In re A.S. CA2/3

Filed 8/7/23 In re A.S. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re A.S., a Person Coming B322404
Under the Juvenile Court Law.
Los Angeles County
LOS ANGELES COUNTY Super. Ct. No.
DEPARTMENT OF CHILDREN 20CCJP02653D
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
C.G.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, D. Brett Bianco, Judge. Conditionally affirmed and
remanded with instructions.
Elizabeth Klippi, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, Jessica S. Mitchell, Deputy County
Counsel, for Plaintiff and Respondent.
_________________________
The juvenile court removed A.S. from his mother’s custody
after finding she physically abused him, left him unsupervised
for long periods, and has substance abuse issues. Mother
tested positive for marijuana throughout the dependency period,
displayed minimal insight into the issues that led to removal, and
was arrested for a domestic violence incident with her partner.
The juvenile court terminated her reunification services. A few
months later, mother filed a petition to reinstate her services
on the basis that circumstances had changed. The court denied
mother’s petition, terminated parental rights to A.S., and
selected the child’s caregiver as his prospective adoptive parent.
On appeal, mother argues the court erred in denying
her petition and refusing to grant her request for a continuance
and bonding study. She also argues the Los Angeles County
Department of Children and Family Services (the Department)
failed to comply with its duty of initial inquiry under state law
(Welf. & Inst. Code, § 224 et seq.) implementing the Indian Child
Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) when it
did not ask extended family members if the child had Indian
ancestry.1 The Department does not contest remand for
1 Undesignated statutory references are to the Welfare and
Institutions Code. Because ICWA uses the term “Indian,” we
do the same for consistency, although we recognize other terms
are preferred. (In re Benjamin M. (2021) 70 Cal.App.5th 735,
739, fn. 1.)
2
compliance with ICWA. We accept the Department’s concession
and conditionally affirm the termination of parental rights
but remand the matter for the limited purpose of ensuring
compliance with ICWA and related California law. We affirm
the court’s other orders.
FACTUAL AND PROCEDURAL BACKGROUND2
1. Investigation and detention
In April 2020, the Department received a report that
mother was physically abusing and neglecting three-year-old
A.S. and his younger half-sister, A.C.3 At the time, mother was
living in a transitional housing facility. During the Department’s
investigation, a social worker observed A.S. had bruises on his
body, a mark on his forehead, a “red hand print” on his arm,
and “scratch-like scars” on both forearms.
A resident at mother’s facility told the Department she saw
mother “sock[ ]” A.S. in the face, slap him multiple times, pinch
him, and twist his arm. The resident said that when she babysat
the child, he acted “scared all the time” and would “cry nonstop”
when mother returned. Other residents reported that mother
called the child derogatory names, threw shoes at him, “pulled
him down by his hair and pinched him,” and left him unattended
in a car for at least 30 minutes while she fought with another
resident. The residents also suspected mother was using drugs,
because she had recently thrown up in the restroom while naked.
2 Father did not participate in the dependency proceedings,
nor did he appeal the court’s orders. Accordingly, we do not
discuss the facts related to father.
3 This appeal does not concern A.C. Therefore, we do not
discuss in detail the facts related to A.C.’s dependency case.
3
Staff at the facility denied witnessing abuse but said there
was an incident where A.S. was walking around the facility
unattended at 1:00 a.m. Another time, staff said, mother
attempted to attack a resident while holding A.C. in her arms.
Mother denied abusing A.S. and claimed she had not
used marijuana for two years. Mother said she was prescribed
psychiatric medication, but she stopped taking it after suffering
an allergic reaction. Mother told the Department she was on
probation for an assault with a deadly weapon conviction, but she
did not provide details about the conviction. Mother’s probation
officer said she had offered mother services for years, but mother
had refused them.
At the Department’s request, the court detained A.S. and
A.C. from mother. The court ordered the Department to place the
children with the same caregiver, which it did. The Department
noted that A.S. was “extremely attached” to A.C., as A.C. was
the only “constant person” in his life.
After the Department detained A.S., mother confronted
residents at her facility who spoke to the Department, telling
them she “ ‘knew where they stayed and that they were on
paper.’ ”
Mother agreed to drug test for the Department. She was
a “no show” five times before testing positive for cocaine and
marijuana in July 2020. Mother admitted using marijuana
but denied using cocaine. She failed to appear at her next six
drug tests.
