In re E.C. CA2/4 ( 2023 )

Filed 5/3/23 In re E.C. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re E.C., a Person Coming B319257
Under the Juvenile Court
Law. (Los Angeles County
Super. Ct. Nos.
20CCJP00584
20CCJP00584A)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and
Respondent,
v.
J. C.,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Gabriela H. Shapiro, Judge Pro Tempore.
Affirmed.
Linda S. Rehm, under appointment by the Court of Appeal,
for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, Kimberly Roura, Deputy County
Counsel, for Plaintiff and Respondent.
INTRODUCTION
Mother J.C. appeals from the juvenile court’s order
terminating her parental rights over her son, E., following a
hearing pursuant to Welfare and Institutions Code section
366.26.1 She argues 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 find no error.
The juvenile court also held that the Indian Child Welfare
Act (25 U.S.C. § 1901 et seq.) (ICWA) did not apply. Mother
contends this holding was predicated upon a defective ICWA
inquiry by the Los Angeles County Department of Children and
Family Services (DCFS). We agree with mother that DCFS failed
to conduct an appropriate inquiry into E.’s possible Native
American heritage. We agree with DCFS, however, that the
error was harmless. We accordingly affirm.
BACKGROUND
I. Referral and Petition
E. was born in 2019; he lived with mother prior to the
proceedings at issue. On January 25, 2020, DCFS received a
referral after an altercation between mother and maternal
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2
grandmother (grandmother). Grandmother called law
enforcement to report that mother was extremely intoxicated and
unable to care for E. Mother asked grandmother to pick up E.,
but when grandmother arrived, mother became upset and began
punching grandmother in the head as grandmother was holding
E. (then 10 months old). After grandmother got into her car with
E., mother began punching the driver’s side window, breaking
the glass. Grandmother took E. to a neighbor’s house, then
returned to try to calm mother down, but the physical altercation
continued. The responding sheriff’s deputy told DCFS that
mother appeared extremely intoxicated based on her appearance
and behavior. Mother was taken to the hospital for treatment of
injuries and then arrested for child endangerment.
According to the sheriff’s report from the incident,
grandmother stated that mother “is an alcoholic and often places
her child in dangerous situations.” Grandmother also reported
that mother always became aggressive when she drank and
previously assaulted someone while in E.’s presence. Mother told
the responding sheriff’s deputy that she punched grandmother
“because she is stupid,” and “always calls the cops on me.”
Grandmother told DCFS that mother was previously
arrested in April 2019. At that time, mother and E. were living
with grandmother, and mother and grandmother got into an
argument after mother brought E. home while she was
intoxicated. The argument escalated to a physical altercation
between mother and grandmother, and mother was arrested.
Since then, mother and E. had been living nearby, and
grandmother frequently babysat E. Grandmother also described
an incident in October 2019 when mother arrived intoxicated to
pick up E. and then became physically aggressive toward
3
grandmother. After that incident, grandmother obtained a
restraining order against mother.
A DCFS children’s social worker (CSW) spoke with mother,
who stated that she knew E.’s father only as “Al” and had not had
contact with him after she learned she was pregnant.2 Mother
stated that following her arrest in April 2019, she completed all
her court-ordered programs and her criminal case was
subsequently closed. Mother acknowledged relapsing and
consuming alcohol in October 2019. She also admitted
consuming alcohol the day of the current incident, stating that
she drank alcohol while she and E. were guests at a wedding,
then drank more alcohol after they returned home. She denied
abuse of any other substances. She acknowledged arguing with
grandmother but denied punching grandmother or the car
window.
DCFS detained E. from mother pursuant to an expedited
removal order on January 28, 2020, and placed him with
maternal great-grandfather (GGF).
On January 30, 2020, DCFS filed a dependency petition on
behalf of E. under section 300, subdivisions (a) and (b)(1).3 In
2 E.’s father never appeared in the proceedings below and is
not a party to this appeal.
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: . . . [¶] (a) The child has suffered, or
there is a substantial risk that the child will suffer, serious
physical harm inflicted nonaccidentally upon the child by the
child’s parent. . . . [¶] (b)(1) The child has suffered, or there is a
substantial risk that the child will suffer, serious physical harm
4
counts a-1 and b-1, the petition alleged that on January 25, 2020,
mother engaged in a violent altercation with grandmother, in
which mother repeatedly struck grandmother while grandmother
was holding E. and then shattered a window of grandmother’s
car, while grandmother and E. were inside the car. As a result,
mother was arrested for child endangerment and vandalism. The
petition also alleged that mother had engaged in a violent
altercation with grandmother on a prior occasion. Count b-2
alleged that mother had a history of substance abuse and was a
current abuser of alcohol, rendering her incapable of caring for E.
The petition alleged that mother was under the influence of
alcohol while caring for E. on January 25, 2020 and on prior
occasions.
In the Indian Child Inquiry Attachment (ICWA-010(A)),
DCFS reported that it questioned mother and she denied any
known Indian ancestry for E. At the time of the petition, the
identity of father was unknown. In the detention report, DCFS
stated that mother denied Indian ancestry in her family and
denied any knowledge of such ancestry by father.
