscarriage of justice” to be set aside];
Dezi C., supra, 79 Cal.App.5th at p. 779 [case will be returned
to the juvenile court for error based on inadequate ICWA inquiry
only if the error was prejudicial].) The appropriate standard
to determine prejudicial error for a defective initial inquiry is
pending before our Supreme Court. (Dezi C., S275578.)
The court in Dezi C. concluded an inadequate ICWA
inquiry in these circumstances is prejudicial if “the record
contains information suggesting a reason to believe that the
child may be an ‘Indian child’ within the meaning of ICWA,
such that the absence of further inquiry was prejudicial to the
juvenile court’s ICWA finding.” (Dezi C., supra, 79 Cal.App.5th
at p. 779; In re Ezequiel G., supra, 81 Cal.App.5th at p. 1014
[majority adopts the Dezi C. “reason to believe” standard in
assessing whether ICWA inquiry error is prejudicial in appeal
from order terminating parental rights].) The Fourth District
stated the rule for prejudice somewhat differently—that a
defective initial inquiry requires reversal if “readily obtainable
information that was likely to bear meaningfully upon whether
42
the child is an Indian child” existed. (Benjamin M., supra,
70 Cal.App.5th at p. 744; see Dezi C., at p. 778.) We conclude
any error here is harmless under either standard.
The court found it had no reason to know M.Y.’s full sibling
was an Indian child after receiving responses from the BIA and
Cherokee tribes. Moreover, remand here to inquire of M.Y.’s
relatives would be futile. Maternal grandmother—the relative
through whom the family’s Cherokee ancestry originally had
been claimed—reportedly died during the proceedings. Mother’s
biological father lives in Oregon, but he did not raise mother and
likely would have no information about maternal grandmother’s
heritage. Mother’s stepfather also is deceased. Nothing in the
record suggests mother’s brother, who lives in Oregon, would
have more information about M.Y.’s potential Indian ancestry
than mother has or than already was revealed in the earlier
dependency case. Nor does mother claim Indian heritage
on appeal.
As for paternal relatives, nothing in the record suggests
they had information about paternal Indian ancestry that father
did not know about when he denied ancestry. The court asked
father directly if his ICWA-020 statement denying Indian
ancestry was correct. He unequivocally stated, “Yes.” Paternal
cousin Lisa and paternal great aunt and uncle were in the
courtroom. They did not contradict father or ask to be heard
on the subject.
In short, it is neither “reasonably probable” that DCFS’s
inquiry error “affected the correctness (that is, the outcome)
of the juvenile court’s ICWA finding” (Dezi C., supra, 79
Cal.App.5th at p. 781), nor is it likely further inquiry of extended
family members would have produced information that “would
43
have shed meaningful light” on the child’s Indian status
(Benjamin M., supra, 70 Cal.App.5th at p. 744). Any purported
error by DCFS in failing to inquire of extended family members
here was thus harmless.
DISPOSITION
The juvenile court’s order terminating parental rights
is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
I concur:
NGUYEN (KIM), J.*
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
44
LAVIN, J., Dissenting:
For the reasons set forth in my dissent in In re Ezequiel G.
(2022) 81 Cal.App.5th 984, 1015–1025, I would conditionally
affirm the order terminating mother’s parental rights to her
daughter M.Y. and remand for further proceedings. The
Department of Children and Family Services could easily have
asked the parents’ identified family members about the child’s
possible Indian heritage and documented those efforts. It did not.
Further, nothing in the record shows how those extended family
members would have responded to questions about the child’s
possible Indian heritage.
LAVIN, Acting P. J.