In re Anthony P. CA2/3 ( 2023 )

Filed 1/26/23 In re Anthony P. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for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 THREE
In re ANTHONY P., a Person Coming B313193
Under the Juvenile Court Law.
_____________________________________
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN AND Super. Ct. No. DK22208)
FAMILY SERVICES,
Plaintiff and Respondent,
v.
D.T.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Robin R. Kesler, Juvenile Court Referee. Affirmed.
Cristina Gabrielidis, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Tracey Dodds, Deputy County
Counsel for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
D.T. (mother) appeals from juvenile court orders denying
her Welfare and Institutions Code1 section 388 petition and
terminating parental rights to her son, Anthony P. Mother
contends the juvenile court erred by denying her section 388
petition because she demonstrated both changed circumstances
and that reinstating her reunification services was in Anthony’s
best interests. She further contends that the juvenile court erred
in terminating parental rights because the parental-benefit
exception to adoption (§ 366.26, subd. (c)(1)(B)(I)) applied, and
the Los Angeles County Department of Children and Family
Services (DCFS) conducted an inadequate inquiry pursuant to
California law implementing the Indian Child Welfare Act
(ICWA) (§ 224.2). We find no error, and thus we will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Detention (March 2017).
Mother and Alexander P. (father) began dating when they
were 14 and 15 years old, respectively. Mother became pregnant
with Anthony 10 months later, and she dropped out of high
school after his birth in June 2015. Mother and Anthony lived at
times with father’s family or with the maternal grandmother; at
other times, mother lived at a homeless shelter and Anthony
stayed with the paternal grandparents.
1 All undesignated statutory references are to the Welfare
and Institutions Code.
2
In March 2017, DCFS received a report that father had
assaulted mother. A social worker interviewed mother, who
reported that since Anthony’s birth, father “ ‘hits me all the
time,’ ” slapping, socking, and pinching her. The maternal
grandmother gave a similar report, saying that mother had
bruises on her arm, face, back, and leg. Maternal grandmother
said she had tried to help mother, but she could not have father
in her house because he had stolen from her, as well as from the
maternal great-grandmother and their church.
Father accused mother of using drugs and denied abusing
her, suggesting that mother’s injuries might have been self-
inflicted. He admitted using methamphetamine in the past and
currently smoking marijuana, but he denied using drugs around
Anthony. Father had a juvenile criminal history and was
currently on probation.
In March 2017, Anthony was detained from mother and
father and placed with Leticia I., the sister of maternal
grandmother’s husband. Mother, who was still a minor, was
detained from her own parents and placed in a group home.
Mother said she was relieved Anthony was not with father but
was afraid for Leticia and maternal grandmother because
“ ‘I know how he [father] is.’ ”
II. Petition; jurisdiction and disposition hearing
(June 2017).
DCFS filed a section 300 petition in March 2017. As
subsequently amended, the petition alleged that Anthony was a
dependent child pursuant to section 300, subdivision (b) because
mother and father engaged in domestic violence in Anthony’s
presence (count b-1), and both parents used marijuana while
caring for Anthony, placing him at risk of harm (counts b-2, b-3).
3
Simultaneously, DCFS filed a separate petition alleging that
mother was a dependent child because the maternal grandmother
was unable or unwilling to care for her.
At the March 2017 detention hearing, the court detained
Anthony from mother and father, who were ordered to stay away
from each other. The court ordered the parents to participate in
various services and to drug test.
Mother ran away from her group home in April 2017,
returning in late May 2017. That month, a multidisciplinary
assessment team reported that Anthony was comfortable with
Leticia and looked to her for comfort and security. He frequently
woke up agitated during the night, but would fall back to sleep if
Leticia picked him up and hugged him.
In June 2017, mother said she and father had always had
domestic violence issues, and father last hit her in March. They
were no longer in a relationship, and mother wanted a
restraining order against him. She acknowledged using
marijuana in the recent past.
At the June 2017 jurisdiction hearing, the parents pled no
contest to an amended section 300 petition. The court declared
Anthony a dependent child and removed him from his parents’
custody, placing him with Leticia. Mother was granted
monitored visits and ordered to randomly drug test and to
participate in a domestic violence support group, a parenting
class, and individual counseling.
4
III. Six-month review (December 2017).
With her family’s support, mother entered a drug
treatment program in Tijuana, Mexico in July 2017.2 Prior to her
enrollment, mother had sporadic monitored visits with Anthony,
during which she was “attentive,” changing Anthony’s diaper and
positively interacting with him, including playing with and
hugging him. Mother stopped visiting Anthony when she began
her program.
In December 2017, the court granted both parents further
reunification services, finding that they had made significant
progress resolving the problems that led to Anthony’s removal.
IV. Twelve-month review (May 2018).
In January 2018, mother ran away from her drug
rehabilitation program and returned to the United States to be
with father. She refused to return to the program, saying that
she wanted to be with her son and complete her coursework in
Los Angeles. Upon her return, she enrolled in adult school, as
well as drug rehabilitation, domestic violence, and parenting
programs. As of April 2018, she had completed nine weeks of
those programs, and had one random negative drug test, with
several no-shows.
The social worker noted that mother was “very attentive,
appropriate, loving and caring with Anthony” during monitored
visits, and it appeared mother and Anthony had “bonded.”
Anthony was “always happy to see his mom”; mother brought
2 Maternal grandmother reportedly funded mother’s
program, believing mother needed to get away from the abuse she
had endured.
5
them books to read together, worked with Anthony on his speech
delays, and was otherwise alert to Anthony’s needs. However,
mother and father had continued to see one another, and father
continued to “become very upset and angry at times when things
[were] not going his way.”
In May 2018, the court continued reunification services and
granted mother four-hour monitored visits. Because the parents
allegedly continued to see each other and were dishonest with the
social worker, the court reiterated that the stay-away order
remained in place and that couples counseling would be required
if they planned to reunite. Mother reported that she had moved
into her own apartment, and maternal grandmother recently had
been approved to monitor her visits with Anthony.
V. 18-month review; return of Anthony to mother’s
physical custody (December 2018).
In August 2018, DCFS indicated mother had not yet
completed a full drug program, but she had tested negative on all
nine drug tests administered over the preceding several months.
Mother was working and had attended Anthony’s recent
educational assessment. By September 2018, mother had
completed her parenting and domestic violence courses and her
individual counseling.
At the 18-month review hearing in December 2018, the
court ordered Anthony placed with mother and issued a
restraining order protecting mother from father.
VI. Mother’s continued contact with father; further
petition and detention (March 2020).
In April 2019, the social worker visited Anthony at
mother’s apartment, which was clean, furnished, and had plenty
6
of food and items for Anthony’s care. Mother was “vigilant” in
parenting Anthony, applying a “warm, loving, but a firm
parenting style.” Anthony “listened and obeyed” mother. They
were bonding, and Anthony appeared at ease in the home and
said “yes” when asked if he felt safe and wanted to stay with
mother. Maternal relatives were supportive. Mother had
enrolled in an outpatient drug program, but over the preceding
three-month period had appeared for only four of 10 drug tests,
testing negative at each. Father was incarcerated in state prison
for gun possession and vehicle theft.
In June 2019, the court declined to close the case because
mother had missed a number of drug tests. The matter was
continued for an additional three months, to September 2019,
and then again to March 2020.
In December 2019, mother reported to police that father
had walked into her apartment unannounced and demanded her
car keys. He left when she threatened to call the police. Four
days later, the police again responded to mother’s apartment in
response to a neighbor’s call regarding a young couple arguing.
The neighbor reported seeing a young man at mother’s home and
walking outside with a child several times per week. Mother
denied these allegations, claiming to report all of father’s visits to
police. However, father, who was then on probation, told his
probation officer that he was babysitting Anthony.
Days later, the social worker visited mother’s apartment
unannounced after the maternal great-grandfather reported that
father had hidden in mother’s closet during prior check-ins.
Mother denied that anyone else was in the apartment other than
Anthony and herself. She led the social worker to the closet,
pulled her teenage brother out, and told the social worker that he
7
was the only one in the closet. The social worker looked inside
and “saw father’s feet, his legs (which were slim and hairy), and
his shoes inside the closet.” After the person refused to leave the
closet, the social worker asked Anthony whether father was in
the closet. Anthony closed the closet door so the person inside
could not see him, and he also made sure mother did not see him.