A.S.’s therapist reported the child fights with his peers,
has a lot of energy, and has difficulty following directions and
focusing. She recommended he receive mental health services
and be evaluated for an IEP. The Department reported that
4
A.S. has limited speech and exhibits severe aggressive behaviors
towards other children. The Department said he was in “dire”
need of a regional center evaluation, but mother would not return
the regional center’s calls.
In September 2020, mother’s significant other, Oscar,
was arrested for intimate partner violence with injury. Mother
told the police that Oscar grabbed her by the hair, punched her,
and grabbed her throat. Mother said she had been involved in
six prior domestic violence incidents with Oscar, one of which
A.S. witnessed. She claimed Oscar is a gang member.
2. Jurisdiction and disposition
The Department filed a petition asserting A.S. is a person
described by section 300. The petition alleged mother physically
abused A.S., failed to supervise him, engaged in domestic
violence in his presence, abuses marijuana and cocaine, and
has unresolved mental health issues. As to the physical abuse,
the petition specifically alleged mother struck A.S. in the face
with a fist, struck his face and body with her hand, pinched and
twisted his arm, grabbed him, threw shoes at him, and pinched
his ears. The petition further alleged mother left A.S. without
adult supervision in a vehicle and allowed him to wander alone
in a hallway late at night.
The court held a jurisdiction hearing in September 2020,
at which it sustained the allegations related to mother’s physical
abuse, failure to supervise, and substance abuse. The court
struck the remaining counts—which concerned domestic violence
and mother’s mental health issues—for lack of evidence.
As to disposition, the court declared A.S. a dependent
and removed him from mother’s custody. The court ordered
the Department to provide mother with reunification services
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and monitored visitation. Mother’s case plan required that
she participate in a drug program, submit to drug testing,
attend individual counseling to address case issues, and take
all prescribed medication.
3. Six-month reunification period
Mother did not drug test during the initial reunification
period, but she did enroll in a parenting class. Asked what she
had learned from the classes, mother replied she was becoming
more social and had improved her patience. Asked how she
disciplines A.S., mother claimed she had no need to because
A.S. listens to her when she speaks firmly. Mother became
upset when the case worker mentioned the sustained allegations
related to her use of corporal punishment. Mother insisted
the women at the transitional housing facility had fabricated
the stories.
A parent partner—who was working with mother on
parenting strategies—said mother actively participates in
lessons, but “ ‘something does not connect’ ” with her.
In February 2021, the Department placed A.S. with
A.C.’s paternal grandmother, who agreed to care for both
children. The caregiver reported that A.S. had been displaying
aggressive behavior, hitting his sibling, and breaking toys
for no reason. A.S. also falsely accused others of hitting him.
Mother visited A.S. throughout the initial reunification
period, and A.S. was excited to see her. A monitor described
mother as “consistent, loving, caring, responsive and engaging
with the children” during visits.
The caregiver said A.S. returns from visits with mother
“very aggressive” and he “struggles on the two following days.”
One time, mother told A.S. she was going to “kick [his] butt”
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the next time she saw him. A.S.’s therapist suggested the child’s
behavior might improve if he did not see mother for two weeks.
The court held a six-month review hearing on March 22,
2021. The court found mother was not in compliance with her
case plan and declined to return A.S. to her custody. The court
continued mother’s reunification services for six months.
4. Twelve-month reunification period
During the next reunification period, mother started a
new job, obtained housing, and became pregnant with Oscar’s
child. Mother was arrested on May 29, 2021 for assault with
a deadly weapon. The Department later learned that Oscar
was the victim and had called the police on mother. The police
advised Oscar to get a restraining order against her.
Mother continued to participate in services. As of August
2021, she had attended eight individual therapy sessions.
The therapist, however, refused to provide the Department
substantive information related to mother’s progress, citing
confidentiality. Mother had been prescribed medication, but
she reportedly stopped taking it because it made her sleepy.
Mother’s parenting instructor said it was difficult working
with mother and she was not attending sessions as frequently
as she had originally agreed. The instructor said mother had
not implemented what she had learned in class during her visits
with A.S. She said mother does not know how to process her
anger and does not know how to communicate appropriately
with her children.
Mother continued to participate in a drug treatment
program. However, between March and August 2021, she
appeared at only two weekly drug tests. She tested positive
for marijuana both times.
7
Mother visited A.S. consistently, but she missed two visits
due to her arrest. Her visits remained monitored. The caregiver
reported that A.S. continued to display aggressive behavior and
tantrums, but his behavior was improving.
