In re Nicolas R. CA2/7

Filed 9/12/22 In re Nicolas R. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re NICOLAS R., a Person B314489, B315041
Coming Under the Juvenile Court
Law. (Los Angeles County
________________________________ Super. Ct. No.
18CCJP05213B)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
OSCAR R., et al.
Defendants and Appellants.
In re NICOLAS R., a Person B314489, B315041
Coming Under the Juvenile Court
Law. (Los Angeles County
________________________________ Super. Ct. No.
18CCJP05213B)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
ESMERALDA P.-T., et al.
Defendants and Appellants.
APPEALS from orders of the Superior Court of Los Angeles
County, Annabelle G. Cortez, Judge. Conditionally affirmed with
directions.
Jamie A. Moran, under appointment by the Court of
Appeal, for Defendant and Appellant Oscar R.
Michelle Jarvis, under appointment by the Court of Appeal,
for Defendant and Appellant Esmeralda P.-T.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Veronica Randazzo, Deputy
County Counsel, for Plaintiff and Respondent.
_____________________________
2
INTRODUCTION
Oscar R. and Esmeralda P.-T. appeal from juvenile court
orders denying their petitions under Welfare and Institutions
Code1 section 388 seeking to reinstate reunification services and
from orders terminating their parental rights to their son,
Nicolas R., under section 366.26. Oscar argues the juvenile court
abused its discretion in denying his section 388 petition and erred
in ruling the parental-benefit exception under section 366.26,
subdivision (c)(1)(B)(i), did not apply. Esmeralda argues the
juvenile court and the Los Angeles County Department of
Children and Family Services did not comply with the inquiry
requirement of the Indian Child Welfare Act (25 U.S.C. § 1901et seq.) (ICWA) and related California law.
We conclude that the juvenile court did not err in denying
Oscar’s petition under section 388 and that any error the juvenile
court may have committed in finding the parental-benefit
exception did not apply was harmless. We also conclude,
however, that the Department did not comply with its duty under
ICWA and related California law to conduct an adequate inquiry
into Nicolas’s possible Indian ancestry and that the juvenile court
failed to ensure the Department conducted a proper inquiry.
Therefore, we affirm the juvenile court’s orders denying Oscar’s
and Esmeralda’s petitions under section 388, conditionally affirm
the court’s orders terminating their parental rights, and direct
the juvenile court to ensure the Department complies with its
duties under ICWA and California law.
1 Undesignated statutory references are to the Welfare and
Institutions Code.
3
FACTUAL AND PROCEDURAL BACKGROUND
A. The Juvenile Court Detains Nicolas, Sustains a
Petition, and Places Nicolas with Esmeralda
Esmeralda and Oscar are the biological parents of two
children, Nicolas and Oscar, Jr.2 Esmeralda gave birth to Nicolas
in July 2019 while the juvenile court had jurisdiction over
Oscar, Jr., who was 18 months old at the time. In October 2018
the court detained Oscar, Jr. from his parents and sustained a
section 300 petition based on domestic violence between Oscar
and Esmeralda, substance abuse by both parents, and violent
behavior by Esmeralda. The court ordered Esmeralda and Oscar
to participate in drug and alcohol testing and counseling,
parenting classes, and domestic violence classes. Before Nicolas
was born, both parents had failed to appear for some of their drug
tests and tested positive several times when they did. They had
also only partially complied with other aspects of their case
plans.
In July 2019 Esmeralda admitted to a Department social
worker she used methamphetamine while she was pregnant with
Nicolas, and Oscar reported he knew she did. She also admitted
that she had spent time with Oscar despite their history of
domestic violence, that there was a restraining order against
Oscar protecting Esmeralda, and that the Department had
recommended she and Oscar “keep away from each other” while
they worked on their court-ordered case plans. On July 15, 2019
the juvenile court detained Nicolas and removed him from his
parents.
2 This appeal involves only Nicolas.
4
The Department filed a petition under section 300,
subdivisions (a), (b), and (j), alleging the same conduct that put
Oscar, Jr. at risk also put Nicolas at risk of serious physical
harm. The Department also alleged Esmeralda’s use of
methamphetamine and marijuana during pregnancy endangered
Nicolas’s physical health and safety and placed him at
substantial risk of serious physical harm. In October 2019
Esmeralda and Oscar pleaded no contest to an amended petition
under section 300, subdivision (j), and the juvenile court
dismissed the allegations under section 300, subdivisions (a) and
(b).
At disposition the juvenile court declared Nicolas a
dependent child of the court, placed Nicolas with Esmeralda,
ordered the Department to provide Oscar enhancement services,
and allowed Oscar to have unmonitored day visits outside the
family home and not in Esmeralda’s presence. Oscar’s
court-ordered case plan included a full drug and alcohol program
with aftercare, random and on-demand drug testing, a 52-week
domestic violence course, and a parenting class. By March 2020
Oscar had missed 10 drug tests and tested positive four times.
His substance abuse and domestic violence programs dismissed
him for poor attendance.
B. The Juvenile Court Sustains a Supplemental Petition
and Orders Reunification Services
After Esmeralda missed several drug tests and had been
discharged from her drug treatment program for noncompliance,
the juvenile court again detained Nicolas from Esmeralda. On
April 6, 2020 the Department filed a supplemental petition under
section 387. The court placed Oscar, Jr. and Nicolas with
5
Elizabeth B., Nicolas’s maternal great-aunt, and ordered
monitored visits for both parents. The court also issued
temporary restraining orders against both parents to protect the
children, Elizabeth, and Elizabeth’s family. According to the
application for a restraining order, Oscar verbally threatened
Elizabeth’s relatives, sent “aggressive” text messages to the social
worker, and tampered with the brakes on the maternal
grandmother’s car.
