In re K.R. CA2/4 ( 2023 )

Filed 4/10/23 In re K.R. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR
In re K.R., a Person Coming B318757
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. Nos.
19CCJP06661
19CCJP06661A)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Petitioner and
Respondent,
v.
T.G.,
Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Daniel Zeke Zeidler, Judge. Affirmed in part; reversed
and remanded in part with instructions.
Carolyn Hurley, under appointment by the Court of Appeal,
for Appellant.
Dawyn R. Harrison, County Counsel, Tracey Dodds,
Deputy County Counsel, for Respondent.
INTRODUCTION
Mother T.G. appeals from the juvenile court’s order
terminating her parental rights over her daughter, K.R.,
following a hearing pursuant to Welfare and Institutions Code
section 366.26.1 She argues that the court erred in summarily
denying her section 388 petition alleging changed circumstances
and seeking six more months of reunification services. She also
contends that the court considered improper factors and failed to
account for the strong bond she had with the child in terminating
her parental rights and determining that the parental benefit
exception did not apply. We conclude that the court did not
abuse its discretion in finding that mother failed to establish a
prima facie case of changed circumstances, and thus affirm the
denial of mother’s section 388 petition. However, we reverse the
order terminating mother’s parental rights. We therefore
remand the matter with directions to the court to hold a new
section 366.26 hearing compliant with the standards set forth in
In re Caden C. (2021) 11 Cal.5th 614 (Caden C.).
In addition, mother contends the juvenile court’s finding
that the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.)
(ICWA) did not apply was erroneous because it was predicated
upon a defective ICWA inquiry by the Los Angeles County
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2
Department of Children and Family Services (DCFS). We agree.
On remand we direct the juvenile court and DCFS to ensure
compliance with the requirements of ICWA and related state law.
BACKGROUND
I. Referral and Petition
Mother and father, S.R., have one child, K.R., who was born
in May 2018.2 K.R. was previously removed from mother in
Nevada in 2018. In August 2018, the Nevada Department of
Children and Family Services found an allegation of neglect
against mother to be substantiated, including a report that
mother was having a manic episode and had “trashed the house.”
Mother stated she had forgotten to take her medication for two
days. Father stated he was unable to care for K.R. The child was
detained from mother and then released to her once her mental
health stabilized. The Nevada social worker reported that
mother had begun receiving her medication monthly by injection
and that the case was closed in February 2019, with custody of
K.R. to mother.
Mother and K.R. moved to California in mid-2019, and the
family came to the attention of DCFS after a referral regarding a
two-day incident from September 17 to 19, 2019. On September
17, 2019, maternal grandmother (MGM) called the police stating
that K.R. was with mother and MGM was concerned for the
child’s safety. Responding police officers found mother and K.R.
around 9:00 p.m. K.R. was running around in the cold outside
wearing only a shirt, with no shoes or diaper; when told that the
2 Father is not a party to this appeal. We therefore provide
limited information regarding his involvement, only as relevant
to this appeal.
3
child needed a diaper and additional clothing, mother stated that
she was “fine.” Mother ultimately complied and put a diaper and
shoes on K.R. The officers reported that mother did not meet the
criteria for a psychiatric hold upon questioning. However, when
MGM arrived and approached, mother became violent, including
grabbing MGM within a few feet of K.R. Police detained mother;
MGM took custody of the child. Mother was released several
hours later; it appears she did not have contact with her relatives
or K.R. until the incident on September 19.
On September 19, 2019, maternal aunt was driving K.R. to
see MGM when she saw mother walking up the street. When
maternal aunt pulled over, intending to take mother to the
hospital, mother grabbed K.R. and continued down the street,
crossing back and forth, pulling items off street signs and kissing
K.R. Maternal aunt called the police, who reported that mother
was incoherent and did not appear to be mentally stable. Mother
was placed on an involuntary psychiatric hold.
A DCFS children’s social worker (CSW) met with K.R. and
MGM on September 19, 2019. MGM reported that mother had
been diagnosed with bipolar disorder around 2002, and that
mother also had PTSD from being beaten in her sleep by an ex-
partner. MGM said that she and maternal aunt called law
enforcement after the car incident. MGM said she had no
concerns with mother caring for K.R. when mother was mentally
healthy. MGM could not care for K.R. because she lived in a
senior living facility. DCFS also met with maternal aunt, who
echoed that mother was able to care for K.R. and was protective
of her when mentally stable.
The CSW met with mother at the hospital on September
20, 2019. Mother claimed she had been held hostage for three
4
days and assaulted by her former boyfriend. She then escaped
and was running down the street when maternal aunt saw her.
Mother stated that she was diagnosed in 2013 with post-
traumatic stress disorder (PTSD), anxiety, and bipolar disorder,
and was taking medication. She told the CSW that she smoked
one marijuana “blunt” per day and would put K.R. in her crib
when going outside to smoke.
MGM denied that mother assaulted her on September 17.
She stated that mother had been feeling overwhelmed and
reached out to MGM and maternal aunt to help with K.R. MGM
also reported that mother was doing well until she ran out of her
medication because her psychiatrist kept rescheduling
appointments. MGM suggested that mother did not want to
increase her medication dosage as her psychiatrist suggested,
because mother worried it would make her too drowsy to care for
K.R. MGM insisted that mother was a good mother and not
violent.
On October 7, the CSW received reports that mother was
hospitalized again after another episode. K.R. was not present at
the time. Maternal aunt told the CSW she was not sure what
was going on with mother, but she and MGM had received erratic
voicemails from mother. Maternal aunt found mother at a gas
station, standing near her car and playing music loudly. When
maternal aunt’s daughter approached to speak with mother,
mother became aggressive, taking a bat from her vehicle and
swinging it. Maternal aunt called law enforcement. Maternal
aunt picked up K.R. from a family friend and was caring for the
child while mother remained hospitalized.
The CSW spoke with mother at the hospital. Mother
denied having an episode and said there was nothing wrong with
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her. She also said that maternal aunt and her daughters had
tried to “jump” mother, so she got her bat out of her car.
The court signed a removal order on October 9, 2019 and
K.R. was removed the next day. When two CSWs arrived at
mother’s home to serve the removal order, mother stated that
K.R. was with maternal aunt and accused the CSWs of “secretly”
talking to people about mother. Mother called law enforcement
and stated that two CSWs were trying to take her child. Mother
refused to let the CSWs into her home, yelled at them, and
threatened to fight them. When police arrived, mother informed
the officers that K.R. was in her home. The CSWs were then able
to leave with K.R.
In the detention report, DCFS noted a prior case from 2006,
involving an allegation that mother hit her older child, D., with a
belt; the allegation was sustained. Mother was arrested at the
time for child cruelty.