Mother completed a Parental Notification of Indian Status
form (ICWA-020) for E. on January 31, 2020. She checked the box
stating, “I have no Indian ancestry as far as I know.”
At the January 31, 2020 detention hearing, the court found
a prima facie case for jurisdiction over E. under section 300.
Mother told the court she had no way of locating father. The
court ordered monitored visitation for mother. The court also
found that it had no reason to know E. was an Indian child
within the meaning of ICWA.
or illness, as a result of the failure or inability of his or her parent
. . . to adequately supervise or protect the child.”
5
II. Adjudication and disposition
In its jurisdiction/disposition report, DCFS reported that it
had been unable to locate father. DCFS also reported that
mother had been arrested in September 2014 for public
intoxication after she started yelling and acting aggressively at a
fast-food restaurant.
In an interview with DCFS, mother admitted that she “took
a couple of shots” on the day of the January 2020 incident and did
not remember everything that happened. However, mother
insisted that she would not have hit grandmother while she was
holding E. Mother also stated that she hit the car window with
her phone and cracked the glass but did not shatter it, and that
E. “was fine” and grandmother should not have called the police.
Mother acknowledged having a problem with alcohol, stating that
drinking “makes me a very angry person.”
DCFS reported that E. was doing well in the home of GGF
and maternal step-great grandmother (GGM), who were
providing a “loving, nurturing and safe home environment.”
Mother visited E. three times per week and called him daily.
GGM reported that E. enjoyed his visits with mother. Mother
told DCFS that she wanted to reunify with E.; GGF and GGM
stated they were willing to adopt E. if mother could not reunify.
Mother enrolled in an outpatient substance abuse program
and a parenting program in February 2020. She was also
convicted of criminal charges stemming from the January 2020
incident; her sentence included 52 weeks of domestic violence and
parenting programs. The criminal court also issued a three-year
protective order for E. forbidding contact by mother, except for
court-ordered visitation.
6
Mother again denied having any Native American heritage
when questioned by DCFS in February 2020. She stated that
father told her he was from Central America and she had no
knowledge of any Native American heritage on his side.
At the adjudication hearing on March 12, 2020, the court
sustained counts b-1 and b-2 of the petition and found
jurisdiction over E. under section 300, subdivision (b)(1). The
court also found a sufficient factual basis for count a-1, but
dismissed that count in the interest of justice. The court found by
clear and convincing evidence that it was reasonable and
necessary to remove E. from his parents and that DCFS made
reasonable efforts to prevent removal. The court granted mother
monitored visitation three times per week. Mother’s court-
ordered case plan included parenting and domestic violence
programs, individual counseling, a full drug and alcohol program,
a 12-step program, and weekly substance testing. The court also
made the continued finding that there was no reason to know E.
was an Indian child under ICWA.
III. Period of Review
In an August 2020 status review report, DCFS reported
that E. had adjusted well to living with his great-grandparents,
and appeared comfortable with both GGF and GGM. Mother had
not completed any of the court-ordered programs. She was
participating in a drug/alcohol program, 12-step program,
parenting program, individual counseling, and was seeing a
psychiatrist, who had diagnosed her with major depressive
disorder and prescribed medication. However, mother had
missed multiple sessions of her 12-step meetings and her
parenting program. She had not begun a domestic violence
program and was not drug or alcohol testing. Mother stated that
7
she was not testing because of concerns about exposure to the
COVID-19 virus. Mother agreed repeatedly to start testing in
June, July, and August, 2020, but had not done so. A CSW spoke
to an unspecified maternal relative in August 2020, who reported
that mother continued to drink alcohol every time they saw each
other.
Mother continued to have three visits with E. per week,
monitored by GGM. GGM reported that mother was appropriate
during visits and would play with E., change his diaper, help him
fall asleep for his nap, and feed him. The CSW observed these
same interactions between mother and E. and noted that E.
seemed comfortable with mother. DCFS opined that E. remained
at very high risk of harm if returned to mother, given her history
of violent conduct while under the influence of alcohol, her failure
to test for substances, her inconsistency in attending her court-
ordered programs, and the report that she continued to drink.
DCFS therefore recommended terminating mother’s reunification
services.
In a last-minute information filed October 21, 2020, DCFS
reported three negative drug and alcohol tests through mother’s
substance abuse program in April, May, and September.
However, mother’s substance abuse counselor told DCFS that
mother did not test in June, July, or August and that she could
not complete the program because she was inconsistent with
testing. The counselor stated that mother did not understand the
severity of the consequences for her refusal to test through DCFS.
At a meeting on October 1, mother told DCFS that her goal was
to begin drug and alcohol testing through DCFS. However, on
October 23, mother stated that she planned to wait until after the
8
review hearing to do so. DCFS continued to recommend
termination of mother’s services.
At the next review hearing in October 2020, the court found
that mother had not made substantial progress toward
alleviating or mitigating the circumstances necessitating
placement. Over DCFS’s objection, the court continued
reunification services for mother.
