In re J.C. CA2/7 ( 2021 )

Filed 1/28/21 In re J.C. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re J.C., a Person Coming B301596
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF Super. Ct. No. 17LJJP00091A)
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
DAVID C.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Stephanie M. Davis, Juvenile Court Referee.
Affirmed.
Keiter Appellate Law and Mitchell Keiter for Defendant
and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Acting
Assistant County Counsel, Navid Nakhjavani, Principal Deputy
County Counsel, for Plaintiff and Respondent.
__________________
David C., the father of six-year-old Josiah C., appeals from
the juvenile court’s order terminating his parental rights under
Welfare and Institutions Code section 366.26.1 David contends
the juvenile court abused its discretion in denying his requests
for a continuance of the section 366.26 hearing and for a
contested hearing on the parent-child relationship exception to
the termination of parental rights. David also contends the Los
Angeles County Department of Children and Family Services
(Department) failed to comply with the inquiry requirements of
the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) as
it applies to Josiah’s mother, Karina R. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Dependency Proceedings
1. Original Petition
On October 4, 2017, the Department filed a petition on
behalf of then three-year-old Josiah under section 300,
subdivision (b). In count b-1, the Department alleged that
Karina “has an extensive history of illicit drug abuse, including
amphetamine, and [was] a current abuser of methamphetamine
and heroin, which render [Karina] incapable of providing regular
care and supervision of [Josiah].” The Department further
alleged that Josiah “was a prior dependent of the Juvenile Court
due to [Karina’s] illicit drug use and that the juvenile court had
declared Josiah’s four siblings dependents of the Juvenile Court
and received permanent placement services due to [Karina’s]
illicit drug abuse.” In count b-2, the Department alleged that
1 Undesignated statutory references are to Welfare and
Institutions Code.
2
David “has a history of substance abuse, including marijuana and
alcohol, and is a current abuser of alcohol, which renders [David]
incapable of providing regular care and supervision for [Josiah].”
The Department also alleged that two of Josiah’s siblings
“received permanent placement services due to [David’s]
substance abuse.” In count b-3, the Department alleged that
Karina “left [Josiah] in the care of paternal grandmother, Maria
[C.], without making an appropriate plan for [Josiah’s] ongoing
care and supervision, including [Josiah’s] medical care. [Karina]
previously left [Josiah] with the paternal grandmother without
maintaining contact with the paternal grandmother and without
returning to resume care of [Josiah].” The Department alleged
the parent’s actions endangered Josiah’s physical health and
safety and placed Josiah “at risk of serious physical harm,
damage, and danger.”
At the detention hearing on October 5, 2017, the juvenile
court found a prima facie case for detaining and finding that
Josiah was a person described by section 300. The juvenile court
detained Josiah from David and Karina and placed Josiah with
his paternal grandmother Maria, with whom Josiah had been
living. Karina and David did not attend the hearing. Karina’s
whereabouts were unknown, and David was incarcerated. The
juvenile court ordered the Department to conduct a due diligence
search regarding Karina. The juvenile court continued the
hearing so that David could attend. The juvenile court deferred
making any findings pursuant to ICWA. At the continued
hearing on October 17, 2017, David denied the allegations in the
petition and confirmed he did not have Indian ancestry. The
juvenile court found ICWA did not apply as to David. The
juvenile court deferred making an ICWA finding as to Karina
3
because her whereabouts remained unknown. The juvenile court
scheduled the jurisdiction hearing for November 28, 2017.
2. Prior Dependency Proceedings
The Department’s reports chronicled Karina’s and David’s
history of prior dependency proceedings. In October 2015, based
on Karina’s use of illicit drugs during her pregnancy with Josiah
and David’s history of domestic violence, the juvenile court
declared Josiah a dependent of the court. During this prior
proceeding, David failed to maintain contact with the
Department, while Karina made progress on her case plan. In
October 2015, the juvenile court terminated jurisdiction over
Josiah with a section 362.4 custody order granting Karina sole
legal and physical custody of Josiah and David monitored
visitation.
Between 2009 and 2012, the juvenile court sustained
multiple dependency petitions on behalf of Josiah’s four siblings
based on David’s and Karina’s illicit drug use, emotional abuse,
general neglect and physical violence. Although the Department
provided family reunification services, including programs for
drug rehabilitation and parenting education and individual
counseling to address domestic violence, Karina and David failed
to reunify with the children. After Karina waived her rights for
reunification services regarding one of the four siblings,2 the
juvenile court granted legal guardianship of that sibling to the
maternal grandmother and terminated jurisdiction over that
sibling in April 2010. During the period April 2012 to April 2015,
2 David is not the father of this sibling, but David was
identified as Karina’s “male companion” in the sustained
petitions. David is the father of the other three siblings.
4
the juvenile court terminated David’s and Karina’s parental
rights to the three other siblings, and Cristal C., a paternal aunt,
and her husband Emmanuel R. adopted Josiah’s three siblings.
3. Amended Petition
On November 27, 2017, the Department filed an amended
petition, adding an additional count under section 300,
subdivision (b), and a count under subdivision (j). In these
counts, the Department alleged that David “has a history of
engaging in violent altercations.” In the presence of Josiah’s
siblings, David “physically attacked [Karina]” on different
occasions. In part because of David’s “unresolved history of
engaging in violent altercations,” the juvenile court ordered
permanent placement services for Josiah’s siblings. The
Department further alleged that, in November 2015, based on his
convictions for causing an elder to suffer unjustified physical pain
(Penal Code, § 368, subd. (c)), the criminal court issued a 10-year
restraining order against David protecting Maria and paternal
grandfather Raymond C. On July 24, 2017, the criminal court
found David in contempt of court for willfully and knowingly
violating the restraining order. (Pen. Code, § 166, subd. (c)(1).)
The Department alleged David’s “history of unresolved violence
and [Karina’s] failure to protect” endangered Josiah. According
to the Department, despite the juvenile court’s custody order
under section 362.4 granting Karina sole legal and physical
custody of Josiah and ordering monitored visitation for David,
Karina allowed David to have unmonitored visits with Josiah.
