In re M.P. CA2/5

Filed 8/24/20 In re M.P. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 M.P. et al., Persons B303401
Coming Under the Juvenile
Court Law. (Los Angeles County
Super. Ct. No.
18LJJP00441A–C)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
MO. P.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of the County
of Los Angeles, Michael C. Kelley, Judge. Conditionally affirmed
and remanded with directions.
John P. McCurley, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Acting
Assistant County Counsel, David Michael Miller, Principal
Deputy County Counsel, for Plaintiff and Respondent.
________________________________
I. INTRODUCTION
Mo.P. (father) appeals from the juvenile court’s order
terminating his parental rights to his three children pursuant to
Welfare and Institutions Code section 366.26.1 Father contends
that the court failed adequately to consider the children’s wishes
before terminating his parental rights. Father also contends that
remand is necessary to allow the court to comply with the inquiry
and notice requirements of the Indian Child Welfare Act (ICWA;
25 U.S.C. § 1901 et seq.).
We conditionally affirm the order terminating parental
rights, but remand for the limited purpose of ensuring
compliance with the inquiry and notice requirements of ICWA.
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2
II. BACKGROUND
A. Section 300 Petition
On August 28, 2017, the San Bernardino County
Department of Children and Family Services (San Bernardino
Department) filed, in the Superior Court of San Bernardino
County, petitions on behalf of the three children, under section
300. The petitions alleged, as sustained by the juvenile court, the
following counts:
“B-2. [Father] engaged in a violent physical altercation in
the presence of the children, [M.P., A.P., and Z.P.] which places
them at substantial risk of harm and/or neglect.
“B-3. On or about August 18, 2017[, father] left the
children, [M.P., A.P., and Z.P.] without making arrangements for
their care in his absence which places the children at substantial
risk of harm and/or neglect.”
B. Jurisdiction and Disposition Hearings
On November 9, 2017, the juvenile court sustained two
counts of the section 300 petitions’ allegations, declared the
children dependents of the court, removed them from their
parents, and placed them in foster care. The court also granted
father monitored visitation once a week for two hours.
C. Six-Month Review Period
In an April 26, 2018, Status Review Report, a social worker
reported that, during the reporting period, father had “been
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somewhat reluctant to cooperate” and had “demonstrated
minimal progress . . . .” The social worker further advised that
father’s visits had been increased to four hours once a week and
that he was “consistent with his visits and display[ed] proper
parenting during his visits.” According to the social worker, the
children were “very bonded with their father and enjoy[ed]
spending time with him.” The social worker also observed,
however, that father displayed “anger and a lack of
understanding as to his children’s removal and [his]
responsibility [for it].”
D. 12-Month Review Period
On July 12, 2018, following father’s move to Lancaster, the
San Bernardino juvenile court transferred the matters to the
Superior Court of Los Angeles County.
In an October 24, 2018, Interim Review Report, a social
worker with the Los Angeles County Department of Children and
Family Services (Department) reported that on August 13, 2018,
father told her that he had not visited with his children in four
weeks,2 but that he wanted to reschedule his visits as soon as
possible. On August 27, 2018, father had a two-hour
unmonitored visit with the children. On September 17, 2018,
during an unmonitored visit, father allowed mother to visit with
the children, in violation of the juvenile court’s order. Mother
told the social worker that she had moved in with father on
September 1, 2018. Father initially denied knowing where
2 A San Bernardino County social worker advised that
father’s visits had been “‘on hold because he went to the
hospital.’”
4
mother lived and then told the social worker that mother’s
residence was “‘not [the social worker’s] concern.’” Mother later
reported that she moved out of father’s residence in early October
2018.
According to the social worker, the foster mother had
expressed concerns about unmonitored day visits as she believed
father “would be overwhelmed taking care [of all three children]
at the same time because [Z.P. was] hyperactive and require[d] a
lot of attention.”
The social worker also reported that the children had been
placed with the foster parents since September 14, 2017, and that
they had “adjusted well in their placement and they appear[ed] to
be doing well under the care of [the foster parents].”
In an October 24, 2018, Last Minute Information, the social
worker opposed liberalizing father’s visitation because he was not
truthful about mother’s contacts with the children and refused to
allow his boyfriend to be live scanned. The Department
recommended that reunification services be terminated.
On November 8, 2018, the juvenile court conducted the 12-
month review hearing. At that hearing, the court set the issue of
termination of reunification services for a contested hearing at
father’s request on February 14, 2019.
In a January 29, 2019, Interim Review Report, the social
worker informed the juvenile court that, on an unspecified date
between September 17 and December 12, 2018, father had been
in a car accident due to a seizure and had been unable to visit the
children. Father resumed visiting the children in a monitored
setting on December 9, 2018, and thereafter had monitored visits
with the children on December 16, 22, 29, 2018, and
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January 6, 2019. But he failed to appear for a scheduled visit on
January 13, 2019.
