In re M.M. ( 2022 )

Filed 7/12/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re M.M., a Person Coming B315997
Under Juvenile Court Law.
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN Los Angeles County
AND FAMILY SERVICES, Super. Ct. No. 19CCJP00228C
Plaintiff and Respondent,
v.
D.S.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Hernan D. Vera, Judge. Affirmed.
Suzanne Davidson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Tarkian & Associates and Arezoo Pichvai for Plaintiff and
Respondent.
___________________________
Mother D.S. appeals the order terminating her parental
rights to daughter, M.M., arguing the adoption assessment
prepared by the Los Angeles County Department of Children and
Family Services (Department) was inadequate, the court abused
its discretion when it denied her request for a bonding study, and
the Department conducted an inadequate initial inquiry under
the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.).
We affirm.
BACKGROUND
We draw some of the following facts from our earlier
opinion, In re B.P. (2020) 49 Cal.App.5th 886: On February 28,
2019, the juvenile court sustained an initial Welfare and
Institutions Code section 300 petition alleging mother’s three
children, B.P., I.P., and M.M., were at risk of serious physical
harm because mother was unable to address B.P.’s mental health
and behavioral issues. (All further undesignated statutory
references are to the Welfare and Institutions Code.) The
Department did not initially detain the children, and mother
agreed to comply with a court-ordered case plan. However, after
new concerns arose, the Department filed petitions under
sections 387 and 342, adding new allegations of drug use and
domestic violence, and alleging that the prior disposition had
been ineffective.
On November 25, 2019, the juvenile court issued a warrant
authorizing the Department to remove the children from mother,
and they were removed the next day.
The sections 342 and 387 petitions were adjudicated on
July 30, 2020, and September 1, 2020. The court sustained
allegations based on domestic violence and methamphetamine
use and found the prior disposition to be inadequate. The court
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removed the children from mother, and ordered that mother
receive reunification services, including a full drug program,
random testing, individual counseling, and monitored visitation
to occur three times per week, for three hours each visit, with the
Department having discretion to liberalize.
According to the Department’s March 2021 status review
report, M.M. was placed with paternal aunt. Mother missed
10 phone visits between June 2020 and September 2020, and she
would not answer the Department’s calls to help facilitate those
visits. Mother would not agree to an in-person visitation
schedule that paternal aunt offered to monitor. She did attend a
visit on August 9, 2020, but arrived very late. Moreover, mother
behaved inappropriately at the visit and yelled at paternal aunt.
It was later decided that the Department would monitor mother’s
visits, but there were challenges with visitation because mother
would not confirm her availability for visits, or canceled
scheduled visits. Mother eventually visited on October 13, 2020,
and the visit went well. However, mother did not show up for a
scheduled visit on October 26, 2020. Mother was also struggling
to comply with her case plan.
On March 2, 2021, the court terminated mother’s
reunification services for M.M. and set a permanency planning
hearing for June 28, 2021.
A last minute information noted that according to M.M.’s
caregiver, mother had five in-person visits between January 19,
2021, and February 14, 2021. However, she later missed a visit
because she did not have gas. She also called, sometimes every
day, and sometimes every other day, but the calls only lasted a
few minutes.
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An April 2021 report noted that mother had missed several
in-person visits and was only visiting M.M. weekly via Zoom.
Mother claimed that transportation was an issue, but she did not
ask the Department for transportation assistance.
The Department’s section 366.26 report noted that mother
“has inconsistent visits.” Mother would often arrive late or not at
all. M.M. also reported that it made her upset when mother
canceled visits. Mother would not answer M.M.’s calls.
Mother told the Department she had “too much” going on
and wanted to change her visitation schedule to only visit on
Sundays. Mother only had two Zoom visits in March 2021,
two in-person visits in April 2021, and two in-person visits in
May 2021 despite many other visitation opportunities that were
made available to her. She “mostly cancels her visits.” The
report did not discuss the bond between mother and M.M.
However, earlier reports noted that soon after M.M. was
removed, she told the Department she wanted to be returned to
mother, and that mother and M.M. shared a bond and
attachment.
The adoption assessment did not provide details about
mother’s visitation or bond with M.M., other than that mother
had only visited with her six times over the past six months.
At the section 366.26 hearing, mother testified that her
visitation was inconsistent because of the pandemic, and that she
was “going through a lot” and it was “hard for [her].” She also
had transportation issues. She testified that M.M. wanted to be
returned to her care.
During closing argument, mother’s counsel noted that “[a]
significant amount of the studying done about any bond that
existed was dedicated to [M.M.’s] relationship with the caretaker.
