In re Jayden L. CA2/2

Filed 6/28/23 In re Jayden L. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re JAYDEN L. et al., Persons B318377, B320289, B323551
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct.
No. 19CCJP00851A-D)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
VIOLETA L. et al.,
Defendants and
Appellants.
APPEAL from orders of the Superior Court of Los Angeles
County, Debra R. Archuleta, Judge. Conditionally reversed with
directions.
Joseph T. Tavano, under appointment by the Court of
Appeal, for Defendant and Appellant Violeta L.
Leslie A. Barry, under appointment by the Court of Appeal,
for Defendant and Appellant Danny A.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Stephen Watson, Deputy County
Counsel, for Plaintiff and Respondent.
******
Violeta L. (mother) has filed three separate appeals
involving her four children.1 We address all three appeals in this
combined opinion.
Mother’s first appeal (appeal No. B320289) involves only
her older two children, Jayden L. (born October 2010) and
Brianna M. (born August 2016). She appeals from an order of the
juvenile court terminating her parental rights pursuant to
Welfare and Institutions Code section 366.26.2 Mother argues
that the juvenile court abused its discretion by denying her
request for a contested hearing in order to present evidence
supporting the beneficial parental relationship exception to
termination of parental rights found in section 366.26,
subdivision (c)(1)(B)(i). Mother further contends that the matter
must be remanded for a proper inquiry under the Indian Child
1 None of the children’s fathers are parties to appeal
No. B320289 or appeal No. B318377. The father of the youngest
two children, Danny A., is a party to appeal No. B323551.
2 All further statutory references are to the Welfare and
Institutions Code unless otherwise noted.
2
Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.). We find
no error in the court’s denial of a contested hearing, but by
agreement of the parties, we conditionally reverse and remand
the matter for further inquiry under ICWA.3
Mother’s second appeal (appeal No. B318377) involves all
four children, Jayden, Brianna, Prince A. (born Feb. 2019), and
Liani A. (born Nov. 2019). Mother challenges the trial court’s
orders summarily denying two petitions that she filed pursuant
to section 388. We find no error in the juvenile court’s summary
denial of the orders.
Mother’s and Danny’s third appeal (appeal No. B323551) is
from an order terminating their parental rights to the two
younger children, Prince and Liani. Mother argues that the
juvenile court erred in finding that the beneficial parental
relationship exception to termination of parental rights set forth
in section 366.26, subdivision (c)(1)(B)(i) did not apply. We find
no error in the juvenile court’s decision.
Although we find no error, based upon the agreement of the
parties, we conditionally reverse and remand the matter for
further inquiry as to all four children under ICWA.
COMBINED FACTUAL AND PROCEDURAL
BACKGROUND
Referral, petition and detention
Jayden and Brianna came to the attention of the Los
Angeles County Department of Children and Family Services
3 All three appeals raise the issue of ICWA error. Our
conditional affirmance and remand applies to all four children,
therefore we only address this issue once.
3
(DCFS) in February 2019 at the time of the birth of their half-
sibling, Prince, when mother tested positive for
methamphetamine. Mother denied methamphetamine use and
claimed she must have tested positive for the drug due to close
interaction with Prince’s father, Danny. Mother was discharged
from the hospital and did not return to visit Prince, who
remained on a hospital hold.4
Mother and the children lived with maternal grandmother,
Ana L. (maternal grandmother). The social worker interviewed
mother, Danny, and maternal grandmother. All family members
acknowledged that both mother and Danny used
methamphetamine. Mother reported that Brianna’s father was
not a part of Brianna’s life, and Jayden’s father was incarcerated
at an unknown location.
Mother later admitted to using drugs while pregnant.
Jayden said mother had disclosed her drug use to him but
claimed she stopped. Jayden witnessed Danny smoking
“something that looked like a brown cigarette.”
Mother described an incident during which Danny got
frustrated with Jayden and locked him out of the apartment.
During another incident, Danny, who was angry about an
argument, drove through two red lights while the children were
in the car.
On February 7, 2019, DCFS filed a petition on behalf of the
children pursuant to section 300, subdivision (b)(1), alleging
mother had an unresolved history of substance abuse and was a
4 Danny is not the father of Jayden or Brianna. Jayden’s
father, Arthur M., was incarcerated throughout the proceedings.
Brianna’s father, Alexander M., died during the proceedings.
4
recent abuser of amphetamine and methamphetamine, rendering
her incapable of providing regular care for the children. Mother
used illicit drugs during her pregnancy with Prince and had two
positive toxicology screens. Mother was also under the influence
of illicit drugs while the children were under her care and
supervision. Thus, there was a substantial risk the children
would suffer serious physical harm or illness as a result of
mother’s substance abuse. The petition further alleged Danny
had a history of substance abuse and was a current abuser of
methamphetamine.
At the February 8, 2019 initial court appearance, mother
denied the allegations in the petition. The court found a prima
facie showing had been established and ordered the children
detained. The court found Danny to be the presumed father of
Prince.
On March 21, 2019, DCFS filed an amended petition,
adding the allegation that Brianna’s father failed to provide her
with the necessities of life.
At the jurisdictional/dispositional hearing on March 22,
2019, the juvenile court sustained the allegations in the petition
as amended, found the children were minors described by section
300, subdivision (b)(1), declared them dependents of the juvenile
court, removed them from the custody of the parents pursuant to
section 361, subdivision (c)(1), and ordered the children placed in
suitable placement under the supervision of DCFS. The court
ordered monitored visitation for mother, Danny, and Alexander
(Brianna’s father) and ordered DCFS to provide reunification
services for them. The reunification program for mother included
a full drug treatment program, random drug testing, a 12-step
program, and individual counseling to address case issues,
5
including parenting. The reunification plan for Danny required
him to participate in a six-month drug and alcohol program with
after care, a 12-step program, random drug testing, and
individual counseling to address case issues including anger
management and parenting.
Proceedings relevant to ICWA
On February 2, 2019, mother stated she had no Native
American ancestry. On February 8, 2019, mother completed
Judicial Council form ICWA-020, confirming she had no Indian
ancestry as far as she knew. On the same date, Alexander
completed form ICWA-020, stating he had no Indian ancestry as
far as he knew, and Danny also indicated that he had no Indian
ancestry.
At the February 8, 2019 court appearance, mother reported
she had no reason to know that Arthur (Jayden’s father) had any
Native American ancestry. The court found there was no reason
to know that the case was governed by ICWA.
On February 27, 2019, mother and Alexander again denied
any knowledge of Native American ancestry. On February 28,
2019, Danny submitted form ICWA-020 indicating he had no
Indian ancestry to his knowledge.
There is no record of any extended family members of any
of the children being asked about Indian ancestry.
Reunification
DCFS reported the children felt safe with their caregivers,
who were meeting all their needs. Mother was meeting with the
children once a week for four hours. The children were happy
and comfortable with mother, but Jayden after some visits
appeared upset. Several times after visits Jayden reported to
have been instructed by mother to say he wanted to see Danny.
6
Mother would also focus on Danny in phone and FaceTime
conversations, asking Jayden if he wanted to speak with him.
During an April 7, 2019 visit, an argument between mother and
maternal grandmother occurred, and mother then paid more
attention to Danny than to the children. On May 4, 2019, the
visit was terminated because mother arrived with Danny. On
June 25, 2019, the visitation monitor reported visits between
mother and the children had not been positive because mother
was on her phone, rather than focusing on the children. Mother
also discussed her problems with the children, such as domestic
violence between her and maternal grandmother.
Mother claimed to love Danny and wanted him to have a
relationship with Jayden and Brianna. Mother acknowledged
Danny could be aggressive but noted he was using
methamphetamine less frequently. Mother admitted having used
methamphetamine on four occasions but claimed not to be
supervising her children when she had done so.
At the September 20, 2019 six-month review hearing, the
court found that return of Prince to the custody of Danny would
create a substantial risk of detriment to Prince’s physical and
emotional wellbeing and that Danny had not made substantial
progress in his case plan. Danny had participated in services,
but he missed sessions and drug tests, tested positive for
methamphetamine multiple times and admitted he relapsed.
Nevertheless, the juvenile court ordered DCFS to continue to
provide services for Danny
Mother reported she continued to live with Danny, but was
planning on moving out of the home. Maternal grandmother
reported that Danny was physically aggressive by throwing a fan
at mother. This was not the first time maternal grandmother
7
had reported conflicts between mother and Danny. Maternal
grandmother was instructed to call police should such events
occur in the future. At the continued October 25, 2019 six-month
review hearing, the juvenile court found mother had not made
substantial progress and that returning the children to the
custody of the parents would create a substantial risk of
detriment to their physical and emotional well-being. The court
ordered services to continue for mother.5
Birth and detention of Liani
Liani was born in November 2019. Efforts were made to
prevent detention of the child; however, mother was still living
with Danny despite his continued drug use and abusive
behaviors. On December 9, 2019, DCFS sought and obtained a
protective custody warrant for Liani.
On December 12, 2019, DCFS filed a petition on behalf of
Liani pursuant to section 300, subdivision (b)(1). The petition
was associated with the related case involving Jayden, Brianna
and Prince. The petition alleged that mother and Danny had a
history of substance abuse, Danny was a current user of
amphetamine and methamphetamine, and that Jayden, Brianna,
and Prince were current dependents of the juvenile court.
Mother appeared at the December 13, 2019 detention
hearing. The court found that DCFS had made a prima facie
showing that Liani was a minor described by section 300 and
ordered her detained. The court found Danny to be Liani’s
presumed father. The juvenile court noted that both mother and
5 During the first reunification period, from March to
October 2019, Prince remained placed with the paternal
grandmother until he was placed in a foster home on August 22,
2019.