The social worker further reported that the children were
well adjusted in their foster home and “appear[ed] to feel safe and
well under the care of [the foster parents.]” According to the
social worker, the Department believed “it [was] in [the]
children’s best interest to remain as placed” because “[t]hey
[were] happy and the placement remain[ed] stable.”
In a March 8, 2019, Last Minute Information, the social
worker advised that the Department continued “to experience
difficulties and challenges with case management [because father
was] not being truthful and making demands.” Among other
things, father wanted visits to take place in Little Rock which,
according to the foster parents, was not halfway between father’s
Lancaster residence and their home. When arrangements were
made for a March 2, 2019, visit in Little Rock, father insisted
that the foster parents pay for the children’s lunch because he
was unable to pay.
In an April 10, 2019, Last Minute Information, the social
worker reported that father had two-hour visits with the children
at a park on March 24, 31, and April 1, 2019. According to the
social worker, father’s visits were scheduled to be increased to
four hours at his home. During the reporting period, father
admitted to the social worker that taking care of Z.P. at visits
was challenging compared to caring for the two older children.
In a May 29, 2019, Interim Review Report, the social
worker reported that father had four-hour visits with the
children on April 6, 13, and 20, 2019, but cancelled his scheduled
visit on April 27, 2019. On May 4, 2019, father had a six hour
visit with the children. Father’s next visit on May 11, 2019, also
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lasted six hours, but he cancelled the next visit scheduled for
May 18, 2019. The social worker reported that the children
enjoyed their visits with father and that he wanted the visits to
be increased to overnight weekend visits. According to the foster
parents, the children arrived home after visits “exhausted and
hungry,” and M.P. appeared “worried after . . . visits with father.”
At the June 6, 2019, continued hearing on termination of
reunification services, the juvenile court found that father had
made only partial progress toward reunification and therefore
terminated reunification services. The court set a section 366.26
permanency planning hearing and confirmed that all visitation
orders regarding father were to remain in force and effect with
discretion in the Department to liberalize.
E. Section 366.26 Proceedings
On August 14, 2019, the Department filed a section 388
petition requesting that father’s visitation rights be restricted to
one two-hour visit per month. According to the Department, it
was “concerned about father’s erratic and unpredictable
behaviors and [the] safety of the children” because father
(1) refused to allow the Department to verify his address;
(2) refused to disclose information about his vehicle; and (3) was
arrested in June 2019 for an assault after “drinking excessively,”
although the charge was eventually dismissed.
In a September 12, 2019, Section 366.26 Report, the social
worker reported that, following the filing of the Department’s
section 388 petition, father was offered monitored visits for two
hours at a Victorville McDonald’s, but father wanted six-hour
visits, stating that he wanted to drive the children to Malibu.
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Father also wanted overnight weekend visits, explaining that “he
would sleep with the children at a motel” because he did not want
the social worker to verify his current residence. According to the
social worker, the Department was “concerned about . . . father
driving with the children [because he had] a couple of prior
[collisions] due to his seizures.” The Department was also
concerned that “father might run away to Georgia with the
children” based on previous comments he had made. Finally, the
Department had concerns about father’s mental health because
“he engage[d] in arguments and fights with people.”
The social worker also informed the juvenile court that the
children’s placement with the foster parents had been “consistent
with . . . their basic needs of life” and the children had “developed
a close bonding relationship with [them].” Further, the foster
parents loved the children and wished to adopt them. As to the
children’s wishes, the social worker stated that M.P. had
expressed a desire to “stay[] in []his current home with [the foster
parents].” And, although the two youngest children were “not
capable of making a statement about permanency,” they
appeared to be “happy and thriving inside [the] home.” The
Department recommended that father’s parental rights be
terminated so that the children could be adopted by the foster
parents.
On October 4, 2019, the juvenile court considered the
Department’s section 388 petition and granted it, ordering that
father’s visits be restricted to monitored two-hour visits once a
month.
In a November 4, 2019, Progress Report, the social worker
reported that on October 5, 2019, father requested a visit with
the children, but when the social worker arranged a visit for
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October 10, father cancelled the visit the day before. On
October 25, 2019, father visited the children at a Victorville
McDonald’s and bought them lunch. The foster mother
monitored the visit, observed that the children enjoyed playing at
McDonald’s, and had no concerns about the visit. The
Department continued to recommend a permanent plan of
adoption by the foster parents.
The juvenile court conducted the section 366.26 hearing
over three days, beginning on November 21, 2019. The children
were represented by counsel, who, at the outset of the hearing,
requested that parental rights be terminated, noting that the
children had “been with the current caretakers for . . . over two
years . . . [and had] been provided with stability, and [deserved]
to have permanency.” The court admitted the Department’s
exhibits into evidence.