Between March and early August 2020 Oscar missed 14
drug tests, tested positive four times, reenrolled in substance
abuse and domestic violence programs, was again discharged
from those programs for poor attendance, and reenrolled again.
Oscar continued behaving aggressively toward the social worker
by sending threatening and profane text and voicemail messages.
The Department reported Oscar was “aggressive when upset,”
“act[ed] out” on his emotions, and refused to take responsibility
for his actions. Oscar and Esmeralda never ended their
relationship and lied to the Department about it. In June 2020
the Department cancelled Oscar’s visits with the children after
an altercation between Oscar and Esmeralda in which Esmeralda
claimed Oscar threatened to “take the children.” On July 22,
2020 the court sustained the section 387 supplemental petition.
On August 17, 2020 the juvenile court again declared
Nicolas a dependent child of the court, removed Nicolas from his
parents, and ordered reunification services and monitored
visitation. The court again ordered Oscar to participate in a full
drug and alcohol program with random and on-demand testing
and aftercare services, a 12-step program with a court card and
sponsor, a 52-week domestic violence program, parenting classes,
and individual counseling.
6
C. The Juvenile Court Terminates Reunification Services
and Denies Petitions by Oscar and Esmeralda Under
Section 388
At the six-month review hearing on February 26, 2021 the
juvenile court found Esmeralda and Oscar had not made
substantial progress in their case plans and terminated
reunification services. Regarding Oscar, the court cited a “lack of
substantive and sustained compliance” and numerous pending
legal actions. Oscar was arrested twice in October 2020, once for
an incident involving Esmeralda and once for vandalism, and
again in January 2021 for violating a restraining order protecting
Oscar’s landlord. The court found Oscar made minimal effort to
address his domestic violence, anger, and substance abuse issues;
missed multiple drug tests; and had not submitted evidence he
was actively engaged in a 12-step program or had a sponsor.
Among other incidents the Department reported, Oscar screamed
profanities at a Department monitor while he was holding
Nicolas and walking with Oscar, Jr. during a visit at a park. The
monitor called law enforcement and cancelled the visit because of
Oscar’s unpredictable and volatile behavior, which the monitor
said scared the children. The Department also reported Oscar
used profane language in front of Oscar, Jr. to insult a relative
during a monitored visit. The juvenile court found Oscar had
failed to mitigate the circumstances that supported the court’s
jurisdiction and had achieved “little or no insight” into those
circumstances.
The court also cited Oscar’s and Esmeralda’s attempts to
“create instability” in Nicolas’s placement by making “never-
ending referrals” to the Department and law enforcement about
Nicolas’s care. The Department reported Oscar and Esmeralda
7
made 16 calls to the Department’s child protective hotline and
five requests to law enforcement for a “welfare checkup.” The
Department alleged Oscar and Esmeralda used these referrals
“to lash out against” Elizabeth. For example, on February 8,
2021, Oscar called Elizabeth and left a threatening voicemail
message stating, “I was just told that [Nicolas] had some
bruises. . . . If you don’t [treat him well], you will deal with me.
Ok. Fucking old whore.” None of the referrals was
substantiated. A detective with the Los Angeles County Sheriff’s
Department told Oscar and Esmeralda he would arrest them if
they “called in another fake report.”
Oscar told the Department that, following his release from
jail in early February 2021, he entered an inpatient drug
treatment program. A staff member at the treatment center told
the Department that Esmeralda visited Oscar at the facility and
that in April 2021 Oscar and Esmeralda went together to Oscar’s
scheduled visit with Nicolas. After Oscar left the treatment
center, Esmeralda picked up Oscar for another visit monitored by
Oscar’s mother in April 2021. Oscar admitted he allowed
Esmeralda access to the children during that visit, and Nicolas
indicated in response to a social worker’s question that on
another occasion he had seen his parents together. The
Department asked the juvenile court to terminate Oscar’s
visitation rights. The court denied the request, but ordered that
no one else could be present when Oscar visited Nicolas and that
the Department had discretion to select a monitor.
The Department’s June 2021 report for the selection and
implementation hearing under section 366.26 stated Nicolas had
been placed in Elizabeth’s home from July 2019, shortly after his
birth, to November 2019, and again from April 2020 to the
8
present. The Department reported Nicolas had bonded with
Elizabeth and sought comfort from her and her family. The
Department stated that Elizabeth provided for Nicolas’s physical
and developmental needs and that Nicolas demonstrated age-
appropriate concern when he lost sight of Elizabeth. The
Department also reported that Nicolas had a “healthy bond and
secure attachment” to his brother Oscar, Jr. and that Nicolas
began to resist visits with Oscar in March 2021. Elizabeth said
she had to force Nicolas into her car to take him to visit Oscar.