DCFS reported in March 2021 that E. continued to do well
in the care of great-grandparents. A CSW observed that E.
appeared bonded to them, as he “seeks comfort” from GGM and
played with GGF. E. was diagnosed with fetal alcohol spectrum
disorder based on prenatal alcohol exposure and had “significant
speech delays.”
Mother continued to participate in a domestic violence
program, and she told DCFS that she had learned from her
program that the way she spoke to great-grandparents was
“aggressive,” and that she was the perpetrator and not the
victim. As of March 2021, mother had completed a parenting
program and a three-month substance abuse program, the latter
of which took her almost one year to complete. Mother enrolled
in an aftercare program following completion of her substance
abuse program, but attended only one group meeting. Mother’s
substance abuse counselor stated that mother enrolled into an
inpatient program in March 2021, which would better assist
mother. Mother told GGF that she was enrolling in an inpatient
program because she had “fucked up.”
The CSW reminded mother of the importance of testing,
which mother stated she understood. However, mother failed to
appear for testing between August 2020 and March 2021, except
for a single positive test for marijuana in January 2021.
9
Mother continued to visit E. three times per week,
monitored by GGM. GGM reported that mother was appropriate
and played with E. and fed him. The CSW observed mother
during a virtual visit, noting that E. smiled when he saw mother
and smiled and laughed when mother interacted with him.
During two in-person visits, the CSW observed mother play with
E. and feed him. Mother appropriately redirected E., consistently
spoke with the child, and told him how much she loved him. In
the status review report, DCFS concluded that it would be
detrimental to return E. to mother’s care, noting that mother had
previously completed a substance abuse program but relapsed
shortly afterward. DCFS also noted mother’s failure to test and
complete her required programs, and her continued lashing out
at great-grandparents.
DCFS filed several last-minute information reports
between June and August 2021, providing updates to the court
but maintaining its recommendation to terminate mother’s
services. Mother enrolled in an inpatient substance abuse
program in March 2021, but left early on May 3, 2021. Mother
told DCFS that she left the program because she was harassed by
a male patient. A few days later, mother called the CSW and
began speaking rapidly, then slowly, and slurred a few words.
Mother denied drinking, stating that she was just angry. The
same day, the CSW spoke with mother’s therapist, who said
mother reported to him that she recently drank alcohol.
The program counselor at mother’s inpatient program told
DCFS that mother was put on “refocus” in the program after
having a romantic relationship with a resident in violation of the
rules, displaying anger toward staff and residents and
responding in an aggressive tone. The counselor stated that
10
mother was “aggressive, impulsive, rude, disrespectful,” there
was “no getting through to her,” she tried to manipulate
situations, and did not take accountability for her actions. The
counselor stated that she was concerned because mother’s mood
constantly shifted. Mother asked the counselor only to provide
positive information to DCFS and not to report that mother had a
positive test for cocaine, THC, and alcohol on March 15, 2021, the
day mother had enrolled in the program. Progress letters from
the program stated that mother displayed anger toward staff and
residents and responded aggressively, and that mother was given
several opportunities to address her behavior but “chose to leave
treatment” prematurely. The program advised that it was in
mother’s best interest to reenter a treatment program.
Mother denied that she left the inpatient program because
of the rules violations reported by the program. She admitted
drinking alcohol prior to the positive drug test but did not recall
using any other substances. Mother admitted using Xanax twice
in May although it was not prescribed to her, stating, “who cares.
I wasn’t with my son.” Mother had five missed tests and five
negative drug and alcohol tests between March and May, 2021.
Mother enrolled in a sober living program in early May
2021 but was discharged on June 25, 2021. Mother’s substance
abuse counselor reported that mother did not attend many group
or 12-step meetings while in the program. She also told DCFS
that mother could not reenroll without first completing an
inpatient program, due to the number of times mother had
enrolled and left the program. Mother also arrived to sessions a
few times under the influence of alcohol and was absent from her
last two domestic violence program sessions. Mother’s therapist
during this period stated that she “did okay” in sessions but
11
needed to work on her addiction. He also reported one instance
when mother called him while intoxicated.
The manager for mother’s sober living house stated that
mother had been terminated due to her drinking. Mother had
begun to arrive home visibly intoxicated but would pretend she
was sober. The manager stated that mother should return to an
inpatient program and that she was “not ready to be sober.”
Grandmother told DCFS that on May 3, she had received a
call from a liquor store employee that mother was drunk and
needed to be picked up. On June 11, grandmother reported that
mother arrived at her home one night unannounced and
intoxicated. Grandmother refused to come out and mother began
yelling and calling her a “bitch.” When mother refused to leave,
grandmother called the police and mother was arrested for
violating her domestic violence restraining order. On June 24,
mother arrived for a visit with E. carrying a bag containing two
cans of alcoholic beverages. Mother claimed they were energy
drinks. DCFS noted that mother had been testing clean but it
was evident that she continued to drink.
Mother admitted to DCFS that she was intoxicated during
an argument she had with grandmother on July 6, 2021. Mother
reported that she was not taking her prescribed psychiatric
medication because she did not like how it made her feel, and was
using marijuana instead. On July 8, grandmother reported that
mother had been repeatedly calling and threatening her, stating
“I’m going to go to your work and fuck you up!”