Father testified at the hearing that all three children
wanted to live with him, particularly M.P., who cried during
visits in San Bernardino because he wanted to live with father.3
The children were always excited to visit with father and happy
to see him. At the end of visits, the children would go back to
their foster home and accept the situation because they knew
they needed to be patient.
On cross-examination, father admitted that after the case
was transferred to Los Angeles County in August 2018, there was
an interruption in visitation due to scheduling issues caused by
the transfer. Father also admitted that he did not visit his
children for four-and-a-half months, from approximately June
through October 2019, and that since October 2019, his visits had
3 We presume father was referring to visits prior to his move
to Lancaster, around August 2018.
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been limited to monitored two-hour visits once a month. His
visits were currently monitored by the foster mother and her
daughter. Father had regular telephone contact with his children
through a video phone using a sign language interpreter. But he
admitted that those phone contacts were often cut short.
Following testimony, counsel for the children again
requested that parental rights be terminated, citing father’s
erratic behavior, lack of stability, and missed visits.
At the conclusion of the hearing, the juvenile court made its
findings regarding the applicability of the parental benefit
exception. The court stated: “[F]ather’s visits with the [children]
have not been the kind of regular consistent and high-quality
visits that would demonstrate the existence of a strong parenting
bond that would meet the test of section 366.26[, subdivision]
(c)(1)(B)(1) . . . . [¶] . . . Moreover, considering all the evidence, I
find that the visits that he did have were more akin to friendly
visits than to interactions evidencing the existence of a parenting
relationship. [¶] I also find that father’s failure to visit regularly
and create a bond, a parenting bond, with the [children] was not
caused by anything that the Department did or failed to do, or is
in any way a result of the father’s communication
challenges . . . .[4] [¶] . . . [¶] In conclusion, the relationship that
father has with the [children] does not provide the kind of
substantial positive and emotional attachment that would cause
great harm to the [children] if parents’ rights were terminated
and the children were adopted.” The court therefore terminated
father’s parental rights and freed the children for adoption.
4 Father communicated with M.P. through American Sign
Language. Neither A.P. nor Z.P. knew American Sign Language.
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III. DISCUSSION
A. Termination of Parental Rights
1. Legal Principles
“At a section 366.26 hearing, the juvenile court selects and
implements a permanent plan for the dependent child.” (In re
Noah G. (2016) 247 Cal.App.4th 1292, 1299.) At this stage of the
proceedings, the preferred plan is adoption. (In re Breanna S.
(2017) 8 Cal.App.5th 636, 645.) “First, the court determines
whether there is clear and convincing evidence the child is likely
to be adopted within a reasonable time. [Citations.] Then, if the
court finds by clear and convincing evidence the child is likely to
be adopted, the statute mandates judicial termination of parental
rights unless the parent opposing termination can demonstrate
one of the enumerated statutory exceptions applies.” (Id. at
pp. 645–646.)
“The parental benefit exception applies when there is a
compelling reason that the termination of parental rights would
be detrimental to the child. This exception can only be found
when 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).)” (In re Anthony B.
(2015) 239 Cal.App.4th 389, 395 (Anthony B.); accord, In re E.T.
(2018) 31 Cal.App.5th 68, 75–76.) For the benefit prong of the
exception, “[t]he issue . . . is not whether there was a bond
between [the parent] and [the child]. The question is whether
that relationship remained so significant and compelling in [the
child’s] life that the benefit of preserving it outweighed the
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stability and benefits of adoption.” (Anthony B., supra, 239
Cal.App.4th at p. 396.)
Prior to terminating parental rights, “the court shall
consider the wishes of the child and act in the best interest of the
child.” (§ 366.26, subd. (h)(1).) “We interpret this statute as
imposing a mandatory duty on the courts to ‘consider the child’s
wishes to the extent ascertainable’ prior to entering an order
terminating parental rights under section 366.26, subdivision (c).
[Citation.]” (In re Leo M. (1993) 19 Cal.App.4th 1583, 1591
(Leo M.).)
2. Analysis
Father contends that the juvenile court erred by failing
adequately to consider the children’s wishes prior to terminating
his parental rights. According to father, the court’s ruling did not
mention the children’s wishes and, based on the minimal
information provided by the Department concerning those
wishes, the court “could not have adequately discharged its duty
to consider the wishes of the children prior to terminating
parental rights.” We disagree.
As noted above, the record included evidence about the
children’s wishes. Specifically, the Department reported that
M.P. had expressed a desire to “stay[] in []his current home with
[the foster parents].” And, although the two youngest children
were “not capable of making a statement about permanency,”
they appeared to be “happy and thriving inside [the] home.”