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But very minimal time was talked about my client’s bond with
her child even mentioned.” Counsel then requested a bonding
study to be sure that termination of parental rights “is the right
thing to do [here].”
The court found that “[t]he parental benefit exception is a
high bar” and that “there’s a long history of missed visits,
cancelled visits, and insufficient evidence in the record to support
the parental exception.” The court found that mother had “not
maintained regular and sufficient visitation . . . and has not
established a sufficient bond to merit the parental benefit
exception.” The court denied the request for a bonding study and
terminated mother’s parental rights, and mother timely
appealed.
DISCUSSION
1. Adoption Assessment
Mother argues the Department’s adoption assessment was
inadequate and failed to sufficiently include a review of the
nature and frequency of the contact between mother and M.M.
She also contends the juvenile court abused its discretion in
proceeding with the section 366.26 hearing based on the
incomplete assessment and in finding the beneficial relationship
exception was inapplicable. We are not persuaded.
Whenever the juvenile court orders a section 366.26
permanency planning hearing, it must direct the Department to
prepare an adoption assessment. (§§ 366.21, subd. (i), 366.22,
subd. (b).) The assessment must include, among other things, “A
review of the amount of and nature of any contact between the
child and his or her parents or legal guardians and other
members of his or her extended family since the time of
placement. . . .” (§ 366.21, subd. (i)(1)(B).) Deficiencies in an
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assessment report go to the weight of the evidence, and “if
sufficiently egregious may impair the basis of a court’s decision to
terminate parental rights.” (In re Crystal J. (1993)
12 Cal.App.4th 407, 413.) An adoption assessment is sufficient if
it substantially complies with the requirements of the assessment
statute. (In re John F. (1994) 27 Cal.App.4th 1365, 1378.)
“[E]ven if the assessment is incomplete in some respects, the
court will look to the totality of the evidence.” (Ibid.)
The Department argues mother cannot challenge adequacy
of the assessment because she did not object on this basis below.
(In re Urayna L. (1999) 75 Cal.App.4th 883, 886 [waiver of issue
of adequacy of adoption assessment].) We agree. Although
mother requested a bonding study and noted there was not much
information in the Department’s reports about the bond between
mother and M.M., she did not object on the basis that the report
was inadequate to satisfy the statutory requirements for an
adoption assessment.
In any event, her claim fails on its merits. Section 366.26,
subdivision (c)(1)(B)(i) provides an exception to termination of
parental rights if “[t]he parents have maintained regular
visitation and contact with the child and the child would benefit
from continuing the relationship.” (Ibid., italics added; see also
In re Caden C. (2021) 11 Cal.5th 614, 625–626.) The parent has
the burden of establishing this exception. (In re Lorenzo C.
(1997) 54 Cal.App.4th 1330, 1343.)
Here, the court found that mother did not satisfy the first
prong of the exception because her visitation had been
inconsistent. There was ample evidence from which the court
could make this conclusion; the reports relied upon by the court
thoroughly discussed the infrequency of mother’s visits, and the
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many visits that had been made available to her that she missed
or canceled. Although the adoption assessment did not squarely
address the bond between mother and M.M. or the quality of her
visits, the evidence clearly established that mother’s visits were
few and brief, and mother’s cancellations distressed M.M., which
substantially complies with the requirement that the Department
report on the amount of and nature of any contact between M.M.
and mother.
Mother cites to several cases emphasizing the importance
of the Department’s reports in evaluating the parental-bond
exception. However, the cited cases are inapposite because the
parents’ regular visitation had been established and was not in
dispute. (In re Caden C., supra, 11 Cal.5th at pp. 625–626; In re
J.D. (2021) 70 Cal.App.5th 833, 854; In re B.D. (2021)
66 Cal.App.5th 1218, 1226; In re D.M. (2021) 71 Cal.App.5th 261,
270.)
2. Bonding Study
Mother contends the juvenile court abused its discretion
when it denied her request for a bonding study.
Evidence Code section 730 allows the juvenile court to
appoint an expert to study the bond between a parent and child.
(In re Jennifer J. (1992) 8 Cal.App.4th 1080, 1084.) A bonding
study can be relevant at a hearing under section 366.26 to the
question of whether the beneficial parent-child relationship
exception should prevent the termination of parental rights.
However, “[t]here is no requirement in statutory or case law that
a court must secure a bonding study as a condition precedent to”
terminating parental rights. (In re Lorenzo C., supra,
54 Cal.App.4th at p. 1339.) “[T]he denial of a belated request for
[a bonding] study is fully consistent with the scheme of the
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dependency statutes, and with due process.” (In re Richard C.