Mother enrolled in a new inpatient program in July 2021.
On July 22, great-grandparents reported that mother had been
inconsistent with visits, cancelling or only attending for an hour
or 90 minutes instead of the allotted three hours. GGM reported
12
that during one visit, mother began to argue while on the phone
with grandmother. GGM also reported that mother was slurring
once when she called to speak to E. Mother failed to attend
scheduled substance testing on seven occasions in June and July.
At the review hearing on August 5, 2021, counsel for DCFS
argued that mother had done “essentially nothing” and had not
addressed her issues. E.’s counsel joined DCFS’s request to
terminate mother’s services. Mother’s counsel acknowledged
mother’s continued issues with sobriety but noted that mother
was currently in an inpatient program and was asking for more
time due to her bond with the child.
The court found mother had been “given an opportunity,”
but while in her program, “she jeopardized her sobriety and the
sobriety of others by coming back to the sober living home
repeatedly” under the influence of alcohol, and also noted that
mother was not testing on a regular basis. The court found that
continued jurisdiction was necessary, it would be detrimental to
E. to return him to mother, and that mother had not made
substantial progress toward alleviating or mitigating the
circumstances necessitating placement. The court terminated
reunification services for mother, designated adoption as the
permanent plan, and set the matter for a permanency planning
hearing.
IV. Termination of Parental Rights
DCFS filed a section 366.26 report in November 2021.
DCFS reported that E. was happy, active, and developing well
emotionally and cognitively. Great-grandparents were caring for
E. well and were committed to adopting him.
Mother filed a section 388 request to change court order
(form JV-180) on December 8, 2021. She requested that the court
13
reinstate her reunification services and grant her unmonitored
visits. She stated that she had completed a full drug and alcohol
program, a 52-week parenting program, a 52-week domestic
violence program, anger management classes, and individual
therapy. Mother further stated that the requested change would
benefit E. because he was bonded to mother, and reunification
services would allow the court to “monitor mother’s sobriety and
stability.” She attached certificates of completion for parenting,
domestic violence, and anger management programs, and a
certificate for completion of 43 days of residential treatment, all
dated August 2021.
The court set mother’s section 388 petition for a hearing in
February 2022. In a January 2022 status review report, DCFS
noted that the case had recently been reassigned to a new CSW
because the prior CSW had been on leave since December 2021.
E. continued to do well with great-grandparents and to have
monitored visits with mother. DCFS reported that great-
grandparents provided a nurturing and loving home and that E.
appeared well-bonded to them. E. referred to his great-
grandparents as “mom” and “dad.” DCFS also noted that E. was
“exhibiting oppositional behaviors,” and referred him to mental
health services.
In October 2021, the prior CSW reported that during an
earlier visit, mother raised her voice at E. for spilling a drink.
The CSW also reported prior occasions where mother called E. a
“chicken” several times when E. was scared and called E. a
“motherfucker” while playing with him. On January 31, 2022,
GGM stated she could not confirm these reports. GGM denied
witnessing any further concerning interactions or any behavior
that would suggest mother was under the influence.
14
The court continued the hearing to March, to enable DCFS
to file a full response to the section 388 petition. In a February
2022 review report, the CSW observed that E. was playful but
had difficulty following directions. Mother told DCFS that she
understood she had made mistakes but was ready to regain
custody. She stated she had been consistently visiting E.,
completed all required programs, remained sober, maintained
employment, and had her own apartment. Mother also reported
that she had reconciled with grandmother and they were now on
good terms. On February 9, mother agreed to an on-demand
drug test, but stated that she could not do it that day. She
agreed to test the following day, but then missed the
appointment. Mother ultimately submitted a negative test on
February 14. Mother also told DCFS that she was living with her
boyfriend. However, when DCFS asked for a background check,
she stated that her boyfriend did not live with her. Mother’s
boyfriend declined to provide his identifying information to allow
DCFS to assess him as a potential caregiver.
When asked his opinion of mother having additional
reunification services, GGF said he did not think E. would be safe
with mother and that as far as he knew, mother had not
completed any services to address her drinking and violent
conduct. He stated that mother was usually calm but would
become angry for no reason. GGM said she did not think mother
was emotionally stable enough to care for E. She agreed with
GGF that mother would be calm but then suddenly become angry
and verbally aggressive, including toward E. and sometimes used
foul language toward E. GGM stated they no longer held the
visits in their home due to mother’s aggressive behavior.
However, she reported that mother’s visits were consistent and
15
that E. enjoyed the visits and became sad when the visits ended.
GGM stated that E. appeared to understand that he was not in
mother’s care and he missed her.
DCFS opined that it was evident that mother maintained a
bond with E. and that she had completed her programs, but she
had not demonstrated she could provide a safe and permanent
home for the child. DCFS noted the report of mother yelling and
cursing at E. in October, despite completing programs a few
months prior. DCFS also noted its concern with mother missing
tests and not being forthcoming about her new relationship.