Esmeralda and Oscar filed petitions under section 388 in
May and June 2021, respectively, asking the juvenile court to
reinstate their reunification services. As evidence of changed
circumstances, Oscar said he had completed an inpatient
substance abuse program, enrolled in an aftercare program and
co-parenting counseling with Esmeralda, and continued
individual counseling. Oscar also stated he had “done more than
the 52 weeks of domestic violence” classes. Oscar asserted that
additional reunification services would benefit Nicolas because
Oscar “maintain[ed] visitation” with Nicolas and showed
“commitment” to him. Oscar also said Nicolas knows him as his
“‘papa.’” Oscar attached to his petition (1) a progress report from
the inpatient treatment center, which stated Oscar completed 73
days of a drug treatment program and continued to participate in
weekly sessions and random testing; (2) a letter from the
inpatient treatment center, which stated Oscar had enrolled in a
domestic violence program on February 9, 2021 and had attended
eight classes by April 2, 2021; (3) a letter stating Oscar and
Esmeralda attended eight sessions of joint therapy over the
course of six weeks; and (4) a letter from Oscar’s 12-step sponsor.
9
The juvenile court held a contested hearing on the section
388 petitions. Oscar testified his eight domestic violence classes
taught him to recognize how his “need for control” led to a “cycle
of violence” in his relationship with Esmeralda. He learned it
was “okay” for others to have opinions and views that differed
from his and not to place expectations on others that would cause
him to become “upset” when his expectations were not met.
Oscar testified that in anger management classes he learned to
identify the problem and emotion underlying his anger, which
helped him to find a solution without resorting to violence. Oscar
also said he learned how to listen to Esmeralda’s point of view
and to process “uncomfortable feeling[s]” about her. Oscar stated
that he was spending time apart from Esmeralda “to work on
[his] shortcomings” and that he was in conjoint therapy with
Esmeralda to “learn how to communicate [with her] in a healthy
manner” and “to live independently” from her. Oscar testified he
also worked on codependency issues in individual counseling.
Regarding his sobriety, Oscar testified he was in the
seventh step of his 12-step program and most recently completed
the fourth step of making an inventory of himself. He said doing
that work helped him identify the role he played in situations
where he felt he was “the victim.” Oscar testified that he had a
sponsor he contacted daily because he learned isolation was a
“trigger for a relapse” and that he wanted to “build a healthy
lifestyle” to “learn how to deal with life on life’s terms” and not
use substances to “deal with negative emotions.” He said a
healthy lifestyle was also important to be a “good role model” for
Nicolas. Oscar acknowledged he previously relapsed following
substance abuse treatment, but said he was not “working the
12-step program” at that time.
10
Regarding his visits with Nicolas, Oscar testified he visited
Nicolas every other Saturday in person and every other
Wednesday virtually. Oscar admitted that, because of Nicolas’s
age, the virtual visits were not very “engaging,” but he said that
he tried to incorporate Nicolas’s favorite song and character into
the visits. Oscar said that during in-person visits Nicolas ran to
him when Nicolas first saw him, that they played together, and
that he prepared healthy meals for Nicolas. Oscar said Nicolas
resisted and cried when Oscar put him in a car seat at the end of
a visit. Oscar admitted he allowed Esmeralda to accompany him
on a visit even though the court did not permit joint visits. Oscar
also conceded that he had never lived with Nicolas and that he
had approximately five visits alone with Nicolas since his birth.
Counsel for the Department argued Oscar had
demonstrated that his circumstances may be “changing,” but that
they had not “changed” enough for the court to grant Oscar’s
section 388 petition. Counsel for the Department argued that the
case had been open three years, that Oscar only recently began
“internalizing” his programs, and that Oscar had “a ways to go
before he can demonstrate changed circumstances.” Regarding
Nicolas’s best interests, counsel for the Department argued
Nicolas’s need for permanence and stability outweighed “a
possibility of reunifying sometime in the future.” Counsel for the
Department also stated that reinstating reunification services
could be “a disruption” because Elizabeth was in the process of
adopting Oscar, Jr.3 Counsel for Nicolas agreed with the
Department that Oscar’s commendable efforts demonstrated
“changing not changed circumstances.”
3 The juvenile court terminated Oscar’s and Esmeralda’s
parental rights to Oscar, Jr. on March 4, 2021.
11
On August 6, 2021 the juvenile court denied Oscar’s and
Esmeralda’s section 388 petitions. Regarding Oscar, the court
acknowledged that he was “beginning to address very
complicated and complex issues,” but found that Oscar and
Esmeralda were “still in the process of defining and untangling
their relationship,” that there was “no evidence” Oscar and
Esmeralda had “remedied the underlying issues including
domestic violence and substance abuse,” and that therefore Oscar
had not shown changed circumstances. The court ruled that,
even if Oscar had shown changed circumstances, under the
totality of the circumstances “maintaining Nicolas in the current
arrangement [was] in his best interest.” The court stated that
Nicolas had lived with Elizabeth for most of his life and had a
strong bond with her, that Oscar had not advanced beyond
monitored visitation, and that Nicolas had a “significant need for
permanency and stability” Oscar could not yet provide.
D. The Juvenile Court Terminates Oscar’s and
Esmeralda’s Parental Rights
The contested section 366.26 hearing overlapped in part
with the contested hearing on the section 388 petitions. After the
juvenile court denied Oscar’s section 388 petition, Oscar testified
Nicolas enjoyed Oscar’s in-person visits with him, which were
every other Saturday at a park for four hours.4
Oscar said that at the beginning of their visits Nicolas
reached up to him with a big smile on his face and outstretched
arms when Oscar removed him from his car seat. Oscar said that
he held Nicolas for 10 to 15 minutes while he spoke to and was
4 Oscar’s virtual visits with Nicolas ended because there was
no one available to monitor them.