B. Jurisdiction Hearing
At the jurisdiction hearing on November 28, 2017, the
juvenile court dismissed the original petition and deemed filed
5
the amended petition. The juvenile court ordered the
Department to provide David with a written schedule for
monitored visits. The juvenile court continued the jurisdiction
hearing to February 8, 2018. On November 28, 2017, David
signed an agreement in which he agreed to visit Josiah every
Friday from 10:00 a.m. to 12:00 noon, with a Department
approved monitor present.
From November 28, 2017 to the continued jurisdiction
hearing on February 8, 2018, David did not visit Josiah. David
told the Department that he could not visit Josiah “because of his
work schedule.” David also told the Department that “he has not
begun any classes or programs, but does have old certificates
from 2015-2016 that he completed.” David “also mentioned he
was attending AA classes.” The Department reported that
Karina’s whereabouts were unknown. According to Maria, “the
last thing she knows in regards to [Karina] is [she was] in jail
about three times.”
At the jurisdiction hearing on February 8, 2018, the
juvenile court sustained all counts in the amended petition
pursuant to section 300, subdivisions (b) and (j), and declared
Josiah a dependent of the juvenile court. The juvenile court
ordered the Department to submit a report regarding its due
diligence search for Karina. The juvenile court also ordered
Josiah to remain placed with Maria under the Department’s
supervision. The juvenile court scheduled the disposition hearing
for March 22, 2018. After several continuances, the juvenile
court scheduled the disposition hearing for July 30, 2018.
C. Disposition Hearing
1. February 2018 - July 2018
On February 26, 2018, David signed an agreement stating
6
that he would visit Josiah every Monday from 9:00 a.m. to 11:00
a.m. at the Department’s Palmdale office. According to the
Department, from February 2018 through June 2018, David
visited Josiah on three occasions: February 26, April 30, and
May 8, 2018. David canceled four visits and, on 12 occasions,
David did not show up for the visit and failed to cancel the visit.
David told the Department that “he has been really busy
working” and that “sometimes doesn’t have enough money to see
[Josiah].” When David visited with Josiah, the Department
observed that Josiah was excited to see [David], stating, “I love
my dad.” David and Josiah were affectionate and played together
appropriately.
In April 2018, David provided the Department with a
certificate of completion for anger management classes dated
December 2014 and a “Progress Letter” for “domestic
violence/anger management” classes. The most recent
information showed that David started a domestic violence
program on February 2, 2018 and that he completed 10 out of 52
classes. In July 2018, David advised the Department that he
would provide a certificate of completion once he completed the
program, but he did not provide such a certificate. After the
Department asked David when he was available to visit Josiah
on July 11, 2018, David visited Josiah on July 12, 2018. David
apologized for not staying in contact with the Department.
In accordance with section 361.5, subdivisions (10), (11),
and (13), the Department recommended that the juvenile court
not order reunification services for David or Karina and that the
juvenile court schedule a selection and implementation hearing
under section 366.26.
7
2. July 30, 2018 Hearing
At the disposition hearing on July 30, 2018, Josiah’s
counsel submitted on the Department’s recommendation, adding:
“Both Parents in this case have previously failed to reunify with
other siblings and they went into permanent plans. [David],
although he mentions some progress in domestic violence and
some progress in parenting class, it doesn’t really seem like he’s
made much further progress. . . . [David’s] visitation with Josiah
is also not consistent. . . . On quite a few of those visits [David]
was a no-show or he cancelled the visit. Based on that, I am
requesting that the court not offer reunification services and set a
[section 366].26 hearing for Josiah.” The juvenile court denied
family reunification services to Karina and David under section
361.5, subdivisions (b)(10), (11), and (13). In addition, because
Karina’s whereabouts remained unknown, the juvenile court also
denied reunification services for Karina under section 361.5,
subdivision (b)(1).
The juvenile court found: “The few times when [David] has
visited Josiah, they appear to be well bonded. [Josiah] has been
elated to see [David] and he is appropriate with [Josiah]. The
court does note that [David] works a lot of hours; that he’s only
had about three visits since February 7 of this year and he has
been unable to keep in touch with the social worker. [David has]
been able to make progress on programs. The court notes . . .
[David] had completed 10 of 52 domestic violence classes;
however, it doesn’t appear that he has made sufficient progress to
demonstrate to the court that he’s committed to reunifying, so the
court is ordering [no reunification services] to [David].” The
juvenile court ordered David’s monitored visits with Josiah to
continue. David did not attend the hearing. The juvenile court
8
set the selection and implementation hearing (§ 366.26) for
November 27, 2018.
D. Selection and Implementation Hearing
1. August 2018 - October 2019
In December 2018, Karina contacted the Department and
stated that she wanted to visit Josiah. On December 21, 2018,
representing herself, Karina filed a section 388 petition, stating,
“I’m not perfect but I would like to be reunited with [Josiah].”
The juvenile court, without holding a hearing, denied Karina’s
petition on January 2, 2019 because “the request does not state
new evidence or a change of circumstances.” The section 388
petition was Karina’s only filing in the juvenile court.
Maria told the Department that she was not interested in
adopting Josiah. In violation of the restraining order, Maria
allowed David in her home “early in the morning and other
times.” Although the Department reported that David had
“access to Josiah” in Maria’s home, the report did not provide any
specific information. Cristal and Emmanuel, who had adopted
Josiah’s three siblings, were committed to providing Josiah with
a permanent home through adoption. They were “motivated to
adopt [Josiah] to keep the siblings together.” The Department
requested that the juvenile court vacate the existing “do not
remove order” for Josiah’s placement with Maria so that the
Department could place Josiah with Cristal and Emmanuel. On
February 1, 2019, the Department removed Josiah from Maria’s
home and placed him with Cristal and Emmanuel. After the
juvenile court ordered notice by publication for Karina, the
Department published notice of the section 366.26 hearing.
9
2. October 17, 2019 Hearing
After several continuances to allow the Department to
conduct further due diligence regarding Karina and perform
permanency planning, the juvenile court held the selection and
implementation hearing on October 17, 2019. David’s counsel
made an oral request to continue the hearing. Counsel stated:
“[David] has, in the last few moments, advised me and presented
me with various certificates of completion for programs. I’m
asking for a continuance to discuss the viability of a 388 with
[David]. I’m just receiving this information within the last five
minutes. If the court proceeds today, it would be over my
objection.” After the Department’s counsel and Josiah’s counsel
objected to the continuance request, the juvenile court denied
David’s request for a continuance because of the absence of good
cause.