In a last-minute information filed February 23, 2022, DCFS
reported that on February 22, mother contacted DCFS and asked
whether the prior CSW, who had returned from leave, could be
reassigned to her case. The CSW stated that mother “became
repetitive and sounded different” than the last time they had
spoken, so the CSW asked whether mother was working that day
and mother said she was not. When the CSW asked mother to
submit to an on-demand drug test, mother said she was being
called to work that afternoon, so she would not be available to
test. However, mother then stated she would test because she
would do anything to have E. returned to her. The CSW also
received a call from grandmother, who said she was reluctant to
provide a statement for fear of retaliation from mother, but that
she did not feel E. would be safe in mother’s care. Grandmother
stated that mother was constantly contacting her and
threatening her at her job.
DCFS requested that the court deny mother’s section 388
petition, opining that mother had not reconciled with
grandmother, as mother had reported, and that mother’s
16
continued violent conduct placed E. at “very high” risk of further
physical and emotional harm.
At the March 2, 2022 permanency planning hearing,
mother’s counsel informed the court that mother had reenrolled
in an outpatient substance abuse program, as “there was a recent
relapse.” However, he argued that mother had demonstrated a
change in circumstances because she completed her case plan,
was honest about the relapse, and “immediately” reenrolled in a
program. He also pointed to the bond between mother and E.
and her consistent visits. He therefore asked the court to give
mother “one more chance” with six more months of reunification
services.
Counsel for E. asked the court to deny the petition, arguing
that the majority of E.’s life had been spent with his great-
grandparents as his caregivers and that it would be in E.’s best
interest to deny the petition. Counsel for DCFS also asked the
court to deny the petition, noting that mother had made some
positive changes, but her ongoing substance abuse had not
changed. He also argued that mother’s visitation, although
consistent, had not “necessarily established a bond to the extent
that it would justify a finding of best interest.”
Regarding mother’s section 388 petition, the court found
that mother had demonstrated a change in circumstances
because, following her relapse, she “ensured that E[.] was safe
and reenrolled in a program. Turning to the assessment of E.’s
best interests, the court noted that E. had spent most of his life
out of mother’s care. The court cited evidence that E. “seems to
miss the mother and is sad after the visits, but that’s all the
information that’s in the record.” The court also stated it was
considering mother’s history in complying with programs and
17
then relapsing, including at least three “significant” relapses
during the nearly three years of E.’s life. Based on those
circumstances, the court denied mother’s petition, finding that
mother had not met her burden to show that it would be in E.’s
best interest to grant six more months of services.
During the permanency planning portion of the hearing,
mother testified that E. called her “mommy N[.]” (mother’s
middle name), called GGM “mama,” and GGF “papa.” Mother
testified that she visited E. three times a week for three to four
hours and called him every day. The visits took place at the
park, and she and E. would color, play soccer, run around, go on
the slide, and sometime eat together. When E. saw mother at the
start of the visits, he would come over and give her a kiss; when
the visits were over, E. would ask why she was leaving, become
sad, and cry. Mother also testified that recently, E. would ask
her to come home with him. Mother denied ever being
intoxicated during a visit and denied ever getting upset with E.,
swearing at him, or being aggressive during a visit. She
acknowledged that the visits took place in the park because she
and GGF “don’t always see eye to eye.” .
The court asked mother, “do you believe that you would be
able to continue to be part of E.’s life if he gets adopted?” Her
counsel objected, citing In re Caden C. (2021) 11 Cal.5th 614(Caden C.). The court overruled the objection, finding that the
question “goes to the emotional attachment and the parental
relationship and what effect it would be like for the child without
the parent in [his] life.” Mother responded that she would
“maybe” be involved, “to an extent. But I don’t think as much as
he needs me, no.”
18
Counsel for DCFS argued that the evidence that E. and
mother enjoyed their visits was insufficient to overcome the
benefit he would receive from permanency. He also cited the
evidence from GGM regarding the issues during visits with
mother losing her temper and yelling at E. Counsel for E. also
urged the court to find that the parental benefit exception did not
apply. Mother’s counsel argued that she had met the factors
under Caden C. for the parental benefit exception. He also
contended that under Caden C. the court must “assume that
there will no longer be contact” between mother and E. if her
rights were terminated.
In making its findings, the court expressly acknowledged
the Caden C. test,4 explaining that “I’m not looking at the specific
bond in terms of the role the parent played. I’m not looking at
mother’s participation or her accomplishment or compliance with
any of the court-ordered case plans. What I’m looking at is
realistically the relationship with mother and E[.]” The court
found that mother had met the first element of consistent
visitation with E. Regarding E.’s emotional attachment to
mother (the second element), the court noted that E. lived with
mother for 10 months and with great-grandparents for 26
months, and found that E.’s time with and removal from mother
was “a somewhat traumatic time because of the mother’s use of
4 As discussed further below, Caden C. set forth three
elements a parent must show to establish the parental benefit
exception to termination of parental rights: (1) regular visitation
with the child; (2) “the child has a substantial, positive, emotional
attachment to the parent”; and (3) 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.)