12
affectionate with him and that he then served Nicolas a
homemade lunch and fruit, changed his diaper, and played with
him. During the visits, Oscar and Nicolas played at a
playground, and Oscar brought activities for Nicolas, including
paints and blocks. Oscar said he used these activities to teach
Nicolas colors and counting. Oscar also said that he and Nicolas
shared moments of affection throughout their visits and that
Oscar comforted Nicolas if he fell.
Oscar stated that, toward the end of their visits, he gave
Nicolas a snack and changed his clothes and diaper to make sure
Nicolas felt “comfortable on the ride home.” Oscar testified
Nicolas demonstrated he did not want their visits to end by
saying “no” when Oscar changed him into clean clothes and by
trying to go back to the playground. When Oscar tried to put
Nicolas back in the car seat, Nicolas “put up a struggle” and
reached out to Oscar.
Oscar testified that Nicolas always responded to him with
“joy” and that their bond was strong. Oscar said he believed that
it was “very important” for Nicolas to have a relationship with his
father and that he wanted to be involved in Nicolas’s life to “help
guide him in the right direction,” even if Oscar did not have
custody of Nicolas. If the court terminated Oscar’s parental
rights, Oscar said, Nicolas would “miss out on that bonding that
[they] already established.” Oscar also said that he had concerns
Nicolas would have “abandonment issues” and that “there is a
huge difference [between] a father’s presence [and] a male’s
presence.”
Counsel for Oscar asked the juvenile court to apply the
parental-benefit exception to terminating Oscar’s parental rights.
Counsel argued that, despite their infrequent visits, Oscar had a
13
“deep parental bond” with Nicolas. Counsel for Oscar asserted
Nicolas showed a “deep emotional attachment” to Oscar, as
evidenced by Nicolas’s behavior during visits with Oscar and
their affection for each other. Counsel also argued Oscar played
a parental role in Nicolas’s life by comforting Nicolas when he
fell, teaching him things, preparing food for him, grooming him,
and organizing his activities.
Counsel for Oscar argued terminating Oscar’s parental
rights would be detrimental to Nicolas because Nicolas had a
“deep attachment” to Oscar and would wonder “what happened”
if their visits ended. Counsel said that Nicolas’s brother,
Oscar, Jr., would remember their father even if Nicolas did not
and that Nicolas would “struggle” with not having Oscar in his
life. Counsel for Oscar acknowledged that Elizabeth cared for
Nicolas, but argued that her care was not on “the same level of
[Oscar’s] deep love and care for his son.”
Counsel for Nicolas argued there was clear and convincing
evidence that Nicolas was adoptable and that no exception to
terminating Oscar’s parental rights applied. Counsel commended
Oscar for his “genuine efforts” to make positive changes in his
life, but argued Nicolas was “extremely attached” to Elizabeth
and looked to her as his “comfort, his stability, and his main
parent figure.” Because Nicolas had developmental delays and
was so young, counsel argued, Nicolas’s need for stability
supported the termination of Oscar’s parental rights. Counsel for
Nicolas stated that there was no evidence Nicolas would be
“greatly harmed” if Oscar’s visits with Nicolas ended and that
Nicolas’s behavior at the end of his visits with Oscar could simply
mean Nicolas wanted to keep playing. Finally, counsel for
14
Nicolas argued adoption was appropriate because it would keep
Nicolas together with his sibling.
Counsel for the Department agreed there was insufficient
evidence Nicolas would be greatly harmed if his relationship with
Oscar ended. While counsel for the Department acknowledged
that Oscar appeared to be loving and affectionate with Nicolas,
she pointed out that Oscar never had custody of Nicolas and that
Nicolas was bonded to Elizabeth and comfortable in his current
home environment where he had spent most of his life.
The juvenile court found that Nicolas was likely to be
adopted and that “no exception to adoption applies in this case.”
The court stated Elizabeth wanted to adopt Nicolas, had an
approved assessment, provided day-to-day care for Nicolas,
followed up on Nicolas’s needs (such as by enrolling him in a
preschool program), and fulfilled the role of a parent in his life.
The court cited evidence that Nicolas sought out Elizabeth for
comfort and soothing, that the Department had no concerns
about Elizabeth’s care for Nicolas, that Nicolas called Elizabeth
“Mama,” and that Nicolas lived with his brother and had lived
with Elizabeth for most of his life.
The juvenile court ruled Oscar had not met his burden of
showing the parental-benefit exception applied. The court found
that, while Oscar’s version of his visits with Nicolas was positive,
other evidence was “not wholly consistent with his assessment of
the visits.” Although Oscar had more recently maintained
regular visitation, the court observed that Oscar never had
custody of Nicolas, that his visits with Nicolas were still
monitored, and that there was evidence inconsistent with Oscar’s
“mostly positive” assessments of his visits with Nicolas. The
court also stated that only recently had Oscar prepared meals
15
and snacks for Nicolas during their visits and that on at least one
occasion Oscar asked Esmeralda to bring milk for Nicolas during
Oscar’s visit, which violated the court’s orders. The court
acknowledged that Nicolas enjoyed his visits with Oscar, but
found that enjoyment, without more, was not enough to show the
“substantial emotional attachment . . . required for parents to
meet their burden” to prove the parental-benefit exception.