DCFS filed a dependency petition on October 15, 2019
under section 300, subdivision (b)(1).3 In count b-1, the petition
alleged that mother had mental and emotional problems,
including bipolar disorder, PTSD, and anxiety, that rendered her
incapable of regular care for the child. The petition also alleged
that mother failed to take her psychotropic medication as
3 Section 300 states, in relevant part, “A child who comes
within any of the following descriptions is within the jurisdiction
of the juvenile court which may adjudge that person to be a
dependent child of the court: . . . . [¶] (b)(1) The child has
suffered, or there is a substantial risk that the child will suffer,
serious physical harm or illness, as a result of the failure or
inability of his or her parent . . . to adequately supervise or
protect the child.”
6
prescribed and had been involuntarily hospitalized due to her
psychiatric condition on September 17, 2019 and multiple prior
occasions. Count b-2 alleged that mother abused marijuana
daily, which interfered with her care of K.R. and put the child at
risk of harm.
In a last-minute information on October 16, 2019, DCFS
stated that mother called the day before and accused DCFS of
intentionally providing her the wrong information so that she
would miss the court date and lose custody of K.R. MGM called a
short time later and stated that mother’s behavior was becoming
more concerning and she felt mother was not mentally stable
enough to care for K.R.
A multidisciplinary assessment team report from October
2019 noted that K.R. was observed to have flat affect, limited
expressive language, anxiousness, and excessive crying when her
caregiver left. She also fell below developmental milestones in
communication, fine motor, problem solving, and personal-social
skills.
Mother was not present at the October 16, 2019 detention
hearing. The court found a prima facie case for jurisdiction over
K.R. under section 300. The court ordered K.R. to remain
detained from mother and father. The court ordered family
reunification services, including monitored visitation for mother
and father.
II. Jurisdiction/Disposition Report
DCFS submitted a last-minute information on November 1,
2019, reporting that MGM stated that mother had missed the
detention hearing because she was incarcerated and then placed
on a psychiatric hospital hold. Mother had since been released,
7
but the CSW’s attempts to contact mother on October 23, 24, 25,
and 28 were unsuccessful.
DCFS also outlined its contact with father, who stated he
was fearful of mother, as she had previously tried to kill him in
his sleep and broke everything in their home, including the bed,
dresser, and “the door down to the frame.” He reported that
when mother was not on her medication she got “really crazy.”
Father stated that he was not in a position to care for K.R. but
wanted to maintain contact through visitation.
DCFS filed a first amended petition on November 18, 2019,
adding allegations regarding father’s failure to protect to counts
b-1 and b-2. The first amended petition also added count b-3,
alleging that father had a history of substance abuse and
currently abused alcohol and marijuana, and count b-4, alleging
that father failed to provide K.R. with the “basic necessities of
life.”
On November 26, 2019, mother received a temporary
restraining order protecting herself and K.R. from maternal aunt.
She alleged that on September 19, 2019, maternal aunt “showed
up . . . to take my baby,” and made “false allegation[s] about my
baby.” She also alleged that maternal aunt tried to hit mother
with her car. The court later denied mother’s request for a
permanent restraining order.
In its November 2019 jurisdiction/disposition report, DCFS
reported that K.R. was currently placed with foster caregiver Ms.
N. Ms. N. spoke to DCFS on November 6, 2019, reporting that
mother had not visited but was calling at odd hours asking to
speak with the child. Mother contacted DCFS on November 12 to
set up visits with K.R.
8
A CSW met with mother on November 4, 2019 at a
detention facility. Mother was pleasant, cooperative, and
coherent. Mother told DCFS that she was first diagnosed with
bipolar disorder in 2014. Mother had recently met with a
psychiatrist and was taking daily medication. She told the doctor
that she did not want to be overmedicated so that she could wake
if K.R. needed her. Mother told DCFS that she experienced
psychosis but it “comes and goes.” Her condition made her
“hyper” and the medication helped calm her down. Mother
denied any periods when she didn’t regularly take her
medication. She reported that she had been using marijuana
since she was 14, but never smoked in the home.
Mother reported she had not worked since 2014 because of
her mental health issues. She met father in 2017, but later broke
up with him because of his excessive alcohol use. Mother
admitted having a prior dependency case in Nevada but denied
any wrongdoing. She said father reported her because he was
upset with her and that the Nevada social workers detained K.R.
because of mother’s mental health issues, but later returned her.
Mother claimed that DCFS was making the same mistake and
that she was in trouble just for being mentally ill. She also
denied ever hitting her adult son, D. Mother agreed to
participate in all services to reunite with K.R.
Father told DCFS that mother had been hospitalized “so
many times.” He stated that sometimes mother did not take her
medication so that she could drink, and that when she did not
medicate she was “angry.” He stated that mother loved K.R. but
when she was having a mental health episode, she would forget
how to care for herself or the child and would become violent.
9
Mother’s treatment records showed that she was admitted
to a medical facility on September 19 and discharged September
30, 2019. At the time of admission, the hospital reported that
mother could not recall the last time she ate or drank, appeared
confused and “gravely disabled.” Mother remained confused and
disorganized for the first part of her hospitalization, but with a
longer stay and further interventions, she was able to stabilize.
She and her case manager agreed on a discharge plan to return
mother to the family home and resume outpatient treatment.
On November 13, 2019, mother’s psychiatrist reported that
mother’s primary diagnosis was Bipolar I Disorder. She
recommended seeing mother monthly until she was stabilized.
The psychiatrist stated that when mother was medication
compliant, she was coherent and appeared well. The psychiatrist
also advised mother to stop using marijuana as it could affect her
mental health.
In a last-minute information on December 5, 2019, DCFS
reported that it had assessed Ms. M., a non-related extended
family member (NREFM), for possible placement. Maternal aunt
told DCFS that due to a conflict within the family, they preferred
K.R. be placed with a NREFM instead of maternal aunt.
Mother tested negative on toxicology tests on November 12
and 27, 2019. Mother also submitted a letter dated December 12,
2019, confirming that she had been receiving outpatient mental
health treatment at Harbor-UCLA Psychiatry since August 2019,
with her most recent appointment on December 4. Mother was
prescribed daily medication and her providers were working on
referring her to individual therapy.
III. Adjudication and disposition
10
The court held the adjudication hearing on December 12,
2019. Mother was present; father was not. The court amended
the petition by changing the allegation in count b-2 regarding
mother’s substance abuse from current daily abuse to a history of
abuse. The court then sustained the petition as amended for
counts b-1 and b-2 as to both parents, and b-3 as to father; the
court struck count b-4 regarding father. The court found
jurisdiction over K.R. under section 300, subdivision (b), and
found by clear and convincing evidence that removing the child
from her parents was reasonable and necessary. The court
ordered K.R. placed with NREFM Ms. M, ordered mother to
participate in regular psychiatric care, individual counseling, and
weekly on-demand drug and alcohol testing, and ordered mother
to take all prescribed psychotropic medications. The court
further ordered monitored visitation for mother, with DCFS
discretion to liberalize or walk on a request for a home-of-parent
order.