The court held the 12-month review hearing on
September 22, 2021. Minor’s counsel and the Department asked
the court to terminate mother’s services. The court found mother
was in partial compliance with her case plan, and it continued
her services until the 18-month deadline.
5. Final reunification period and termination of
services
During the final reunification period, mother told the
Department she had been sober since learning she was pregnant.
Mother said she had stopped taking her psychiatric medication
due to her pregnancy.
Mother continued attending parenting classes, which she
completed in mid-November 2021. It was reported that mother
struggled to understand the material taught to her in the classes.
Mother also continued with her substance abuse treatment
program. She tested negative for drugs throughout September
and October 2021. She missed a test on November 3, 2021. At
a make-up test the next day, she tested positive for marijuana.
Mother said she tested positive because she had been using a
“CBD pen,” which she had since stopped using.
Mother had attended 19 individual therapy sessions as of
mid-November 2021. Mother’s therapist said she was engaged
during treatment, had gained insight regarding case issues, and
was making progress towards her treatment goals.
The Department reported that mother had made
inappropriate comments to A.S. during monitored visits.
8
At one visit, mother told A.S. he would be coming home and she
would buy him things when he did. During another visit, mother
asked A.S. if he was still hitting other children at school. When
A.S. said yes, mother replied, “That’s my boy.”
The court held the 18-month permanency review hearing
on November 19, 2021. Mother urged the court to return A.S.
to her custody because she had made significant progress on her
case plan, including by obtaining appropriate housing, regularly
attending therapy, participating in a drug program, and testing
negative for drugs. Alternatively, she asked the court to continue
her services. Minor’s counsel also asked the court to extend
mother’s services.
The court found mother had made only partial progress
on her case plan, and it terminated her reunification services.
The court noted that mother’s progress had been slow, and it
was not clear when she could progress to unsupervised overnight
visitation.
6. Post-termination of services
Mother was a “no show” at all the drug tests after the
court terminated her services. She continued to have monitored
weekly visits with A.S. A.S.’s caregiver said mother seemed
stressed, but the visits had gone well and mother had been
appropriate. During a Thanksgiving visit, mother told the
caregiver she was sad because her significant other, Oscar,
had overdosed on drugs and was in the hospital. Another day,
mother told the caregiver she would rather A.S. go back into
foster care than have the caregiver adopt the child.
The Department recommended A.S.’s caregiver adopt the
child. It reported that A.S. was well cared for, received stability
and structure, and had developed a positive and healthy
9
relationship with the caregiver. A.S.’s behavior had improved
greatly and his tantrums had decreased. The caregiver continued
to provide “excellent care” and was ready to move forward with
adoption.
7. Mother’s section 388 petition
On May 24, 2022, mother filed a section 388 petition
seeking to change the court’s order terminating her reunification
services. Mother argued there were changed circumstances in
that she had secured appropriate housing, completed a substance
abuse and behavioral outpatient treatment program, consistently
tested negative for drugs, met her therapy goals, and had given
birth to another child. She urged the court to order A.S. placed
in her home or, alternatively, grant her additional reunification
services and unmonitored visitation. Mother argued the change
would be in A.S.’s best interest because she had maintained her
relationship and bond with the child, A.S. still considered her to
be his mother, and being with a biological parent is “always more
beneficial” so long as the parent is able to provide a safe home.
Mother attached to the petition a March 2022 rental
agreement, a letter stating she had completed a substance abuse
program in December 2021, proof of consistent negative drug
test results since March 23, 2022, and a letter stating she had
met her individual therapy treatment goals after completing
24 sessions.
The Department opposed the petition and recommended
the court terminate mother’s parental rights. The Department
reported that, although mother and A.S. had a bond and positive
interactions, the visits had not “contributed to substantial
emotional attachment between the mother and the child.”
According to the Department, A.S. had been referring to his
10
caregiver as “ ‘mom’ ” for the past six months. Mother told A.S.
not to call the caregiver “ ‘mom’ ” and instead use that term for
her. A.S. responded that the caregiver is his mother.