David’s counsel then requested a contested hearing. In
response to the juvenile court’s request for an offer of proof,
David’s counsel stated, “The fact that since being released [from
jail], [David] advised me that . . . he has certificates of
completion. He has completed a parenting program. He’s also
made substantial progress in the domestic violence program. He
indicates to me that the care-taker’s not allowed him to have
visits. . . . He does believe it would be in [Josiah’s] best interest to
grant [David] a contested hearing to show that it would be in
[Josiah’s] best interests to not sever his parental bond with
[Josiah].” Josiah’s counsel responded that David “has not been
visiting” Josiah and that David, “if he wanted to have visits, he
could have contacted the social worker.” The juvenile court
denied the request for a contested section 366.26 because David’s
offer of proof did “not meet the necessary criteria” and failed to
10
discuss the “specific issues” to be addressed at the selection and
implementation hearing.
After finding that continued jurisdiction over Josiah was
necessary because the “conditions continue[d] to exist which
justified jurisdiction under section 300, the juvenile court found
by clear and convincing evidence that Josiah was adoptable.
Finding that no exception to adoption applied and that it would
be detrimental for Josiah to be returned to his parents, the
juvenile court terminated the parental rights of David and
Karina. The juvenile court transferred Josiah’s care, custody,
and control to the Department for adoption planning and
placement. The juvenile court designated Cristal and Emmanuel
as the prospective adoptive parents and ordered adoption as the
permanent plan.
E. Karina’s Possible Indian Ancestry
The Department’s efforts to locate Karina were
unsuccessful. In declarations of due diligence filed on November
17, 2017, March 19, 2018, March 20, 2019, and July 3, 2019, the
Department summarized its efforts to locate Karina. During the
period November 2017 through April 2019, the Department
searched government agency databases, including military,
prison (state and federal), probation/parole, voter registration,
postal service, child support, motor vehicle, and welfare
databases. The Department also conducted internet and social
media searches. Based on its investigation, on multiple
occasions, the Department sent Karina various court documents
via certified mail to at least 15 different street addresses. The
Department also repeatedly called at least nine different phone
numbers and sent communications to several email addresses.
Although Karina provided a mailing address and phone number
11
on her section 388 petition in December 2018, the Department
was unable to contact her using that information.
In reviewing the court files from the prior dependency
proceedings, the Department located a court document from
August 2013 that indicated “[Karina] may have Navajo
[ancestry].” However, according to the court records, when the
court ordered the adoptions of Josiah’s three siblings, the juvenile
court found that ICWA did not apply. During these proceedings,
Karina also “denied” any Indian ancestry.
The Department interviewed paternal family members
David, Maria and Cristal. David stated that Karina did not have
Indian ancestry and that he “didn’t know” any information about
Karina’s relatives. While Maria stated Karina’s children “may
have” Indian ancestry, she had “no further information.” Maria
stated there was no Indian ancestry within her family. Cristal
stated that “she is not a blood relation of [Karina]” and that she
did not have any “information as to Indian [ancestry] for
[Karina].” The Department attempted to contact Karina’s
parents. However, the Department was unsuccessful because it
could not obtain current contact information for them. The
Department’s investigation did not identify any other relatives
for Karina. On the ICWA-030 form, for Karina’s parents and
Karina under “Tribe or band,” the Department stated: “Navajo;
Unknown Location,” and for their “Tribal membership,” the
Department stated: “Unknown.” The Department listed the full
names for Karina’s parents, their dates of birth, and last known
addresses.
On February 28, 2018, the Department sent via certified
mail the ICWA-030 form to, and in March 2018 received certified
mail receipts from, David; the Secretary of the Interior; the
12
Western Regional Director, Bureau of Indian Affairs; the
Southwest Regional Director, Bureau of Indian Affairs; the
Navajo Region, Bureau of Indian Affairs; the Navajo Nation; the
Colorado River Indian Tribes; and the Ramah Navajo Tribe. The
Navajo tribes, the Bureau of Indian Affairs, and the Secretary of
the Interior did not provide further information regarding
Karina’s possible Indian ancestry or whether Josiah was an
Indian child. The Ramah Navajo Tribe stated they did not have
“access to the entire Navajo Nation Census records and therefore
[could] not confirm or deny” if Josiah or his parents were
“enrolled or eligible members of the Navajo Nation.” The Ramah
Navajo Tribe stated that it would forward the notice to the
“Navajo Nation ICWA Office.” In a letter dated March 5, 2018,
the Bureau of Indian Affairs, Navajo Regional Office stated, “The
Notice(s) indicate[ ] that you have properly notified the Navajo
Nation. Each tribe is responsible for determining whom they
enroll.” (Boldface omitted.) In a letter dated March 14, 2018, the
Bureau of Indian Affairs, Western Regional Office advised, “The
Department notified the Navajo Tribes/Nation; therefore, no
action or response is required.” (Boldface and underscoring
omitted.) In a letter dated March 15, 2018, the Bureau of Indian
Affairs, Southwest Regional office stated: “Information indicates
that the child’s tribal affiliation may be Navajo. The Notice
indicates that the Navajo Nation and two affiliated tribes were
notified. Enclosed is contact information for tribes affiliated with
the Navajo Nation. The Bureau of Indian Affairs does not
research or determine tribal enrollment for tribes. No action is
taken.”
After the Department filed all pertinent information at a
May 24, 2018 hearing, the juvenile court found that it “does not
13
have a reason to know that [Josiah] is an Indian Child, as defined
under ICWA, and does not order notice to any tribe or the
[Bureau of Indian Affairs]. Parents are to keep the Department,
their Attorney and the Court aware of any new information
relating to possible ICWA status. ICWA-020, the Parental
Notification of Indian Status is signed and filed.”3
DISCUSSION
A. The Juvenile Court Did Not Abuse Its Discretion in
Denying David’s Request To Continue the Hearing
1. Applicable Law and Standard of Review
The juvenile court has the power to “control all proceedings
during the hearings with a view to the expeditious and effective
ascertainment of the jurisdictional facts and the ascertainment of
all information relative to the present condition and future
welfare of the person upon whose behalf the petition is brought.”