Mother appealed the December 2019 jurisdictional and
dispositional orders. Mother’s appointed counsel filed a brief
stating that there were no arguable issues, and the appeal was
dismissed pursuant to In re Phoenix H. (2009) 47 Cal.4th 835,
838.
IV. Period of Review
In a status review report on June 8, 2020, DCFS reported
that K.R. had been moved from two foster homes, but was placed
with NREFM Ms. M. on December 17, 2019, where she was doing
well. During this period of supervision, mother had maintained
employment, consistently and respectfully communicated with
DCFS, was attentive during visitation with K.R., and had kept
up her mental health treatment. Father had chosen not to
11
participate in reunification. K.R. was meeting developmental
milestones and presented to the CSW as a “happy, curious child.”
Mother tested negative for drugs and alcohol eleven times
between November 2019 and May 2020, and positive three times
for marijuana, with one no-show. With regard to the positive
tests, mother denied using any substances, but stated she had
been in some situations with people smoking marijuana in
abundance. In light of the low levels detected and the other
negative tests, DCFS concluded that mother “does not have a
substance abuse issue at this time.”
Mother’s psychiatrist reported that mother had been
responsible in keeping her appointments, was taking her
medication, and the psychiatrist had no safety concerns with
mother being around K.R. or her capability to care for the child.
Mother had been attending individual therapy since January
2020 and her therapist reported that she was compliant with
appointments and treatment goals. K.R.’s caregivers provided
positive reports regarding mother’s monitored visits with K.R.,
and mother was able to progress to unmonitored overnight
weekend visits, which were going well. Mother was appropriate
and protective of K.R., and communicated respectfully with the
NREFM. The CSW observed a strong bond between mother and
K.R. and reported that mother was attentive and appropriate in
her care. DCFS found the risk of harm to K.R. to be moderate,
and recommended that K.R. return home to mother.
The six-month review hearing was continued due to the
COVID-19 pandemic. In July 2020, the parties stipulated to
waive their appearances at the hearing and agreed to a home-of-
mother order, with family maintenance services for mother.
12
In its status review report on January 21, 2021, DCFS
reported that K.R. remained placed with mother. Mother and
child were doing well and mother had maintained communication
with DCFS and made K.R. available for visits. Mother also
continued to maintain her mental health treatment plan. In
random testing between July and December 2020, mother tested
positive for marijuana nine times, with one negative test and two
no shows. Mother stated that she did not smoke marijuana daily,
but had smoked on occasion during this period of quarantining
due to the pandemic, but only smoked when K.R. was asleep or
supervised by MGM. The CSW opined that mother did not have
a substance abuse issue at this time, noting the generally low and
recently decreasing levels in her system.
DCFS also included a progress letter from mother’s
psychiatrist dated January 6, 2021, reporting that mother had
begun treatment in August 2019 and was consistent with her
appointments and her prescribed medication. In June 2020,
mother’s therapist told DCFS that mother had been “compliant
with appointments and treatment goals” since she began therapy
in January 2020. After that therapist passed away, mother found
a new therapist and began weekly sessions in December 2020.
Mother was also actively participating in a family preservation
program.
During monthly visits with mother and K.R., the CSW
observed mother to be attentive, patient, and strongly bonded to
K.R. DCFS concluded that the risk of harm to K.R. was low and
recommended the court terminate jurisdiction with sole physical
custody to mother.
13
The court held a section 364 review hearing on February 5,
2021, and continued the matter for an update on mother’s
marijuana use.
V. Supplemental and Subsequent Petitions
On February 17, 2021, DCFS filed a section 387
supplemental petition and a section 342 subsequent petition. In
the supplemental petition, DCFS alleged in count s-1 that mother
failed to comply with the court’s orders by failing to take her
prescribed psychotropic medication. On February 12, mother
“demonstrated agitated and erratic behaviors including
hallucinating” while K.R. was in her care; mother was
hospitalized the same day. In the subsequent petition, DCFS
alleged in count b-1 that on February 12, mother placed K.R. in a
detrimental and endangering situation by letting her “run around
a parking lot resulting in vehicles stopping” to avoid striking the
child.
In its detention report, DCFS stated that it had received a
hotline call on February 11 from MGM, reporting that mother
was pregnant, and because of the pregnancy, mother’s
psychiatrist recommended that mother only take half of her
medication. MGM stated that mother was hallucinating and she
was concerned that mother was unstable and manic after failing
to take her medication. MGM also reported that mother was not
sleeping and had been calling family members, crying, in the
middle of the night.
The following day, February 12, sheriff’s deputies
responded to a call at a Home Depot store. The caller reported
that mother was letting K.R. run around the parking lot, with
cars having to stop to avoid hitting the child. Mother and K.R.
also went into the store, where mother was making “random and
14
odd statements,” and was crying at times. The responding CSW
noted that K.R. was not appropriately dressed for cold weather,
with no shirt, socks, or shoes. Mother was taken to the hospital
on a psychiatric hold. K.R. was replaced with her former
caregiver, NREFM Ms. M.
At the detention hearing on February 22, 2021, the court
found a prima facie case that the prior case plan was not
successful in protecting K.R. The court removed K.R. from
mother and ordered monitored visitation. MGM told the court
that as these issues with mother continued, she was concerned
for K.R.’s safety, and that the family preferred if mother could
not reunite with K.R., that the child be adopted by NREFM Ms.
M.
In advance of the next hearing, mother submitted a letter
from her psychiatrist dated March 5, 2021. He reported that
mother stated she was pregnant in February and was therefore
advised to discontinue one of her medications and to lower the
dosage on a second medication. A few weeks later, mother had a
manic episode and was hospitalized. Subsequent testing revealed
that mother was not pregnant. Therefore, she again began
taking three medications. The psychiatrist noted that
“[c]urrently, [mother] seems to be linear and appropriate.”
In its jurisdiction/disposition report, DCFS detailed a
conversation with mother in the hospital on February 24. Mother
stated that she had been pregnant and her psychiatrist told her
to stop taking her psychotropic medication because of the
pregnancy. Mother stated she then had a miscarriage.
Regarding the incident on February 12, she stated that she was
shopping in Home Depot when K.R. had a toileting accident. She
did not have any diapers, so she asked people at the store for
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some. An employee then called 911. Mother claimed that she
explained to the responding officers that everything was fine and
they took her and K.R. home. The next day, she took K.R. to the
hospital for a COVID test, but mother was then hospitalized.
Mother claimed that nothing was wrong with her. In another
interview on March 11, mother again denied her recent mental
health crisis and stated that DCFS had kidnapped her child.