The court found Oscar’s positive interactions with Nicolas
did not outweigh Nicolas’s need for stability and structure with
Elizabeth. In particular, the court found Oscar’s role in making
unfounded referrals to the Department and law enforcement
undermined Nicolas’s stability, subjected Nicolas to unnecessary
medical exams, and demonstrated “unresolved dynamics” in
Oscar’s relationship with Esmeralda. The court stated that its
concerns about Oscar’s relationship with Esmeralda had
“subsided,” but that Oscar had not yet eliminated them. As a
result, the court ruled, Oscar failed to show terminating his
parental rights would be detrimental to Nicolas when weighed
against the benefits of adoption. The court stated “neither parent
occupies the parental role to such a degree [that] terminating the
parental rights would be detrimental to Nicolas.” Instead, the
court found, many of Oscar’s and Esmeralda’s actions fueled
“instability and distress for Nicolas.” Because no exception to
adoption applied, the court terminated Oscar’s parental rights
and found Nicolas adoptable. The court also terminated
Esmeralda’s parental rights.
16
E. The Juvenile Court Finds Nicolas Is Not an Indian
Child
Esmeralda and Oscar each checked the box stating “I have
no Indian ancestry as far as I know” on the Parental Notification
of Indian Status forms they filed on July 18, 2019. They
confirmed that information in interviews with the Department in
September 2019. The juvenile court had previously found in
connection with Oscar, Jr.’s case that ICWA did not apply, and
the Department’s reports in Nicolas’s case repeated that finding.
According to Esmeralda, the Department knew of and contacted
many of Nicolas’s maternal and paternal relatives, but the
Department did not ask any of them if Nicolas had Indian
ancestry. The juvenile court found on several occasions that
neither Esmeralda nor Oscar had Indian ancestry and that the
court had no reason to know Nicolas was an Indian child.
F. Oscar and Esmeralda Timely Appeal
Oscar and Esmeralda timely appealed from the juvenile
court’s orders denying their section 388 petitions and terminating
their parental rights.5 Oscar argues the juvenile court abused its
5 Esmeralda’s notice of appeal checked the box stating she
was appealing from an order denying a petition under section
388, but she identified the wrong date for that order. We
liberally construe the notice of appeal in favor of its sufficiency
and protect the right of appeal where it is reasonably clear what
the appellant was trying to appeal from and where the
respondent could not possibly have been misled or prejudiced.
(In re J.F. (2019) 39 Cal.App.5th 70, 75; see In re Joshua
S. (2007) 41 Cal.4th 261, 272.) The Department does not argue
Esmeralda’s notice of appeal failed to provide sufficient notice.
17
discretion in denying his section 388 petition and applied the
wrong legal standard in determining whether to apply the
parental-benefit exception to the permanent plan of adoption. He
also argues we should restore his parental rights if we restore
Esmeralda’s parental rights.
Esmeralda argues that the court and the Department failed
to comply with the duty of inquiry under ICWA and related
California law and that the order terminating her parental rights
should be reversed. She also argues the order terminating her
parental rights should be reversed if we reverse the order
terminating Oscar’s parental rights. Esmeralda does not contend
the juvenile court erred in denying her section 388 petition, even
though she appealed from that order.
DISCUSSION
A. The Juvenile Court Did Not Err in Denying Oscar’s
Section 388 Petition
1. Applicable Law and Standard of Review
Section 388, subdivision (a)(1), provides: “Any parent or
other person having an interest in a child who is a dependent of
the juvenile court . . . may, upon grounds of change of
circumstance or new evidence, petition the court in the same
action in which the child was found to be a dependent child
. . . for a hearing to change, modify, or set aside any order of court
previously made or to terminate the jurisdiction of the court.”
“Section 388 provides for modification of juvenile court orders
We construe it to appeal from the juvenile court’s order denying
her section 388 petition on August 6, 2021.
18
when the moving party presents new evidence or a change of
circumstance and demonstrates modification of the previous
order is in the child’s best interest.” (In re Malick T. (2022)
73 Cal.App.5th 1109, 1122.) “The petitioner has the burden of
showing by a preponderance of the evidence (1) that there is new
evidence or a change of circumstances and (2) that the proposed
modification would be in the best interests of the child.
[Citation.] [T]he change in circumstances must be substantial.”
(Ibid., internal quotation marks omitted; see In re J.M. (2020)
50 Cal.App.5th 833, 845)
“[A] section 388 petition seeking reinstatement of
reunification services or return of the child will necessarily
involve a parent who has made mistakes sufficient to support
termination of services at some point in the past. The question
must be whether the changes the parent made since then are
substantial enough to overshadow that prior determination, such
that reunification is now in the child’s best interests.” (In re
J.M., supra, 50 Cal.App.5th at p. 848.) Where, as here, “a section
388 petition is filed after family reunification services have been
terminated, the juvenile court’s overriding concern is the child’s
best interests. [Citation.] The parent’s interests in the care,
custody and companionship of the child are no longer paramount;
and the focus shifts to the needs of the child for permanency and
stability.” (In re Malick T., supra, 73 Cal.App.5th at pp. 1122-
1123.) In these circumstances, “the ‘ultimate question’ on a
section 388 petition” is whether additional reunification services
are in a child’s best interests in light of any changed
circumstances and the evidence in the record as a whole. (J.M.,
at p. 847.)
19
We review the juvenile court’s finding Oscar failed to meet
his burden to demonstrate a substantial change of circumstances
by determining whether the evidence compels a finding in his
favor on that issue as a matter of law. (See In re N.O. (2019)
31 Cal.App.5th 899, 925; In re Aurora P. (2015) 241 Cal.App.4th
1142, 1163.) Specifically, we determine whether “the evidence
‘was (1) “uncontradicted and unimpeached” and (2) “of such a
character and weight as to leave no room for a judicial
determination that it was insufficient to support a finding.”’”