(§ 350, subd. (a)(1); see In re Emily D. (2015) 234 Cal.App.4th
438, 448.) As a general matter, “[c]ontinuances are discouraged
in dependency cases.” (In re Giovanni F. (2010) 184 Cal.App.4th
594, 604; accord, In re Elijah V. (2005) 127 Cal.App.4th 576, 585.)
“[T]he juvenile court has authority to grant brief, necessary
continuances that are not inconsistent with the child’s best
interests, while giving ‘substantial weight to a minor’s need for
prompt resolution of his or her custody status, the need to
3 The Department’s reports stated that July 30, 2018 was the
date on which the juvenile court found that ICWA did not apply.
However, the July 30, 2018 hearing transcript and minute order
did not mention ICWA. A copy of the ICWA-020 form referenced
in the May 24, 2018 minute order is not part of the record. An
ICWA-020 form as to David, signed by David and filed on October
12, 2017, is part of the record.
14
provide children with stable environments, and the damage to a
minor of prolonged temporary placements.’” (In re Abbigail A.
(2016) 1 Cal.5th 83, 95; see § 352, subd. (a)(2) [“[c]ontinuances
shall be granted only upon a showing of good cause and only for
that period of time shown to be necessary by the evidence
presented at the hearing on the motion for the continuance”]; Cal.
Rules of Court, rule 5.550(a)(4) [“[i]n order to obtain a
continuance, written notice with supporting documents must be
filed and served on all parties at least two court days before the
date set for hearing, unless the court finds good cause for hearing
an oral motion”].)
“We review the juvenile court’s denial of a continuance for
abuse of discretion.” (In re D.Y. (2018) 26 Cal.App.5th 1044,
1056; accord, In re Giovanni F., supra, 184 Cal.App.4th 594; In re
Elijah V., supra, 127 Cal.App.4th at p. 585; In re A.B. (2014) 225
Cal.App.4th 1358, 1366.)
2. The Juvenile Court Did Not Abuse Its
Discretion
David argues that the juvenile court erred in denying his
request to continue the section 366.26 hearing so he could
“consider the possibility of filing a section 388 petition.” David
further argues, “If [he] had evidence that could support a section
388 petition, a comparable continuance would not have been
contrary to Josiah’s interest.”
The juvenile court did not abuse its discretion in denying
David’s request for a continuance. David had more than
sufficient opportunity to bring to the juvenile court’s attention
any information bearing on his ability to parent Josiah. After the
Department filed the petition in October 2017, and the court
denied David and Karina reunification services in July 2018, the
15
juvenile court set the section 366.26 hearing for November 2018.
After several continuances, the section 366.26 hearing took place
in October 2019, almost one year later. Despite the passage of
almost two years since the Department filed the petition, David
only raised the “possibility” of filing a section 388 petition at the
section 366.26 hearing. David did not explain why he waited
until moments before the hearing to discuss a section 388 petition
with his counsel. In support of the continuance request, David
also failed to state that he was going to file a section 388 petition,
that he had sufficient evidence to support such a petition, or that
a continuance was consistent with Josiah’s best interests.
David’s possible section 388 petition failed to qualify as good
cause necessary for a continuance.4
Under these circumstances, the juvenile court acted well
within its discretion in denying David’s request for a continuance
of the selection and implementation hearing.
B. The Juvenile Court Did Not Abuse Its Discretion in
Denying David a Contested Hearing
1. Applicable Law and Standard of Review
“The section 366.26 hearing is a critical late stage in a
dependency proceeding. The child has been under juvenile court
jurisdiction for an extended period following the dispositional
order, and the court has held one or more review hearings to
consider a return to parental custody. [Citation.] At the section
366.26 hearing, the focus shifts away from family reunification
and toward the selection and implementation of a permanent
4 David contends he requested a three-day continuance.
However, according to the hearing transcript, David’s counsel did
not specify a length of time for the continuance.
16
plan for the child. [Citation.] . . . If adoption is likely, the court is
required to terminate parental rights, unless specified
circumstances compel a finding that termination would be
detrimental to the child.” (In re S.B. (2009) 46 Cal.4th 529, 532;
see In re Noah G. (2016) 247 Cal.App.4th 1292, 1299
[“‘[w]henever the court finds “that it is likely the child will be
adopted, the court shall terminate parental rights and order the
child placed for adoption.”’”].)
“One exception to adoption is the beneficial parental
relationship exception. This exception is set forth in section
366.26, subdivision (c)(1)(B)(i) which states: ‘[T]he court shall
terminate parental rights unless either of the following applies:
. . . . [¶] (B) The court finds a compelling reason for determining
that termination would be detrimental to the child due to one or
more of the following circumstances: [¶] (i) The parents have
maintained regular visitation and contact with the child and the
child would benefit from continuing the relationship.’” (In re
Noah G., supra, 247 Cal.App.4th at p. 1300.) “Application of the
beneficial parent-child relationship exception consists of a two-
prong analysis. [Citation.] The first prong inquires whether
there has been regular visitation and contact between the parent
and child. [Citation.] The second asks whether there is a
sufficiently strong bond between the parent and child that the
child would suffer detriment from its termination. [Citation.] [¶]
The first prong is quantitative and relatively straightforward,
asking whether visitation occurred regularly and often.
[Citation.] [¶] In contrast, the second prong involves a
qualitative, more nuanced analysis, and cannot be assessed by
merely looking at whether an event, i.e. visitation, occurred.
Rather, the second prong requires a parent to prove that the bond
17
between the parent and child is sufficiently strong that the child
would suffer detriment from its termination. [Citation.] In
applying this exception, the court must take into account
numerous variables, including but not limited to (1) the age of the
child, (2) the portion of the child’s life spent in the parent’s
custody, (3) the “‘positive’” or “‘negative’” effect of interaction
between parent and child, and (4) the child’s unique needs.”