A.S. visited mother in her new apartment sometime around
May or June. A.S. was upset after the visit because mother did
not have anything for him at her apartment, as she had promised
him before. After the visit, A.S. told the caregiver mother
“ ‘doesn’t love me anymore.’ ” As the caregiver comforted A.S.,
he called her “ ‘mom’ ” and said, “ ‘I love you so much.’ ”
The caregiver said A.S. exhibited “difficult behavior”
whenever he had brief unsupervised time with mother. During
a monitored visit in July 2022, the caregiver left A.S. alone with
mother momentarily. After the visit, A.S. said “ ‘mom was bad’ ”
and told him “ ‘to hate grandma and be bad with grandma.’ ”
A.S. sometimes referred to the caregiver as grandma. A.S.
then hugged the caregiver and said he loved her. The caregiver
told the Department she was concerned that mother’s conduct
would cause A.S. to regress.
The caregiver reported that mother had instructed A.S.
to destroy objects and throw tantrums with the caregiver,
in the hopes that the Department would return the child
to mother’s care. The caregiver also reported the quality of
visits had recently declined, as mother stopped engaging and
responding to the child. Mother seemed to be tired from her
pregnancy, and she would just give A.S. a phone to play with
during visits. A.S. became less interested in visits, and he
would sometimes hide from mother during video calls.
Mother consistently tested negative for drugs during this
period. She was a “no show” for two tests in June and one test
in July 2022. She appeared for a single make-up test in July.
11
Mother’s parenting class facilitator said mother completed
the parenting class in November 2021. The class was supposed
to be six weeks, but it took mother more than a year to complete
it. The facilitator said it appeared that mother was involved in
her classes, “ ‘gave insight,’ ” and seemed to have a good grasp
of the concepts.
One of mother’s neighbors said she was concerned about
the child in mother’s care. She did not want to say more,
however, because mother had confronted her in the past about
talking to the Department.
The Department interviewed mother in connection with her
section 388 petition. Mother told the Department “ ‘everything
changed’ ” since she got pregnant with Oscar’s child. Mother said
going through the classes had helped her to realize the children
are her responsibility. She stopped therapy in January 2022
because she and her therapist did not think she needed any more
sessions.
Mother admitted she was a “ ‘heavy user’ ” of marijuana
in the past, but she claimed to have been sober since July 2021.
She said she previously used marijuana because “the people she
associated herself with used marijuana.” She attributed her drug
use solely to her environment. Mother acknowledged that Oscar
continues to use marijuana, but she said it did not affect her
sobriety because he did not use it near her. One of mother’s
neighbors, however, told the Department she saw Oscar smoking
marijuana outside mother’s apartment every day.
Mother said her mental health had improved greatly and
she did not have any more symptoms. She said she stopped
taking medication when she was pregnant. She had scheduled
a follow-up psychiatric appointment for August 2022.
12
The Department asked mother about her May 2021 arrest.
Mother claimed she “ ‘got into it with a bartender’ ” and the
incident did not involve Oscar. Mother remained silent when
the investigator told her the police had reported that Oscar was
the victim. Mother denied domestic violence, but she said she
and Oscar sometimes had loud arguments. Mother had enrolled
in a domestic violence class and convinced Oscar to do the same.
The Department asked mother’s case manager why mother
had decided to enroll in a domestic violence class. The case
manager stalled and then refused to provide a meaningful
answer.
8. Denial of mother’s petition and termination of
her parental rights
The court considered mother’s section 388 petition at a
hearing on August 1, 2022. The Department urged the court to
deny the petition because mother was not taking her psychotropic
medication, it was apparent she was not being honest about her
history of domestic violence, and she continued to associate with
Oscar, who uses marijuana.
Minor’s counsel asked the court to reinstate mother’s
services for six months. Alternatively, counsel asked the court to
delay the permanency planning hearing pending a bonding study.
Counsel argued a bonding study was warranted because counsel’s
investigator had observed a visit at which mother brought toys
and A.S. was engaged. According to counsel, the investigator’s
observations contradicted the Department’s reports that there
was not a bond between mother and A.S.
Mother asked the court to grant the petition and order A.S.
returned to her home. She pointed to her completion of parenting
and drug programs, consistent negative drug tests, and stable
13
housing. Mother asserted she was not in a relationship with
Oscar; they were simply co-parenting their child. She argued
granting the petition would be in A.S.’s best interest because
the child lived with her for the first three years of his life, he
was always happy to see her during visits, mother maintained
the role of a parent, and she was consistent and responsive
during visits. Alternatively, mother joined in minor’s counsel’s
request for a continuance and a bonding study.