He then noddled “yes.”3 Mother continued to deny that father
was there. Feeling unsafe, the social worker left the home.
Later, police told the social worker that mother reported father
had broken her windshield.
In February 2020, mother reported to the police that father
had come to Anthony’s school, snatched her keys out of her hand,
and stolen her car. Father was apprehended and arrested.
The social worker reported that, as of February 2020,
Anthony appeared in good health and had bonded with mother.
However, he had “reverted to being quiet [and] angry with mom”
and had resumed having tantrums. Mother missed the majority
of her drug tests between September 2019 and February 2020,
although she tested negative at each of the six scattered tests at
which she appeared.
In March 2020, DCFS filed a subsequent petition pursuant
to section 387, alleging that mother had disobeyed prior court
orders by allowing father to frequent her home and have
unlimited access to Anthony. Anthony was detained from mother
and returned to Leticia’s custody.
At a March 10, 2020 detention hearing, the court told
mother it appeared father “comes and goes whenever he wants,
3 When later asked whether father was in the closet,
Anthony shook his head both yes and no.
8
and . . . he has been staying at your house contrary [to] court
orders.” While the court believed mother did not harm Anthony
physically and was not using drugs, it said that “allowing a
person who the court has found to present as a safety risk to your
son and to you in your home and letting him have contact with
[Anthony] . . . is putting your son in a dangerous situation.”
Further, if mother was “afraid of father, [or] worried that he’s
going to harm you, then you need to think about moving out and
getting a confidential address. . . . [Father] is relentless. And
unless you act on it, he’s going to keep looking for you, and you
have let him.” The court granted mother monitored visitation
and ordered her to reenroll in individual counseling and
parenting classes and to drug test.
VII. Further adjudication and disposition; denial of
further reunification services (July 2020).
In April 2020, Leticia reported that mother and father were
“ ‘always together’ ” and that the relationship between them was
“ ‘toxic.’ ” She said father was very controlling of mother and
continued to hit her. In June 2020, the maternal grandmother
reported that father was frequently at mother’s apartment and
mother was six months pregnant with father’s child. Mother
continued to miss many drug tests.
In July 2020, the court sustained the section 387 petition,
removed Anthony from mother’s custody, denied mother further
reunification services, and scheduled a section 366.26 hearing.
Although mother’s “regular[] and consistent” visits showed she
“clearly ha[d] a bond” with Anthony and that Anthony was
“attach[ed]” to her, the court said it needed to address
permanency. The court did not accept mother’s assertions that
father was not in her home or the father of her new child.
9
The October 2020 section 366.26 report noted that Leticia
and her husband were closely bonded with Anthony and wished
to adopt him. Five-year-old Anthony said he felt safe and loved
in Leticia’s home. He looked to Leticia and her husband for care
and comfort, and he appeared closely bonded to them and their
three-year-old son. Leticia continued to facilitate in-person and
phone visits with mother.
In November 2020, mother filed a section 388 petition
requesting that Anthony be placed with the maternal
grandmother or great-grandmother. The court denied the
petition, stating that Anthony had been in his present placement
for significant periods, and the grandmothers had not previously
sought placement.
In January 2021, DCFS reported that mother had not made
herself available for an interview. Leticia reported that mother’s
visits with Anthony went well, but “sometimes the child cries as
he does not want to go on visits.”
In February 2021, the court denied mother’s request for a
bonding study, stating that the request was untimely and a
bonding study would not assist the court because DCFS’s reports
adequately documented mother’s relationship with Anthony. The
court also denied mother’s request that Anthony testify at the
366.26 hearing, finding testifying could be emotionally
detrimental to him in light of his young age, but it ordered DCFS
to interview Anthony about his wishes.
In March 2021, the social worker reported that she had
spoken to Leticia regarding Anthony’s visits with mother. Those
visits were monitored by the maternal grandmothers, and thus
Leticia could not speak to how they went. Leticia said, however,
that while Anthony sometimes wanted to visit mother, at other
10
times she had to bribe him with a toy. For the first two months,
Anthony cried when he was dropped off, concerned that Leticia
might not pick him up. Further, during phone visits with
mother, Anthony was unusually disobedient with Leticia.
The maternal grandmother reported to the social worker
that she monitored visits every Sunday, and that mother and
Anthony had a “great connection.” Mother usually visited for six
hours. Anthony talked and played with mother and appeared
happy. Mother was attentive with Anthony, cooking for him, and
putting him in his pajamas when he was ready to go. Anthony
would ask where certain toys were at mother’s home, and mother
reassured him that she had them. When the visit was almost
over, Anthony would ask if he could stay. Maternal great-
grandfather also observed visits between mother and Anthony,
confirming to the social worker that mother treated Anthony
well, cooking, bathing, and dressing him. Anthony loved his
mother, and would kiss and hug her, and would cry at the end of
visits because he wanted to stay. Maternal great-grandmother,
who also regularly monitored visits starting in March 2020,
described mother as patient with and dedicated to Anthony,
feeding and bathing him and talking to him. At the end of visits,
Anthony would cry and ask to stay.
The social worker asked Anthony, who was then five years
old, about adoption, but he did not understand the concept. He
said he wanted to stay with “Lety” (Leticia).
In March 2021, mother filed a second section 388 petition,
requesting that Anthony be returned to her care or that her
reunification services be reinstated. She contended that
circumstances had changed because she had been participating in
domestic violence and parenting classes, which she expected to
11
complete in April, and placing Anthony in her care was in his
best interests because they were closely bonded. The court
denied mother’s petition without a hearing, finding there was no
new evidence or changed circumstances.
In May 2021, mother filed a third section 388 petition,
asserting that she had completed her classes and consistently
visited Anthony.
VIII. Combined section 388 and termination hearing
(May 2021).
On May 27, 2021, the juvenile court held a combined
hearing on mother’s section 388 petition and DCFS’s request to
terminate parental rights. After hearing argument, the court
denied the section 388 petition, finding that mother had not
demonstrated a significant change in circumstances or that it
was in Anthony’s best interests to be returned to her custody.
The court then permitted mother to testify by
videoconference regarding termination of parental rights.
Mother testified that after Anthony was detained for the second
time, she resumed weekly visits with him every Saturday, and a
Zoom call either Wednesday or Friday. At the beginning of visits,
Anthony would run to mother and hug her. Anthony would tell
mother he missed her and ask how her week was. They would
cook breakfast and bake together, and mother would help
Anthony with his homework. Mother said she had spoken to
Anthony’s teacher and was involved with his medical decisions.
At the end of visits, Anthony would become sad, ask to stay
longer, and hide his shoes. Mother therefore asked that Anthony
be placed in a legal guardianship so she could continue to see
him. She believed that severing their contact would be
detrimental to Anthony because he had a strong bond with her
12
and with his baby sister; further, she said, she believed that
“emotionally and, you know, mentally, . . . [it will] really mess up
his head by me not being in his life.”4
At the conclusion of mother’s testimony, counsel for DCFS
argued that adoption was the preferred permanent plan when
reunification with a parent was not possible, and that the
parental-benefit exception applied only where the strength and
quality of the parent-child relationship exceeded the benefit to
the child a new family would confer. Counsel noted that the
present case was more than four years old, and while there was
evidence of a loving bond between mother and Anthony, his
primary attachment was to Leticia, with whom he had lived for
many years. DCFS therefore asked that mother’s parental rights
be terminated. Anthony’s counsel joined in DCFS’s argument.
Mother’s counsel argued that the parental-benefit exception
to adoption applied, and she therefore requested that Anthony be
placed in a legal guardianship and mother granted continued
visitation. Counsel noted that mother had visited regularly, and
the visits were meaningful, substantial, and positive. Further,
mother had taken on a parental role, cooking for Anthony, buying
him clothing, and participating in his medical decisions. Counsel
argued that terminating mother’s parental rights therefore would
be detrimental to Anthony because he was bonded to mother and
loved her.
4 After mother finished testifying, her counsel sought to call
maternal grandmother as a witness. The court refused to allow
her to testify because it believed grandmother had been present
during mother’s testimony, contrary to the court’s order, and thus
mother’s testimony had tainted grandmother’s potential
testimony.