(In re Grace P. (2017) 8 Cal.App.5th 605, 612-613.)
“The [parent] has the burden of proving [his or] her
relationship with the children would outweigh the well-being
they would gain in a permanent home with an adoptive parent.
[Citations.] Evidence of frequent and loving contact is not
enough to establish a beneficial parental relationship.
[Citations.] The [parent] also must show [he or] she occupies a
parental role in the children’s lives.” (In re Noah G., supra, 247
Cal.App.4th at p. 1300; see In re K.P. (2012) 203 Cal.App.4th 614,
621 [“[n]o 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’”]; In re C.F. (2011) 193 Cal.App.4th 549, 557
[“‘[w]here a biological parent . . . is incapable of functioning in
that role, the child should be given every opportunity to bond
with an individual who will assume the role of a parent’”]; In re
Autumn H. (1994) 27 Cal.App.4th 567, 577 [severing the
relationship between the parent and the child was not
“detrimental to [the child] because the relationship was one of
friends, not of parent and child”].)
“Parents can request a contested hearing . . . to present
evidence supporting their claim that an exception to termination
of parental rights exists.” (In re Grace P., supra, 8 Cal.App.5th at
18
p. 611.) “A parent has a right to due process at a section 366.26
hearing resulting in the termination of parental rights, which
includes a meaningful opportunity to be heard, present evidence,
and confront witnesses. However, these procedural rights are
subject to evidentiary principles. . . . Since due process does not
authorize a parent ‘to introduce irrelevant evidence, due process
does not require a court to hold a contested hearing if it is not
convinced the parent will present relevant evidence on the issue
he or she seeks to contest.’ . . . The parent’s offer of proof ‘must be
specific, setting forth the actual evidence to be produced, not
merely the facts or issues to be addressed and argued.’” (Id. at
pp. 611-612; see In re A.G. (2020) 58 Cal.App.5th 973, 1006 [“a
parent asserting an exception to adoption at a 366.26 hearing is
not automatically entitled to a hearing, and the juvenile court
may require him or her to make an offer of proof demonstrating
that the parent will present specific evidence to support the
claimed exception”]; M.T. v. Superior Court (2009) 178
Cal.App.4th 1170, 1180 [offer of proof permissible at section
366.26 hearing because parent had burden to show applicability
of an exception to termination of parental rights]; In re
Thomas R. (2006) 145 Cal.App.4th 726, 732 [“[p]recluding the
parents from exploring and testing the sufficiency of the
Department’s evidence is fundamentally different than requiring
them to describe evidence they will offer to prove a point”]; In re
Tamika T. (2002) 97 Cal.App.4th 1114, 1122 [the “due process
right to present evidence is limited to relevant evidence of
significant probative value to the issue before the court” (italics
omitted)].)
We review the juvenile court’s denial of a contested hearing
for abuse of discretion. (In re Grace P., supra, 8 Cal.App.5th at
19
p. 611; In re A.B. (2014) 230 Cal.App.4th 1420, 1434; Ingrid E. v.
Superior Court (1999) 75 Cal.App.4th 751, 758-759.)
2. The Juvenile Court Did Not Abuse Its
Discretion in Denying a Contested Hearing
David contends the juvenile court abused its discretion by
denying his request for a contested hearing on the application of
the beneficial parental relationship exception under section
366.26, subdivision (c)(1)(B)(i). The Department contends that
David’s “offer of proof was insufficient to warrant a contested
hearing.” The juvenile court reasonably concluded that David’s
offer of proof was deficient.
The juvenile court detained Josiah from David and ordered
David’s visitation with Josiah to be monitored at the
Department’s office. After the criminal court issued a 10-year
restraining order against David protecting Maria in November
2015, David went to jail in part because he violated the
restraining order in July 2017. Nonetheless, David argues that
he “continued to see” Josiah while David “was living” with Maria,
“[t]hough this was not how [David] was supposed to have contact
with Josiah.” However, aside from David’s violations of court
orders, David’s offer of proof failed to mention that he had lived
with Maria and Josiah. Thus, David’s offer of proof did not set
forth actual evidence as to how long David claimed that he lived
with Josiah, how often David saw Josiah given David’s work
schedule, or any other information regarding their time together.
Further, other than several brief references in the Department’s
reports that Maria had allowed David “access to Josiah” in her
home, there was no information regarding David’s contact with
Josiah in Maria’s home. The evidence established that, from
November 28, 2017 to the October 2019 section 366.26 hearing,
20
David visited Josiah four times; with his last visit on July 12,
2018.
In his offer of proof, David did not set forth evidence that
he had maintained regular visitation and contact with Josiah.
Rather, David sought to explain why he had not visited Josiah at
least since February 1, 2019 when the Department removed
Josiah from Maria’s home and placed him with Cristal and
Emmanuel. David did not explain why he was dealing with
Cristal to arrange visits and not following the juvenile court’s
order for monitored visitation at the Department’s office. In July
2019, when the Department reported that David “agreed” to call
the social worker “to schedule his visits,” David did not mention
that there was any impediment to his visitation. Because David
failed to state with specificity the evidence he would produce in a
contested hearing to meet the first requirement of the beneficial
parent-child relationship exception, the juvenile court did not
abuse its discretion in denying David’s request for a contested
hearing. (In re A.G., supra, 58 Cal.App.5th at p. 1010 [“[a]
parent’s failure to set forth specific evidence, especially with a
record negating the parent’s regular visitation of the minor, will
justify the denial of a hearing”]; see In re Breanna S. (2017) 8
Cal.App.5th 636, 647 [juvenile court’s decision may be based on
“any or all of the component determinations” of the beneficial
parent-child relationship]; In re Marcelo B. (2012) 209
Cal.App.4th 635, 643 [‘“[s]pordic visitation is insufficient’”].)