The court denied mother’s petition. The court found that,
although circumstances were changing, they “have not changed
to the level where it would be appropriate to grant her 388, nor
would it be in the child’s best interest.” The court explained that
A.S. has been in a stable and secure home for a significant period,
and he clearly is bonded with the caregiver and A.C. The court
expressed skepticism about mother’s ability to reunite with A.S.
after six additional months of services. It also noted the record
suggests mother had not resolved her domestic violence issues.
After denying mother’s petition, the court turned to the
issue of permanency planning. The court found A.S. is adoptable,
his bond with mother was insignificant, and the bond was
outweighed by the physical and emotional benefit the child
would receive through adoption. The court concluded adoption
was in A.S.’s best interest and no exceptions to adoption existed.
The court then terminated parental rights to A.S. and designated
A.S.’s caregiver as his prospective adoptive parent. The court
did not address mother’s requests for a continuance and bonding
study.
Mother timely appealed the denial of her section 388
petition and the court’s order terminating parental rights to A.S.
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DISCUSSION
1. The court did not abuse its discretion by denying
mother’s section 388 petition
Mother argues the court erred by denying her section
388 petition. Mother contends she demonstrated changed
circumstances—not just “ ‘changing’ ” circumstances—and
that granting the petition would be in the child’s best interest.
a. Relevant law and standard of review
Section 388 allows a parent of a dependent child to petition
the juvenile court to change, modify, or set aside its prior orders.
(§ 388, subd. (a)(1).) Section 388 was designed as an “ ‘ “escape
mechanism” ’ . . . [to] allow[ ] the juvenile court to consider
a legitimate change in the parent’s circumstances after
reunification services have been terminated.” (In re Alayah J.
(2017) 9 Cal.App.5th 469, 478.) It affords a parent a last
opportunity for continued reunification services prior to the
final resolution of custody status. (In re Marilyn H. (1993)
5 Cal.4th 295, 309–310.)
At the hearing on a section 388 petition, the parent has
the burden to prove (1) the existence of new evidence or changed
circumstances justifying a change in the juvenile court’s prior
orders, and (2) the proposed change would promote the best
interests of the child. (In re A.A. (2012) 203 Cal.App.4th 597,
611; In re Priscilla D. (2015) 234 Cal.App.4th 1207, 1216–1217.)
“Not every change in circumstance can justify modification
of a prior order. [Citation.] The change in circumstances
must relate to the purpose of the order and be such that the
modification of the prior order is appropriate.” (In re A.A., supra,
203 Cal.App.4th at p. 612.) Generally, this means the change in
15
circumstances must remove or ameliorate the problem that led
to the prior order. (Ibid.)
When considering the best interests of the child, the
court must take into account that “ ‘[a]fter the termination of
reunification services, a parent’s interest in the care, custody and
companionship of the child is no longer paramount. [Citation.]
Rather, at this point, the focus shifts to the needs of the child
for permanency and stability. [Citation.]’ ” (In re Jacob P. (2007)
157 Cal.App.4th 819, 828.) As a result, a parent at this stage
must establish how the requested change will advance the
child’s need for permanency and stability. (In re J.C. (2014)
226 Cal.App.4th 503, 527.)
We review the denial of a section 388 petition for abuse
of discretion. (In re Shirley K. (2006) 140 Cal.App.4th 65, 71.)
An abuse of discretion occurs when the juvenile court exceeds
the bounds of reason by making a determination that is
arbitrary, capricious, or patently absurd. (In re Marcelo B.
(2012) 209 Cal.App.4th 635, 642, disapproved on other grounds
in In re Caden C. (2021) 11 Cal.5th 614, 637, fn. 6.)
b. Application
Mother insists the court erred by finding insufficient
changed circumstances to warrant granting her petition.
According to mother, she showed changed circumstances by
remaining sober for 270 days, completing drug and parenting
programs, obtaining stable and appropriate housing, meeting
her therapeutic goals, and regularly visiting A.S.
At the outset, it is not clear that all of the circumstances
mother cites actually changed after the termination of her
services. For example, mother completed a parenting program
in November 2021, before the court terminated her services.
16
Similarly, at the 18-month review hearing, mother cited the fact
that she had obtained appropriate housing as a reason the court
should return A.S. to her custody. Although it appears mother
moved into a different apartment after that hearing, she
does not explain why that fact constitutes the sort of changed
circumstances that would warrant the court reinstating her
services or returning A.S. to her custody. Nor does she explain
why her continued visitation with A.S. warranted a finding of
changed circumstances. If anything, the record shows the quality
of the visits deteriorated over time, which would weigh against
extending her services or returning the child to her care.