Mother’s therapist reported to DCFS that mother had
missed two appointments in February 2021. DCFS also spoke
with NREFM Ms. M, who explained that she and her mother
were friends with MGM, and that she had watched K.R. at times
after the child was returned to mother in 2020. When asked if
she had any concerns, Ms. M stated that sometimes mother
would drop off K.R. “with nothing for her,” and that mother sent
her “weird text messages out of the blue” a few times. Ms. M.
stated that since mother was released from the hospital, she had
been having Facetime calls with K.R. every other day. According
to Ms. M., K.R. was “a mess” when she arrived, with matted hair,
no shoes, and no shirt. K.R. had been having night terrors and
would scream and cry throughout the night, but the episodes had
become less frequent. Ms. M. expressed a desire to adopt K.R.
and stated that she did not think mother could provide stability
for K.R.
DCFS recommended no further family reunification
services for mother, noting that the prior services had not
alleviated the problems that led to jurisdiction. In a last-minute
information on April 1, 2021, DCFS detailed an interview with
mother’s psychiatrist on March 18, 2021. The psychiatrist stated
that he was not aware of any marijuana use by mother, but that
his general recommendation is to avoid or minimize the use of
16
cannabis while taking psychotropic medication, as certain
combinations could cause negative interactions.
DCFS also spoke to father, who stated that he had cared for
K.R. in Las Vegas shortly after she was born, when mother had
been hospitalized on a psychiatric hold. Father reported that at
the time, mother was abusive to the child, including holding K.R.
“upside down by her ankles,” and locking the baby in a room
while she was crying. Father stated that mother had promised
him that her “episodes” would not happen again, but he felt that
mother could not safely care for K.R. Father acknowledged that
he was currently unable to care for K.R.
In a letter on April 14, 2021, mother’s psychiatrist reported
that mother had started receiving one of her psychotropic
medications by injection while she was hospitalized in February
2021. Mother had received her monthly injection on March 25
and was scheduled for the next dose in late April.
The court held the adjudication hearing on April 15, 2021.
Mother asked the court to dismiss both petitions, arguing that
the allegations that she let K.R. run around a parking lot were
false and that any erratic behavior was an “isolated incident” due
to her discontinuing medications on the advice of her
psychiatrist. She contended that she resumed her medications
once she found out she was no longer pregnant, was working
closely with her psychiatrist, and had stabilized. Counsel for
K.R. asked the court to sustain the petitions, pointing out that
mother was not advised to stop her medication entirely and that
the record did not support mother’s claim that she resumed her
medication as soon as she found out she was not pregnant.
Counsel for DCFS agreed, also pointing out mother’s history of a
17
period of compliance and stability followed by stopping her
medications and putting K.R. at serious risk of harm.
The court sustained count s-1 of the section 387 petition
and count b-1 of the section 342 petition, and found it necessary
to remove K.R. from mother. Noting that “we’re on the third or
fourth go-around of the mother’s psychiatric issues impacting her
ability to parent, as well as some levels of denial regarding her
psychiatric issues and the extent of them,” the court denied
mother’s request for six additional months of reunification
services. The court terminated reunification services for both
parents, ordering monitored visitation for mother. The court set
a section 366.26 permanency planning hearing for August 10,
2021.
DCFS filed an interim review report on June 11, 2021.
K.R. remained placed with Ms. M. and appeared to have
developed a strong bond with her caregiver. Ms. M. remained
committed to adopting K.R.
VI. Termination
DCFS filed a supplemental section 366.26 report on July 6,
2021, reporting that adoption planning with Ms. M. was
proceeding. DCFS recommended termination of parental rights.
DCFS filed a full section 366.26 report on July 20, 2021. K.R.
was meeting all developmental milestones and her daycare
reported that she was “adaptive, happy, and great socially.” Ms.
M. stated that K.R. was sleeping and eating normally and was a
curious and playful child.
The report also included a single, three-line paragraph
regarding mother’s contact with K.R., stating that mother was
present for all scheduled visitation with K.R. and was active in
communicating with the child. The CSW observed a strong bond
18
between mother and child and stated that K.R. was “easily
redirected by mother’s verbal commands and comforted by
mother’s presence.”
Mother filed a section 388 petition (form JV-180) on August
3, 2021. She requested that the court order the resumption of
reunification services for six months. She stated that since the
termination of reunification services in April, she had remained
stable and on her medication, was consistently visiting with her
therapist and doctors, and “with the help of her medication she
remains calm, linear and appropriate in affect.” Mother also
stated that she had tested clean for all substances. She argued
that the request would be in K.R.’s best interest because they had
substantial contact and a strong bond, and K.R. was comforted by
mother.
Along with the petition, mother included a letter dated July
9, 2021 from her psychiatrist, stating that mother had been
keeping her scheduled appointments since March. The
psychiatrist also stated that during her appointments, mother
seemed “calm, linear in thought process, and appropriate in
affect.” Mother continued to receive monthly injections of one
medication and, to the psychiatrist’s understanding, had been
taking the other two medications as directed. The letter also
reported that there had been no known recent exacerbations in
mother’s symptoms and that she reported her mood as stable.
Mother also included a letter dated August 2, 2021, confirming
that she had been consistently attending weekly individual
therapy sessions since April 2021. The therapist stated that
mother had been engaged in her sessions and in completing
assignments, and had “consistently demonstrated a commitment
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to care for her child.” Mother also attached a negative substance
test from July 19, 2021.
The court held a hearing regarding permanency planning
on August 10, 2021. The court first addressed mother’s section
388 petition, stating that it had denied the petition without a
hearing. The court found that the petition had not established a
sufficient change of circumstance or that the request was in
K.R.’s best interests. Specifically, the court found that mother’s
petition showed “changing, not changed, circumstances,” noting
that mother’s “first sessions and the attachments were from June
and July.” In addition, the court stated that there was “no legal
basis to reinstate reunification family services beyond the 18-
month date with a .26 hearing pending.”
Turning to permanency planning, the court noted that it
had reviewed the 366.26 report, including the “very brief” section
on contact with mother, in which DCFS observed that mother
and K.R. had a strong bond. Counsel for mother argued that the
court should apply the parental benefit exception and not
terminate her parental rights. She pointed to the bond between
mother and K.R. and mother’s active participation in visitation
with the child. She also noted that K.R. was living with mother
until February 2021 and clearly still responded to mother as a
parent. K.R.’s counsel also requested that the court not
terminate mother’s parental rights, arguing that mother had a
parental role in K.R.’s life at least until her removal in February,
and that since that point, mother had remained actively engaged
in K.R.’s life. She also noted that mother had been complying
with her mental health requirements since February, and that
the benefits of adoption did not outweigh the continued
relationship with mother.