19
substances and the difficulties that [she] was experiencing.” The
court also noted that E. called mother “mommy” and GGM
“mama” and did not find that these names necessarily suggested
how E. felt about one caregiver versus the other. Nevertheless,
based on the evidence that E. enjoyed his visits with mother, the
court moved on to the third element.
The court next stated that it was assessing the impact to E.
if he were to lose his relationship with mother, reasoning that
“it’s not certain” that mother could continue to have a
relationship with E. after adoption. With respect to the evidence
of mother’s negative conduct during visits, the court noted that
mother denied such conduct, and also that there was no evidence
that “mother’s behavior overwhelmed the visits, in the sense that
she consistently would yell or say inappropriate things.” The
court stated that it was weighing “whether or not there is a
substantial positive emotional attachment,” and whether
“considering the benefits of a new adoptive home, would E[.] be
harmed such that I should not terminate parental rights today.”
The court concluded it could not make a finding of such harm,
explaining that “despite the consistent visits, despite the
interaction, I don’t believe that there has been evidence today
that the relationship that exists between the mother and E[.]
flows from E[.] to the mother in the same way that it flows from
the mother to E[.] . . . I think that the mother has a much
stronger sense of the relationship and bond.” The court
acknowledged that it could not “look at the struggles that led to
dependency,” but found that those issues “could be probative as to
whether or not the interaction between the mom and E[.] has
some kind of a negative effect on E[.] And I think the mother’s
ongoing struggles and her relapses and the history of entering a
20
program, leaving a program, starting another program and not
being consistently stable have had an impact and do continue to
have an impact,” including as a basis for “some of the frustration
and anger” E. experienced. The court concluded that terminating
parental rights was “the appropriate decision today for E[.]
because he is adoptable,” and because “the relationship that
exists now does not seem to be one with such a strong emotional
attachment that without it E[.] would be harmed.” The court
thus found that the parental benefit exception did not apply, that
E. was adoptable, and terminated mother’s parental rights.
Mother timely appealed from the court’s order.
DISCUSSION
I. Termination of Parental Rights
Mother contends the court erred in finding that the
parental benefit exception to adoption did not apply and thereby
terminating her parental rights pursuant to section 366.26. We
find the court did not abuse its discretion in concluding that
mother had not established the necessary exception.
A. Legal Principles
1. Parental benefit exception
Section 366.26’s express purpose is “to provide stable,
permanent homes” for dependent children. (§ 366.26, subd. (b).)
If the juvenile court has decided to end 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 must order adoption and its necessary
consequence, termination of parental rights,” unless a parent can
21
establish one of the exceptions set forth in section 366.26,
subdivision (c). (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 “exceptions to the general rule that the court must
choose adoption where possible.” (In re Celine R., supra, 31
Cal.4th at p. 53.) “At this stage of the dependency proceedings, ‘it
becomes inimical to the interests of the minor to heavily burden
efforts to place the child in a permanent alternative home.’
[Citation.] The statutory exceptions 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 exception at issue here is the parental benefit
exception, which permits the selection of another permanent plan
if “[t]he parents have 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., supra,11 Cal.5th at p. 631, our Supreme Court “discern[ed] three
elements the parent must prove” to establish the parental benefit
exception under section 366.26, subdivision (c)(1)(B)(i).
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
22
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
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.)
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2. Standard of review
In Caden C., supra, 11 Cal.5th 614, our Supreme Court
clarified the standard of review applicable to a juvenile court’s
findings regarding the parental-benefit exception. The first two
elements—regular 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.)
We also note that, unlike in Caden C., the juvenile court
here found that mother did not meet her burden of proving the
exception. In such a case, where the trier of fact has “expressly
or implicitly concluded that the party with the burden of proof
did not carry the burden and that party appeals, it is misleading
to characterize the failure-of-proof issue as whether substantial
evidence supports the judgment. This follows because such a
characterization is conceptually one that allows an attack on (1)
the evidence supporting the party who had no burden of proof,
and (2) the trier of fact’s unassailable conclusion that the party
with the burden did not prove one or more elements of the case
24
[citations].” (In re I.W. (2009) 180 Cal.App.4th 1517, 1528,
overruled on other grounds by Conservatorship of O.B. (2020) 9
Cal.5th 989.) Thus, to the extent mother challenges the juvenile
court’s findings regarding her failure of proof, we determine
whether the evidence compels a finding in mother’s favor as a
matter of law, asking whether that evidence was uncontradicted
and unimpeached and of such a character and weight as to leave
no room for a judicial determination it was insufficient to support
a finding. (In re I.W., supra, 180 Cal.App.4th at p. 1528.)
B. Analysis
Given the juvenile court’s express finding that mother met
the first element under Caden C. and implied finding that she
also met the second element, both parties focus their arguments
on the third element—whether the benefits of adoption would
outweigh the loss of E.’s relationship with mother. Mother first
contends that the court improperly considered the possibility of a
continued relationship between mother and E. after termination
of mother’s parental rights. Mother is correct that for purposes of
the parental benefit exception, the court “must assume that
terminating parental rights terminates the relationship.” (Caden
C., supra, 11 Cal.5th at p. 633.) Mother points to the court’s
question during her testimony regarding whether she thought
she might be able to have a continued relationship with E., and
the subsequent overruling of mother’s counsel’s objection to that
question. Although the court allowed mother to give testimony in
response to its question, we disagree with mother that the court
improperly relied on the possibility of a future relationship with
E. In analyzing the third element, the court specifically stated
that it was assessing the impact to E. if he were to lose his
25
relationship with mother. Thus, the record reflects that the court
properly assessed the loss of their relationship if E. were adopted.