13
The court found that Anthony was adoptable and the
parental-benefit exception did not apply. It noted that mother
had allowed father in her home in violation of court orders, and
then “ma[de] Anthony lie to the social workers to indicate that
father was not there,” which the court said was “a lot for little
kid.” The court also found mother’s testimony that father’s
presence in her home was without her consent was contradicted
by disinterested witnesses and was not credible. Additionally,
the court said, application of the exception required “daily contact
and acting in the role of a parent,” and “mother has not been
doing that.” Finally, the court believed that mother’s statement
that severing parental rights would be detrimental to Anthony
was “an opinion without any facts behind it.” The court therefore
found that the parental-benefit exception did not apply,
terminated mother’s and father’s parental rights, and designated
Leticia as the prospective adoptive parent.
Mother timely appealed.
DISCUSSION
I. The juvenile court did not err by denying mother’s
May 2021 section 388 petition.
Mother contends that the juvenile court abused its
discretion by denying her May 2021 section 388 petition seeking
that her reunification services be reinstated or Anthony be
returned to her care. We disagree.
Section 388 permits a parent to petition the juvenile court
to modify any order based on changed circumstances or new
evidence. To obtain the requested modification, the moving party
must demonstrate by a preponderance of the evidence both a
change of circumstance and that the proposed change of order is
14
in the child’s best interests. (§ 388; In re Alayah J. (2017)
9 Cal.App.5th 469, 478; In re Mickel O. (2011) 197 Cal.App.4th
586, 615.)
To obtain a hearing, the moving party must make a prima
facie showing of both elements. (In re Brittany K. (2005)
127 Cal.App.4th 1497, 1504.) The petition must be liberally
construed in favor of granting a hearing, and the prima facie
requirement is met if the facts alleged would sustain a favorable
decision on the petition. (Id. at p. 1505.) “If it appears that the
best interests of the child . . . may be promoted by the proposed
change of order . . . the court shall order that a hearing be held.”
(§ 388, subd. (d).)
The change in circumstance must be such that the problem
that brought the child into the dependency system has been
removed or ameliorated; the change must therefore be significant
or substantial. (In re Mickel O., supra, 197 Cal.App.4th at
p. 615.) Circumstances must have changed and not be merely
changing. (Ibid.) To determine whether this showing has been
made, the court may consider the entire factual and procedural
history of the case. (Id. at p. 616.) Whether to modify an order
under section 388 rests in the juvenile court’s discretion and will
not be disturbed on appeal unless there has been a clear abuse of
discretion. (In re Mickel O., at p. 616.)
On appeal, mother advances two separate, but interrelated,
claims with respect to the denial of her May section 388 petition.
First, she suggests that the juvenile court based its denial upon a
misapprehension of the basis for denying mother’s March 2021
section 388 petition. Second, mother argues that her May 2021
petition was sufficient to warrant a hearing because she had
15
completed her domestic violence program and was deeply bonded
with Anthony. Mother is wrong on both scores.
When the court denied mother’s May section 388 petition, it
reasoned that it had already denied her March section 388
petition, and that mother’s completion of programs was not a
significant change in circumstances demonstrating that it was in
Anthony’s best interests to be returned to her. Mother argues
that the court was “confused” regarding the bases for its earlier
decisions, erroneously believing that the reason underlying its
November decision was, in fact, the reason underlying its March
decision. However, the court’s decision did not address the
reasons for its prior denials. The colloquy that mother invokes
occurred during her counsel’s argument, at which point the court
clarified with mother’s counsel the bases for its prior rulings,
correctly stating that the denial of the “original [November 2020]”
petition was due to the lack of a prior placement request by
maternal grandparents. As such, the court did not mistake the
bases for its prior orders.
Mother next argues that the court abused its discretion by
denying her petition without a hearing because her completion of
domestic violence and parenting courses was a sufficient change
in circumstances. Again, mother’s contention lacks factual and
legal support. Mother had already completed domestic violence
and parenting courses in September 2018. Then, mother
continued to see father in spite of protective orders, resulting in
several reports, by neighbors and mother herself, of fighting
and/or property damage. Mother hid father from social workers
when they came to visit the home, and she appeared to coax
Anthony into telling social workers otherwise. This resulted in
Anthony’s second removal from mother’s custody and a second
16
order for mother to participate in services. Consequently, the
record is clear that the completed programs cited in mother’s
May 2021 petition were the second round of such programs,
ordered after mother again became enmeshed with father despite
having completed the first sequence of programming.
Additionally, over the period that followed Anthony’s second
removal from mother’s custody, there were several reports
suggesting that mother was still in contact with father, including
potentially having given birth to his new child.
Viewed in this light, we cannot say that the juvenile court
abused its discretion in holding that mother’s completion of
further domestic violence and parenting classes did not constitute
sufficient changed circumstances. Considering, as we must, the
trajectory of the entire four-plus year case, it was eminently
rational for the court to conclude that mother’s mere completion
of this second round of coursework was not sufficiently
substantial to require the conclusion that the problem which
brought the child into the dependency system had been
ameliorated. (In re Mickel O., supra, 197 Cal.App.4th at p. 615;
see In re Elizabeth M. (2018) 19 Cal.App.5th 768, 780 [juvenile
court does not abuse discretion unless it acted “ ‘in an arbitrary,
capricious or patently absurd manner that resulted in a
miscarriage of justice’ ”].)
For several of the same reasons, the court did not abuse its
discretion in further concluding that returning Anthony to
mother’s custody was not in Anthony’s best interests. Mother
cites her steady visitation and “deep[] bond” with Anthony, and
that she was not alleged to have abused Anthony. But the
juvenile court was not required to conclude that returning to
mother’s custody was in Anthony’s best interests merely because
17
she and Anthony were “bonded” and she had not abused
Anthony. Instead, it was well within its discretion to find that
mother’s continued association with father meant that Anthony
could not safely be returned to her care.
Accordingly, the juvenile court’s denial of mother’s
May 2021 section 388 petition was not an abuse of discretion.
II. The juvenile court did not abuse its discretion by
concluding that the parental-benefit exception did
not apply.
Next, mother argues that the juvenile court erred when it
found that the parental-benefit exception to adoption (§ 366.26,
subd. (c)(1)(B)(i)) did not apply. Again, we disagree.
A. Governing law and standard of review.
Section 366.26’s express purpose is “to provide stable,
permanent homes” for dependent children. (§ 366.26, subd. (b).)
If the juvenile court has ended reunification services,
adoption is the legislative preference. (§ 366.26, subd. (b)(1).)
When the court finds by clear and convincing evidence
the child is likely to be adopted, the statute mandates
terminating parental rights and placing the child for adoption
unless the parent can demonstrate an exception applies.
(§ 366.26, subd. (c)(1); In re Caden C. (2021) 11 Cal.5th 614, 625
(Caden C.).)
One such exception is the parental-benefit exception, which
applies if the harm from severing the parent-child relationship
outweighs the benefit of placing the child in an adoptive home.
(Caden C., supra, 11 Cal.5th at p. 632.) To establish this
exception, the parent must demonstrate, by a preponderance of
the evidence, that termination would be detrimental to the child
18
in light of three statutory elements: (1) regular visitation and
contact with the child, (2) a relationship, the continuance of
which would benefit the child, such that (3) terminating parental
rights would be detrimental to the child. (§ 366.26, subd.
(c)(1)(B)(i); Caden C., at p. 631.) In assessing whether
termination would be detrimental, “the [juvenile] court must
decide whether the harm from severing the child’s relationship
with the parent outweighs the benefit to the child of placement in
a new adoptive home.” (Caden C., at p. 632.)
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.)
The second element requires the court to “assess whether
‘the child would benefit from continuing the relationship.’
(§ 366.26, subd. (c)(1)(B)(i).) Again here, 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., supra, 11 Cal.5th at p. 632.) In evaluating this factor,
“courts often consider how children feel about, interact with, look
to, or talk about their parents.” (Ibid.)