(In re Luis H. (2017) 14 Cal.App.5th 1223, 1227; see In re I.W.
(2009) 180 Cal.App.4th 1517, 1528, disapproved on another
ground in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010,
fn. 7.) We review for abuse of discretion the juvenile court’s
ruling that providing Oscar additional reunification services was
not in Nicolas’s best interest. (See In re Stephanie M. (1994)
7 Cal.4th 295, 318; In re J.C. (2014) 226 Cal.App.4th 503,
525-526.)
2. Oscar Has Not Shown That the Evidence Compels a
Finding of Changed Circumstances or That the
Juvenile Court Abused Its Discretion
Oscar does not identify any way in which the juvenile court
erred in finding he did not show changed circumstances. Oscar
merely restates the evidence he presented in support of his
section 388 petition and argues that he “demonstrate[d] changed
circumstances” and that Nicolas will experience “trauma” if he
loses his relationship with Oscar. Oscar has failed to meet his
burden on appeal to show the juvenile court erred. (See In re
A.L. (2022) 73 Cal.App.5th 1131, 1161 [a court will not presume
error where the appellant has not demonstrated any]; In re
20
J.F. (2019) 39 Cal.App.5th 70, 79 [“[t]he juvenile court’s orders
are ‘presumed to be correct, and it is appellant’s burden to
affirmatively show error’”].)
Moreover, and contrary to Oscar’s suggestion the juvenile
court acted “in a cavalier manner by finding changing rather
than changed circumstances,” the juvenile court thoroughly
considered the evidence Oscar presented of changed
circumstances. While commending Oscar’s progress, the court
found Oscar had shown only he was beginning to address the
issues that led to the court’s jurisdiction over Nicolas. Indeed,
Oscar had been sober for only six months at the time of the
section 388 hearing (after more than two years of services that
began when Oscar, Jr. was detained), he admitted to relapses,
and he was still in the process of working his way through a
12-step program. (See In re N.F. (2021) 68 Cal.App.5th 112, 122
[given the mother’s “history, her recent completion of yet another
program did not constitute a material change in circumstances”];
In re Ernesto R. (2014) 230 Cal.App.4th 219, 223 [a parent’s
“recent sobriety” was not a material change of circumstances
where the parent had “a history of drug relapses,” was “in the
early stages of recovery,” and was “still addressing a chronic
substance abuse problem”]; In re Cliffton B. (2000)
81 Cal.App.4th 415, 423 [parent’s seven months of sobriety since
a relapse was not sufficient to show a material change in
circumstances].) Similarly, Oscar and Esmeralda had just begun
to “untangle” their relationship, with Oscar taking time “apart”
from Esmeralda to improve himself. There was no evidence
Oscar and Esmeralda’s history of domestic violence was behind
them. The evidence did not compel a finding of changed
circumstances.
21
The court also provided a reasoned explanation why
granting Oscar’s petition was not in Nicolas’s best interest.
Notably, Oscar did not provide any evidence at the section 388
hearing that extending his reunification services would advance
Nicolas’s need for permanency and stability, and he points to
none on appeal. (See In re J.C., supra, 226 Cal.App.4th at p. 527
[a parent’s petition for an order reinstating reunification efforts
“must establish how such a change will advance the child’s need
for permanency and stability”].) The juvenile court did not abuse
its discretion. (See ibid. [juvenile court did not err in denying a
parent’s section 388 petition where “rewarding [the parent] for
her hard work and efforts” did not outweigh the child’s interests
“not to further delay permanency and stability”].)
B. The Juvenile Court Did Not Commit Prejudicial
Error in Finding the Parental-benefit Exception Did
Not Apply
1. 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’” after reunification
services have been terminated. (In re Caden C. (2021) 11 Cal.5th
614, 630 (Caden C.); see In re D.M. (2021) 71 Cal.App.5th 261,
268.) If the court determines “the child is likely to be adopted,”
the court must “terminate parental rights to allow for adoption.”
(Caden C., at p. 630; see § 366.26, subd. (c)(1).) “But if the parent
shows that termination would be detrimental to the child for at
least one specifically enumerated reason, the court should decline
to terminate parental rights and select another permanent plan.”
(Caden C., at pp. 630-631; see § 366.26, subd. (c)(1)(B), (4)(A).)
22
One of those reasons, the parental-benefit exception, requires the
parent to establish by a preponderance of the evidence (1) “the
parent has regularly visited with the child,” (2) “the child would
benefit from continuing the relationship,” and (3) “terminating
the relationship would be detrimental to the child.” (Caden C., at
p. 629; see § 366.26, subd. (c)(1)(B)(i); D.M., at p. 268.)
“The first element—regular visitation and contact—is
straightforward. The question is just whether ‘parents visit
consistently,’ taking into account ‘the extent permitted by court
orders.’” (Caden C., supra, 11 Cal.5th at p. 632; see In re A.L.,
supra, 73 Cal.App.5th at p. 1151.) The Department concedes
Oscar met this element.
To establish the second element, “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.” (Caden C.,
supra, 11 Cal.5th at p. 636; see In re J.D. (2021) 70 Cal.App.5th
833, 852.) The “focus is the child,” and “the relationship may be
shaped by a slew of factors, such as ‘[t]he age of the child, the
portion of the child’s life spent in the parent’s custody, the
“positive” or “negative” effect of interaction between parent and
child, and the child’s particular needs.’” (Caden C., at p. 632; see
J.D., at p. 854.) In evaluating the attachment, “courts often
consider how children feel about, interact with, look to, or talk
about their parents. [Citations.] Doing so properly focuses the
inquiry on the child, even as courts must remain mindful that
rarely do ‘[p]arent-child relationships’ conform to an entirely
consistent pattern.” (Caden C., at p. 632; see J.D., at pp. 854-
855.)