With regards to mother’s substance abuse issues, the
record does not support her contention that she had remained
sober for 270 days. In support, mother points to the fact that
she did not have a positive drug test after the court terminated
her services in November 2021. While true, mother overlooks
the Department’s report that she was a “no show” at every test
between the termination of her services and March 22, 2022.
She also was a “no show” for three tests in June and July 2022,
at least one of which was unexcused. The court reasonably could
have inferred that mother did not appear for those tests because
she knew she would have tested positive. (See In re Kadence P.
(2015) 241 Cal.App.4th 1376, 1384 [“a missed drug test, without
adequate justification, is ‘properly considered the equivalent of
a positive test result’ ”].)
The record also supports a finding that mother’s completion
of a substance abuse program and therapy did not constitute
the sort of changed circumstances that would warrant relief.
Although mother participated in services for more than a year,
she displayed a severe lack of insight into the issues that led
17
the court to remove A.S. from her custody. Mother, for example,
never acknowledged that she had physically abused the child,
despite the reports from multiple eyewitnesses and the physical
evidence of abuse on the child’s body. Nor did mother ever
acknowledge having used cocaine, despite testing positive
for the drug. “One cannot correct a problem one fails to
acknowledge.” (In re Gabriel K. (2012) 203 Cal.App.4th 188, 197.)
Even when mother demonstrated some insight into
the issues that led to removal, the record indicates she failed
to apply those insights. For example, mother acknowledged her
past marijuana use was tied to her “environment” and association
with other people who used drugs. Nevertheless, she continued
to associate with Oscar, who frequently used marijuana and
was hospitalized after overdosing on drugs.
While mother’s continued efforts to comply with her case
plan are commendable, they fail to demonstrate the removal
or amelioration of the problems that led to her loss of custody
and the termination of reunification services. On this record,
the court reasonably could have concluded mother failed to
demonstrate changed circumstances sufficient to warrant
her requested relief.
Even if mother had shown a sufficient change in
circumstances, the juvenile court reasonably denied mother’s
petition on the basis that her requested changes would not
be in A.S.’s best interest. Given mother had never progressed
beyond monitored visitation, she clearly was not in a position
to take immediate custody of A.S. Nor is it apparent that an
additional six months of services would have had a significant
chance of leading to reunification. As of the hearing on her
petition, mother had participated in services for more than
18
a year, including substance abuse programs, individual
counseling, and parenting classes. Nevertheless, as discussed
above, she failed to demonstrate meaningful insight into the
most significant issues that led the court to remove A.S. from
her custody.
The court also was rightly concerned about mother’s
relationship with Oscar. The record shows mother and Oscar
were involved in at least two serious incidents of domestic
violence, one of which led to mother’s arrest. However, when
the Department questioned mother about her arrest, she lied
and claimed she got in a fight with a bartender. The record also
shows Oscar has serious, unresolved substance abuse issues,
increasing the likelihood that mother will relapse.
There is also abundant evidence that visits with mother
—and the continued uncertainty around reunification—were
having a negative effect on A.S.’s behavior and emotional
wellbeing. According to A.S.’s caregiver, the child’s behavior
regressed after some visits with mother, and the child’s
therapist even suggested he not see mother for two weeks.
The Department also reported that mother made inappropriate
comments during the visits, including encouraging A.S.
to be aggressive with other children and to misbehave with
his caregiver.
In contrast to the uncertainty surrounding mother’s
ability to care for A.S., the child’s caregiver had been providing
a stable and supportive environment for a year and a half.
The Department reported that A.S. had bonded to his caregiver,
referred to her as “mom,” and frequently expressed his love
for her. The caregiver was meeting all of A.S.’s needs, his
behavior had improved significantly while under her care, and
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she was committed to providing A.S. a permanent and stable
home through adoption. By all accounts, A.S. was thriving in
his placement.
Mother contends this case is analogous to In re J.M.
(2020) 50 Cal.App.5th 833. In that case, the mother presented
“ample evidence” that she had addressed the basis for jurisdiction
as well as every other concern the court cited in terminating
reunification services. (Id. at p. 846.) The juvenile court
nevertheless denied the mother’s section 388 petition, citing
her lack of training to care for the child’s special needs, despite
never having required the mother to participate in such training.