The third element—whether termination would be
detrimental to the child due to the relationship—requires the
court to decide whether it would be harmful to the child to sever
the relationship and choose adoption. (§ 366.26, subd. (c)(1)(B);
see also id., subd. (c)(1)(D).) In making this determination, a
court must determine “how the child would be affected by losing
the parental relationship—in effect, what life would be like for
19
the child in an adoptive home without the parent in the child’s
life.” (Caden C., supra, 11 Cal.5th at p. 633.) In each case, then,
“the court acts in the child’s best interest in a specific way: it
decides whether the harm of severing the relationship outweighs
‘the security and the sense of belonging a new family would
confer.’ [Citation.] ‘If severing the natural parent/child
relationship would deprive the child of a substantial, positive
emotional attachment such that,’ even considering the benefits of
a new adoptive home, termination would ‘harm[ ]’ the child, the
court should not terminate parental rights. [Citation.] That
subtle, case-specific inquiry is what the statute asks courts to
perform: does the benefit of placement in a new, adoptive home
outweigh ‘the harm [the child] would experience from the loss of
[a] significant, positive, emotional relationship with [the
parent?]’ ” (Id. at pp. 633–634.)
In considering these issues, the parent’s struggles with
issues such as those that led to dependency are relevant only “to
the extent they inform the specific questions before the court:
would the child benefit from continuing the relationship and be
harmed, on balance, by losing it?” (Caden C., supra, 11 Cal.5th
at p. 638.) As our Supreme Court has explained: “[H]ow and how
much the loss of a relationship with a parent may be harmful,
how and how much that harm might be offset by a new family are
complex questions not always answered just by determining how
beneficial the child’s relationship with the parent is. Though
there is no reason for a court to consider ‘a second time’ the same
struggles in the same way, a parent’s struggles with substance
abuse, mental health issues, or other problems could be directly
relevant to a juvenile court’s analysis in deciding whether
termination would be detrimental.” (Id. at p. 639.)
20
Because the first two elements––whether the parent has
visited the child consistently, and whether the relationship is
such that the child would benefit from continuing it––are factual
determinations, we review them for substantial evidence.
(Caden C., supra, 11 Cal.5th at p. 639.) The third element––
whether termination of parental rights would be detrimental to
the child––requires the court to engage in a “delicate balancing”
and assess “the likely course of a future situation that’s
inherently uncertain.” (Id. at p. 640.) This determination is
inherently discretionary, and thus we review it for abuse of
discretion.
B. Analysis.
1. Regular visitation.
Mother contends that the juvenile court did not properly
apply the first prong of the statutory test––regular visitation––
and we agree. The section 366.26 hearing in this case took place
on May 27, 2021, the same day our Supreme Court issued its
decision in Caden C., and thus neither the parties nor the
juvenile court had the benefit of that decision.5 The juvenile
court’s statements on the record suggest that it found the
exception did not apply, at least in part, because mother had not
had “daily contact” with Anthony. But daily contact is not
required under Caden C.; what is required is “consistent[]”
visitation and contact, to the extent permitted by court orders.
5 As a nonfinal case pending when Caden C. was issued, we
presume, as the parties have, that Caden C. has retroactive
effect. (See, e.g., Waller v. Truck Ins. Exchange, Inc. (1995)
11 Cal.4th 1, 24, 44 [“[T]he general rule [is] that judicial decisions
are to be applied retroactively”].)
21
(Caden C., supra, 11 Cal.5th at p. 632.) The juvenile court
therefore erred by requiring mother to demonstrate daily contact
to satisfy the first prong of the parental-benefit exception.
The juvenile court’s error as to the first prong is not
dispositive of the applicability of the exception, however. Instead,
because mother bore the burden of the proof as to all three prongs
of the statutory test (Caden C., supra, 11 Cal.5th at p. 631), the
error necessarily was harmless if the court applied the correct
legal standard as to the second or third prongs and its findings
were supported by substantial evidence. We turn therefore to
those prongs.
2. Benefit to Anthony from continuing the
relationship.
To prove the second element, mother had to demonstrate
that Anthony had “a substantial, positive, emotional” attachment
to her, such that he “would benefit from continuing the
relationship.” (Caden C., supra, 11 Cal.5th at p. 636.) Mother
contends the juvenile court misapplied this element because it
focused on her failure to end her relationship with father and to
occupy a “parental role” in Anthony’s life, rather than on
Anthony’s bond with mother. For the reasons that follow, we
disagree.
Prior to Caden C., many courts evaluating the parental-
benefit exception considered whether a parent had acted in “a
parental role” with regard to the child. (E.g., In re Dakota H.
(2005) 132 Cal.App.4th 212, 229 [“In order to overcome the
statutory preference for adoption, the parent must prove he or
she occupies a parental role in the child’s life”]; In re L. Y. L.
(2002) 101 Cal.App.4th 942, 954 [“[t]he parent must show he or
she occupies a parental role in the child’s life, resulting in a
22
significant, positive, emotional attachment from child to
parent”].) Mother contends that Caden C. definitively rejected
this approach to the parental-benefit exception, and she requests
that we therefore remand this case so the juvenile court can
reconsider her evidence under the correct standard. But as
another appellate court recently has noted, the Supreme Court in
Caden C. did not use the phrase “parental role” in any portion of
its analysis (In re A.L. (2022) 73 Cal.App.5th 1131, 1157), and
while the focus of the second prong under Caden C. is on the
benefit to the child of maintaining the parent-child relationship,
the parent’s failure to occupy a “parental role” can be highly
relevant to that analysis (ibid. [“the strength and quality of the
parent’s relationship with the child, including whether that
parent has a parental role, is a relevant consideration” under
Caden C.], italics added).
Division One of this court considered a claim similar to
mother’s in In re Katherine J. (2022) 75 Cal.App.5th 303, 319–
320 (Katherine J.).) There, a father challenged an order
terminating parental rights, urging that the juvenile court
misconstrued the second element of the parental-benefit
exception to require that he occupy a “traditional parental role”
in his daughter’s life. (Id. at p. 318.) The Court of Appeal
disagreed and affirmed. Although the juvenile court had found
the father “ ‘ha[d] not occupied a significant parental role,’ ” it
also “explained what it meant”––namely, that the “father’s
unresolved issues with substance abuse and violence had
consistently destabilized [his daughter’s] life for years, fatally
compromising father’s attempts to maintain a strong, positive
emotional attachment with her.” Because this finding was
supported by substantial evidence, the appellate court held that
23
remand for further fact-finding was not appropriate. (Id. at
pp. 318–322.)
The court similarly concluded in In re A.L., supra,
73 Cal.App.5th 1131. There, the father challenged an order
terminating parental rights, urging that the juvenile court erred
“by failing to complete ‘the complex task of reaching a detriment
finding [and instead] merely relying on father’s and the
caretakers’ [respective] parental role[s].” (Id. at p. 1155.) The
court disagreed, noting, in part, that nothing in the record
suggested that the court’s statements on the record were
“intended to be a comprehensive recitation of the grounds for its
decision.” (Id. at p. 1156.) Further, the court said, in assessing
potential detriment, “it was proper for the juvenile court to
consider whether, and the extent to which, the caregivers and
[parent] occupied parental roles with the minor.” (Id. at p. 1157.)
Because substantial evidence supported a conclusion that the
benefits of adoption outweighed the harm from the loss of the
relationship with the father, the juvenile court did not abuse its
discretion in concluding that the parental-benefit exception did
not apply. (Id. at p. 1161.)
In the present case, although the court found that mother
had failed to act in the role of a parent, it did not stop there––
instead, as in In re Katherine J., the court “explained what it
meant.” Specifically, the court noted that mother had exposed
Anthony to repeated domestic violence incidents between the
parents, including father stealing mother’s car keys, breaking her
windshield, and removing her window screens. The court also
noted that mother had encouraged four-year-old Anthony not to
tell the truth about father’s presence in mother’s closet, which
24
Anthony knew to be wrong. Being asked to lie to protect his
parents was, the court said, “a lot for a little kid.”
Nor did the juvenile court err by considering, in the context
of the second prong, Anthony’s likely continued exposure to
domestic violence if his visits with mother were to continue.