(1998) 68 Cal.App.4th 1191, 1197.) Moreover, continuances in
juvenile court are disfavored. (In re Emily L. (1989)
212 Cal.App.3d 734, 743.)
There was no abuse of discretion in denying mother’s
belated request for a bonding study and continuance, on the day
of the section 366.26 hearing that had been pending for several
months. Mother had not maintained regular visitation, so the
parental-benefit exception was inapplicable.
3. ICWA Inquiry
Lastly, mother argues the Department did not satisfy its
initial inquiry duty under ICWA.
a. Relevant facts
On January 15, 2019, mother filed a parental notification of
Indian status form (ICWA–020) indicating “I have no Indian
ancestry as far as I know.” That same day the court noted
mother had filled out the ICWA–020 form and stated, “Based
upon that information, the court finds that there is no reason to
know the child or children are Indian children within the
meaning of [ICWA] and finds that [ICWA] does not apply,” but
held any ICWA findings as to M.M.’s father in abeyance because
he had not yet appeared in the case. The Department’s report
reflected that mother denied any Indian heritage in a
January 24, 2019 interview, and that M.M.’s father denied any
Indian heritage on January 29, 2019.
On February 28, 2019, father made his first appearance
and filed a parental notification of Indian status form, also
stating “I have no Indian ancestry as far as I know.” The court
found, “Based upon that, the court finds that there’s no reason to
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know the child . . . is an Indian child within the meaning of
[ICWA] and finds [ICWA] does not apply.”
The ICWA–020 forms admonished the parents to keep the
Department, their attorneys and the court aware of any new
information relating to possible ICWA status.
There is no evidence in the record that the Department
ever asked paternal aunt, with whom M.M. was placed, or
maternal grandmother, with whom the Department was in
contact, about their Indian heritage.
b. Analysis
Congress enacted ICWA “ ‘to protect the best interests of
Indian children and to promote the stability and security of
Indian tribes and families.’ ” (In re Isaiah W. (2016) 1 Cal.5th 1,
8.) It is incumbent upon a state court administering a proceeding
where child custody is at issue to inquire whether the subject
child is an Indian child. The scope of the duty on the court, as
well as certain participants in the proceeding, is defined by
federal regulations and related state law. (See, e.g., 25 C.F.R.
§ 23.107; Welf. & Inst. Code, § 224.2; Cal. Rules of Court,
rule 5.481.)
The duty of inquiry has three “phases.” Mother claims
error with the first inquiry phase. The first phase—the “initial
inquiry”—applies in every case. The initial inquiry requires the
court and the Department to ask extended family members about
the child’s possible Indian ancestry. (See § 224.2, subds. (a), (b),
(c); In re D.F. (2020) 55 Cal.App.5th 558, 566.)
Where the “initial inquiry” gives “reason to believe” the
child is an Indian child, but there is insufficient information to
make a definitive determination, the second phase—“further
inquiry”—comes into play. (§ 224.2, subd. (e)(2).) Further
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inquiry requires more robust investigation into possible Indian
ancestry. (See ibid.; In re D.F., supra, 55 Cal.App.5th at p. 566.)
If further inquiry gives the juvenile court a “reason to know” a
child is an Indian child, the third phase is triggered. (§ 224.2,
subd. (e)(2).) This phase requires that notice pursuant to ICWA
be sent to the tribes to facilitate their participation in the
proceedings. (§ 224.3, subd. (a)(1); In re D.F., at p. 568.)
“ ‘ “[W]e review the 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
order. [Citations.] We must uphold the court’s orders and
findings if any substantial evidence, contradicted or
uncontradicted, supports them, and we resolve all conflicts in
favor of affirmance.” ’ ” (In re Josiah T. (2021) 71 Cal.App.5th
388, 401.)
As part of its initial inquiry, the Department was required
to ask “extended family members,” among others, “whether the
child is, or may be, an Indian child . . . .” (§ 224.2, subd. (b);
In re S.S. (2022) 75 Cal.App.5th 575, 581.) Although the
Department asked the parents about Indian heritage, it failed to
inquire of extended family members with whom the Department
had contact.
In the absence of any evidence the Department complied
with its section 224.2, subdivision (b) duty to inquire of extended
family members, the juvenile court’s finding that ICWA does not
apply is error. (See In re Darian R. (2022) 75 Cal.App.5th 502,
509 [finding error where evidence showed Department had
contact with maternal aunt and maternal grandfather but failed
to inquire of them regarding Indian ancestry].) However, we can
reverse only if the error was prejudicial. (In re Benjamin
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M. (2021) 70 Cal.App.5th 735, 742 (Benjamin M.), citing
Cal. Const., art. VI, § 13.)