20
Counsel for DCFS argued that the court should terminate
the rights of both parents. He acknowledged the “close bond”
between mother and K.R., but noted mother’s extensive history of
“severe mental health interfering with her ability to parent” K.R.,
as well as the history with mother’s adult child. He contended
that mother had not shown she was able to comply with her
medication and other mental health interventions for more than
a few months at a time.
The court found that continued jurisdiction was necessary
and that K.R. was adoptable. The court found that mother had
maintained “regular and consistent visitation and contact, which
has conferred a parental role and relationship” with K.R.
However, the court noted that K.R. had only been in mother’s
care for eight of the past 22 months, and her current caretaker,
Ms. M., “has been the primary parent raising this child and
forming that bond for this child . . ., plus there have been issues
around the mother’s mental state while the child has been in
mother’s custody, in terms of the exposure of the child to that.”
The court concluded that the “benefits of adoption
outweighed the benefits of maintaining the parent/child
relationship, and that it would not be detrimental to the child to
sever the parent/child relationship.” The court therefore found
that no exceptions to adoption applied and adoption was in the
best interests of K.R. Accordingly, the court terminated mother’s
and father’s parental rights and set adoption as the permanent
plan.
21
Mother timely appealed from the court’s August 10, 2021
orders.4
VII. ICWA Proceedings
In the initial petition filed in October 2019, DCFS
completed the Indian Child Inquiry Attachment (CWA-010(A)),
checking the box indicating that K.R. “may have Indian
ancestry.” Mother told DCFS at the time that K.R. had
“Blackfoot” ancestry. In the detention report, DCFS explained
4 In subsequent proceedings included in the record on
appeal, DCFS reported that K.R. was removed from Ms. M.’s
home at the caregiver’s request. Ms. M. told DCFS that she was
overwhelmed, mentally unstable, and unable to care for K.R. Ms.
M. also stated that she was concerned K.R. would dislike her if
Ms. M. did not allow her to see mother as much as K.R. wished.
K.R. was placed in a new foster home with Ms. J. on December 9,
2021. Ms. J. reported that mother participated in weekly
telephone calls with K.R. and visited twice; during the visits
mother was appropriate and K.R. enjoyed being around her. K.R.
was reportedly doing well in her foster home, but DCFS
continued to look for a permanent placement for her.
Mother filed a second section 388 petition on February 7,
2022. She asked the court to reinstate her parental rights,
stating that she continued to take her monthly psychotropic
injection, was attending therapy, and had stabilized. She
attached a January 2022 letter from her psychiatrist, confirming
that she had been keeping her appointments since March 2021
and was taking her medications as prescribed. She also attached
a January 2022 letter from her therapist, stating that she had
been attending therapy sessions consistently since April 2021,
and that she engaged in the sessions and practiced the skills
discussed. The record does not contain a ruling on this petition
and mother has not raised it as a basis for error on appeal.
22
that mother had reported that K.R. had “Blackfoot Indian
heritage” but denied being enrolled in a tribe.
At the detention hearing in October 2019, the court asked
MGM (who was present at the hearing) about mother’s statement
that the family had “Blackfoot” ancestry. MGM responded, “I
don’t know anything about that. It could be.” MGM denied that
anyone had ever told her that she or K.R. had any Indian
ancestry. The court ordered DCFS to investigate mother’s claim
and to send ICWA notice to the Blackfeet tribe.5
DCFS provided updated information regarding ICWA in a
last-minute information on November 1, 2019. Father denied
any Native American heritage and stated that he was born in
Jamaica. DCFS reported that MGM had provided additional
information for maternal relatives, including that while she was
not aware of any Native American ancestry on her side, there had
been “talk” that there might be. The following day, maternal
grandfather provided additional information for maternal
relatives, including his parents’ names. He stated that he was
not enrolled in a tribe, but that there might be Cherokee or Creek
tribe ancestry in his family. He could not recall anything further.
DCFS sent notices on October 31, 2019 to the Blackfeet,
Cherokee, and Creek tribes.
5 “We observe that there is frequently confusion between the
Blackfeet tribe, which is federally recognized, and the related
Blackfoot tribe which is found in Canada and thus not entitled to
notice of dependency proceedings. When Blackfoot heritage is
claimed, part of [DCFS’s] duty of inquiry is to clarify whether the
parent is actually claiming Blackfoot or Blackfeet heritage so
that it can discharge its additional duty to notice the relevant
tribes.” (In re L.S. (2014) 230 Cal.App.4th 1183, 1198.)
23
At a hearing on November 1, 2019, MGM, two maternal
aunts, and a maternal cousin were present. The court noted that
mother had indicated possible Blackfeet ancestry. Moreover, in
light of maternal grandfather’s statement regarding possible
ancestry, the court ordered ICWA notice to all Blackfeet,
Cherokee, and Creek tribes.
DCFS provided the court with copies of the notices sent on
October 31, 2019 to numerous tribes, as well as to the Bureau of
Indian Affairs. The notices listed the name, date of birth, and
place of birth for K.R., mother and father, the same information
as well as current addresses for MGM and maternal grandfather,
names and partial information regarding date and place of birth
for all four maternal great-grandmothers and great-grandfathers,
and the names of paternal grandmother and grandfather.
DCFS provided a last-minute information on December 5,
2019 summarizing the ICWA notices sent and responses received.
DCFS received response letters from multiple tribes indicating
that K.R. was not eligible for membership or that she was not an
Indian child according to the tribe. DCFS also noted a few
responses stating that the investigation was pending and a few
tribes that had not yet responded.
At the December 12, 2019 adjudication hearing, the court
reviewed the responses received to the ICWA notices, noting that
several responses still were outstanding. The court found that
ICWA notice was proper and complete and it did not have a
reason to know that K.R. was an Indian child under ICWA. The
court then noted that “for any .26 hearing we would need
responses from those tribes that are still pending.”
All subsequent reports cited the court’s December 2019
finding that ICWA did not apply. DCFS subsequently provided a
24
December 19, 2019 letter from the Blackfeet tribe, stating K.R.
was not eligible for enrollment. There is no information in the
record of any further follow up regarding outstanding notices.
DISCUSSION
I. Denial of Section 388 Petition
Mother contends that the juvenile court erred in summarily
denying her section 388 petition seeking additional reunification
services. She argues that she made a prima facie showing of
changed circumstances based on her commitment to her mental
health treatment, therapy, and testing clean from all substances.
She also argues that continued reunification services were in the
best interest of K.R., given their strong bond. She contends that
the court found otherwise based on a misunderstanding that it
had no ability to extend services once the section 366.26 hearing
had been set. We conclude that the court did not abuse its
discretion in finding that mother had not made a prima facie
showing of changed circumstances. Thus, the court did not err in
denying mother’s petition without a hearing.