Under Caden C., assessing whether “ ‘the child would benefit
from continuing the relationship’ ” requires the juvenile court to
consider a variety of factors, including the “ ‘the “positive” or
“negative” effect of interaction between parent and child.’ ”
(Caden C., supra, 11 Cal.5th at p. 632.) A parent’s continued
struggles to make progress with the issues leading to dependency
may be highly relevant to the parental-benefit exception: As our
Supreme Court has explained, “[i]ssues such as those that led to
dependency often prove relevant to the application of the
exception” because “[a] parent’s struggles may mean that
interaction between parent and child at least sometimes has a
‘ “negative” effect’ on the child.” (Id. at p. 637.) Accordingly, it
was appropriate for the juvenile court to consider the likelihood
that Anthony would continue to be exposed to domestic violence
between his parents in determining that, on balance, he would
not benefit from continuing his relationship with mother.6
6 For this reason, we do not agree with mother that the
juvenile court “made no analysis of the relationship Anthony had
with Mother and whether it was beneficial to him, but rather,
judged Mother for being in a domestic violence relationship with
Father and putting her relationship with Father ‘above their
child.’ ” As we have described, the effect on Anthony of the
domestic violence between mother and father was highly relevant
to the relative benefit to Anthony of continuing his relationship
25
Because the juvenile court applied a correct legal standard
in considering the second prong of the Caden C. analysis, we
must affirm its finding that the parental-benefit exception did not
apply unless we conclude that the evidence compelled a finding
for mother as a matter of law. (In re I.W. (2009) 180 Cal.App.4th
1517, 1528, disapproved on other grounds in Conservatorship of
O.B. (2020) 9 Cal.5th 989, 1010, fn. 7 [where the trier of fact has
concluded that the party with the burden of proof did not carry
the burden and that party appeals, “the question for a reviewing
court becomes whether the evidence compels a finding in favor of
the appellant as a matter of law”].) It did not. While there
certainly was evidence of a loving bond between mother and
Anthony, there also was evidence that, on balance, Anthony
would not benefit from continuing the relationship.
Unquestionably, Anthony was often happy to see mother, enjoyed
his time with her, and became upset when it was time to end
visits. But there was also evidence that Anthony was
significantly affected by the violent relationship between mother
and father. In February 2020––i.e., during the period Anthony
was living with mother and there were reports of domestic
violence incidents between mother and father––the social worker
reported that Anthony had “reverted to being quiet [and] angry
with mom” and had resumed having tantrums. After Anthony
was returned to Leticia, he cried when she dropped him off to
visit mother for the first several months, fearful that Leticia
might not pick him up. Other times, Leticia had to bribe
Anthony with a toy to get him to visit mother. And when the
with mother, and thus it was a proper basis for the court’s
decision.
26
social worker asked Anthony about permanency, he said he
wanted to stay with Leticia.
It is apparent to this court that mother loves Anthony and
made many positive changes in her life to regain custody of her
son. It is also apparent that Anthony loves his mother and enjoys
visits with her and his maternal grandparents. But “[a]
biological parent who has failed to reunify with an adoptable
child may not derail an adoption merely by showing the child
would derive some benefit from continuing a relationship
maintained during periods of visitation with the parent.” (In re
Angel B. (2002) 97 Cal.App.4th 454, 466.) Instead, the parent
must demonstrate that the child would, on balance, benefit from
continuing the relationship. (Caden C., supra, 11 Cal.5th 637.)
The juvenile court did not err by concluding that mother failed to
make that showing here, and thus that the parental-benefit
exception did not apply.7
III. The juvenile court did not err by finding that DCFS
made an adequate ICWA inquiry.
Both mother and father denied Indian heritage when DCFS
interviewed them and again on their ICWA-020 forms. On the
basis of these denials, the juvenile court found at the March 2017
detention hearing that it had no reason to know that Anthony
was an Indian child, but it ordered the parents to keep DCFS,
their attorneys, and the court aware of any new information
relating to possible ICWA status.
7 Having so concluded, we need not address whether the
juvenile court properly concluded that the third Caden C. factor
was unmet.
27
Although mother did not challenge the juvenile court’s
ICWA finding below, on appeal she urges that DCFS breached its
duty of inquiry because it did not interview readily available
extended family members, including maternal grandmother,
maternal great-grandmother, paternal grandmother, and
maternal and paternal aunts about possible Indian ancestry. She
thus urges that the order terminating parental rights should be
reversed and remanded for compliance with ICWA.
For all the reasons discussed in In re Ezequiel G. (2022)
81 Cal.App.5th 984, 1005 (Ezequiel G.), we conclude that the
juvenile court did not err in concluding that ICWA does not apply
to this case. Stated briefly, there is no evidence in the present
record that would support the conclusion that Anthony is an
Indian child. Further, the juvenile court did not abuse its
discretion in concluding that the agencies conducted an adequate
inquiry. In reviewing a juvenile court’s ICWA findings for abuse
of discretion, the key question for a reviewing court is whether
the ICWA investigation has reliably answered the question at the
heart of the ICWA inquiry: Whether a child involved in a
proceeding “is or may be an Indian child” (§ 224.2, subd. (a))––
that is, whether he or she either (a) “is a member of an Indian
tribe” or (b) “is eligible for membership in an Indian tribe and is
the biological child of a member of an Indian tribe.” (25 U.S.C.
§ 1903(4); see also § 224.1, subds. (a)–(b).) In other words, the
focus of the court’s analysis is not on the number of individuals
interviewed, but on whether the agency’s ICWA inquiry has
yielded reliable information about a child’s possible tribal
affiliation. (Ezequiel G., at p. 1009.)
As we have explained, “ ‘ICWA does not apply simply based
on a child or parent’s Indian ancestry.’ ” (Ezequiel G., supra,
28
81 Cal.App.5th 1009, citing U.S. Dept. of Interior, Bureau of
Indian Affairs, Guidelines for Implementing the Indian Child
Welfare Act (Dec. 2016) (BIA Guidelines), p. 10
[as of July 29, 2022], archived at
.) Instead, “the statutory definition
of ‘Indian child,’ . . . is based on the child’s political ties to a
federally recognized Indian Tribe, either by virtue of the child’s
own citizenship in the Tribe, or through a biological parent’s
citizenship and the child’s eligibility for citizenship.” (Indian
Child Welfare Act Proceedings, 81 Fed.Reg. 38795 (June 14,
2016) (BIA ICWA Proceedings), italics added.) In other words, an
Indian child is one with a tribal affiliation, not merely Indian
ancestry.
“Tribal citizenship (aka Tribal membership) is voluntary
and typically requires an affirmative act by the enrollee or her
parent.” (BIA ICWA Proceedings, supra, 81 Fed.Reg. at p. 38783,
italics added.) Specifically, “Tribal laws generally include
provisions requiring the parent or legal guardian of a minor to
apply for Tribal citizenship on behalf of the child. [Citation.]
Tribes also often require an affirmative act by the individual
seeking to become a Tribal citizen, such as the filing of an
application. [Citation.] As ICWA is limited to children who are
either enrolled in a Tribe or are eligible for enrollment and have
a parent who is an enrolled member, that status inherently
demonstrates an ongoing Tribal affiliation.” (Ibid., italics added;
see also BIA Guidelines, supra, at p. 10 [“Most Tribes require
that individuals apply for citizenship and demonstrate how they
meet that Tribe’s membership criteria.”].) Because membership
in an Indian tribe therefore requires that an individual or his or
29
her parent apply for tribal membership, a child’s parents will, in
most cases, be the best source of information for determining
whether a child is an Indian child.
In the present case, nothing in the record gives us reason to
doubt the accuracy of mother’s or father’s denial of a tribal
affiliation. Each of the parents unequivocally denied Indian
ancestry, and mother has not identified any evidence in the
record that would support an inference that she or father might
unknowingly be a member of an Indian tribe. (See Ezequiel G.,
supra, 81 Cal.App.5th at p. 1015.) Indeed, the evidence is to the
contrary. Both mother and father were raised primarily by their
own parents and lived with them intermittently in the period
between Anthony’s birth and detention. Maternal and paternal
relatives were present at the detention hearing when the juvenile
court made ICWA findings, and no relative contradicted the
parents’ denials of Indian ancestry. Further, both parents
remained in close contact with their families throughout these
proceedings: Father lived with his mother (the paternal
grandmother) at the time of the detention hearing, and the
maternal grandmother and great-grandparents monitored
mother’s visits with Anthony. The possibility that either parent
might unknowingly be a member of an Indian tribe thus appears
trivially small. The juvenile court therefore did not abuse its
discretion by concluding that DCFS conducted an adequate
ICWA inquiry as to both parents.