Courts are divided on what showing of prejudice warrants
reversal for initial inquiry errors. “Although an appellant
ordinarily has the burden of establishing prejudice [citation], a
parent’s ability to make this showing based upon the record in
failure-to-inquire cases can be problematic . . . .” (In re S.S.,
supra, 75 Cal.App.5th at p. 581.) This is because it is the
responsibility of the Department to make and document its
inquiries.
“Some courts have addressed this problem by requiring an
appellant who asserts a breach of the duty of inquiry to, at a
minimum, make an offer of proof or other affirmative assertion of
Indian heritage on appeal.” (In re S.S., supra, 75 Cal.App.5th at
pp. 581–582, citing cases.) Others have excused such a showing,
effectively treating failure to inquire as error per se. (See, e.g.,
In re Y.W. (2021) 70 Cal.App.5th 542, 556; In re J.C. (2022)
77 Cal.App.5th 70, 80.) The Fourth Appellate District in
Benjamin M., supra, 70 Cal.App.5th 735, took a third approach,
concluding that “a court must reverse where the record
demonstrates that the agency has not only failed in its duty of
initial inquiry, but where the record indicates that there was
readily obtainable information that was likely to bear
meaningfully upon whether the child is an Indian child.”
(Benjamin M., at p. 744.) Our court recently took a fourth
approach, concluding initial inquiry errors require reversal only
when the record of proceedings in the juvenile court or proffer of
evidence made on appeal suggests a reason to believe that the
child may be an Indian child. (In re Dezi C. (2022)
79 Cal.App.5th 769, 779.)
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We decline to follow the “error per se” line of cases. There
are serious costs if courts delay finalizing permanency for a child
in every case where extended family was not questioned, on the
remote chance those relatives might have information which is
inconsistent with the parents’ disclaimer of Indian ancestry. (See
In re A.C. (2022) 75 Cal.App.5th 1009, 1018–1024 (conc. & dis.
opn. of Crandall, J.); In re H.V. (2022) 75 Cal.App.5th 433, 439–
442 (dis. opn. of Baker, Acting P. J.).)
Under any of the other three lines of cases, the juvenile
court’s error here was harmless. On the record before us, further
inquiry is unlikely to bear meaningfully upon whether M.M. is an
Indian child. Mother and father appeared and unequivocally
denied knowledge of any Indian ancestry.
No one has suggested there is any reason to believe M.M.
might have Indian ancestry. M.M.’s parents certified they have
no information M.M. may have Indian heritage, and no relative,
not even paternal aunt with whom M.M. was placed, has
provided any information to suggest M.M. has Indian heritage.
As such, this case is unlike Benjamin M. There, the father was
absent from the proceedings and no person from the father’s side
of the family had been asked about Indian ancestry. With
information about ancestry on the father’s side “missing,” inquiry
with a person sharing the father’s ancestry “would likely have
shed meaningful light on whether there [wa]s reason to believe
Benjamin [wa]s an Indian child.” (Benjamin M., supra,
70 Cal.App.5th at p. 744.)
There is nothing in the record indicating mother and father
might have been unaware of having Indian ancestry. We
therefore reject mother’s “unvarnished contention that additional
interviews of [relatives] would have meaningfully elucidated the
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children’s Indian ancestry.” (In re Darian R., supra,
75 Cal.App.5th at p. 510.)
DISPOSITION
The order terminating parental rights is affirmed.
GRIMES, Acting P. J.
I CONCUR:
HARUTUNIAN, J.*
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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WILEY, J., Dissenting.
The right here belongs to tribes. What is the tribes’ view of
this controversy? We do not know. They have never been invited
to the discussion. The entire appellate conversation has
proceeded in their absence. The real parties in interest have no
idea their rights are on the line in these cases.
We do know the Legislature, in recently enacting the
statute at issue, overwhelmingly favored the tribes’ perspective.
Without any dissenting votes, legislators took the tribes’ advice
that asking only the parents about Indian ancestry was not
sufficient. (See Sen. Daily J. (2017–2018 Reg. Sess.) pp. 5600 &
5894; Assem. Daily J. (2017–2018 Reg. Sess.) pp. 5552 & 6898.)
That had been the old practice—ask only the parents and not
extended family members—and the tribes spoke out against it.
So the Legislature commanded the Department to ask “extended
family members” about Indian ancestry.
How do we know this? Because the legislative history is
extensive, compelling, and clear as a bell.