(Id. at pp. 849–850.) In holding the juvenile court abused its
discretion, the appellate court explained the lower court “did
not have discretion to write off Mother as a parent entirely, or
to force her to prove an above average level of parental ability
in order to meet her burden of establishing it was in her son’s
best interests to have a chance of being raised by his biological
mother.” (Id. at p. 850.) Here, there is nothing in the record even
to suggest the court required something similar of mother. True,
the court cited concerns about domestic violence, which was not
a basis for jurisdiction. However, it is apparent this was not the
only reason the court denied mother’s petition.
Mother’s reliance on In re Kimberly F. (1997) 56
Cal.App.4th 519 is also misplaced. There, the court removed
the children due to their mother’s “dirty and unsanitary” home.
(Id. at pp. 521–522.) The appellate court reversed the denial of
the mother’s section 388 petition, finding evidence she had made
her home “clean and safe,” although still cluttered, showed she
had removed the reason for the dependency. (Id. at pp. 521–523.)
Here, mother’s circumstances are entirely different. As the
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Kimberly F. court noted, a dirty home is not “as intractable
a problem as a parent’s drug ingestion, or physical . . . abuse.”
(Id. at p. 532.) Nor is it anywhere near as serious as recurring
domestic violence. Considered with all the other circumstances,
mother’s severe lack of insight into those issues provided a
sufficient basis for the court to deny her petition.
2. The court did not err by implicitly denying mother’s
requests for a continuance and bonding study
Mother contends the juvenile court erred by denying her
request to continue the permanency planning hearing and order
a bonding study.
“In a hearing to terminate parental rights in a dependency
proceeding, the primary issue often is whether the parents
can establish that the child would benefit from a continuing
relationship with them and that termination of parental rights
would therefore be detrimental to the child. [Citation.] In
attempting to establish or eliminate this exception to the
preference for adoption, the parties or the court may require
a bonding study to illuminate the intricacies of the parent-child
bond so that the question of detriment to the child may be
fully explored.” (In re S.R. (2009) 173 Cal.App.4th 864, 869.)
Our Supreme Court recently noted that bonding studies can
be informative for courts when determining whether the
parental-benefit exception to adoption applies. (In re Caden C.,
supra, 11 Cal.5th at pp. 632–633 & fn. 4.) The high court
advised juvenile courts seriously to “consider, where requested
and appropriate, allowing for a bonding study or other relevant
expert testimony.” (Id. at p. 633, fn. 4.) We review a juvenile
court’s denial of a request for a bonding study for an abuse of
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discretion. (See In re Richard C. (1998) 68 Cal.App.4th 1191,
1197.)
We also review an order denying a continuance for an
abuse of discretion. (In re Elijah V. (2005) 127 Cal.App.4th 576,
585.) We do not disturb the court’s ruling unless its decision
was arbitrary, capricious, or patently absurd and resulted
in a manifest miscarriage of justice. (In re Karla C. (2003)
113 Cal.App.4th 166, 180.) Courts may continue dependency
proceedings only if the delay is not contrary to the child’s
interests and only on a showing of good cause. (In re Ninfa S.
(1998) 62 Cal.App.4th 808, 810.) In exercising its discretion
and “considering the minor’s interests,” the statute requires
the court to “give substantial weight to a minor’s need for
prompt resolution of his or her custody status, the need to
provide children with stable environments, and the damage
to a minor of prolonged temporary placements.” (§ 352, subd.
(a)(1).) Continuances are expressly discouraged and meant
to be difficult to obtain. (Elijah V., at p. 585; Ninfa S., at
pp. 810–811; Jeff M. v. Superior Court (1997) 56 Cal.App.4th
1238, 1242–1243.)
Here, mother argues reversal is required because the
court refused to exercise its discretion by failing to rule on
her requests. True, the court did not explicitly deny mother’s
requests. Nevertheless, it did so implicitly by terminating
mother’s parental rights and selecting adoption as the permanent
plan. Mother provides no authority that a court must explicitly
deny requests for a continuance or a bonding study. Moreover,
absent some affirmative indication in the record that the court
misunderstood the scope of its powers or otherwise refused to
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exercise them, mother has not shown the court failed to exercise
its discretion.