8
Danny had denied Indian ancestry and found ICWA did not
apply.
Danny was ordered to stay 100 yards away from mother’s
residence. The court ordered supervised visitation for the
parents, who were to visit Liani separately.
In the jurisdiction/disposition report as to Liani, DCFS
reported that Danny had a significant criminal history: in 2004
he was convicted of voluntary manslaughter and sentenced to 17
years in prison; in 2017 he was arrested for possession of a
controlled substance in jail; and in 2019 he was charged with hit
and run: death or injury. According to a last minute information
for the court dated February 6, 2020, Danny claimed he and
mother were no longer in a relationship, but he planned to
reunite with her. DCFS commended mother for the progress she
had made in completing her programs, but there were concerns
regarding mother’s protective capacity, as she did not leave
Danny until there was a stay away order, despite his substance
abuse and domestic violence in the home. Danny had continued
to test positive for methamphetamine. Given mother’s progress,
DCFS had liberalized mother’s visits with Liani to unsupervised.
At the February 21, 2020 jurisdiction hearing, the court
sustained the allegations of the first amended petition as to
Liani, finding she was a minor described by section 300,
subdivisions (b)(1) and (j).
At the July 15, 2020 disposition hearing for Liani, the court
declared Liani a dependent of the juvenile court, removed her
from the custody of the parents pursuant to section 361,
subdivision (c)(1), and ordered Liani placed in suitable placement
under the supervision of DCFS. The court ordered reunification
services and monitored visitation for both parents, but permitted
9
mother unmonitored visitation after completing 10 consecutive
drug tests.
Continued reunification
Danny continued to test positive for amphetamine and
methamphetamine and to display aggressive behavior. According
to a status report on March 23, 2020, mother was having
unmonitored visits with Prince, which included Liani. The
children continued to reside with their caregivers and weekly
visits with mother, who had moved out of Danny’s home and
completed a 12-week parenting program, nine months of a
substance abuse program, and was participating in aftercare.
Mother was in substantial compliance with her case plan,
however she missed several drug tests.
In June 2020, Jayden reported he was afraid to return
home with mother because he believed Danny would be there.
Jayden expressed a desire to be with his family, including his
siblings, mother, and grandmother. In December 2020, when
asked what he wanted, Jayden responded he wanted mother but
not Danny.
In a last minute information for the court dated July 15,
2020, it was reported that during one visit with Prince mother
took him to a paternal relative’s home where Danny had been
staying. Mother admitted that Danny lived at the home, but she
did not think he would be there that day. Jayden’s caregiver
reported that Danny accompanied mother when mother picked
up Jayden for her unmonitored visits despite being ordered to
visit separately. Danny told the caregiver the paternal
grandmother wanted to see Jayden and the family was having a
celebration for Danny’s nieces and nephews. The social worker
noted that although mother appeared to have put a great deal of
10
effort into participating in her required programs, it seemed
mother continued to have a relationship with Danny despite his
unresolved substance abuse and domestic violence issues.
According to an interim review report dated October 5,
2020, mother tested positive for methamphetamine on
September 14 and 25, 2020, although she claimed she had not
used the drug since February of the previous year. A maternal
uncle advised that mother was still living with Danny and was
being abused. Mother denied a relationship with Danny and
denied any recent abuse. Due to COVID-19, mother had been
visiting the children virtually, as the caregivers were not
allowing in-person visits. The visits lasted 15-20 minutes.
Mother had five virtual visits with the children in August 2020
and six virtual visits with the children in September 2020. On
October 1, 2020, mother told DCFS she had not visited Jayden
and Brianna that week because she was focusing on her younger
children.
Mother tested positive for methamphetamine twice in
October 2020 and acknowledged she had relapsed.
In January 2021, DCFS reported that Jayden’s therapist
advised Jayden was “very adamant” about not wanting mother
involved in his treatment and did not want his therapy team to
speak with mother. Jayden would become “emotionally
dysregulated at the mention” of mother.
On January 20, 2021, at DCFS’s request, the court ordered
no unmonitored visits with Liani for mother until she had proof
of enrollment in substance abuse treatment.
In February 2021, DCFS reported in-person visits had
resumed between mother and the children. The children were
initially shy with mother but eventually played games with her
11
and were happy and smiling. Both Jayden and Brianna reported
being happy to be visiting with mother and wanted to continue.
In March 2021, DCFS reported mother was having unmonitored
visits with the children. Overall the visits were reported to be
positive. In June, mother had overnight visits with the children
in maternal grandmother’s home, as mother lived in a sober
living residence where the children were not allowed.
A 12-month review hearing as to Liani took place on
April 29, 2021. The juvenile court found Danny had not made
substantial progress towards reunification and ordered his
services terminated, but ordered DCFS to continue to provide
reunification services to mother. On the same date, at the 18-
month review hearing as to Prince, the court found Danny had
not made substantial progress towards reunification and ordered
his services terminated but continued the 18-month review for
mother to June 17, 2021.
On June 16, 2021, DCFS reported that a couple of days
earlier, Jayden and Brianna disclosed that Danny and mother’s
friends were present during an overnight/weekend visit and that
Danny had spent the night both nights. Jayden did not want to
disclose that Danny was present because he did not want to get
in trouble with mother. Jayden noted this was not the first time
Danny was present. Mother initially denied Danny was present
at any visits or that she had allowed any contact between him
and the children. However, after DCFS located photos of mother
and Danny together on social media, mother told DCFS that she
wanted to be honest and acknowledged she had allowed Danny to
be present at visits and that she continued to see him.
12
In June and July 2021, Danny tested positive for
methamphetamine, amphetamine, and marijuana three times,
and had three no-shows for drug testing.
At an 18-month review hearing on July 21, 2021, the
juvenile court found mother had made substantial progress in her
case plan and returning the children to mother’s custody would
not be detrimental to their well-being. The court ordered family
maintenance services and specified that Danny was not allowed
to visit with the children. However, on August 3, 2021, DCFS
filed an ex parte application and order noting Danny had been
observed staying overnight at mother’s home. Brianna was
afraid of Danny and did not feel safe with him. Jayden confirmed
that Danny had been present and that Brianna was afraid of
him. Danny came to the home and took Jayden and his sibling to
the beach, then back to the home. Jayden reported that Danny
slept in the car the first two nights, but then started sleeping in
the apartment.
DCFS asked the court to vacate the order returning the
children to mother’s care, that family maintenance services be
terminated, and a section 366.26 hearing be set to select and
implement a permanent plan for the children. On August 4,
2021, the juvenile court terminated mother’s family maintenance
services, set a section 366.26 hearing, and granted mother
monitored visits on condition that Danny not be present during
the visits. The court also ordered a bonding study to assess the
bond between mother and the children.
Section 366.26 report and bonding study—Jayden and
Brianna
DCFS reported mother had been visiting with the children
on weekends at parks or malls for approximately three hours
13
each visit. Mother would arrive on time and bring soda, candy,
and the children’s favorite foods. Although the visits were
positive overall, mother had a tendency to talk about the
dependency case with the children and attempt to move them
away from the caregiver’s supervision. The caregiver reported
that the children said mother would talk about Danny and say
that Danny loved them.
On November 9, 2021, Jayden and mother had a
conversation in which Jayden reminded mother that she said she
would not leave Danny, and accused mother of preferring Danny
over him. Mother told Jayden that everything he said would
affect the case and make it less likely that he and Brianna would
return to her. The caregiver also noted that Brianna said mother
had instructed her to say that she wanted to return to mother.
DCFS reported it was likely that Jayden and Brianna
would be adopted by their current caregivers if parental rights
were terminated. The caregivers were providing the children
excellent care, addressing all of their needs, considered them part
of their family, and were committed to adoption.
Mother and the children underwent a bonding study on
November 15, 2021. The study consisted of an evaluator
conducting separate interviews with mother and the children and
observing interaction between mother and the children. During
her interview, mother minimized the children’s fear of Danny,
claimed she was no longer seeing him, said he was not as bad as
the children made him seem, and stated that if she had to choose
between Danny and the children, she would choose the children.
The evaluator found it concerning that mother minimized the
fear that Danny had instilled in the children. The evaluator was
also concerned because when asked about Danny being present
14
with the children, mother alternated between showing remorse
and insisting that Jayden had asked for him to be present.
When Jayden was interviewed, he said he would like to live
with mother but not Danny because he did “bad stuff to us.”
Jayden said he was afraid of Danny, but when he told that to
mother she said, “I’m not giving him up.” When asked if he
would like to attend family therapy with mother, Jayden said no
but was unable to articulate a reason. He expressed that he
enjoyed living with his current caretakers, enjoyed playing sports
with his foster siblings, enjoyed school, and had many friends at
school. The evaluator concluded that Jayden had mixed emotions
about mother and appeared hesitant about reunifying with her.
Brianna told the evaluator she disliked Danny because he
was mean to them and always yelled at her brother. When asked
if she missed mother, Brianna replied, “not really.” She stated
she missed and wanted to live with her current caretaker.
Brianna drew a heart and said she loved her current caregiver.
The evaluator concluded Brianna’s bond with mother seemed to
have been damaged, as Brianna exhibited mistrust and a lack of
confidence in mother’s ability to care for her.
During the observation portion of the study, the evaluator
noted that both children appropriately approached mother and
waited to be hugged, but Brianna quickly disengaged, and
Jayden asked for mother’s phone. The children appeared
comfortable with mother, and mother was nurturing towards
them and actively engaged with them. Brianna appeared to have
developed an “avoidant-insecure” attachment with mother, as she
exhibited poor self-regulation and did not respond to mother’s
attempts to soothe her. Jayden appeared to enjoy his time with
mother, but at the end of the session both children seemed ready
15
and willing to leave with the caregiver. Both children expressed
being happy and comfortable with their current living situation.