23
“Concerning the third element—whether ‘termination
would be detrimental to the child due to’ the relationship—the
court must decide whether it would be harmful to the child to
sever the relationship and choose adoption. [Citations.] Because
terminating parental rights eliminates any legal basis for the
parent or child to maintain the relationship, courts must assume
that terminating parental rights terminates the
relationship. [Citations.] What courts need to determine,
therefore, is how the child would be affected by losing the
parental relationship—in effect, what life would be like for the
child in an adoptive home without the parent in the child’s life.”
(Caden C., supra, 11 Cal.5th at p. 633; see In re A.L., supra,
73 Cal.App.5th at p. 1151.)
A “substantial evidence standard of review applies to the
first two elements.” (Caden C., supra, 11 Cal.5th at p. 639; see
In re L.A.-O. (2021) 73 Cal.App.5th 197, 206.) Regarding the
third element, the “court makes the assessment by weighing the
harm of losing the relationship against the benefits of placement
in a new, adoptive home. And so, the ultimate decision . . . is
discretionary and properly reviewed for abuse of discretion.”
(Caden C., at p. 640; see L.A.-O., at p. 206.) We review claims of
legal error de novo. (See In re D.O. (2016) 247 Cal.App.4th 166,
174 [a reviewing court determines de novo whether a juvenile
court erroneously construed the factors relevant to the
sibling-relationship exception].)
2. Oscar Has Not Demonstrated Prejudicial Error
Oscar argues the juvenile court, in finding the
parental-benefit exception did not apply, erred in two respects.
First, Oscar contends that, by focusing on the second prong of the
Caden C. analysis, the juvenile court improperly applied “a two-
24
part analysis, rather than the three-part analysis” set forth in
Caden C. The juvenile court, however, considered and made
findings on all three elements of the Caden C. test. Regarding
the third, as stated the court ruled “the parents have failed to
show that terminating the parental rights would be detrimental
to Nicolas when weighed against the benefits of adoption.”
Second, Oscar contends the juvenile court misapplied
Caden C. by requiring Oscar to show he occupied a parental role
in Nicolas’s life and by stating Nicolas’s caregiver “occupied that
parental role.” Regarding the second step of the parental-benefit
exception test, Oscar suggests the juvenile court inappropriately
measured Oscar’s role against that of Elizabeth’s, contrary to the
Supreme Court’s statement in Caden C. that “it is not
necessary—even if it were possible—to calibrate a precise
‘quantitative measurement of the specific amount of “comfort,
nourishment or physical care” [the parent] provided during [his
or] her weekly visits’” in determining whether a child had formed
a substantial emotional attachment with his or her parent.
(Caden C., supra, 11 Cal.5th at p. 632.) But consistent with
Caden C. the juvenile court found Oscar’s evidence fell “short of
showing a substantial emotional attachment that’s required for
parents to meet their burden” of demonstrating that the
parental-benefit exception applies, and Oscar does not argue
substantial evidence did not support that finding. (See id. at
p. 636.)
Regarding the third step of the parental-benefit exception
test, Oscar asserts the court’s reference to the role Elizabeth
played in Nicolas’s life suggests the court may have improperly
compared Oscar’s attributes as a custodial caregiver to those of
Elizabeth in determining whether termination would be
25
detrimental to Nicolas. (See Caden C., supra, 11 Cal.5th at
p. 634 [when “weighing whether termination would be
detrimental,” the juvenile court should not “compar[e] the
parent’s attributes as custodial caregiver relative to those of any
potential adoptive parent(s)”]; In re D.M., supra, 71 Cal.App.5th
at p. 270 [the Supreme Court in Caden C. “made clear the
beneficial relationship exception is not focused on a parent’s
ability to care for a child or some narrow view of what a
parent-child relationship should look like”].) Any inconsistency
between Caden C. and the juvenile court’s evaluation of Nicolas’s
relationship with Oscar, however, was harmless for two reasons.
First, Oscar presented almost no evidence that terminating
his relationship with Nicolas, however positive that relationship
might be, would be detrimental to Nicolas, and the record
included considerable support for the juvenile court’s finding that
Oscar’s visits with Nicolas contributed to “instability in Nicolas’s
placement.” (See In re J.R. (Aug. 22, 2022, A164334)
___ Cal.App.5th , [2022 WL 3582652, at p. 4] [“when, as in
this case, the proper legal standard is already established and a
party has had a full and fair opportunity to present all of their
evidence on a contested issue, and yet in the end there is simply
no evidence that could support a favorable finding for them, then
any legal error in the court’s reasoning or basis for its decision
quite obviously is harmless”].) Indeed, counsel for Oscar merely
stated her opinions that “severing the parental rights would be
detrimental to Nicolas” and that Nicolas would have
“abandonment issues.” There was no evidence, for example, that
the effects of severing Nicolas’s relationship with Oscar “might
include emotional instability and preoccupation leading to acting
out, difficulties in school, insomnia, anxiety, or depression.”
26
(Caden C., supra, 11 Cal.5th at p. 633.) Nor was there evidence
of how losing that relationship would affect Nicolas or what
Nicolas’s life would be like without Oscar in it. (See ibid.)