For all the same reasons, even if the juvenile court erred by
finding DCFS’s inquiry adequate, that error was not prejudicial
because it is not “reasonably probable that an agency’s error in
not conducting a proper initial inquiry affected the correctness
(that is, the outcome) of the juvenile court’s ICWA finding.” (In re
30
Dezi C. (2022) 79 Cal.App.5th 769, 781, italics added, review
granted Sept. 21, 2022, S275578.) As we have said, nothing in
the juvenile court record gives us a reason to doubt the accuracy
of the parents’ denials that they or Anthony were members of or
eligible for membership in an Indian tribe, and mother has not
made a proffer on appeal that she or father has Indian heritage.
No remand therefore is warranted.
DISPOSITION
The May 27, 2021 orders denying mother’s section 388
petition and terminating parental rights are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
I concur:
EGERTON, J.
31
RICHARDSON (ANNE K.), J., Concurring and Dissenting.
I agree that the juvenile court’s disposition of the
modification petition was not an abuse of discretion. I
respectfully disagree with the majority’s conclusions that the
juvenile court applied the correct legal standard as to the
beneficial relationship exception (Welf. & Inst. Code,1 § 366.26),
and that substantial evidence supported the finding that DCFS’s
ICWA inquiry was adequate. I would therefore reverse the
juvenile court’s termination order and, on account of that
disposition, also vacate the finding that ICWA does not apply,
with instruction to the juvenile court to order DCFS to comply
with its duties under ICWA.
DISCUSSION
I. Beneficial relationship exception
Turning to the beneficial relationship question first, the
majority recognizes that, in In re Caden C. (2021) 11 Cal.5th 614(Caden C.), our Supreme Court resolved several open questions
as to how the beneficial relationship test is applied. (Maj. opn.
ante, at pp. 19–23.) I agree with the majority’s conclusion that
the juvenile court erred with respect to the first prong of the
three-step Caden C. analysis because mother maintained
consistent visitation. (Maj. opn. ante, at pp. 21–22.) I part ways,
however, with respect to the majority’s treatment of Caden C.’s
second prong. I agree with mother that the juvenile court
improperly focused on her inability to overcome her domestic
violence relationship and that she had not occupied a parental
1All undesignated statutory references are to the Welfare
and Institutions Code.
1
role in Anthony’s life, rather than focusing on the nature of her
bond with Anthony. Because the application of an incorrect legal
standard prejudiced mother, the matter should be returned to the
juvenile court to reconsider the exception’s applicability with the
benefit of Caden C.
The second prong of the beneficial relationship analysis
requires that the parent show that the child had a “substantial,
positive, emotional attachment” to them. (Caden C., supra, 11
Cal.5th at p. 636.) “[T]he focus is the child[,]” with attention to
“ ‘[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.’ ” (Id.
at p. 632.)
In Caden C., supra, 11 Cal.5th at page 637, our Supreme
Court clarified that a parent’s failure to make “sufficient progress
in addressing the problems that led to dependency” is not a
“categorical bar to applying the exception.” Because a section
366.26 hearing “all but presupposes that the parent has not been
successful” in their case plan, a contrary approach would
“effectively write the exception out of the statute.” (Ibid.)
Accordingly, a parent’s struggles are relevant only insofar as they
bear upon the fundamental inquiry posed by the exception, i.e.,
the parent’s relationship with the child. (Id. at pp. 637–638.)
Additionally, courts are not to “compar[e] the parent’s
attributes as custodial caregiver relative to those of any potential
adoptive parent(s).” (Caden C., supra, 11 Cal.5th at p. 634.)
Thus, while it is true as the majority notes that Caden C. did not
use the term “parental role” and did not prohibit an evaluation of
the same (maj. opn. ante, at pp. 22–23), it certainly did set limits
on its use. (Caden C., at p. 634 [“courts should not look to
2
whether the parent can provide a home for the child; the question
is just whether losing the relationship with the parent would
harm the child to an extent not outweighed, on balance, by the
security of a new, adoptive home”].) Thus, “problems arise when
juvenile courts use the phrase ‘parental role’ without explaining
which meaning(s) they impart to it.” (In re Katherine J. (2022) 75
Cal.App.5th 303, 319 (Katherine J.); see In re L.A.-O. (2021) 73
Cal.App.5th 197, 211 [best practice is to not use “ ‘parental role’
”].) However, a court adequately explains the phrase’s use when
it relies upon evidence that a parent’s actions “consistently
destabilize[ ]” the parent-child relationship. (Katherine J., at
pp. 319–320.)
Before the Supreme Court decision in Caden C., courts of
appeal applied different versions of the parental benefit test that
generally included the requirement that the relationship between
the child and the parent must be “parental” without any of the
above nuance. (In re Caden C. (2019) 34 Cal.App.5th 87, 105 [“Of
necessity, however, the relationship at issue must be parental.
‘No matter how loving and frequent the contact, and
notwithstanding the existence of an “emotional bond” with the
child, “the parents must show that they occupy ‘a parental role’ in
the child’s life” ’ ”], revd. (2021) 11 Cal.5th 614; In re I.W. (2009)
180 Cal.App.4th 1517, 1528 [same].) Indeed, several appellate
decisions went on to say that such a role “ ‘characteristically
aris[es] from day-to-day interaction, companionship and shared
experiences[,]’ ” although “day-to-day contact is not always
required.” (In re Caden C., supra, 34 Cal.App.5th at p. 105.)
I think it is clear that the trial court used an incorrect legal
standard in deciding the parental benefit exception, where the
closing arguments and comments of the court reflect the elements
3
of a pre-Supreme Court Caden C. analysis rather than focusing
on the relationship between parent and child; hardly surprising
since the hearing took place on the very day the decision was
announced.
Here, during closing arguments at the section 366.26
hearing, the focus of argument was not on Anthony’s emotional
bond with mother, but whether mother occupied a parental role
in Anthony’s life by serving as his primary caretaker. DCFS’s
counsel repeatedly suggested that mother’s showing was
insufficient because she had not occupied a parental role. DCFS
cited a pre-Caden C. precedent to argue that because mother was
“unable to meet the child’s need[s],” this was not an
“extraordinary case [where] preservation of parental rights will
prevail over the preference of adoption.” (In re K.P. (2012) 203
Cal.App.4th 614, 621.)2 Elaborating, counsel concluded by
contrasting mother to Anthony’s caregiver, Leticia, who Anthony
“look[ed] to” as “responsible for his day-to-day needs, for taking
him to school, for helping him with his homework, for attending
to medical [and] mental health issues, and any other issues.
[She] holds the place of the mother and the primary caretaker for
Anthony.”3 Similarly, Anthony’s counsel asserted that mother
2 Notably, the Caden C. court expressly disavowed the
precise case that K.P. cited in support of this proposition, In re
Jasmine D. (2000) 78 Cal.App.4th 1339, 1350, while concluding
that a parent need not demonstrate a “compelling reason” to
invoke the exception. (Caden C., supra, 11 Cal.5th at p. 636 & fn.
5.)
3By doing so, DCFS engaged in precisely the kind of
“contest of who would be the better custodial caregiver” that the
4
did not meet her burden because a beneficial relationship
“need[ed] to arise from a day-to-day interaction from having some
shared experiences” and mother was “not there to help [Anthony]
get ready in the morning” or “tuck him in every night.”
The court’s oral findings reflect that it was persuaded by
these arguments. Over five pages of transcript, the court
referenced mother’s lack of a parental role at least four times. It
expressly conveyed its agreement with Anthony’s counsel that
mother was not “acting in the role of a parent” because she lacked
“daily contact.” Later restating its conclusions, the court
reasoned that mother had not acted in a parental role given that
she had physical custody of Anthony for “probably less than 50
percent” of his life.4
court in Caden C. held was “decidedly not” the purpose of a
section 366.26 hearing. (Caden C., supra, 11 Cal.5th at p. 634.)