The evaluator concluded that there was a “potential for the
development of a strong bond between [mother] and the
children.” However, mother’s “lack of insight in regards to
[Danny’s] negative impact on the children remains a concern.”
Overall, the evaluator felt that Brianna had an insecure
attachment to mother, which could be helped with effective
treatment involving a combination of family therapy and
parenting education designed to ensure she had a safe living
environment. The evaluator concluded that adoption by the
caregivers was likely in Brianna’s best interest as she had
developed a healthy attachment to the foster mother. As to
Jayden, the evaluator concluded “there is hope that ongoing
interventions can salvage the mother and son relationship.”
Jayden often verbalized wanting to return to mother but was in
fear of Danny. The evaluator noted that Jayden wanted to
remain connected to mother and that severing his connection
with her could be detrimental to his mental health. In the event
he is adopted, the evaluator concluded that Jayden should
participate in conjoint therapy with mother and continue
supervised visits.
After the bonding study, Brianna informed the caregiver
that mother had instructed her to say she wanted to “go with
mother.”
In a last minute information for the court, DCFS reported
that on November 28, 2021, mother told the caregiver she was
going to talk about the case with the children despite knowing it
was not allowed. Mother was angry, threw pages from one of
DCFS’s reports, told Jayden to look at the pages, and said
16
everything written on the pages were lies. When the caregiver
attempted to intervene, mother continued talking, blaming the
caregiver and Jayden. Mother asked Jayden if some information
in the report was true, and Jayden denied making the referenced
statement. The caregiver was unable to determine what
statement mother was referencing. Tension was high during the
visit. DCFS expressed concern that mother was trying to
influence Jayden.
On December 2, 2021, Jayden told the caregiver he wanted
to live with mother. He said that if Danny was there, he knew
how to defend himself and would call the police and tell DCFS
that he wanted to return to the caregiver.
When a DCFS social worker asked Jayden about the
November 28, 2021 visit with mother, Jayden responded that
mother was mad, made him read the report and stated that
“everything were lies [sic].” Jayden was sad because mother was
so mad.
Jayden then asked the social worker what adoption meant.
After an explanation was given, Jayden expressed a desire to be
adopted by the caregiver, but requested continued visits with
mother. Jayden was told that the caregiver had agreed to
facilitate visits at the children’s request. Jayden noted that at a
recent visit mother told him she was not going to leave Danny,
which made him feel scared. When Jayden asked mother who
she loved more, him or Danny, mother responded “you.”
On December 8, 2021, the court acknowledged it had
received a death certificate for Brianna’s father. According to a
report issued the same date, mother had fewer visits with the
children due to her job schedule but visited at least once a week.
Mother also cancelled some visits stating she had the COVID-19
17
vaccine and was not feeling well or that it was too cold outside for
the children.
In a January 13, 2022 status review report, DCFS reported
that Jayden and Brianna continued to thrive in the home of their
caregivers, who were committed to adopting them. In addition to
visiting the children at a park or mall every weekend for about
three hours each visit, mother also called the children Mondays,
Wednesdays, and Fridays for about five minutes, and most
conversations were positive.
Mother’s November 2021 section 388 petition
On November 29, 2021, mother filed a request to change
court order pursuant to section 388, alleging mother had
completed her case plan, ended her relationship with Danny, and
consistently visited the children. The petition requested the
court return the children to mother’s custody or reinstate family
reunification services and grant unmonitored visits.
On December 3, 2021, the juvenile court denied the section
388 petition without a hearing, finding the request did not state
new evidence or a change of circumstances, and that it was not in
the children’s best interest to grant the request. Mother did not
appeal.
Mother’s January 2022 section 388 petition
On January 31, 2022, mother filed a second request to
change court order pursuant to section 388. The petition alleged
mother had completed her court ordered case plan, continued to
maintain her sobriety through programs, terminated her
relationship with Danny, continued to address codependency in
individual counseling, was currently employed, and visited the
children consistently. Mother asked for the children to be
returned to her care or, in the alternative, the court to reinstate
18
reunification services and grant her unmonitored visits with the
children. Attached to mother’s petition were certificates of
completion from a domestic violence program and a substance
abuse program; a letter attesting to mother’s participation in
mental health treatment services, and letters from mother’s
sponsor and therapist, among others.
On February 17, 2022, the juvenile court denied mother’s
section 388 petition without a hearing, finding the request did
not state new evidence or a change of circumstances, and that it
was not in the children’s best interests to grant the request.
Mother filed a timely notice of appeal from the order
denying her petition on March 15, 2022.
Mother’s April 2022 section 388 petition
On April 1, 2022, mother filed a third request to change
court order pursuant to section 388. This petition alleged mother
had addressed all the issues that brought the children before the
court, completed parenting classes, a domestic violence program,
a substance abuse program, and a codependency program.
Mother was regularly attending individual counseling, engaged
in a 12-step program and was consistently visiting the children.
Mother argued it would be in the best interests of the children to
be returned to her care. The petition requested the children be
returned to her care or, in the alternative, family reunification
services be reinstated and mother’s visits be unmonitored, with
overnight visits. Attached to the petition were letters attesting to
mother’s participation in mental health treatment and drug
rehabilitation services, among others. Mother also attached
negative drug tests dated January 6, 14, and 21, 2022;
February 15 and 25, 2022; and March 4 and 18, 2022.
19
On April 8, 2022, the juvenile court denied the section 388
petition without a hearing. The court found the request did not
state new evidence or a change of circumstances, and that it was
not in the children’s best interests to grant the request.
Mother filed a timely notice of appeal from the denial of the
section 388 petition on April 19, 2022.
Final reports
DCFS filed a report on April 4, 2022. Despite reunification
services having been terminated, DCFS continued to provide
mother with services. Of mother’s last five drug tests, three were
negative, and she failed to appear for two. Mother continued to
visit appropriately with the children and called them Mondays,
Wednesdays, and Fridays for five to 15 minutes. Mother visited
the children on January 19, 2022, February 6, 13, and 27, 2022,
and March 13 and 27, 2022. Mother could not visit the children
due to a conflicting work schedule on January 16 and 23, 2022,
February 20, 2022, and March 6, 2022. Mother claimed she had
not been in a relationship with Danny since October 2021.
Mother provided a March 17, 2022 letter from a
professional Biblical counselor stating that mother was working
towards establishing and integrating life skills. Mother also
provided two letters from Tarzana Treatment Centers. The first,
dated March 16, 2022, reported that mother had remained
compliant with mental health treatment services since
August 10, 2021. The second, dated March 30, 2022, stated
mother had enrolled in recovery support services on August 3,
2021, and although the program was normally six to eight
months, mother’s discharge date had yet to be determined.
Mother tested negative for drugs on December 13, 20, and 30,
20
2021, January 6 and 14, 2022, February 15, 2022, and March 4
and 18, 2022.
DCFS recommended that mother’s parental rights be
terminated and the children be freed for adoption.
Section 366.26 hearing—Jayden and Brianna
At the April 25, 2022 section 366.26 hearing concerning
Jayden and Brianna, mother’s counsel requested a contested
hearing on the issue of the beneficial parental relationship
exception to termination of parental rights. The juvenile court
asked for an offer of proof. Mother’s counsel argued DCFS’s
report showed a “regular and consistent visitation schedule
beyond just superficial friendly visitation” as well as “regular
phone calls.” Counsel also argued the bonding study showed a
“substantial parent-child bond,” and mother wanted to present
evidence on this issue. Specifically, mother wanted Jayden to be
made available for testimony. DCFS objected to mother’s request
for a contested hearing, arguing mother’s visits were not as
regular as she made them out to be and her phone calls were
brief. DCFS also argued there were major parts of the bonding
study that mother’s counsel “glossed over,” pointing out the study
concluded that Jayden had “mixed emotions” concerning mother,
and Brianna had an “avoidant insecure attachment” to mother
due to having been traumatized and separated from mother. The
children’s counsel agreed with DCFS and objected to the matter
being set for contest.
The juvenile court stated it had read in detail and
highlighted portions of the bonding study referenced by the
parties. It noted Jayden had expressed fear of Danny, and
mother responded, “I’m not giving him up.” In addition, Jayden
appeared hesitant about reunifying with mother and expressed
21
mixed emotions regarding their relationship. As to Brianna, her
bond with mother had been damaged, and she had expressed a
lack of confidence in mother’s ability to care for her. Based on
the report, and the recent sporadic visitation, the court did not
believe that mother’s offer of proof was sufficient to meet her
burden. The court denied mother’s request for a contested
hearing.
After denying mother’s request for a contested hearing, the
court found the children were adoptable, that mother had not
maintained regular visitation or contact and had not established
a bond with the children sufficient to satisfy the beneficial
parental relationship exception. The court found that any benefit
accruing from the children’s relationship with mother was
outweighed by the benefit they would receive from adoption, and
that no exception to the termination of parental rights applied.
The court terminated parental rights and ordered adoption as the
permanent plan.
On May 4, 2022, mother filed a timely notice of appeal from
the order terminating her parental rights to Jayden and Brianna.