The only evidence Oscar presented that arguably showed
Nicolas might miss his visits with Oscar (but not necessarily that
he would suffer any detriment) was that Nicolas held up his arms
to Oscar or ran to him when Nicolas first arrived at the park for
visits and that Nicolas “put up a struggle” and reached out to
Oscar at the end of those visits. While it is undoubtedly difficult
for any two-year-old to express emotional attachment and
desires,6 and it appears Nicolas may have enjoyed the visits, the
evidence Oscar presented did not show that ending the visits
would cause Nicolas any detriment. (Cf. In re D.M., supra,
71 Cal.App.5th at p. 271 [children had lived with their father for
two to eight years, wanted to return to him, and cried when visits
with him concluded]; In re J.D., supra, 69 Cal.App.5th at pp. 857-
858 [child frequently expressed a desire to go to his mother’s
house, told her he loved her, and sought her attention during
visits]; In re B.D. (2021) 66 Cal.App.5th 1218, 1229 & fn. 4
[children looked forward to seeing their parents, greeted them
with hugs, and expressed sadness at the end of visits].)
Second, other evidence in the record contradicted Oscar’s
positive assessment of his visits with Nicolas, including Oscar’s
inappropriate behavior in front of Nicolas during previous visits,
Nicolas’s resistance to visiting his father, and Oscar’s false
reports of child abuse. The juvenile court acknowledged that it
had denied the Department’s request to terminate Oscar’s visits
with Nicolas, but stated that “the concerns that the Department
6 There is evidence in the record that Nicolas suffered from
“poor development in the receptive language domain.”
27
raised with respect to the quality of the contacts between the
parents and the safety issues that resulted from their contact
with Nicolas were legitimate. And many of these safety concerns
stem from the parents’ unresolved dynamics . . . , which has
impacted their visits and their contact with Nicolas.” And the
evidence Nicolas would benefit from adoption by Elizabeth was
significant. On this record, any error in the juvenile court’s
ruling on the third prong of the Caden C. analysis was harmless.7
C. The Department Did Not Comply with ICWA and
Related California Law
Esmeralda contends the Department and the juvenile court
failed to comply with the duty of inquiry under ICWA and related
state law. In particular, she argues the Department failed to ask
Nicolas’s relatives whether they knew or had reason to know
Nicolas was an Indian child. “‘“‘Federal regulations
implementing ICWA . . . require that state courts “ask each
participant in an emergency or voluntary or involuntary child-
7 The court in In re A.L., supra, 73 Cal.App.5th 1131 recently
addressed whether a juvenile court, in assessing the third step of
the parental-benefit exception under Caden C., may consider the
extent to which “the caregivers and father occupied parental roles
with the minor.” (A.L., at p. 1157.) Because the Supreme Court
in Caden C. stated that, “[i]n many cases, ‘the strength and
quality of the natural parent/child relationship’ will substantially
determine how detrimental it would be to lose that relationship,
which must be weighed against the benefits of a new adoptive
home,” the court in A.L. concluded that whether a parent has
played a parental role “is a relevant consideration to the court’s
detriment finding.” (A.L., at p. 1157, quoting Caden C., supra,
11 Cal.5th at p. 634.) We need not reach this issue.
28
custody proceeding whether the participant knows or has reason
to know that the child is an Indian child.”’”’” (In re J.C. (2022)
77 Cal.App.5th 70, 77; see 25 C.F.R. § 23.107(a) (2021).) State
law “‘more broadly imposes on social services agencies and
juvenile courts . . . an “affirmative and continuing duty to
inquire” whether a child in the dependency proceeding “is or may
be an Indian child.”’” (J.C., at p. 77; see § 224.2, subd. (b).) The
Department does not contest Esmeralda’s position, stating only it
“submits the ICWA issue to the Court.”
Esmeralda is correct: The Department failed to conduct an
adequate inquiry into Nicolas’s Indian ancestry by failing to ask
Nicolas’s extended family members whether he is, or may be, an
Indian child. (See In re J.C., supra, 77 Cal.App.5th at p. 77 [“The
Department’s failure to ask [a child’s] extended relatives about
[his or her] possible Indian ancestry violated the express
mandate of section 224.2, subdivision (b).”].) The Department
does not argue otherwise. Therefore, we direct the juvenile court
to ensure the Department contacts Nicolas’s ascertainable
extended family members to inquire about Nicolas’s possible
Indian ancestry. And because we must conditionally affirm the
juvenile court’s order terminating Esmeralda’s parental rights
pending the Department’s and the juvenile court’s compliance
with ICWA and related state law, we also conditionally affirm the
juvenile court’s order terminating Oscar’s parental rights. (See
In re A.L. (2010) 190 Cal.App.4th 75, 80 [“with some exceptions,
. . . a court may not terminate the parental rights of only one
parent”]; Cal. Rules of Court, rule 5.725(a)(1).) Neither
Esmeralda nor Oscar argues the Department’s or the juvenile
court’s failures to comply with ICWA and related state law affect
the court’s orders denying their section 388 petitions.
29
DISPOSITION
The juvenile court’s orders denying Oscar’s and
Esmeralda’s section 388 petitions are affirmed. The juvenile
court’s orders terminating Oscar’s and Esmeralda’s parental
rights are conditionally affirmed. The juvenile court is directed
to ensure the Department complies fully with the inquiry and,
if necessary, notice provisions of ICWA and related California
law
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
30