4 Relatedly, the juvenile court’s faulting mother for not
making enough progress despite several years of dependency
proceedings (i.e., referencing time as a relevant factor) was also
improper. While parents are only afforded a limited amount of
time to reunify (In re Celine R. (2003) 31 Cal.4th 45, 52), the
parent-child relationship often precedes the dependency (as
here), and that relationship may benefit the child regardless of
the length of the proceedings. As our Supreme Court has
explained, “the question before the court [at the section 366.26
hearing] is decidedly not whether the parent may resume custody
of the child.” (Caden C., supra, 11 Cal.5th at p. 630; see id. at
p. 638 [parent’s continuing struggles are not relevant because
they might affect ability to regain custody].) Thus, the court’s
reference to mother’s inability to sever ties with father, get
unmonitored visits, or complete programming in a timely fashion
did not, as DCFS asserts, demonstrate it adequately considered
5
“When a trial court applies the wrong legal standard, a
remand for further proceedings is certainly appropriate if an
appellate court announces a new legal standard and it is unclear
from the record whether the trial court would have reached the
same result had it not lacked appellate guidance.” (In re J.R.
(2022) 82 Cal.App.5th 526, 532.)5 Thus, I agree with those courts
that have reversed juvenile court rulings that were entered
before Caden C. was decided “when the evidence adduced at the
section 366.26 hearing could have supported application of the
beneficial relationship exception had the juvenile court had the
benefit of that decision when it ruled.” (Ibid.)
I believe the evidence here meets that standard.6 The
reports entered into evidence at the section 366.26 hearing
the parent-child bond, but illuminated the shortcomings in its
analysis.
5 As a threshold matter, most courts have doubted the
applicability of harmless error analysis in this context, reasoning
that the exception is a discretionary determination which must
be made by “the juvenile court . . . in the first instance.” (In re
D.M. (2021) 71 Cal.App.5th 261, 271; see, e.g., In re M.G. (2022)
80 Cal.App.5th 836, 852; In re J.D. (2021) 70 Cal.App.5th 833,
865 (J.D.); In re B.D. (2021) 66 Cal.App.5th 1218, 1231.) Because
an appeals court is ill-suited to speculate as to how the trial court
might have exercised its discretion in light of Caden C., many
courts reason that reversal is necessary irrespective of harmless
error. (In re D.M., at p. 271.)
6Preliminarily, it bears noting that the court denied
mother’s requests to present additional evidence in the form of a
bonding study and further testimony from maternal grandmother
(see Caden C., supra, 11 Cal.5th at p. 633, fn. 4 [recommending
6
contained several third-party accounts of the mother-child bond
which, applying the relevant factors (Caden C., supra, 11 Cal.5th
at p. 632), could have sufficed to demonstrate a “substantial,
positive, [and] emotional attachment.” (Id. at p. 636.)7
Those reports reflected that at the time of the May 2021
hearing, Anthony was in mother’s custody for over half of his
nearly six-year life, from his June 2015 birth to the March 2017
removal (21 months), and again from December 2018 to the
second removal in March 2020 (15 months). Courts are more
likely to find a beneficial relationship where a parent has acted
as a primary caretaker for at least half of the child’s life. (See,
e.g., J.D., supra, 70 Cal.App.5th at p. 855 [finding a beneficial
relationship where the child “had lived with [his] mother for just
over half of his life”]; In re S.B. (2008) 164 Cal.App.4th 289, 298–
299 [finding a beneficial relationship where the father of a five-
year-old child was the child’s caregiver for three years]; In re
Amber M. (2002) 103 Cal.App.4th 681, 689 [finding a beneficial
relationship where two of the mother’s three children had been in
trial courts “seriously consider, where requested and appropriate,
allowing for a bonding study or other relevant expert
testimony”]), evidence which, if available, may have furnished
additional relevant information about the parent-child bond.
7Because credibility is a question for the trier of fact (In re
Precious D. (2010) 189 Cal.App.4th 1251, 1258–1259), I defer to
the juvenile court’s credibility determinations as to mother’s
testimony.
7
her care for most of their lives].)8 They are also more likely to
find a beneficial relationship where, as here, the child has
sufficiently advanced beyond infancy to understand the concept of
a biological parent and develop an attachment to them. (See In
re Angel B. (2002) 97 Cal.App.4th 454, 468 [exception
inapplicable because child’s infancy meant he was not old enough
to understand the idea of a biological parent].)
Further, three maternal relatives—whose reports that
father was abusing mother (leading to Anthony’s first removal)
and that father was hiding in mother’s closet (leading to
Anthony’s second removal) showed they had no difficulty being
candid with DCFS—described mother’s positive connection with
Anthony with specificity. They recounted that, during weekly
day-long visits over the year-plus period following Anthony’s
second removal, Anthony was always happy to see mother and
tearful when saying goodbye. Anthony openly conveyed his love
for mother, hugging and kissing her and stating as much.
Mother appropriately met Anthony’s needs, whether it involved
cooking, bathing, dressing, grooming, or helping him with school
work. At the end of visits, Anthony pleaded with the family to let
him stay.
Indeed, the juvenile court and social worker stated several
times—including as recently as the previous year—that Anthony
and mother had bonded, and there was no reason to believe their
bond had evaporated over those intervening months, during
which mother consistently visited. Earlier reports referenced
8The trial court appeared to misapprehend the time
Anthony spent in mother’s custody, stating that it was “for
probably less than 50 percent of his [life].”
8
Anthony’s calling for mother as he was transported to caregiver’s
home, as well as his statements that he liked it in mother’s home
and wanted to stay.9 The section 366.26 report also documented
Anthony’s developmental and educational progress, despite the
deficits with which he was diagnosed in 2017. Since much of this
progress occurred at least in part during Anthony’s time in
mother’s custody, mother’s active role in his education cannot be
discounted as a contributing factor, further reflecting her efforts
to meet Anthony’s needs. The section 366.26 report also detailed
that mother adequately addressed Anthony’s medical and dental
needs.
As such, at least some evidence supported the exception’s
application. (In re J.R., supra, 82 Cal.App.5th at p. 533.) That
mother—a young woman struggling to overcome a difficult
9 Anthony’s statement that he wanted to stay with Leticia
(maj. opn. ante, at p. 26) does not preclude a significant positive
attachment with mother. (J.D., supra, 70 Cal.App.5th at p. 859
[“A child’s emotional attachments are not a zero-sum game”].)
Indeed, several cases cited favorably by the court in Caden C.,
supra, 11 Cal.5th at pages 632 to 634, 638, illustrate that a
parent need not prove that the child’s attachment to them was
their primary bond. (In re S.B., supra, 164 Cal.App.4th at p. 300
[“requiring the parent of a child removed from parental custody
to prove the child has a ‘primary attachment’ to the parent” is not
“reasonable”]; see, e.g., In re Scott B. (2010) 188 Cal.App.4th 452,
473 [reversing order terminating parental rights, and noting
minor “clearly needs both of his mothers—his biological mother
and his foster mother”].) Moreover, Anthony was confused by the
concept of adoption, and never asked about his “feelings towards
his mother, which, at least in the context of the beneficial
relationship exception, was equally or more important.” (J.D., at
p. 860 [faulting child’s attorney and social worker for asking only
where child wished to live].)
9
upbringing and an abusive relationship—had imperfect
compliance with her case plan was not unexpected. (Cf. In re
J.M. (2020) 50 Cal.App.5th 833, 848 [“The goal of dependency
court proceedings is not to engineer perfect parents.”].) But given
her dedication to preserving her strong bond with Anthony, I am
unpersuaded that a trial court, considering the actual evidence
before it and the proper factors, might not have reached a
different outcome.
The majority acknowledges some evidence of a bond (maj.
opn. ante, at pp. 26–27) but declines to find error because, in one
instance when the court said mother did not act in a parental
role, it also “noted that mother had exposed Anthony to repeated
domestic violence incidents between the parents, including father
stealing mother’s car keys, breaking her windshield, and
removing her window screens.” (Maj. opn. ante, at p. 24.) The
court also noted that being asked to lie about father’s presence in
mother’s closet was “a lot for a little kid.” (Id. at p. 25.)
Analogizing this case to Katherine J., supra, 75 Cal.App.5th at
pages 319 to 320 and In re A.L. (2022) 73 Cal.App.5th 1131, 1157,
the majority concludes that the court did not err in considering
“the effect on Anthony of the domestic violence” (maj. opn. ante,
at p. 25, fn. 6) or his “likely continued exposure to domestic
violence if his visits . . . were to continue.” (Maj. opn. ante, at
p. 25.)