Section 366.26 reports and hearing—Prince and Liani
According to a last minute information for the court dated
July 29, 2022, mother continued to visit the children at least
weekly, and the visits went well.6 In a report dated September 6,
6 In June and July 2022, Danny filed petitions for
modification seeking the return of Prince and Liani to his custody
or reinstatement of reunification services. The petitions were
summarily denied on July 5 and 7, respectively. On July 15,
2022, mother once again filed petitions for modification seeking
return of Prince and Liani to her custody or additional
22
2022, DCFS noted mother was only available for visits on specific
days due to her job schedule. At a visit in August 2022, Liani did
not want to go with mother. The caregiver encouraged Liani to
go with mother, but the child continued to return to the
caregiver. At another visit later that same month, mother would
not put Liani down when Liani asked to be put down. During
this period Liani was not sleeping well, waking up in the night
calling for the caregiver, asking for a bottle at 3:00 a.m., and
wanting to keep the light on all night. During a recent visit,
Liani did not want mother to hold her at all and would go to the
caregiver instead of mother. The children appeared to see
mother as a friend. One visit between mother and the children
ended after 30 minutes. Liani posed for a few pictures with
mother during the visit but refused to pose for the last picture.
The children were attached to their caregiver and became
distressed when she left the room.
The section 366.26 hearing as to Prince and Liani
commenced on September 7, 2022. Mother, Danny, and the
caregiver testified. Counsel for mother argued the section 366.26,
subdivision (c)(1)(B)(i) exception for a beneficial parental
relationship applied. Counsel argued that mother had
maintained regular visitation and that the children had an
emotional bond to mother, which would be detrimental to sever.
The juvenile court found by clear and convincing evidence
that the children were adoptable and that mother had
maintained regular visitation with the children, but had not
established a bond with the children as required by section
reunification services. These petitions were summarily denied on
July 15, 2022.
23
366.26, subdivision (c)(1)(B)(i). The court found no exceptions to
adoption applied and terminated parental rights.
Mother filed a notice of appeal from the order terminating
her parental rights to Prince and Liani on September 15, 2022.
DISCUSSION
I. Section 388 petitions
Mother argues that the juvenile court erred in declining to
grant her a hearing on two of her petitions filed pursuant to
section 388—those filed in January 2022 and in April 2022.
A. Applicable law and standard of review
Section 388 provides that a parent may petition the
juvenile court for modification of any previous order based upon
changed circumstances or new evidence. (In re Alayah J. (2017) 9
Cal.App.5th 469, 478 (Alayah J.).) “To obtain the requested
modification, the parent must demonstrate both a change of
circumstance or new evidence, and that the proposed change is in
the best interests of the child.” (Ibid.) The burden of proof is on
the moving party to show by a preponderance of the evidence
there is new evidence or that there are changed circumstances
that make the requested change in the best interest of the child.
(In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
“Section 388 provides an ‘“escape mechanism”’ for parents
facing termination of their parental rights by allowing the
juvenile court to consider a legitimate change in the parent’s
circumstances after reunification services have been terminated.”
(Alayah J., supra, 9 Cal.App.5th at p. 478.) “After reunification
services have been terminated, it is presumed that continued out-
of-home care is in the child’s best interests. [Citation.] Section
388 allows a parent to rebut that presumption by demonstrating
24
changed circumstances that would warrant modification of a
prior court order.” (Ibid.)
“To obtain an evidentiary hearing on a section 388 petition,
a parent must make a prima facie showing that circumstances
have changed since the prior court order, and that the proposed
change will be in the best interests of the child. [Citations.] To
make a prima facie showing under section 388, the allegations of
the petition must be specific regarding the evidence to be
presented and must not be conclusory. [Citation.] A section 388
petition must be liberally construed in favor of granting a hearing
to consider the parent’s request.” (Alayah J., supra, 9
Cal.App.5th at p. 478.) “A ‘prima facie’ showing refers to those
facts which will sustain a favorable decision if the evidence
submitted in support of the allegations by the petitioner is
credited.” (In re Edward H. (1996) 43 Cal.App.4th 584, 593.)
“‘“Thus, if the petition presents any evidence that a hearing
would promote the best interests of the child, the court will order
the hearing.”’” (In re Aljamie D. (2000) 84 Cal.App.4th 424, 432.)
A juvenile court’s summary denial of a section 388 petition
is reviewed for abuse of discretion. (In re C.J.W. (2007) 157
Cal.App.4th 1075, 1079.)
B. The juvenile court did not abuse its discretion
in summarily denying mother’s petitions
1. Effect of prior unappealed summary denial
Mother’s section 388 petitions filed in January 2022 and
April 2022 alleged that she completed her court-ordered case
plan, continued to maintain her sobriety through programs, was
currently employed, and visited the children regularly. They also
alleged she had terminated her relationship with Danny, and
continued to address codependency in individual counseling.
25
Mother sought modification of the juvenile court’s August 4, 2021
order terminating reunification services and setting a section
366.26 hearing. She asked for the children to be returned to her
care or, in the alternative, reinstatement of reunification
services. The juvenile court denied both petitions without a
hearing.
Mother does not dispute she previously filed section 388
petitions in November 2021, seeking modification of the same
August 4, 2021 order terminating reunification services and
setting a section 366.26 hearing.7 The earlier petitions made
largely identical allegations regarding mother’s purported
changed circumstances and sought identical relief. They also
asserted that returning the children to mother’s custody or
granting additional reunification services would be in the
children’s best interests. The juvenile court summarily denied
the November 2021 petitions, finding mother did not make a
prima facie showing of new evidence or a change of circumstances
or that granting the petitions would be in the children’s best
interests. Mother did not appeal from the summary denial of the
November 2021 petitions.
DCFS contends that because the January 2022 and April
2022 petitions contained the same alleged new evidence or
change of circumstances that were alleged in the summarily
denied November 2021 petition, mother cannot argue the
summary denial of the two petitions at issue were arbitrary,
capricious or patently absurd. In other words, since mother
failed to challenge the juvenile court’s ruling in her November
7 Mother filed substantially similar petitions as to each of
her children.
26
2021 petition, and the later petitions were largely redundant,
mother cannot now contest the propriety of the later summary
denials.
Mother admits the gist of the allegations in the petitions
were similar, but claims that the motions were not identical. She
points out that attached to the January 2022 petition were
several documents that were not attached to the November 2021
petition, including: a letter from Tarzana Treatment Centers
dated January 18, 2022, attesting to mother’s compliance with
mental health services; telephone logs attesting to mother’s
telephone contact with the children between September 2021 and
January 2022; records of mother’s visitation with the children
between August 2021 and January 2022; an e-mail dated
October 15, 2022 from mother’s employer, confirming her
employment; and various letters from family members attesting
to mother’s changes. However, none of these additions showed
genuinely changed circumstances from the November 2021
petition. At the time of the November 2021 petition, mother had
completed a domestic violence program, completed a substance
abuse program and enrolled in recovery services, was complying
with mental health services, completed a codependency program,
and was visiting fairly consistently with the children. Thus, her
circumstances had not changed significantly in the previous three
months. In addition, mother offered no new evidence suggesting
that a change of order would be in the best interests of her
children, which was a required element of her petition.
As to the April 2022 petition, mother points out that there
were also several documents attached to this petition that were
not attached to her November 2021 petition, including: a letter
from Tarzana Treatment Centers dated March 16, 2022,
27
attesting to mother’s compliance with mental health treatment
services; a letter from Tarzana Treatment Centers dated
March 30, 2022, attesting to mother’s enrollment in Long Beach
recovery support services; a letter attesting to her progress in
that program; a letter from a Biblical counselor attesting to
mother’s progress in trauma and codependency issues; and
numerous negative drug test results. Again, these documents do
not serve to show a change of circumstances from her November
2021 petition. Mother had already completed a drug treatment
program and was in a recovery program. Further, as with her
January 2022 petition, the new documents presented no evidence
that a change in the previous order would be in the best interests
of the children.
DCFS is correct that the January 2022 and April 2022
petitions were substantially similar to the unappealed November
2021 petition. However, DCFS has failed to cite legal authority
suggesting that mother’s failure to appeal the November 2021
summary denial precludes her from appealing the later summary
denials. Therefore, despite mother’s failure to challenge the
court’s summary decision on her November 2021 petition, we
address mother’s argument that the court’s similar decisions on
the January 2022 and April 2022 petitions constituted abuses of
the court’s discretion.
2. Mother failed to set forth a prima facie case for
granting her petitions
A review of the January 2022 and April 2022 petitions on
their merits shows the juvenile court did not abuse its discretion
in summarily denying the petitions. Mother’s burden was to
make a prima facie case that there had been a genuine change of
circumstances since the time of the order she was contesting. In
28
addition, mother bore the burden of showing her proposed change
of order would be in the best interests of the children. (Alayah,
supra, 9 Cal.App.5th at p. 478.) “The statutory language ‘makes
clear that the hearing is only to be held if it appears that the best
interests of the child may be promoted by the proposed change of
order.’” (In re Justice P. (2004) 123 Cal.App.4th 181, 191.)
Mother’s petitions failed to set forth a prima facie case as
required. While mother asserted she had completed her court-
ordered programs and terminated her relationship with Danny,
she failed provide any evidence that the proposed change of order
would promote the best interests of the children. (In re
Brittany K. (2005) 127 Cal.App.4th 1497, 1507 [finding that § 388
petition was properly denied “because there was no showing that
it was in the minors’ best interests for the court to return them to
appellant’s custody”].) In her January 2022 petitions, in response
to the question, “Why would the requested order or action be
better for the child or youth?,” mother responded by merely
highlighting the actions she had taken, stating the change of
order would be in the best interest of her children . . . given her
continued growth.” In her April 2022 petitions, mother’s
response was equally conclusory, stating it would be in the
children’s best interest to be returned to her so she could provide
them with “love, care, and familial support.” These conclusory
statements were insufficient to require a hearing on mother’s
petitions.8 (In re Ramone R. (2005) 132 Cal.App.4th 1339, 1349
[finding that “merely conclusory” allegation regarding the child’s
8 In her declaration filed in support of her January 2021 and
April 2021 petitions, mother merely declared, “I believe it is in
the best interest of my children to return to my care,” without
any specificity or further elaboration.