A. Legal Principles
Pursuant to section 388, a parent may petition the juvenile
court for modification of any previous order based upon changed
circumstances or new evidence. (In re Alayah J. (2017) 9
Cal.App.5th 469, 478.) A parent may seek relief under section
388 even after the juvenile court has terminated family
reunification services. “After reunification services have been
terminated, it is presumed that continued out-of-home care is in
the child’s best interests. [Citation.] Section 388 allows a parent
to rebut that presumption by demonstrating changed
circumstances that would warrant modification of a prior court
order.” (Ibid.)
25
To obtain modification of an order under section 388, the
parent must demonstrate, by a preponderance of the evidence,
both a change of circumstances or new evidence, and that the
proposed change is in the best interests of the child. (In re
Alayah J., supra, 9 Cal.App.5th at p. 478; In re Mickel O. (2011)
197 Cal.App.4th 586, 615.) In evaluating a section 388 petition,
the juvenile court may consider factors such as “the seriousness
of the reason leading to the child’s removal, the reason the
problem was not resolved, the passage of time since the child’s
removal, the relative strength of the bonds with the child, the
nature of the change of circumstance, and the reason the change
was not made sooner.” (In re Mickel O., supra, 197 Cal.App.4th
at p. 616; see also In re Kimberly F. (1997) 56 Cal.App.4th 519,
530-532.) The analysis is a searching one; the court may consider
the entire factual and procedural history of the case. (In re
Mickel O., supra, 197 Cal.App.4th at p. 616.) “In assessing the
best interests of the child, ‘a primary consideration . . . is the goal
of assuring stability and continuity.’” (Ibid.)
“To support a section 388 petition, the change in
circumstances must be substantial.” (In re Ernesto R. (2014) 230
Cal.App.4th 219, 223.) Moreover, “[o]nce reunification services
are ordered terminated, the focus shifts [from reunification] to
the child’s need for permanency and stability,” and a
presumption arises that “continued care [under the dependency
system] is in the best interest of the child.” (In re Marilyn H.
(1993) 5 Cal.4th 295, 309–310.) After reunification services are
terminated, inquiry into a child’s best interests includes
consideration of his or her need for permanency and stability. (In
re J.C. (2014) 226 Cal.App.4th 503, 526–527.)
26
On receipt of a section 388 petition, the court may either
summarily deny the petition or order a hearing. (In re Lesly G.
(2008)162 Cal.App.4th 904, 912.) Section 388 petitions “are to be
liberally construed in favor of granting a hearing to consider the
parent’s request.” (In re Marilyn H., supra, 5 Cal.4th at p. 309;
see also Cal. Rules of Court, rule 5.570(a).) In order to proceed to
a hearing, the petitioner must make a prima facie showing in his
or her favor. (Cal. Rules of Court, rule 5.570(a); see also In re
Marilyn H., supra, 5 Cal.4th at p. 310.) “‘There are two parts to
the prima facie showing: The parent must demonstrate (1)
[either] a genuine change of circumstances or new evidence, and
. . . (2) [that] revoking the previous order would be in the best
interests of the [child].’” (In re C.J.W. (2007) 157 Cal.App.4th
1075, 1079; see also In re Kimberly F., supra, 56 Cal.App.4th at p.
529; Rules of Court, rule 5.570(d)(1) & (2).) “‘If the liberally
construed allegations of the petition do not show changed
circumstances such that the child’s best interests will be
promoted by the proposed change of order, the dependency court
need not order a hearing.’” (In re C.J.W., supra, at p. 1079; see
also In re Edward H. (1996) 43 Cal.App.4th 584, 592 [“A ‘prima
facie’ showing refers to those facts which will sustain a favorable
decision if the evidence submitted in support of the allegations by
the petitioner is credited.”].)
We review the juvenile court’s summary denial of a section
388 petition for abuse of discretion. (In re C.J.W., supra, 157
Cal.App.4th at p. 1079.) However, to the extent the denial is
based on a mistake of law, our review is de novo. (See In re
Malick T. (2022) 73 Cal.App.5th 1109, 1123 (Malick T.); In re
M.F. (2019) 32 Cal.App.5th 1, 18.)
B. Analysis
27
The juvenile court found that mother failed to meet her
initial burden to show both a genuine change of circumstances
and that it would be in the child’s best interests to reinstate
reunification services. As such, the court concluded mother was
not entitled to an evidentiary hearing on her section 388 petition.
We conclude this was not an abuse of discretion.
Mother contends that she adequately alleged a change in
circumstances based on the evidence that she had been keeping
her appointments with her psychiatrist, was taking her
prescribed medication, regularly attended therapy, and tested
clean for substances, and as a result had remained mentally
stable. The court found that this evidence demonstrated
changing, rather than changed, circumstances. The court noted
that mother’s letters from her psychiatrist and therapist were
written in June and July, just one to two months prior to her
petition in August 2021. Mother’s letter from her psychiatrist,
dated in July, stated that she had been consistent with her
treatment since March, including monthly injections of one
medication, that there had been no known recent exacerbations
in mother’s symptoms, and that she reported her mood as stable.
Similarly, the letter from mother’s therapist confirmed that she
had been attending weekly sessions since April. Mother also
provided a single clean drug test from July 2021. Thus, at most,
mother’s evidence demonstrated five months of consistency with
her mental health treatment. On the other hand, the court was
entitled to consider mother’s history, including multiple instances
where mother had periods of stability that ended when she
stopped taking her medication and keeping her appointments,
resulting in involuntary hospitalization and other unstable
behavior that put K.R. at serious risk of harm. As such, it was
28
not an abuse of discretion for the court to find that mother’s
evidence did not establish a long enough period of stability to
demonstrate a genuine change of circumstances. “A petition
which alleges merely changing circumstances and would mean
delaying the selection of a permanent home for a child to see if a
parent, who has repeatedly failed to reunify with the child, might
be able to reunify at some future point, does not promote stability
for the child or the child’s best interests.” (In re Edward H.,
supra, 43 Cal.App.4th 584, 594.)
Mother’s primary contention on appeal is that the court’s
conclusion that the petition was not in K.R.’s best interest was
premised on a legal error. The juvenile court determined that it
had no legal basis to order additional reunification services, short
of immediately returning the child to mother, once mother had
received 18 months of services and the court had set a
permanency planning hearing under section 366.26. Based on
that understanding, the court concluded that mother’s request
would not be in K.R.’s best interest.
We need not reach this argument. In order to prevail on
her section 388 petition, mother must show both changed
circumstances and that the requested change is in the child’s best
interest. (In re C.J.W., supra, 157 Cal.App.4th at p. 1079; In re
Kimberly F., supra, 56 Cal.App.4th at p. 529.). Here, the court
found that mother did not establish a prima facie case of changed
circumstances. That finding, alone, was sufficient to deny her
section 388 petition.