I do not believe the record and the cases the majority
invokes support these conclusions. In my view, while a juvenile
court may properly decline to find a substantial, positive
emotional attachment when presented with actual evidence that
a parent-child relationship has been materially and adversely
affected by the parent’s ongoing struggles with domestic violence,
10
it cannot proceed by assuming that any such struggles have had
such an effect.
Thus, in Katherine J., because there was “evidence of [the
child] telling others that she was ‘afraid’ of father and that she
did not want to speak to him” and that she was “traumatized”
after witnessing her father violently attack her grandmother, the
Court of Appeal had no difficulty concluding the father’s
misdeeds had a “consistently destabiliz[ing]” effect on the parent-
child relationship. (Katherine J., supra, 75 Cal.App.5th at p. 321;
see id. at p. 313 [describing effects].) In In re A.L., supra, 73
Cal.App.5th at page 1159, even though a social worker had
opined that father’s substance abuse was continuing to
“negatively impact[]” the parent-child relationship, the juvenile
court concluded that “there was a beneficial relationship that
existed between father and the minor.” (In re A.L., at p. 1161.)10
Similarly, in Caden C., there was evidence that mother, as
a product of her struggles with mental health, “sought to
undermine at least some of Caden’s foster placements.” (Caden
C., supra, 11 Cal.5th at p. 637.) Though mother’s struggles
“could certainly have had a negative effect on [Caden]” (ibid.,
italics added), they were not, on their own, sufficient to bar the
exception (id. at p. 642). Because the Court of Appeal did not rely
on “evidence [that] showed Mother’s [struggles] affected whether
her relationship with Caden was beneficial,” the Supreme Court
10However, in light of this evidence, the A.L. court affirmed
the refusal to apply the exception at the third step of the Caden
C. analysis. (In re A.L., supra, 73 Cal.App.5th at pp. 1161–1162.)
11
remanded for application of the correct legal standard. (Ibid.,
italics added [court must “connect” struggles to child’s welfare].)11
As these and several other post-Caden C. decisions reflect,
a court’s reliance upon a parent’s struggles must be evidence-
based—not speculative or conclusory—and reflect a materially
adverse effect on the parent-child bond. (See, e.g., In re B.D.,
supra, 66 Cal.App.5th at p. 1228 [failure to provide evidentiary
foundation as “how the parents’ continued [struggles] impacted
the nature of the parent-child relationship” violated Caden C.
(italics added)]; J.D., supra, 70 Cal.App.5th at p. 863 [similar,
where there was no “evidence in the record” suggesting that
mother’s struggles had “lasting impact” on the child].) As a court
of review, we are not to consider any “[o]ne section of the
dependency law . . . in a vacuum[,]” but to “harmonize[ ]” the
“whole system of law” to ensure that the parent is afforded “due
process and fundamental fairness while also accommodating the
child’s right to stability and permanency.” (In re Marilyn H.
(1993) 5 Cal.4th 295, 307.) In the context of the beneficial
relationship application, “proper consideration of the factors
deemed relevant by our dependency scheme is [a] vital” part of
protecting the important interests at stake. (J.D., at p. 840.) In
11 Caden C.’s discussion of this principle also took place in
its explanation of the third step of the framework. (See Caden C.,
supra, 11 Cal.5th at p. 642 [conclusion that child had beneficial
relationship (i.e., met the second prong) was not “ ‘seriously
disputed’ ”]; see also id. at p. 634.) Because the majority declines
to address the third step and frames its discussion of this
principle as relevant to the second step (maj. opn. ante, at pp. 26–
27, 29, fn. 7), I do so as well. (Katherine J., supra, 75 Cal.App.5th
at p. 317, fn. 7 [second and third steps “significantly overlap”].)
12
my view, an evidence-based approach is vital to “preserv[ing] the
child’s right to the relationship even when the child cannot safely
live with that parent,” without “judgment about the parent’s
problems.” (Caden C., supra, 11 Cal.5th at p. 643, italics added.)
Here, assuming for argument’s sake that Anthony was
“exposed” to domestic violence (maj. opn. ante, at p. 25),12 the
record is devoid of evidence that such exposure negatively
affected Anthony’s bond with mother. Indeed, this case
exemplifies the necessity of such evidence: a child who has
12 The majority cites no examples of Anthony witnessing
any of father’s outbursts, and mistakenly asserts that the trial
court concluded that he did. In fact, the trial court reasoned:
“There was other times during that period of time when Anthony
was living with mom that her car keys were stolen, windows
broken in, screens taken off her apartment, and [that father is]
hiding in a closet, refusing to come out. That is not acting like a
parent that’s protective.” It is noteworthy that the record does
contain several examples of mother trying to limit the effects of
such incidents, including calling the police, requesting
restraining orders, and taking Anthony to maternal
grandmother’s home when she suspected father might cause
trouble. While I recognize the “serious threat to the well-being
and safety of children in the home” that domestic violence poses,
the lack of evidence that Anthony was “physically harmed” or
“witness[ed] any such violence” underscores the extent of
assumptions required for the majority’s conclusions. (In re J.M.,
supra, 50 Cal.App.5th at p. 848 [lack of such evidence even
though mother “initially struggled to stay away from [f]ather”
favors parent in request for modification context].) Nonetheless,
because the most pertinent question is the effect of the parent’s
struggles on the parent-child bond (Caden C., supra, 11 Cal.5th
at pp. 637–638), my analysis assumes that Anthony witnessed at
least some of these incidents.
13
previously witnessed his mother being abused can certainly
remain deeply bonded to her such that termination is not in his
best interest.
I would instead conclude that the juvenile court’s several
express findings that mother was not acting in a parental role
and had not overcome her struggles with domestic violence,
without tying them to their effect on the parent-child bond,
demonstrate that the court considered factors which Caden C.
has clarified as inappropriate in determining whether the
parental-benefit exception applies. (See Caden C., supra, 11
Cal.5th at pp. 632–633; In re B.D., supra, 66 Cal.App.5th at
pp. 1230–1231 [reversing for misapplication of Caden C.]; see also
In re Charlisse C. (2008) 45 Cal.4th 145, 159 [a “disposition that
rests on an error of law constitutes an abuse of discretion”].)
Because the juvenile court did not have the guidance of
Caden C. when it rendered its decision (maj. opn. ante, at p. 21 &
fn. 5), it should be afforded another opportunity to exercise its
discretion in light of that decision. This is not a case where
mother had a full opportunity to present evidence and where “no
evidence . . . could support a favorable finding for [her],” and thus
the error cannot be excused as harmless. (In re J.R., supra, 82
Cal.App.5th at p. 533.)
For all these reasons, I would reverse the order terminating
mother’s parental rights and remand for a new section 366.26
hearing using the Caden C. standard.
II. ICWA
Finally, I agree with mother’s further contention that
DCFS failed to ask extended relatives whether Anthony is or may
be an Indian child as required under section 224.2, subdivision
(b), and the juvenile court erroneously concluded ICWA does not
14
apply. Because I have already concluded that the termination
order must be reversed, I would also vacate the ICWA
determination and order ICWA compliance on remand.
The language of the governing statute provides that:
“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), italics added.) There may be times
when it is not feasible to make contact with all of the persons
listed in the code: when they refuse to respond, when no contact
information is provided, and certainly if there are no such
relevant persons or such persons are deceased. In this case,
however, there were readily available extended family members,
including maternal grandmother, maternal great grandmother,
paternal grandmother, and maternal and paternal aunts, that
could have been interviewed about the children’s possible Indian
ancestry, but DCFS did not attempt any such inquiry. Under
these circumstances, there was no substantial evidence to
support a finding that DCFS’s inquiry was proper, adequate, and
duly diligent.
15
Where a juvenile court continues to have jurisdiction over
the child, the proper remedy is to vacate the finding that ICWA
does not apply, and to remand for compliance with the inquiry,
and if applicable, notice requirements of ICWA and related
California law. (See In re Dominick D. (2022) 82 Cal.App.5th
560, 567 [“ICWA inquiry and notice errors do not warrant
reversal of the juvenile court’s jurisdictional or dispositional
findings and orders other than the ICWA finding itself”].)
Because reversal of the termination order is, in my view,
necessary, I would also vacate the finding that ICWA does not
apply, and direct the juvenile court to order DCFS to comply with
its duties under ICWA.
RICHARDSON (ANNE K.), J.*

Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
16