29
best interest did not require a hearing to determine if the child
would benefit from a change of order]; see In re Justice P., supra,
123 Cal.App.4th at p. 192 [noting that “[t]he presumption
favoring natural parents by itself does not satisfy the best
interests prong of section 388”].)
Mother’s petitions failed to address how her proposed
changes of order would benefit any of her four children. Mother
was required to reference “facts” that would “sustain a favorable
decision if the evidence submitted in support of the allegations by
the petitioner is credited.” (In re Edward H., supra, 43
Cal.App.4th at p. 593.) Mother cited no such facts, providing only
her conclusory opinion.9 Because mother failed to set forth a
prima facie case that her proposed changes would be in the best
interests of the children, the juvenile court did not abuse its
discretion in summarily denying the petitions.
II. Termination of parental rights—Jayden and Brianna
Regarding the termination of mother’s parental rights to
Jayden and Brianna, mother contends she made a sufficient offer
of proof requesting a contested section 366.26 hearing so she
could present evidence to support the beneficial parental
relationship exception to termination of parental rights found
under section 366.26, subdivision (c)(1)(B)(i). She argues the trial
court erred in denying her a contested hearing on this issue.
9 In re Jeremy W. (1992) 3 Cal.App.4th 1407 is
distinguishable. In Jeremy W., the mother included in her
petition “significant allegations” including “evidence Jeremy
desired to be with his mother.” (Id. at p. 1413.) Here, mother
failed to allege any such evidence concerning the best interests of
her children.
30
A. Applicable law and standard of review
In order to meet the beneficial parental relationship
exception to termination of parental rights, a parent has the
burden of showing (1) regular visitation and contact with the
child; (2) the child has a substantial, positive, emotional
attachment to the parent; and (3) terminating that attachment
would be detrimental to the child even when balanced against the
countervailing benefit of a new, adoptive home. (In re Caden C.
(2021) 11 Cal.5th 614, 636-637 (Caden C.).)
A parent’s due process rights are implicated in dependency
proceedings, including the right to cross-examine witnesses. (In
re Malinda S. (1990) 51 Cal.3d 368, 382-385, superseded by
statute as stated in People v. Otto (2001) 26 Cal.4th 200, 207.)
However, due process is a flexible concept that depends upon the
circumstances of the case. (In re Tamika T. (2002) 97
Cal.App.4th 1114, 1120 (Tamika T.).) The due process right to
present evidence is limited to relevant evidence of significant
probative value to the issue before the court. (Ibid.) Thus, a
juvenile court does not violate a parent’s due process rights by
requiring an offer of proof from the parent before setting a
hearing on the beneficial parental relationship exception to
termination of parental rights. (Id. at p. 1121; see In re
Jeanette V. (1998) 68 Cal.App.4th 811, 816.) The parent’s offer of
proof “must be adequate in scope and must be specific.” (In re
A.G. (2020) 58 Cal.App.5th 973, 982 (A.G.).) A legally sufficient
offer of proof must set forth “‘the actual evidence to be produced,
not merely the facts or issues to be addressed and argued.’”
(Ibid.) Due process “does not require a court to hold a contested
hearing if it is not convinced the parent will present relevant
31
evidence on the issue he or she seeks to contest.” (In re Earl L.
(2004) 121 Cal.App.4th 1050, 1053.)
A juvenile court’s denial of a parent’s request for a
contested hearing following a proper demand for an offer of proof
is reviewed for abuse of discretion. (In re Grace P. (2017) 8
Cal.App.5th 605, 611 (Grace P.).) The test for abuse of discretion
is whether the trial court exceeded the bounds of reason, which
warrants a very high degree of deference to the decision of the
juvenile court. (In re J.N. (2006) 138 Cal.App.4th 450, 459.)
Even if the trial court abused its discretion, we may not
reverse an order unless the abuse of discretion was prejudicial
and resulted in a miscarriage of justice. (People v. Cahill (1993) 5
Cal.4th 478, 502; see Cal. Const., art VI, § 13; Code Civ. Proc.,
§ 475.)
B. No abuse of discretion occurred
Mother contends that her offer of proof was sufficient to
require the court to grant her a contested hearing on the
exception set forth in section 366.26, subdivision (c)(1)(B)(i). In
making the offer of proof, mother argued DCFS’s April 4, 2022
report documented regular and consistent visitation, which was
beyond mere friendly interaction but was positive and
substantial. Mother pointed out she had regular weekend visits
as well as phone calls during the week.
Mother also cited the bonding study ordered by the court.
Mother argued the report documented a substantial parent-child
bond, for which mother wanted the opportunity to present
evidence. Mother argued the bonding study showed an emotional
bond between mother, Jayden and Brianna. Mother requested
the opportunity to testify and asked she have the opportunity to
examine Jayden.
32
The trial court disagreed with mother, finding her offer of
proof was insufficient on both the issue of visitation and the issue
of whether a sufficient bond existed. The court cited portions of
the record suggesting Jayden was hesitant about reunifying with
mother and showed mixed emotions towards her. The court
noted Brianna’s bond with mother appeared to have been
damaged, and Brianna had a lack of trust in mother’s ability to
care for her. The court concluded “based on [the] report of the
expert, as well as recent visitation, or lack thereof, I do not
believe an appropriate offer of proof [had] been made . . . .”
Both mother and the court relied heavily on DCFS’s reports
and the bonding study, the contents of which were not contested.
Because the parties were citing the same uncontested evidence,
the court did not abuse its discretion in determining that
mother’s offer of proof would offer no new relevant evidence. As
set forth in Tamika T., supra, 97 Cal.App.4th at page 1124, “A
proper offer of proof gives the trial court an opportunity to
determine if, in fact, there really is a contested issue of fact.”
Mother was not contesting the contents of the reports or the
bonding study and did not seek to cross-examine the authors of
those documents. Instead, like the court, she relied on them.
Thus, the only portion of mother’s offer of proof that had
not already been addressed in either DCFS’s reports or the
bonding study was the proposed testimony of Jayden. However,
mother did not specify what testimony she believed that Jayden
would provide. The court had before it years of interviews with
Jayden regarding his relationship with mother. Mother did not
propose that Jayden would say anything different from what he
had already said. Mother did not suggest Jayden’s testimony
33
would be new or reveal something to shed new light on the
nature of their relationship.
Mother was required to show regular, consistent visitation,
that the children had a “substantial, positive, emotional
attachment” to her and that “terminating that attachment would
be detrimental” to the children “even when balanced against the
countervailing benefit of a new, adoptive home.” (Caden C.,
supra, 11 Cal.5th at p. 636.) As the juvenile court noted, when
Jayden told mother that he was afraid of Danny, mother replied,
“I’m not giving him up.” The court also noted the bonding study
showed Jayden had mixed emotions about mother and was
hesitant to reunify with her. Brianna also expressed fear of
Danny, and when asked if she missed mother, responded, “not
really.” However, she said she missed and wanted to live with
her current caregiver. The evaluator concluded there was a
potential that a strong bond could develop between mother and
the children, but mother was in need of further treatment.
Mother does not suggest that these comments and
conclusions were inaccurate. Nor does she suggest that the
reports regarding visitation were inaccurate or incomplete. She
did not seek to cross-examine the evaluator to undermine the
conclusions of the bonding study. Instead, she sought to elicit
additional unspecified testimony from Jayden. Under the
circumstances, the juvenile court did not abuse its discretion in
concluding that such testimony would be redundant and would
not assist mother in attempting to prove the beneficial parental
relationship exception.
C. The relevant case law
Mother relies on Grace P., supra, 8 Cal.App.5th 605 and
A.G., supra, 58 Cal.App.5th 973 as support for her position the
34
juvenile court abused its discretion in denying her a contested
hearing on the beneficial parental relationship exception to
termination of parental rights. We disagree that these cases
compel a result in mother’s favor in this case.
In Grace P., the appellate court determined the juvenile
court erred in denying a father a contested hearing on the
beneficial parental relationship exception to termination of
parental rights. (Grace P., supra, 8 Cal.App.5th at p. 613.) The
court found the father’s offer of proof “was undisputedly
sufficient.” (Ibid.) First, the father’s offer of proof addressed the
consistency of his weekly visitation. The court noted DCFS’s
reports supported a conclusion that the father maintained
regular visitation. (Ibid.)10 Further, the father proposed to
present testimony regarding the “quality of his visitation,”
including how he parented all three of his children during
visitation and how they regarded him as a father figure.
(Grace P., at p. 614.) In sum, the father’s offer of proof “indicated
that Father and Grace would expound on the details of the
relationship that ha[d] been . . . documented by DCFS.” (Id. at
10 In Grace P., the juvenile court agreed the father had
engaged in sufficiently regular visitation. (Grace P., supra, 8
Cal.App.5th at p. 613.) Here, in contrast, the juvenile court noted
mother’s visitation was not consistent. Mother argues her
visitation was inconsistent only recently, and that it was
inconsistent in part due to precautions surrounding the parties’
exposures to COVID-19. It was within the juvenile court’s
authority to consider mother’s recent visitation schedule and to
reach its own factual conclusions regarding the recent
inconsistency. For this analysis, it is significant that mother
failed to provide an offer of proof suggesting she could present
any new or different facts regarding her visitation.
35
p. 615.) Significantly, unlike the present matter, there does not
appear to have been a thorough bonding study done in Grace P.