Further, David’s offer of proof did not include evidence on
the strength of his bond with Josiah, the kind of role he assumed
in his life (as a parent, friend, or otherwise), whether Josiah
considered David his father, or how Josiah would suffer if the
juvenile court terminated David’s parental rights. David’s vague
21
and general reference to Josiah’s “best interests” gave no
information about any impact of termination of David’s parental
rights on Josiah. The same is true for the statement that David
had “certificates of completion.” (In re A.G., supra, 58
Cal.App.5th at p. 1006 [“[i]t may be readily concluded that, for
example, an offer of proof containing the assertion of the fact that
the parent had a close parent-child bond with the minor−without
identification of a witness or witnesses who would so testify to
that fact−would not be sufficient”]; see In re Tamika T., supra, 97
Cal.App.4th at p. 1124 [“[t]he offer of proof must be specific,
setting forth the actual evidence to be produced”]; cf. In re
Grace P., supra, 8 Cal.App.5th at p. 614 [father’s offer of proof
was sufficient where he represented that he would testify “about
the positive quality of his visitation, how he parented all three
children during visits,” and how “the children considered him to
be a father figure” and that his daughter would testify “regarding
how she enjoyed visits with [him], saw [him] as a parent, and
would be sad if visitation with [him] ended”].)
Because he had the burden of proving the parent-child
relationship exception applied, David was obligated to state with
specificity the evidence he would produce in a contested hearing.
(In re A.G., supra, 58 Cal.App.5th at p. 996 [“[t]he burden is on
the parent asserting the parental relationship exception to
produce evidence establishing that exception”]; In re Grace P.,
supra, 8 Cal.App.5th at p. 611 [“[i]f the parents have failed to
reunify and the court has found the child likely to be adopted, the
burden shifts to the parents to show exceptional circumstances
exist such that termination would be detrimental to the child”];
In re Breanna S., supra, 8 Cal.App.5th at p. 646 [“[t]he parent
has the burden of proving the statutory exception applies”];
22
In re K.P., supra, 203 Cal.App.4th at p. 621 [same]; see In re
Cristella C. (1992) 6 Cal.App.4th 1363, 1372-1373 [“[u]nder
[section 366.26] there is no requirement that an absence of
benefit from continuing the [parent-child] relationship be proved
as an element of termination”].)
The juvenile court acted within its discretion in denying
David’s request for a contested section 366.26 hearing. (See
generally In re Stephanie M. (1994) 7 Cal.4th 295, 317 [“[i]n any
custody determination, a primary consideration in determining
the child’s best interests is the goal of assuring stability and
continuity”]; In re Marilyn H. (1993) 5 Cal.4th 295, 307 [once
reunification efforts have been found unsuccessful, the court then
must “concentrate its efforts . . . on the child’s placement and
well-being, rather than on a parent’s challenge to a custody
order”]; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 250,
259 [when the child is adoptable and declining to apply one of the
statutory exceptions would not cause detriment to the child, the
decision to terminate parental rights is “‘relatively automatic’”].)
C. Substantial Evidence Supported the Juvenile Court’s
ICWA Findings as to Karina
1. Applicable Law
a. ICWA inquiry requirements
“ICWA established minimum standards for state courts to
follow before removing Indian children from their families and
placing them in foster care or adoptive homes.” (In re D.S. (2020)
46 Cal.App.5th 1041, 1048.) Under ICWA and the California law
implementing it, “‘Indian child’ means any unmarried person who
is under age eighteen and is either (a) 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.
23
§ 1903(4); see § 224.1, subd. (a) [adopting the federal definition];
In re D.S., at p. 1048 [“[a]n ‘Indian child’ is defined in the same
manner [under California law] as under federal law”].)
“ICWA itself does not impose a duty on courts or child
welfare agencies to inquire as to whether a child in a dependency
proceeding is an Indian child. [Citation.] Federal regulations
implementing ICWA, however, require that state courts ‘ask each
participant in an emergency or voluntary or involuntary child-
custody proceeding whether the participant knows or has reason
to know that the child is an Indian child.’ [Citation.] 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 Austin J. (2020) 47
Cal.App.5th 870, 882-883; see 25 C.F.R. § 23.107(a).)
In addition, “ICWA provides that states may provide ‘a
higher standard of protection to the rights of the parent or Indian
custodian of an Indian child than the rights provided under’
ICWA. (25 U.S.C. § 1921.) Under California law, the court and
county child welfare department ‘have an affirmative and
continuing duty to inquire whether a child,’ who is the subject of
a juvenile dependency petition, ‘is or may be an Indian child.’
(§ 224.2, subd. (a); see . . . Cal. Rules of Court, rule 5.481(a).) The
child welfare department’s initial duty of inquiry includes ‘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 and where the child, the parents, or
Indian custodian is domiciled.’ (§ 224.2, subd. (b).)” (In re
Austin J., supra, 47 Cal.App.5th at p. 883; accord, In re T.G.
(2020) 58 Cal.App.5th 275; In re D.F. (2020) 55 Cal.App.5th 558,
24
566; In re D.S., supra, 46 Cal.App.5th at p. 1049.)5
“California law also requires ‘further inquiry regarding the
possible Indian status of the child’ when ‘the court, social worker,
or probation officer has reason to believe that an Indian child is
involved [or, under Cal. Rules of Court, rule 5.481(a)(4), “may be
involved”] in a proceeding. . . . ’ (§ 224.2, subd. (e).”) (In re
Austin J., supra, 47 Cal.App.5th at p. 883.) Former section 224.2,
subdivision (e), which is applicable to this appeal, did not define
“reason to believe.” (In re Austin J., at p. 883 [the “Legislature,
which added the ‘reason to believe’ threshold for making a
further inquiry in 2018, [had] not define[d] the phrase”].)6 “When
5 Effective January 1, 2019, the Legislature repealed sections
224.2 and 224.3 and enacted new versions of those statutes.
(Assem. Bill No. 3176 (2017-2018 Reg. Sess.); Stats. 2018, ch.
833, §§ 5, 7.) Although the juvenile court made the ICWA
findings regarding Karina in May 2018, the law in effect in
October 2019 when the section 366.26 hearings were held applies
to this appeal. (See In re A.M. (2020) 47 Cal.App.5th 303, 321
[“[s]ince Mother is appealing from the findings made at the
September 6, 2019 section 366.26 hearing and not those in 2017
or 2018, the current ICWA statutes apply”]; see also Isaiah W.