Father, however, challenges the Department’s recitation of
M.P.’s wishes, citing In re Diana G. (1992) 10 Cal.App.4th 1468(Diana G.) for the proposition that section 366.26, subdivision (h)
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“require[s] the juvenile court to receive direct evidence of the
children’s wishes regarding termination and adoption at the
permanency planning hearing . . . . Although a child’s presence
in court is not required, an out-of-court statement, as in a report
or other form, must reflect the fact that the child is aware that
the proceeding involves the termination of parental rights.” (Id.
at p. 1480.) Father notes that the Department’s description of
M.P.’s wishes, “is missing the relevant operative words,” that is,
the Department did not expressly state that M.P. was aware that
the proceedings involved the termination of parental rights. But,
as father concedes, subsequent cases have rejected Diana G.’s
interpretation of section 366.26. (See Leo M., supra, 19
Cal.App.4th at p. 1592 [“We see no requirement in section 366.26,
subdivision [(h)] that evidence indicating the child’s wishes be
direct or that the child be aware that the proceeding is a
termination action for purposes of assessing the child’s
preferences.”]; accord In re Amanda D. (1997) 55 Cal.App.4th
813, 820 (Amanda D.).) We join our sister courts in rejecting
father’s argument that the record was required to reflect that the
children were aware the proceedings involved the termination of
parental rights.
Father also seems to challenge the credibility of the social
worker’s assessment that the two younger children were
incapable of stating their wishes regarding the termination of
parental rights. Father points out that A.P. was five years old at
the time of the section 366.26 hearing, and suggests that, given
his age, the social worker was required to obtain a statement
about his wishes. He makes a similar argument about three-year
old Z.P., stating that “‘an attempt should [have been] made to
obtain this information [from Z.P.]’” We note, however, that
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father never argued in the juvenile court that the court was
required to obtain additional evidence regarding the children’s
wishes. (See Amanda D., supra, 55 Cal.App.4th at pp. 819–820
[because father “raised no issue below that the juvenile court
should have obtained the minors’ testimony regarding their
wishes for a permanent plan,” he was precluded from raising the
issue on appeal].) Further, to the extent father questions the
credibility of the social worker’s statement, “[w]e do not evaluate
the credibility of witnesses, reweigh the evidence, or resolve
evidentiary conflicts. Rather, we draw all reasonable inferences
in support of the findings, consider the record most favorably to
the juvenile court’s order, and affirm the order if supported by
substantial evidence even if other evidence supports a contrary
conclusion.” (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
Contrary to father’s assertion, the record here supports a
reasonable inference that the juvenile court adequately
considered the children’s wishes. The social worker submitted
direct evidence about M.P.’s desire to remain with the prospective
adoptive family and the inability of the two younger children to
make a statement about permanency. Further, the Department’s
reports reflected that the children were well adjusted to and
thriving with the prospective adoptive parents, with whom they
had continuously resided for over two years. Substantial
evidence supports a conclusion that the court adequately
complied with section 366.26, subdivision (h), by considering the
children’s wishes before terminating parental rights.
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B. ICWA Violation
Father next contends that the Department did not
adequately inquire about his Indian ancestry as required under
ICWA. According to father, in January 2019, the children’s
paternal grandmother informed the Department that she had
“Xious” ancestry. Father maintains that, because the spelling of
“Xious” was “conspicuously similar to ‘Sioux,’” the paternal
grandmother’s information triggered a duty on the part of the
Department to inquire further, which duty, in turn, the court was
required to enforce.5
In response to the ICWA contention, the Department
concedes the issue and does not oppose father’s request for a
limited remand to ensure that adequate inquiry is made and, if
necessary, notice is provided to the tribe. In light of the
Department’s concession, we agree that remand is warranted to
ensure ICWA compliance. We therefore conditionally affirm the
judgment and remand the matter with directions to the juvenile
court to order the Department to make further inquiry and, if
necessary, to provide notice to the tribe.
5 In response to the information about father’s Indian
ancestry acquired by the social worker, the Department sent
notices to the Secretary of the Interior, the Bureau of Indian
Affairs, and three Cherokee tribes, but not to any Sioux tribe.
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IV. DISPOSITION
The order terminating parental rights is conditionally
affirmed and the matter is remanded with directions to the
juvenile court to order the Department to make further inquiry
concerning father’s Sioux ancestry and, if necessary, to provide
notice to the tribe. If, after proper inquiry and notice, an Indian
tribe asserts that any of the children is an Indian child, the
juvenile court shall proceed in conformity with the provisions of
ICWA and the relevant law. If no Indian tribe asserts that a
child is Indian after proper inquiry and notice, the order
terminating parental rights is to be reinstated for that child.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
RUBIN, P. J.
BAKER, J.
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