Mother next argues that the court improperly considered
her continued struggles with sobriety as a factor against applying
the exception. Under Caden C., a court may not rely solely on
“[a] parent’s continued struggles with the issues leading to
dependency” (Caden C., supra, 11 Cal.5th at p. 637) such as
substance abuse, or “look to whether the parent can provide a
home for the child.” (Id. at p. 634.) However, a parent’s struggles
may be relevant to the extent they impact the relationship with
the child, as, for example, “[a] parent’s struggles may mean that
interaction between parent and child at least sometimes has a
‘“negative” effect’ on the child.” (Id. at p. 637.) Here, the juvenile
court properly applied Caden C., noting that it could not look to
mother’s relapses, taken alone, as a bar to the exception, but it
could consider how her history of enrolling in programs, then
dropping out and relapsing affected her relationship with E.
Indeed, the court noted that some of E.’s behavioral issues might
be tied to the disruption and instability flowing from mother’s
conduct. The court was entitled to consider this evidence as a
factor relevant to whether it would be detrimental to E. to
terminate his relationship with mother.
We are not persuaded by mother’s argument that this case
is similar to In re S.B. (2008) 164 Cal.App.4th 289 (S.B.). In S.B.,
father was the primary caregiver for daughter S.B. until his
arrest on drug-related charges when S.B. was three years old.
(Id. at p. 293.) Although father fully complied with his case plan,
including consistently visiting S.B. and maintaining his sobriety,
his physical and emotional health issues prevented him from
reunifying with the child. (Ibid.) Indeed, the case social worker
26
remarked that “‘It pains the Agency not to be able to reunify
[father] and his daughter because of his consistent efforts to
alleviate and or mitigate the reasons his family was brought to
the attention of the court.’” (Id. at p. 294.) In reports prepared
for the section 366.26 hearing, social workers observed during
several visits that S.B. (then five years old) had a “consistent and
positive relationship with the father,” including sitting in his lap,
playing with him, telling him that she loved him, and stating
that she wished she lived with him. (Id. at p. 295.) However, the
social workers concluded that S.B.’s primary parental
relationship was with her grandmother, and therefore opined
that “the loss of the parent-child relationship would not be a
‘huge detriment’ to S.B.” (Ibid.) The juvenile court agreed and
declined to apply the parental benefit exception. (Ibid.)
The appellate court reversed, rejecting the argument that
the parental benefit exception required a finding that the child
had a “primary attachment” to the parent. (S.B., supra, 164
Cal.App.4th at p. 299.) The court also found error in the juvenile
court’s finding that “any detriment to S.B. from the loss of the
parent-child relationship will eventually be ameliorated by time
and S.B.’s strong relationship with her grandmother.” (Ibid.)
Based on the record, the court concluded that “the only
reasonable inference is that S.B. would be greatly harmed by the
loss of her significant, positive relationship with” the father. (Id.
at p. 301.)
Here, by contrast, E. was only 10 months old when he was
removed from mother, and subsequently lived with great-
grandparents for the next 26 months. Given his age, his ability
to express his feelings regarding his relationship with mother
was limited. As noted above, the court was also entitled to
27
consider the effect that mother’s relapses and associated conduct
had on her relationship with E. Moreover, although the court
found that E. enjoyed mother’s visits, it also concluded that his
attachment to mother was not as strong as mother’s attachment
to him, and therefore that this bond did not outweigh the benefits
of adoption. Mother has not demonstrated that this was error.
We also reject mother’s contention that it is “not apparent”
that the juvenile court correctly applied the standards under
Caden C. in analyzing the parental benefit exception. Mother’s
counsel extensively relied on Caden C. in his argument regarding
the exception and the court properly recognized its role in
conducting a “complex” and case-specific inquiry into the Caden
C. factors. Moreover, the court expressly considered and
distinguished the facts in Caden C. and a subsequent case, In re
D.M. (2021) 71 Cal.App.5th 261 (D.M.), finding that the facts in
mother’s case did not establish the exception. Thus, mother’s
reliance on D.M. is unavailing, as the juvenile court in that case
expressly “considered factors which Caden C. has explained are
inappropriate in determining whether the parental-benefit
exception applies.” (D.M., supra, 71 Cal.App.5th at p. 271.)
Additionally, we disagree with mother’s contention that
this case is analogous to D.M. with respect to the quality of the
reports by DCFS. In D.M., at the time of the section 366.26
hearing, the youngest of the three children was at least five years
old, the oldest was 12 or 13. (D.M., supra, 71 Cal.App.5th at pp.
264, 267.) In reversing the termination of parental rights, the
court found that the juvenile court had failed to properly assess
the emotional attachment between the father and his children.