According to the report that motivated the legislation at
issue, a tribal chief testified to Congress in 1978 that
“ ‘[c]ulturally, the chances of Indian survival are significantly
reduced if our children, the only real means for the transmission
of the tribal heritage, are to be raised in non-Indian homes and
denied exposure to the ways of their People.’ ” (Cal. ICWA
Compliance Task Force, Rep. to Cal. Atty. Gen.’s Bur. of
Children’s Justice (2017) p. 72 (Report), available at
[as of July 6, 2022],
archived at .)
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This Report is a central authority for interpreting
California’s amended statute, for the Legislature relied on this
Report to craft the legislation requiring inquiry of extended
family members. (Cal. Health & Human Services Agency,
Enrolled Bill Rep. on Assem. Bill 3176 (2017–2018 Reg. Sess.)
Sept. 4, 2018, pp. 5–6 [an organization formed “to press for the
implementation of the Task Force 2017 Report recommendations”
sponsored the measure leading to the amendments’ enactment],
available at [as
of July 7, 2022]; see In re Antonio R. (2022) 76 Cal.App.5th 421,
431–432.)
This same Report noted “there is no resource more vital to
the continued existence and integrity of Indian tribes than their
children . . . .” (Report, supra, at p. vii.)
“Congressional hearings in the mid-1970s revealed a
pattern of wholesale public and private removal of Native
American children from their homes, undermining Native
American families and threatening the survival of Native
American tribes and tribal cultures.” (Report, supra, at p. 4.)
Our Supreme Court pointed to the “ ‘abusive child welfare
practices that resulted in the separation of large numbers of
Indian children from their families and tribes through adoption
or foster care placement, usually in non-Indian homes.’ ” (In re
Isaiah W. (2016) 1 Cal.5th 1, 7 (Isaiah), quoting Mississippi Band
of Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 32, italics
added (Choctaw Indians).)
Congress intended the federal Indian Child Welfare Act “to
fulfill an important aspect of the federal government’s trust
responsibility to tribes by protecting the significant political,
2
cultural and social bonds between Native American children and
their tribes.” (Report, supra, at p. 6.)
“Despite ICWA’s federal mandate, and despite the Cal-
ICWA’s passage in 2006, systemic problems with compliance
persist. Tribal attorneys and representatives experience frequent
resistance and dismissiveness from child welfare agencies, county
attorneys and even courts when appearing in dependency cases.
Procedural requirements designed to protect the connection
between Indian children and their tribes are too often viewed as
requiring onerous paperwork, contributing to additional delays
and creating impediments to permanence. . . . [¶] . . . Absence of
true understanding of the ICWA’s purpose leads to perfunctory
compliance or complete violations of the law.” (Report, supra, at
p. 9, italics added, fns. omitted.)
Pertinent to this appeal, the report explained “there are a
variety of reasons why relying on the parents does not necessarily
protect the child’s best interests, or the rights of the tribe. Parents
may simply not have that information, or may possess only vague
or ambiguous information.” (Report, supra, at p. 28, italics
added.)
To repeat and reiterate, it is not enough to ask only the
parents.
To help preserve native culture, the Report recommended
requiring agencies like the Department to ask extended family
members about Indian ancestry. The goal was to address a
history of abuse and oppression.
The Legislature enacted this requirement.
In case after case, the Department has failed to obey the
command of the statute, even when obeying this command would
have been easy and simple. In this case, it would have taken less
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than a minute, for the Department already was in
communication with the extended family members. Yet Courts of
Appeal continue to find this repeated failure to obey the
Legislature is harmless.
This is my fourth dissent on this issue. The persistence of
the problem suggests a Department-wide issue, not some issue
with front-line social workers.
Everyone wants to eliminate delays in permanency for
children. (Choctaw Indians, supra, 490 U.S. at pp. 53–54; Isaiah,
supra, 1 Cal.5th at p. 12 [“swift and early resolution of ICWA
notice issues is ideal”].) It is vital children get stability and
security, and as soon as possible. The Department should do its
job and reduce these delays.
The Department’s error is not harmless. Due to its error,
we do not know what these extended family members would have
said. The Legislature told the Department to find out. It did not.
With every failure to identify a child with Indian ancestry,
tribes lose an opportunity, one child at a time, to transmit their
culture to future generations. Tribes have been losing futures for
500 years. The Legislature recently sought to do something
about it. The Department, charged with defending the tribes’
interest, has faltered. The tribes will discover, eventually, that
once again their interest has been balanced away.
I would find prejudice.
WILEY, J.
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