(2016) 1 Cal.5th 1, 10 [“Properly understood, Ashlee’s present
appeal does not seek to challenge the juvenile court’s finding of
ICWA’s inapplicability underlying the January 2012 dispositional
order. It instead seeks to challenge the juvenile court’s finding of
ICWA’s inapplicability underlying the April 2013 order
terminating her parental rights”].)
6 The Legislature, however, has since amended section 224.2,
subdivision (e), effective September 18, 2020, to provide a
definition. (Assem. Bill No. 2944 (2019-2020 Reg. Sess.); Stats.
2020, ch. 104, § 15.) As amended, the statute now provides:
“There is reason to believe a child involved in a proceeding is an
Indian child whenever the court, social worker, or probation
25
that [‘reason to believe’] threshold is reached, the requisite
‘further inquiry’ ‘includes: (1) interviewing the parents and
extended family members; (2) contacting the Bureau of Indian
Affairs and State Department of Social Services; and
(3) contacting tribes the child may be affiliated with, and anyone
else, that might have information regarding the child’s
membership or eligibility in a tribe.’” (Ibid.; see § 224.2, subds.
(e)(2)(A)-(C); former § 224.2, subds. (e)(1)-(3).) “Contact with a
tribe shall, at a minimum, include telephone, facsimile, or
electronic mail contact to each tribe’s designated agent for receipt
of notices under” ICWA and “shall include sharing information
identified by the tribe as necessary for the tribe to make a
membership or eligibility determination, as well as information
on the current status of the child and the case.” (§ 224.2,
subd. (e)(2)(C); see former § 224.2, subd. (e)(3)). Notably, “[t]he
sharing of information with tribes at this inquiry stage is distinct
officer has information suggesting that either the parent of the
child or the child is a member or may be eligible for membership
in an Indian tribe. Information suggesting membership or
eligibility for membership includes, but is not limited to,
information that indicates, but does not establish, the existence
of one or more of the grounds for reason to know [that a child is
an Indian child] enumerated in paragraphs (1) to (6), inclusive, of
subdivision (d).” (§ 224.2, subd.(e)(1).) Effective January 1, 2020,
California Rules of Court, rule 5.481(a)(4), now provides: “If the
social worker . . . or petitioner knows or has reason to know or
believe that an Indian child is or may be involved, that person or
entity must make further inquiry as soon as practicable . . . .”
(Emphasis added.) Notwithstanding these amendments, we refer
in our opinion to section 242, subdivision (e), and California
Rules of Court, rule 5.481(a)(4) as they read in October 2019
when the section 366.26 hearing took place.
26
from formal ICWA notice, which requires a ‘reason to
know’―rather than a ‘reason to believe’—that the child is an
Indian child.” (In re D.S., supra, 46 Cal.App.5th at p. 1049.)
b. ICWA notice requirements
“In addition to the inquiry that is required in every
dependency case from the outset and the ‘further inquiry’
required under California law when there is a ‘reason to believe’
an Indian child is [or may be] involved, a third step—notice to
Indian tribes—is required under ICWA and California law if and
when ‘the court knows or has reason to know that an Indian child
is involved.’” (In re Austin J., supra, 47 Cal.App.5th at pp. 883-
884; see 25 U.S.C. § 1912(a); § 224.3, subd. (a); Cal. Rules of
Court, rule 5.481(b)(1); see also In re D.S., supra, 46 Cal.App.5th
at p. 1050 [“If the inquiry establishes a reason to know an Indian
child is involved, notice must be provided to the pertinent
tribes.”].)
A “‘reason to know’ exists under any of the following
circumstances: ‘(1) A person having an interest in the child,
including the child, an officer of the court, a tribe, an Indian
organization, a public or private agency, or a member of the
child’s extended family informs the court that the child is an
Indian child[;] [¶] (2) The residence or domicile of the child, the
child’s parents, or Indian custodian is on a reservation or in an
Alaska Native village[;] [¶] (3) Any participant in the proceeding,
officer of the court, Indian tribe, Indian organization, or agency
informs the court that it has discovered information indicating
that the child is an Indian child[;] [¶] (4) The child who is the
subject of the proceeding gives the court reason to know [he or
she] is an Indian child[;] [¶] (5) The court is informed that the
child is or has been a ward of a tribal court[;] and [¶] (6) The
27
court is informed that either parent or the child possess an
identification card indicating membership or citizenship in an
Indian tribe.’ (§ 224.2, subd. (d).)” (In re D.S., supra,
46 Cal.App.5th at pp. 1049-1050.)
Notice to a tribe “must include enough information for the
tribe to ‘conduct a meaningful review of its records to determine
the child’s eligibility for membership.’” (In re D.S., supra, 46
Cal.App.5th at p. 1050; see In re Cheyanne F. (2008) 164
Cal.App.4th 571, 576 [“[t]he purpose of the ICWA notice
provisions is to enable the tribe or the [Bureau of Indian Affairs]
to investigate and determine whether the child is in fact an
Indian child”].) This includes providing “identifying information
for the child’s biological parents, grandparents, and great-
grandparents, to the extent known.” (In re D.S., at p. 1050; see
§ 224.3, subd. (a)(5)(C).) “A determination by an Indian tribe that
a child is or is not a member of, or eligible for membership in,
that tribe . . . shall be conclusive.” (§ 224.2, subd. (h).)
To summarize: An initial “duty of inquiry applies to every
‘child for whom a petition under Section 300, 601, or 602 may be
or has been filed’ (§ 224.2, subd. (a)),” the “duty of further inquiry
applies when there is a ‘reason to believe that an Indian child is
involved [or, under Cal. Rules of Court, rule 5.481(a)(4), “may be
involved”] in a proceeding’ (§ 224.2, subd. (e)),” and “the duty to
provide notice to Indian tribes applies only when one knows or
has a ‘reason to know . . . an Indian child is involved.’” (In re
Austin J., supra, 47 Cal.App.5th at p. 884; see In re M.W. (2020)
49 Cal.App.5th 1034, 1047 [“a ‘reason to believe’ the minor is an
Indian child triggers requirements less rigorous than does a
‘reason to know’”].)