Here, mother did not suggest specific ways in which she
and Jayden could expound upon the reports and studies already
in evidence. Instead, her offer of proof cited to DCFS’s reports
and the bonding study in support of her request for a contested
hearing. These were documents already in the court record, and
mother offered nothing to contradict them or expand upon them.
As the juvenile court had read and considered the DCFS reports
and the bonding study, it did not abuse its discretion in
determining that mother had failed to show that her proposed
testimony would be novel or helpful.
Mother also relies on A.G., supra, 58 Cal.App.5th 973, in
which the appellate court reversed and remanded a case to the
juvenile court to further consider the legal sufficiency of a
mother’s offer of proof. (Id. at p. 983.) The mother had submitted
a written offer of proof concerning both the beneficial parental
relationship and the sibling relationship exceptions to adoption.
In her written offer of proof, the mother identified nine witnesses
who would be able to testify concerning both exceptions. (Id. at
pp. 989-990.) The Monterey County Department of Social and
Employment Services objected, stating mother only identified
vague statements that the witnesses would make. (Id. at
pp. 990-991.) The juvenile court agreed, finding the mother’s
offer of proof provided only “‘categories of information’” without
specific articulable facts. (Id. at p. 991.) The A.G. court
disagreed, finding “[t]he offer of proof here identified nine
potential witnesses and did more than simply recite facts.” (Id.
at p. 1012.) While the court noted the mother’s offer of proof had
some deficiencies, such as the dates of certain events, the
36
contents of videotapes and photographs, and specifics about
detriment to the child, the court noted that “if the juvenile court
were to exercise its discretion to permit mother to amend her
proffer, she may have been able to cure such deficiencies.” (Id. at
p. 1014.) The court reversed the challenged order for further
consideration of the mother’s offer of proof, noting that the court
“may consider additional argument of the parties, and, in its
discretion, may allow mother the opportunity to amend her offer
of proof with any specific evidence she believes she can produce
that is consistent with her prior oral and written offers of proof”
to aid the court in determining whether the mother’s offer of
proof was sufficiently specific to warrant a contested hearing.
(Ibid.)
The offer of proof at issue in A.G. “contained some specifics
and was thus partially compliant.” (A.G., supra, 58 Cal.App.5th
at p. 1014.) It is apparent it was far more detailed than the offer
at issue in this case, as it contained references to specific events,
photographs and videos. In contrast, the offer of proof made here
was vague about what information would be provided by mother’s
and Jayden’s testimony. Unlike the offer of proof in A.G.,
mother’s offer of proof was not partially compliant.
The A.G. court found a juvenile court must “‘take caution
before denying a contested hearing’ on the parental relationship
exception.” (A.G., supra, 58 Cal.App.5th at p. 1009.) Noting,
“[w]hen the parent has addressed regular visitation and the
existence of a beneficial parent-child relationship, but there is
some question about the proffer’s adequacy, the juvenile court
should find the parent’s offer of proof legally sufficient and order
a contested hearing.” (Ibid.) The A.G. court concluded that a
37
juvenile court should “construe the parent’s offer of proof liberally
in favor of allowing such a hearing.” (Ibid.)
Even construing mother’s offer of proof liberally, it did not
contain sufficiently specific descriptions of evidence that would
warrant a hearing in this case. Mother failed to reference
evidence that would differ from or add to the information in the
reports and bonding study the court already had. Under the
circumstances, the juvenile court did not abuse its discretion in
denying mother a contested hearing.
III. Termination of parental rights—Prince and Liani
At the section 366.26 hearing as to Prince and Liani, the
juvenile court found the beneficial parental relationship
exception to termination of parental rights found in section
366.26, subdivision (c)(1)(B)(i) did not apply. Mother argues that,
in declining to find that the exception applied, the juvenile court
did not comply with the principles announced in Caden C., supra,
11 Cal.5th 614. Specifically, mother argues that instead of
focusing on whether the children had a substantial, positive,
emotional attachment to mother, the court improperly focused on
comparing mother to the children’s caregiver. Further, mother
argues, the juvenile court improperly focused on whether the
children’s relationship with mother was “parental.” As set forth
below, we find the court correctly applied the law when it
considered the beneficial parental relationship exception,
therefore we affirm the court’s order terminating mother’s and
Danny’s parental rights to Prince and Liani.
A. Applicable law and standard of review
The purpose of a section 366.26 hearing is to select and
implement a permanent plan for the child. (Caden C., supra, 11
Cal.5th at p. 630; see § 366.26, subd. (b).) A section 366.26
38
hearing is set when the court has determined the child may not
safely be returned to the parent after “a maximum of 18 months
from removal.” (In re Marilyn H. (1993) 5 Cal.4th 295, 308.) The
hearing takes place only after reunification services have been
terminated, thus “the focus shifts to the needs of the child for
permanency and stability.” (Id. at p. 309.) The permanent plan
preferred by the Legislature is adoption. (§ 366.26, subd. (b)(1);
In re S.B. (2009) 46 Cal.4th 529, 532.)
At the section 366.26 hearing, the juvenile court must
conduct a two-part inquiry. First, the court must determine
whether there is clear and convincing evidence the child is likely
to be adopted within a reasonable time. (Cynthia D. v. Superior
Court (1993) 5 Cal.4th 242, 249-250; In re D.M. (2012) 205
Cal.App.4th 283, 290.) If the court determines the child is
adoptable, it must terminate parental rights unless the parent
opposing termination can meet the burden of proving one of the
statutory exceptions to termination of parental rights. (§ 366.26,
subd. (c)(1)(A) & (B); Caden C., supra, 11 Cal.5th at p. 631.)
One such exception is found in section 366.26, subdivision
(c)(1)(B)(i). To establish this exception, a parent must prove by a
preponderance of the evidence that (1) the parent has maintained
regular visitation and contact with the child, “taking into account
the extent of visitation permitted,” (2) the child has a substantial
positive, emotional attachment to the parent such that the child
would benefit from continuing the relationship, and (3)
terminating the relationship “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 p. 636.)
In assessing whether the child would benefit from
continuing the relationship, juvenile courts may consider various
39
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.’” (Caden C., supra, 11 Cal.5th at p. 632.)
Concerning the third element, the juvenile court must “decide
whether it would be harmful to the child to sever the relationship
and choose adoption.” (Id. at p. 633.) In other words, the court
must consider “what life would be like for the child in an adoptive
home without the parent in the child’s life.” (Ibid.)
The parent has the burden of proving each element of the
beneficial parental relationship exception. (Caden C., supra, 11
Cal.5th at p. 636.) The juvenile court’s findings as to the first two
elements—regular visitation and whether the child would benefit
from continuing the relationship—are reviewed for substantial
evidence. (Id. at pp. 639-640.) As to the third element, the
juvenile court’s factual findings are reviewed for substantial
evidence, but the court’s weighing of the relative harms and
benefits of terminating parental rights is reviewed for abuse of
discretion. (Id. at p. 640.) However, where the juvenile court has
determined that the exception does not apply, a parent’s
challenge “amounts to a contention that the ‘undisputed facts
lead to only one conclusion.’” (In re Bailey J. (2010) 189
Cal.App.4th 1308, 1314.) In other words, “[u]nless the
undisputed facts established the existence of a beneficial
parental . . . relationship, a substantial evidence challenge to this
component of the juvenile court’s determination cannot succeed.”
(Ibid.) The question of whether a juvenile court applied the
correct legal standard in a given case is a question of law
requiring de novo review. (In re S.G. (2021) 71 Cal.App.5th 654,
673.)
40
B. The juvenile court did not apply improper
criteria
Mother argues that in rendering its decision on the
applicability of the beneficial parental relationship exception to
termination of parental rights, the court applied improper
criteria under Caden C. Specifically, mother argues the juvenile
court improperly compared her with the children’s caregiver and
improperly considered whether mother played a parental role in
the children’s lives. We disagree and find the juvenile court
considered only relevant, permitted factors in rendering its
decision on this issue.
Mother first takes issue with the juvenile court’s discussion
of the children’s relationship with their caregiver. The court
noted the children had been with the current caregiver since
September 2020 and that “she is the only day-to-day mother
caregiving figure that these children have had.” The court
continued to explain that mother provided “amusement” to the
children, but there did not appear to be “a really strong and
ongoing attachment between Prince and Liani and . . . their
biological mother.” The court noted “[t]he children do seem to
have a friendly relationship with mother, but it is not the type of
bond that the court would expect to see at this point in time.”
The court noted mother had never “participated in any of the
children’s mental or physical health needs.” In discussing
whether severing the bond would be detrimental, the court noted
that losing their mother was “more than made up by the fact that
they have been in a long-term steady placement now for nearly
two years with, albeit, a woman a bit older, but she seems to be
genuinely concerned, involved in the interaction with the children
for the children’s benefit.”
41
Mother points out that the Caden C. court cautioned that
the court may not compare the parent’s attributes as custodial
caregiver relative to those of the potential adoptive parent.
(Caden C., supra, 11 Cal.5th at p. 634 [noting that “the section
366.26 hearing is decidedly not a contest of who would be the
better custodial caregiver”].) Mother argues she was not required
to prove that the children’s attachment to her was their primary
bond. She points out that a parent does “not have to compete
with the foster mother as to who would provide the minor with
more appropriate care.” (In re M.G. (2022) 80 Cal.App.5th 836,
851.) Mother cites several cases that articulate the same legal
principle. (In re D.P. (2022) 76 Cal.App.5th 153, 168; In re J.D.
(2021) 70 Cal.App.5th 833, 859 (J.D.); In re S.B. (2008) 164
Cal.App.4th 289, 299-300; In re Scott B. (2010) 188 Cal.App.4th
452, 472; In re Amber M. (2002) 103 Cal.App.4th 681, 689-690.)