Mother alternatively argues the court abused its discretion
by denying her requests. Once again, we disagree. It is not clear,
and mother has never meaningfully explained, why a bonding
study would have been helpful given she did not argue for the
existence of the beneficial parent-child relationship exception
to adoption. Nor has mother explained why she waited until
the hearing to request the study for the first time. Mother
apparently relied on minor’s counsel’s remark that an
investigator had observed mother bring toys to a visit and
that A.S. was engaged. The Department, however, noted similar
observations in its reports during the reunification period, and
there is no indication that the visits meaningfully improved after
the court terminated mother’s services. Mother could have cited
those reports to request a timely bonding study. Instead, she
waited until the last minute to do so, when ordering the study
would have required a continuance and delayed permanence
for A.S. Under these circumstances, the court reasonably could
have found mother’s last-minute requests were little more
than a stalling tactic and not in A.S.’s best interest. (See In re
Richard C., supra, 68 Cal.App.4th at p. 1197 [“While it is not
beyond the juvenile court’s discretion to order a bonding study
late in the process under compelling circumstances, the denial
of a belated request for such a study is fully consistent with
the scheme of the dependency statutes, and with due process.”].)
Mother’s reliance on In re Mary B. (2013) 218 Cal.App.4th
1474 is misplaced. In that case, the parent argued the court
abused its discretion by granting minor’s counsel’s request for
a continuance. (Id. at pp. 1480–1481.) Here, in contrast, the
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issue is whether the court abused its discretion by failing to grant
a continuance. That the juvenile court in Mary B. acted within
its discretion in granting a continuance says nothing about
whether the juvenile court in this case was compelled to do
the same. Accordingly, Mary B. provides no help to mother.
3. We remand the case for compliance with ICWA
Before the detention hearing, mother and father
each submitted a Judicial Council form ICWA-020, Parental
Notification of Indian Status, indicating they have no reason
to know A.S. is an Indian child. Based on those forms, the court
found it had no reason to know A.S. is an Indian child. The
record does not reflect that the Department performed any
further inquiry into the issue.
Under California law implementing ICWA, when the
Department takes a child into its temporary custody, its duty
of initial inquiry “includes, but is not limited to, asking the child,
parents, legal guardian, Indian custodian, extended family
members, others who have an interest in the child, and the party
reporting child abuse or neglect, whether the child is, or may be,
an Indian child.” (§ 224.2, subd. (b); In re Benjamin M., supra,70 Cal.App.5th at p. 742; see also In re Darian R. (2022) 75
Cal.App.5th 502, 507.) Extended family members include adults
who are the child’s “grandparent, aunt or uncle, brother or sister,
brother-in-law or sister-in-law, niece or nephew, first or second
cousin, or stepparent.” (25 U.S.C. § 1903(2); § 224.1, subd. (c)
[adopting federal definition].)
Mother argues the Department failed to comply with its
inquiry duty under ICWA by not interviewing A.S.’s extended
family members. She contends it was particularly important
that the Department interview extended family members given
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mother was not raised by her biological parents and had limited
contact with them.4 (See In re Y.W. (2021) 70 Cal.App.5th 542,
548, 552–553 [the Department was required to interview
extended family members where the mother was adopted and
had no information about her biological relatives].) Therefore,
mother urges us to remand the case for the Department to make
a meaningful effort to inquire of extended family members as
to whether A.S. is, or may be, an Indian child. The Department
does not oppose remand “for the purpose of making the
appropriate ICWA inquiry.” We accept the Department’s
concession, conditionally affirm the judgment, and remand
the case for the Department to comply with its inquiry duties
under ICWA.
DISPOSITION
We affirm the denial of mother’s section 388 petition.
We conditionally affirm the court’s orders terminating parental
rights to A.S. The case is remanded to the juvenile court to
order the Department immediately to comply with the inquiry
provisions of Welfare and Institutions Code section 224.2,
consistent with this opinion, and update the court on its
investigation within 30 days of the remittitur. After ensuring
the Department has complied with the inquiry—and, if
applicable, notice—provisions of ICWA and related California
law, the juvenile court shall determine whether ICWA applies.
If the court determines ICWA does not apply, the orders
terminating parental rights shall remain in effect. If the court
4 Mother told a social worker she was placed in foster care
when she was five years old and adopted two or three years later.
According to mother, her father committed suicide and her
mother was deported to Mexico.
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determines ICWA does apply, it shall vacate its orders
terminating parental rights and proceed in conformity with
ICWA and related state law.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
LAVIN, Acting P. J.
ADAMS, J.
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