Mother relies on Malick T., supra, 73 Cal.App.5th 1109, in
support of her argument that the court made a legal error that
29
infected its best interest analysis.6 But in Malick T., the juvenile
court found that the petitioning mother had established changed
circumstances. (Id. at p. 1121.) To the contrary, here, the court
found that mother had not made her prima facie showing of
changed circumstances. We therefore find no error in the
juvenile court’s denial of mother’s petition without a hearing.
II. Termination of Parental Rights
Mother contends the juvenile court erred in terminating
her parental rights because she established the beneficial
parental relationship exception. Specifically, she asserts that it
was undisputed that she regularly visited K.R., had a parental
relationship with her daughter, and that she and K.R. were
strongly bonded. Accordingly, she contends that the court erred
in finding that the benefits of adoption outweighed the detriment
to K.R. from severing her relationship with mother. We agree,
and remand so that the court may consider the parental benefit
exception with the guidance of the standards set forth in Caden
C.
A. Legal Standards
Section 366.26’s express purpose is “to provide stable,
permanent homes” for dependent children. (§ 366.26, subd. (b).)
If the juvenile court ends reunification services, adoption is the
legislative preference. (§ 366.26, subd. (b)(1); see also In re Celine
R. (2003) 31 Cal.4th 45, 53 [“‘Adoption is the Legislature's first
choice because it gives the child the best chance at [a full]
emotional commitment from a responsible caretaker.’”].) Thus,
once the juvenile court finds the child is adoptable, “the court
6 We note that, despite mother’s primary reliance on Malick
T., DCFS did not cite or discuss the case in its respondent’s brief.
30
must order adoption and its necessary consequence, termination
of parental rights,” unless a parent can demonstrate one of the
exceptions set forth in section 366.26 applies. (In re Celine R.,
supra, 31 Cal.4th at p. 53; see also § 366.26, subd. (c)(1); Caden
C., supra, 11 Cal.5th at p. 625.) The specified circumstances in
section 366.26, subdivision (c)(1)(B) are “actually, exceptions to
the general rule that the court must choose adoption where
possible.” (In re Celine R., supra, 31 Cal.4th at p. 53.) They
“merely permit the court, in exceptional circumstances [citation],
to choose an option other than the norm, which remains
adoption.” (Ibid.; see also In re A.L. (2022) 73 Cal.App.5th 1131,
1150.)
The parental benefit exception permits the selection of
another permanent plan where a parent has “maintained regular
visitation and contact with the child and the child would benefit
from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).)
In Caden C., published just a few months before the court’s
decision in this case, our Supreme Court offered a detailed
analysis of the requirements for the parental benefit exception.
First, the parent asserting the exception must show “regular
visitation and contact with the child, taking into account the
extent of visitation permitted.” (Caden C., supra, 11 Cal.5th at p.
636.) This element is “straightforward,” involving an assessment
of whether the parent visits consistently. (Id. at p. 632.)
Second, the parent must show that “the child has a
substantial, positive, emotional attachment to the parent—the
kind of attachment implying that the child would benefit from
continuing the relationship.” (Caden C., supra, 11 Cal.5th at p.
636.) In assessing whether the child would benefit from
continuing the relationship with the parent, “the focus is the
31
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.’” (Id. at p. 632.) Thus, “courts often consider how children
feel about, interact with, look to, or talk about their parents.”
(Ibid.)
For the third element, the parent must show that
terminating the parent-child attachment “would be detrimental
to the child even when balanced against the countervailing
benefit of a new, adoptive home.” (Caden C., supra, 11 Cal.5th at
p. 636.) “Because terminating parental rights eliminates any
legal basis for the parent or child to maintain the relationship,
courts must assume that terminating parental rights terminates
the relationship. [Citations.] What courts need to determine
therefore, is how the child would be affected by losing the
parental relationship—in effect, what life would be like for the
child in an adoptive home without the parent in the child's life.”
(Id. at p. 633.) This evaluation consists of a “subtle, case-specific
inquiry[,]” including consideration of whether “the benefit of
placement in a new, adoptive home” outweighs the harm the
child “would experience from the loss of [a] significant, positive,
emotional relationship” with the parent. (Ibid.) In making this
detriment determination, the juvenile court does “not look to
whether the parent can provide a home for the child,” and “is not
comparing the parent’s attributes as custodial caregiver relative
to those of any potential adoptive parent(s).” (Id. at p. 634.)
Caden C., supra, 11 Cal.5th 614, also clarified the standard
of review applicable to a juvenile court’s findings regarding the
parental-benefit exception. The first two elements—regular
32
visitation and a beneficial relationship—involve determinations
that are essentially factual; we therefore review those findings
for substantial evidence. (Id. at p. 640.) The third element
requires the juvenile court to determine whether any harm the
child would suffer from the severance of the parental bond would
outweigh the benefit to the child of adoption. (Ibid.) This
requires a “hybrid” standard of review. (Id. at pp. 640-641.) Like
the first two elements, the juvenile court must make a series of
factual determinations including determinations about the child’s
relationship with a parent, which we review for substantial
evidence. (Id. at p. 640.) However, “the ultimate decision—
whether termination of parental rights would be detrimental to
the child due to the child’s relationship with his [or her] parent—
is discretionary and properly reviewed for abuse of discretion.”
(Ibid.)
B. Analysis
Mother points to the court’s recognition here that she had a
strong bond with K.R., as well as DCFS’s acknowledgment that
mother’s visits were appropriate and consistent, that K.R.
responded to mother’s direction, and that the child was comforted
by mother’s presence. Indeed, K.R.’s counsel agreed and asked
the court not to terminate her parental rights given the extent of
their bond. As such, she contends that she established the first
two elements of regular visitation and a beneficial relationship.
DCFS does not dispute this point, and we agree that substantial
evidence supports the juvenile court’s finding in mother’s favor as
to the first and second elements of the exception.
Mother argues that under Caden C., the court erred in
finding that she failed to meet the third element, i.e., that
termination of her parental rights would be detrimental to K.R.
33
First, she notes that DCFS provided very few details of her visits
with K.R. to the court, which meant the court could not fully
perform the necessary “subtle, case-specific inquiry” required
under Caden C., including assessment of their bond or the
potential detriment from terminating their relationship. (See
Caden C., supra, 11 Cal.5th at p. 633.) While it was mother’s
burden, not DCFS’s, to establish the beneficial relationship
exception, “in evaluating the record, we cannot overlook the fact
the agency provided very little information in its [ ] reports
during the case about the quality of mother's relationship with
[K.R.] or even the nature of her interactions with [her] during
visitation. . . . [DCFS’s reports] should already have provided
objective, disinterested information about the quality of [K.R.’s]
attachment to [her] mother, which would have assisted the court
in evaluating the beneficial relationship exception when mother
asserted it.” (In re J.D. (2021) 69 Cal.App.5th 594, 860-861; see
also In re Autumn H. (1994) 27 Cal.App.4th 567, 575-576; In re
Brandon C. (1999) 71 Cal.App.4th 1530, 1538.)