We find the juvenile court’s statements did not improperly
compare mother to the caregiver. Instead, the context of the
statements makes clear the court was properly weighing whether
terminating the parental relationship “would be detrimental to
the child . . . when balanced against the countervailing benefit of
a new, adoptive home.” (Caden C., supra, 11 Cal.5th at p. 636.)
The court was not required to refrain from mentioning the
caregiver at all, or decline to state the reality of the
circumstances. As noted in Caden C., it “is a crucial aspect of the
trial court’s responsibility” to “decide whether the harm from
severing the child’s relationship with the parent outweighs the
benefit to the child of placement in a new adoptive home.” (Id. at
pp. 631-632.) The comments mother points out do not compare
her to the caregiver, but appropriately consider the benefits the
42
children would receive from being adopted by their long-term
caregiver.
Mother next argues the court improperly focused on
whether mother’s relationship with the children was “parental.”
Mother argues the Caden C. court did not require that a parent
must occupy a parental role in a child’s life in order for the
beneficial parental relationship exception to apply. (Caden C.,
supra, 11 Cal.5th at pp. 631-632.) Instead, the Caden C. court
noted that the law “‘does not narrowly define or specifically
identify the type of relationship necessary to establish the
exception.’” (Id. at pp. 632-633, quoting In re S.B., supra, 164
Cal.App.4th at p. 299.) According to Caden C., the parent must
show “that the child has a substantial, positive, emotional
attachment to the parent—the kind of attachment implying that
the child would benefit from continuing the relationship.” (Id. at
p. 636.) Thus, mother argues, whether or not mother provided
day-to-day care for the children, as opposed to being a “friendly
visitor,” was not a proper consideration for the juvenile court to
undertake.
While mother correctly articulates the law regarding the
beneficial parental relationship exception, she fails to point to
any language suggesting the juvenile court expected mother to
play a parental role in the children’s lives. The juvenile court
pointed out the caregiver was “the only day-to-day mother
caregiving figure that these children have had.” This factual
statement was relevant to the juvenile court’s analysis regarding
the benefits of adoption and in no way compared mother and the
caregiver. The court also pointed out, “[t]he children do seem to
have a friendly relationship with mother, but it’s not the type of
bond that the court would expect to see at this point in time.”
43
Again, while the court noted that mother did not have a strong
bond with the children, the court did not impose any requirement
that the relationship be parental. Finally, mother takes issue
with the juvenile court’s statement that mother is “more of a
playmate” to the children and that she had not “ever participated
in any of the children’s mental or physical health needs.” There
was nothing erroneous in the court’s discussion of these subjects
during its weighing of the factors to be considered concerning the
beneficial parental relationship exception. The statements do not
support mother’s contention the court improperly imposed on
mother a requirement that she occupy a “parental role” in the
children’s lives.
Instead, the comments show the court was properly
considering numerous factors, including “‘[t]he age of the
child[ren], the portion of the child[ren]’s li[ves] spent in the
parent’s custody, the “positive” or “negative” effect of interaction
between parent and child[ren], and the child[ren]’s particular
needs.’” (Caden C., supra, 11 Cal.5th at p. 632.) As the Caden C.
court noted, “courts often consider how children feel about,
interact with, look to, or talk about their parents.” (Ibid.) It was
not error for the juvenile court to do so here.
The cases cited by mother are distinguishable. In J.D.,
supra, 70 Cal.App.5th 833, when discussing the beneficial
parental relationship exception to termination of parental rights,
the agency stressed that the child stated he wanted to be the
caregiver’s son. The J.D. court pointed out that “mother was not
required to prove that J.D.’s attachment to her was his primary
bond.” (Id. at p. 859.) The J.D. court ultimately reversed the
termination of parental rights because there was insufficient
information in the record as to the nature of the mother’s
44
relationship with the child. (Id. at pp. 860-864.) In addition, the
juvenile court’s finding included a conclusory and problematic
statement that the mother’s relationship with J.D. “did not
‘amount to a parental bond.’” (Id. at p. 864; see In re B.D. (2021)
66 Cal.App.5th 1218, 1229 [order terminating parental rights
reversed in part due to the juvenile court’s repeated reference to
whether parents occupied a “‘parental role’” or had a “‘parental
relationship’” with the children].) Thus, the J.D. court could not
“be certain the juvenile court did not rely on improper factors in
assessing” mother’s relationship with her son. (J.D., supra, at
p. 863.) Here, in contrast, there is no indication the juvenile
court was mandating a parental bond or considering improper
factors.
Similarly, In re D.M. (2021) 71 Cal.App.5th 261, 264,
involved a termination of parental rights where the juvenile court
did not have the benefit of the Caden C. opinion at the time it
made its decision on the beneficial parental relationship
exception to termination of parental rights. (Id. at p. 264.) The
juvenile court had been focused on whether the father played a
parental role in the children’s lives and “said nothing about the
attachment between father and his children.” The D.M. court
found the juvenile court’s comments demonstrated that “it
considered factors which Caden C. has explained are
inappropriate in determining whether the parental-benefit
exception applies.” (D.M., at p. 271.) Similarly, in In re L.A.-O.
(2021) 73 Cal.App.5th 197, 211, the court noted in denying the
beneficial parental relationship exception, the juvenile court
stated that “the parents ‘ha[d] not acted in a parental role in a
long time’ and the prospective adoptive parents ‘ha[d] been acting
in a parental role.’” Because the L.A.-O. court was not certain
45
what the juvenile court meant, it remanded the matter with
directions to reconsider the application of the parental-benefit
exception in light of Caden C. (L.A.-O., at pp. 211-212.)
In contrast to these cases, the court here had the benefit of
the Caden C. opinion. In fact, in rendering its decision, the court
explicitly discussed Caden C. in reference to the beneficial
parental relationship exception. The record shows that instead of
improperly focusing on whether mother occupied a parental role,
the court in this case considered a variety of factors including the
children’s relationship to mother and how they felt about her.
The court’s decision on the beneficial parental relationship
exception spans over 12 pages of the reporter’s transcript and
discusses in detail how the benefits to the children of adoption
outweigh any benefit from their relationship with mother, the
consideration of the ages of the children and the time spent in
mother’s care, the quality and strength of the bond between the
children and mother, and the needs of the children for
permanency.
The juvenile court’s comment that “it would be detrimental
for the children to be returned to either of the parents” does not
change the analysis. Mother claims this comment was evidence
that the juvenile court was straying from the principles set forth
in Caden C., which clarified that “[n]othing that happens at the
section 366.26 hearing allows the child to return to live with the
parent. [Citation.] Accordingly, courts should not look to
whether the parent can provide a home for the child . . . .”
(Caden C., supra, 11 Cal.5th at p. 634.) Mother argues the
inability of mother to provide a home for the children could not
justify the termination of parental rights. (Citing In re
Amber M., supra, 103 Cal.App.4th at p. 690.)
46
As set forth above, the juvenile court’s thorough decision
showed the court fully understood the proper factors for
consideration set forth in Caden C. The court’s comment that
returning the children to mother would be detrimental was not
the primary focus of the court’s analysis, nor did it alter the
analysis. Under the circumstances, we decline to find error.11
The court’s decision complied with Caden C. and is
therefore affirmed.12
IV. ICWA
A. Applicable law and standard of review
ICWA and related California statutes reflect the
Legislature’s intent “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.” (25
U.S.C. § 1902; see In re K.R. (2018) 20 Cal.App.5th 701, 706,
fn. 3.) An “Indian child” is defined as any unmarried person
under the age of 18 who is either a member of an Indian tribe or
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); Welf.
& Inst. Code, § 224.1, subds. (a), (b).)
11 Because we have determined the juvenile court did not err
in conducting its analysis under the beneficial parental
relationship exception to termination of parental rights, we
decline to address mother’s argument that such error was
prejudicial.
12 Danny also appeals from the termination of his parental
rights to Prince and Liani, joining in and adopting by reference
mother’s argument. Because we have determined that mother’s
appeal fails on the merits, we decline to discuss father’s appeal.
47
“Because it typically is not self-evident whether a child is
an Indian child, both federal and state law mandate certain
inquiries to be made in each case. These requirements are
sometimes collectively referred to as the duty of initial inquiry.”
(In re Benjamin M. (2021) 70 Cal.App.5th 735, 741 (Benjamin M.)
“The duty to inquire begins with the initial contact, including,
but not limited to, asking the party reporting child abuse or
neglect whether the party has any information that the child may
be an Indian child.” (§ 224.2, subd. (a).) The court and child
welfare department “have an affirmative and continuing duty” to
inquire whether a child for whom a petition under section 300
may be or has been filed may be an Indian child. (§ 224.2, subd.
(a).)
Under California law, the child welfare department’s initial
duty of 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 and where the child, the parents, or Indian
custodian is domiciled.” (§ 224.2, subd. (b).) Under ICWA, the
term “extended family member” is “defined by the law or custom
of the Indian child’s tribe or, in the absence of such law or
custom, shall be a person who has reached the age of eighteen
and who is the Indian 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).)
The juvenile court must also inquire at each participant’s
first appearance in court whether the participant knows or has
reason to know that the child is an Indian child. (§ 224.2, subd.
(c).) In addition, the juvenile court must instruct the parties to
48
inform the court if they subsequently receive information that
provides reason to know the child is an Indian child. (§ 224.2,
subd. (c).)