28
2. Standard of Review
Where, as here, the juvenile court finds ICWA does not
apply to a child,7 “[t]he finding implies that . . . social workers
and the court did not know or have a reason to know the children
were Indian children and that social workers had fulfilled their
duty of inquiry.” (In re Austin J., supra, 47 Cal.App.5th at p. 885;
see In re D.S., supra, 46 Cal.App.5th at p. 1050 [“[t]he juvenile
court may . . . make a finding that ICWA does not apply because
the Agency’s further inquiry and due diligence was ‘proper and
adequate’ but no ‘reason to know’ whether the child is an Indian
child was discovered”].) “We review a court’s ICWA findings for
substantial evidence. [Citations.] ‘We must uphold the court’s
orders and findings if any substantial evidence, contradicted or
uncontradicted, supports them, and we resolve all conflicts in
favor of affirmance.’” (In re Austin J., at p. 885.) The appellant
“‘has the burden to show that the evidence was not sufficient to
support the findings and orders.’” (Ibid.)
3. Substantial Evidence Supported the Juvenile
Court’s ICWA Finding
David argues, “Despite the duty of continuing inquiry, [the
Department] did not inquire about [Karina’s] ancestry” when
Karina “appeared” to file her section 388 petition. David also
argues that the “[Department] continued to cite the [incorrect]
July [2018] hearing as resolving the issue.”
7 We construe the juvenile court’s finding at the May 2018
hearing it did “not have a reason to know” Josiah was an Indian
child as a finding ICWA did not apply. (See In re D.S., supra, 46
Cal.App.5th at p. 1050.)
29
David’s argument that the Department failed to inquire
when Karina appeared to file the section 388 petition in
December 2018 is incorrect. The Department’s due diligence
efforts included inquiry regarding the address and telephone
number Karina listed on her section 388 petition. The
Department spoke with the mother of Karina’s former boyfriend,
who resided at the address Karina provided. The former
boyfriend’s mother stated that, when Karina and her son
“separated[, Karina] moved out of her house and has not been
back since.” In addition, the Department twice called the
telephone number Karina listed on her section 388 petition and
left voicemail messages “requesting a call back.” Further,
although David characterizes Karina as “appear[ing]” when she
filed her petition, there was no appearance because the juvenile
court denied Karina’s petition without a hearing. Karina did not
attend a hearing in court. David fails to identify what else the
Department could have done to locate Karina or further
investigate her possible Indian ancestry.
During its investigation, the Department located a
document from the prior dependency proceedings indicating that
Karina “may have Navajo [ancestry],” and Maria told the
Department that Karina’s “children may have Indian [ancestry].”
To the extent that this information constituted “reason to believe
that an Indian child is [or may be] involved,” the Department
conducted an adequate and proper “further inquiry” under
section 224.2, subdivision (e). (See In re T.G., supra, 58
Cal.App.5th at p. 295 [“[a]dditional investigation may not develop
further information establishing the need for ICWA notice, but it
is essential to the enforcement of the court’s and child protective
agency’s ‘affirmative and continuing duty to inquire’ to construe
30
broadly the duty to make further inquiry]; In re M.W., supra, 49
Cal.App.5th at p. 1044 [father’s statement he may have Indian
ancestry even though he could not identify the tribe, “trigger[ed]
the provisions of section 224.2, subdivision (e), which required
the court and the Department to make further inquiry as soon as
practicable”]; In re D.S., supra, 46 Cal.App.5th at p. 1052 [aunt’s
statement of possible Indian ancestry established a reason to
believe the child was an Indian child and triggered a duty of
further inquiry].)
In addition to its extensive search for Karina, the
Department attempted to contact Karina’s parents using their
last known contact information and searched databases for
updated contact information. Despite its efforts, the Department
could not locate Karina’s relatives. The Department also
interviewed David, and Cristal, who adopted three of Karina’s
children. David stated that Karina did not have Indian ancestry.
Cristal had no relevant information. In accordance with section
224.2, subdivision (e), the Department sent the ICWA-030 form
via certified mail to three Navajo tribes, three Regional Directors
of the Bureau of Indian Affairs, and the Secretary of the Interior,
none responded that Karina had Indian ancestry or that Josiah
was an Indian child. The Department also learned that Karina,
in the prior dependency proceedings involving Josiah’s siblings,
denied she had Indian ancestry, and the juvenile court found
ICWA did not apply. In addition to reporting the results of its
investigation to the juvenile court, the Department filed the
notices, the receipts of notice and the responsive letters in court
before the juvenile court made its May 2018 ICWA determination
31
as to Karina.8 To the extent required, the Department conducted
an adequate and proper “further inquiry” under section 224.2,
subdivision (e). (See In re D.F., supra, 55 Cal.App.5th at p. 570
[“[b]ased on the record before us, we find [the Department] made
a good faith effort to gather information about the children’s
membership status or eligibility. [The Department’s] inquiry
obligation is ‘not an absolute duty to ascertain or refute Native
American ancestry’”]; In re D.S., supra, 46 Cal.App.5th at p. 1054
[“the Agency followed the proper procedures in conducting its
further inquiry, but the limited information provided by Aunt
was too attenuated for the Agency to do anything further”].)
Substantial evidence supported the juvenile court’s findings
that there was “no reason to know” that Josiah was an Indian
child and that ICWA did not apply. (In re D.F., supra, 55
Cal.App.5th at pp. 571-572 [“DCFS’s further inquiry did not
result in a reason to know the children are Indian children. We
conclude the court’s finding that ICWA does not apply to the
children is supported by substantial evidence”]; In re M.W.,
supra, 49 Cal.App.5th at p. 1048 [“[t]he Department satisfied the
criteria set forth in section 224.2, subdivision (e) and the juvenile
court’s finding that, based on the evidence provided, there was no
reason to know the minor was an Indian child and no further
noticing was required, and its determination that the ICWA did
not apply were supported by substantial evidence”].)
8 The Department’s incorrect references in its reports that
the juvenile court made this finding in July 2018 were irrelevant
because the juvenile court had the results of the Department’s
ICWA investigation at the May 2018 hearing.
32
DISPOSITION
The juvenile court’s October 17, 2019 order is affirmed.
DILLON, J.*
We concur:
PERLUSS, P. J.
SEGAL, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
33