Further, mother argues that the court improperly relied on
her mental health issues at the section 366.26 hearing, without
analyzing whether those issues affected her relationship with
K.R. As the Court noted in Caden C., “making a parent’s
continued struggles with the issues leading to dependency,
standing alone, a bar to the exception would effectively write the
exception out of the statute”; on the other hand, a parent’s
struggles may be relevant where those struggles “mean that
interaction between parent and child at least sometimes has a
‘“negative” effect’ on the child.” (Id. at p. 637.) Lastly, mother
argues that the court improperly focused on K.R.’s relationship
with her caregiver, Ms. M., as compared to the bond the child
34
shared with mother. (See id. at p. 634 [“When it weighs whether
termination would be detrimental, the court is not comparing the
parent’s attributes as custodial caregiver relative to those of any
potential adoptive parent(s).”].)
In three sentences, DCFS contends that the court did not
abuse its discretion. It points out that K.R. was 16 months old
when first removed from mother in 2019, and had lived with
mother for eight months of the past 22 at the time of the section
366.26 hearing. DCFS thus concludes that the court’s finding
was not “arbitrary nor capricious.” DCFS therefore failed to
meaningfully address mother’s arguments regarding Caden C. or
offer substantive opposition to mother’s contentions.
From the record before us, we cannot determine whether
the juvenile court conducted a full analysis of the applicability of
the parental relationship exception as articulated in Caden C. In
addition, the court’s assessment at the time was based, at least in
part, on K.R.’s relationship with Ms. M, with whom she is no
longer living. Under these circumstances, we find it prudent to
remand the matter for a new section 366.26 hearing that
conforms to the requirements detailed by the Court in Caden C.
(See, e.g., In re J.D., supra, 70 Cal.App.5th at p. 854 [“‘[W]e
conclude that the juvenile court’s ruling cannot be affirmed on
this record, because we cannot be certain the juvenile court did
not consider factors disapproved of in Caden C.’”]; In re D.P.
(2022) 76 Cal.App.5th 153, 170; In re D.M. (2021) 71 Cal.App.5th
261, 271.). We therefore reverse the order terminating mother’s
parental rights and remand for further proceedings consistent
with this opinion.
III. ICWA Inquiry
35
Mother argues that the court’s finding that ICWA did not
apply is invalid due to DCFS’s failure to discharge its duty of
inquiry into K.R.’s possible Native American heritage. DCFS
responds that any inquiry error was harmless, as DCFS followed
up with notices to all potentially applicable tribes. In light of the
remand of this case, we need not reach the issue of harmlessness.
We direct the court and DCFS to correct any inquiry or notice
errors upon remand.
“In any given case, ICWA applies or not depending on
whether the child who is the subject of the custody proceeding is
an ‘Indian child.’” (In re Abbigail A. (2016) 1 Cal.5th 83, 90.)
Both ICWA and state statutory law define an “Indian child” as a
child who is either a member of an Indian tribe or is eligible for
membership in an Indian tribe and is the biological child of a
member of an Indian tribe. (25 U.S.C. § 1903(4); accord, § 224.1,
subds. (a)-(b).)
Pursuant to ICWA, the juvenile court and DCFS have “an
affirmative and continuing duty to inquire whether a child for
whom a petition under Section 300 . . . may be or has been filed,
is or may be an Indian child.” (§ 224.2, subd. (a); see In re Isaiah
W. (2016) 1 Cal.5th 1, 9, 11-12.) ““The court must also ‘instruct
the parties to inform the court if they subsequently receive
information that provides reason to know the child is an Indian
child.”’” (In re Y.W. (2021) 70 Cal.App.5th 542, 551; see 25 C.F.R.
§ 23.107(a) (2021).)
When a child is placed in the temporary custody of a county
welfare department, the initial duty to inquire “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,
36
whether the child is, or may be, an Indian child and where the
child, the parents, or Indian custodian is domiciled.” (§ 224.2,
subd. (b).) If this initial inquiry creates a “reason to believe” a
child is an Indian child, DCFS is required to “make further
inquiry regarding the possible Indian status of the child, and
shall make that inquiry as soon as practicable.” (§ 224.2, subd.
(e); In re D.S. (2020) 46 Cal.App.5th 1041, 1052.) If the further
inquiry gives DCFS a “‘reason to know’” the child is an Indian
child, then the formal notice requirements set forth in section
224.3 apply. (§§ 224.2, subd. (d), 224.3, subd. (a); In re D.S.,
supra, 46 Cal.App.5th at p. 1052.)
Mother contends that DCFS failed to fulfill its duty of
inquiry. Although DCFS asked mother and her parents for
information regarding their claims of possible Native American
ancestry, mother notes that there is no record that DCFS asked
those individuals whether there were other family members with
more information. Similarly, there is no indication in the record
that DCFS inquired of other maternal relatives, including
maternal aunts and cousins with whom it communicated
throughout the proceedings, regarding their knowledge on the
subject. Mother contends that by failing to interview all
extended family members and others with an interest in the
child, DCFS failed in its duty of inquiry. (§ 224.2, subd. (b); see
In re A.M. (2020) 47 Cal.App.5th 303, 322.) Moreover, DCFS did
not include complete information for maternal relatives on the
ICWA notices, including dates and places of birth for maternal
great-grandparents, which might have been gathered as a result
of further inquiry. Omitting known identifying information for a
child’s ancestors violates state and federal law. (In re Y.W.,
supra, 70 Cal.App.5th at p. 557; see also In re J.S. (2021) 62
37
Cal.App.5th 678, 688 [ICWA notice “‘must include enough
information for the tribe to “conduct a meaningful review of its
records to determine the child’s eligibility for membership”’”].)
DCFS implicitly concedes the error, but argues that it was
harmless. We need not reach the issue of harmlessness, as
DCFS may correct any inquiry or notice errors upon remand. We
also note that to the extent DCFS did not provide additional
follow-up to the outstanding notices, as ordered by the court in
advance of the section 366.26 hearing, it must do so.
DISPOSITION
The order denying mother’s section 388 petition is affirmed.
The order terminating mother’s parental rights is reversed. The
matter is remanded for the juvenile court to conduct a new
section 366.26 hearing in conformity with the principles
articulated in Caden C., supra, 11 Cal.5th 614, and taking into
consideration the family’s current circumstances and any
developments in the dependency proceedings that may have
arisen during the pendency of the appeal. Additionally, the
juvenile court is directed to order DCFS to comply with the
provisions of ICWA and California law consistent with this
opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
CURREY, ACTING, P.J.
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DAUM, J.*
Judge of the Los Angeles County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
39