If the “initial inquiry creates a ‘reason to believe’ the child
is an Indian child, then the Agency ‘shall make further inquiry
regarding the possible Indian status of the child, and shall make
that inquiry as soon as practicable.’ ([§ 224.2,] subd. (e), italics
added.) If that further inquiry results in a reason to know the
child is an Indian child, then the formal notice requirements of
section 224.3 apply. (See § 224.2, subd. (c) [court is obligated to
inquire at the first appearance whether anyone ‘knows or has
reason to know that the child is an Indian child’]; id., subd. (d)
[defining circumstances that establish a ‘reason to know’ a child
is an Indian child]; § 224.3 [ICWA notice is required if there is a
‘reason to know’ a child is an Indian child as defined under
§ 224.2, subd. (d)].)” (In re D.S. (2020) 46 Cal.App.5th 1041,
1052.)
We review a juvenile court’s ICWA findings under the
substantial evidence test, “‘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,
review granted Sept. 21, 2022 (Dezi C.).)13 Even if substantial
13 The California Supreme Court granted review of Dezi C. on
September 21, 2022, S275578. In its opinion granting review, the
Supreme Court has stated that pending review, Dezi C. “may be
cited, not only for its persuasive value, but also for the limited
purpose of establishing the existence of a conflict in authority
that would in turn allow trial courts to exercise discretion under
Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
49
evidence does not support the juvenile court’s ICWA findings, we
may not reverse unless we find that error was prejudicial. (Cal.
Const., art. VI, § 13; Benjamin M., supra, 70 Cal.App.5th at
p. 742.)
At this time, California appellate courts have taken varying
positions on the rules for assessing whether a defective initial
inquiry is harmless. The varying approaches have led to “a
continuum of tests for prejudice stemming from error in following
California statutes implementing ICWA.” (In re A.C. (2022) 75
Cal.App.5th 1009, 1011 (A.C.); see Dezi C., supra, 79 Cal.App.5th
at p. 777, review granted.) Our division has adopted the
following rule: “[A]n agency’s failure to conduct a proper initial
inquiry into a dependent child’s American Indian heritage is
harmless unless 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. For this
purpose, the ‘record’ includes both the record of proceedings in
the juvenile court and any proffer the appealing parent makes on
appeal.” (In re Dezi C., supra, at p. 779.)
B. Error and conditional reversal
In each of the three appeals before us, mother contends the
order terminating parental rights should be conditionally
affirmed so that extended family members may be asked about
whether the children are Indian children. Danny makes the
same contention as to the appeal concerning Prince and Liani.
DCFS concedes that the record does not show any extended
456, to choose between the sides of any such conflict.” (In re
Dezi C. (Sept. 21, 2022, S275578).)
50
family members were ever asked whether the children are Indian
children. DCFS agrees that the order terminating parental
rights should be conditionally affirmed and the matter remanded
so that the extended family members may be asked whether the
children are Indian children.
California law imposes on the juvenile court a statutory
duty to ask each party at their first appearance in court about a
child’s Indian ancestry. (§ 224.2, subd. (c).) California law
imposes a similar duty on child welfare agencies to ask extended
family members about a child’s possible Indian heritage.
(§ 224.2, subd. (b).) The failure to make such statutorily
mandated inquiries is error under state law.
Mother, Alexander and Danny denied Indian heritage.
However, there is no evidence contradicting mother’s claim that
DCFS failed to inquire of the extended family members whose
respective contact information was available to DCFS whether
the children may be Indian children. Because section 224.2,
subdivision (b) requires DCFS to inquire of extended family
members as part of the initial inquiry under ICWA, substantial
evidence is lacking to support the juvenile court’s ICWA finding.
Under California law, we may not reverse unless we find
the court’s error under ICWA was prejudicial. (Cal. Const., art.
VI, § 13; Benjamin M., supra, 70 Cal.App.5th at p. 742.) Despite
the technical violation of the initial inquiry requirements under
section 224.2, normally we would apply the “‘reason to believe’
rule” that we adopted in Dezi C., supra, 79 Cal.App.5th at pages
779-780, review granted, and conclude that the error was
harmless.
However, in this matter DCFS agrees that because Dezi C.
is pending before the Supreme Court, the more expedient
51
resolution for the children is to conditionally affirm and remand
the matter.14 Although Dezi C. remains good law during the
pendency of review (Cal. Rules of Court, rule 8.1105(e)), and we
adhere to Dezi C. during this period, we acknowledge the parties’
agreement that it is in the best interests of the children to
address all ICWA issues now rather than waiting for the
uncertainty regarding Dezi C.’s precedential status to be resolved
(and then to resolve any noncompliance with ICWA, after months
have passed). We find it is appropriate to accept the parties’
request for a remand in this matter. In doing so, we follow the
Legislature’s guidelines set forth in Code of Civil Procedure
section 128, subdivision (a)(8), which directs us to accept a
stipulation of the parties for reversal only if we find: (1) “[t]here
is no reasonable possibility that the interests of nonparties or the
public will be adversely affected by the reversal,” and (2) “[t]he
14 Although the parties request a conditional affirmance, we
believe what they seek is a conditional reversal for the limited
purpose of allowing DCFS to satisfy its duty of initial inquiry
under ICWA and thereby to eliminate the ICWA “error” that the
parties believe exists. We recognize that the Courts of Appeal are
deeply split on whether to conditionally affirm or conditionally
reverse in cases where there is no stipulation (compare, e.g., In re
J.K. (2022) 83 Cal.App.5th 498 [conditionally affirming] and In re
Rylei S. (2022) 81 Cal.App.5th 309 [same] with, e.g., In re D.B.
(2022) 87 Cal.App.5th 239 [conditionally reversing] and In re E.V.
(2022) 80 Cal.App.5th 691 [same]), but conclude that the
functional effect of what we are doing should control in cases
where the parties are agreeing to a limited remand following an
order terminating parental rights. (In re A.C. (2022) 86
Cal.App.5th 130 [accepting stipulation, but issuing disposition as
conditional reversal]; In re Veronica G. (2007) 157 Cal.App.4th
179, 187.)
52
reasons of the parties for requesting reversal outweigh the
erosion of public trust that may result from the nullification of a
judgment and the risk that the availability of stipulated reversal
will reduce the incentive for pretrial settlement.” (Code Civ.
Proc., § 128, subd. (a)(8).)
Under these standards, conditional reversal with a limited
remand to comply with ICWA is appropriate in this case. The
reasons for the remand request is a practical one: It is not clear
at this time what the test is for assessing “prejudice” in cases
where DCFS has not complied with its ICWA duty of initial
inquiry; the error in this case would be prejudicial under some
tests and not prejudicial under others; the California Supreme
Court is not likely to resolve this issue for months, if not years;
there is the possibility that a ruling by this court affirming the
termination of parental rights (due to absence of “prejudice” from
the ICWA error under the Dezi C. test) might be undone months,
if not years, from now when the Supreme Court defines the
proper test for “prejudice”; it is undisputed that, in dependency
proceedings “involv[ing] the well-being of children,”
“considerations such as permanency and stability are of
paramount importance” (In re S.B. (2004) 32 Cal.4th 1287, 1293,
superseded by statute as stated in In re M.R. (2005) 132
Cal.App.4th 269, 273); and these considerations of permanency
and stability are better served by a remand to eliminate any
ICWA error now (and thereby to ensure that the order
terminating parental rights can be final sooner rather than later)
rather than rejecting remand and affirming (which leaves open
the possibility that the ICWA issue—and, depending on the
outcome of that issue, the entire case—will be re-opened months,
if not years, down the line). Given these considerations, there is
53
“no reasonable possibility” that the interests of the nonparties
(namely, the prospective adoptive parents and the Indian tribes)
“will be adversely affected by the reversal” because those
nonparties will benefit by the stability imparted by resolving the
ICWA issue now instead of at some point in the future. And the
permanency and stability imparted by a remand to resolve the
ICWA issue now also “outweigh[s] the erosion of public trust”
that arises from conditionally reversing the order terminating
parental rights. Indeed, the remand in this case enhances the
public trust by ensuring compliance with ICWA.
Accordingly, we find no reasonable possibility that the
interests of the public or nonparties will be adversely affected by
the conditional reversal and remand requested by the parties,
and find that the reasons for reversal outweigh the erosion of
public trust and the decreased incentive for pretrial settlement.
(See Code of Civ. Proc., § 128, subd. (a)(8).) We therefore
conditionally reverse the order, with directions to the juvenile
court to conduct a further ICWA inquiry.
DISPOSITION
The juvenile court’s order is conditionally reversed. The
matter is remanded to the juvenile court with the following
directions:
1. DCFS shall make reasonable efforts to ask all known
and available extended family members if the children may be
Indian children.
2. DCFS shall document its efforts to interview all known
and available extended family members as to whether the
children are or may be Indian children and provide a report with
54
documentation and the results of its interviews to the juvenile
court.
3. At a noticed hearing, with counsel for the parties
reappointed, the juvenile court shall make a finding regarding
the applicability of ICWA, determine whether DCFS has
interviewed all known and available extended family members,
and proceed in accordance with sections 224.2 and 224.3,
including, if required, ordering DCFS to send notices with the
above information to the appropriate tribes in accordance with
ICWA.
4. If based on the completed inquiry, the juvenile court
finds there is no reason to believe the children are Indian
children, or if no tribe or agency determines the children are
Indian children after notice has been provided pursuant to ICWA,
the order terminating parental rights shall remain the order of
the juvenile court. If notices are sent and the juvenile court
receives responses from the noticed tribes, the juvenile court
shall proceed in accordance with ICWA if any tribe determines
either of the children is an Indian child.
________________________
CHAVEZ, Acting P. J.
We concur:
________________________ ________________________
HOFFSTADT, J. KWAN, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
55