The appellate court also noted that the social workers’ reports did
not adequately address this factor, as they “gave the court little
28
evidence about the quality of the visits between father and the
children, or how the children felt about father. The children were
rarely, if ever, asked how they felt about father or whether they
enjoyed visits with him.” (Id. at p. 270.) Indeed, the last status
review report prior to the hearing “did not contain an update
about father’s visitation and stated further information about his
visitation would be provided by last minute information”; no
further report was ever filed. (Id. at p. 267.) Here, unlike in
D.M., DCFS provided numerous reports with information from
E.’s caregivers as well as observations from the CSWs about the
frequency and quality of mother’s visitation. DCFS also
recounted the limited statements made by E., including that he
called mother “mommy,” but was unable to provide meaningful
interviews with E. about his feelings due to his age and limited
speech.
As such, we find no abuse of discretion by the juvenile court
in concluding that mother failed to satisfy the parental benefit
exception.
II. ICWA Inquiry
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 E.’s possible Native American heritage. DCFS
responds that any inquiry error was harmless, as mother makes
no affirmative representation of Native American heritage on
appeal.
A. Requirements
Under ICWA, state courts must ask each participant in a
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
29
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 also 25 C.F.R. § 23.107(a).) Additionally, state law
“more broadly imposes on social services agencies and juvenile
courts (but not parents) an ‘affirmative and continuing duty to
inquire’ whether a child in the dependency proceeding ‘is or may
be an Indian child.’” (In re Benjamin M. (2021) 70 Cal.App.5th
735, 741-742; see also § 224.2, subd. (a); In re Y.W., supra, 70
Cal.App.5th at p. 551.)
The 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, 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 the 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).) Alternatively, the juvenile
court may find that a child is not an Indian child if the agency’s
“proper and adequate” inquiry and due diligence reveals no
“reason to know” the child is an Indian child. (§ 224.2, subd.
(i)(2); In re D.S. (2020) 46 Cal.App.5th 1041, 1050.)
“We review claims of inadequate inquiry into a child’s
Indian ancestry for substantial evidence.” (In re H.V. (2022) 75
Cal.App.5th 433, 438; see also In re D.S., supra, 46 Cal.App.5th
at p. 1051; § 224.2, subd. (i)(2).) If an inquiry is inadequate, we
“must assess whether it is reasonably probable that the juvenile
court would have made the same ICWA finding had the inquiry
been done properly.” (In re Dezi. C. (2022) 79 Cal.App.5th 769,
777, review granted Sept. 21, 2022, S275578 (Dezi C.).) “If so, the
30
error is harmless and we should affirm; otherwise, we must send
it back for the Department to conduct a more comprehensive
inquiry.” (Id. at p. 777.)
B. Analysis
The record in this case supports mother’s contention that
DCFS failed in its duty of inquiry. Aside from asking mother
about her Native American heritage at the outset of the case,
DCFS did not ask any of the several maternal relatives with
whom it interacted whether E. might have Native American
heritage. None of the reports or other filings give any indication
that DCFS broached the topic with anyone other than mother,
despite, for example, extensive contact with maternal
grandmother and E.’s great-grandparents, who were the
designated adoptive parents and were forthcoming with
information throughout the proceedings.
DCFS concedes that the “record does not reflect that any
relatives other than mother were asked about ICWA.”
Accordingly, we must determine whether this error was
harmless; “in other words, we must assess whether it is
reasonably probable that the juvenile court would have made the
same ICWA finding had the inquiry been done properly.” (Dezi
C., supra, 79 Cal.App.5th at p. 777.) The courts of appeal have
devised at least four different analytical frameworks with which
to assess whether a violation of ICWA’s initial duty of inquiry is
harmless. (See, e.g., In re Antonio R. (2022) 76 Cal.App.5th 421,
435 [concluding that “the error is in most cases . . . prejudicial
and reversible”]; In re A.C. (2021) 65 Cal.App.5th 1060, 1069-
1071 [finding harmless error unless the parent makes a good-
faith claim of Native American ancestry on appeal]; In re
Benjamin M., supra, 70 Cal.App.5th at p. 744 [reversing where
31
“there was readily obtainable information that was likely to bear
meaningfully upon whether the child is an Indian child”]; Dezi C.,
supra, 70 Cal.App.5th at p. 779 [finding harmless error “unless
the record contains information suggesting a reason to believe
that the child may be an ‘Indian child’ within the meaning of
ICWA, such that the absence of further inquiry was prejudicial to
the juvenile court’s ICWA finding”].)
For the reasons articulated in Dezi C., supra, we conclude
the “reason to believe” test is the most appropriate approach.
(See Dezi C., supra, 79 Cal.App.5th at pp. 779-785.) Under this
approach, “a reviewing court would have ‘reason to believe’
further inquiry might lead to a different result if the record
indicates that someone reported possible American Indian
heritage and the agency never followed up on that information; if
the record indicates that the agency never inquired into one of
the two parents’ heritage at all [citation], or if the record
indicates that one or both of the parents is adopted and hence
their self-reporting of ‘no heritage’ may not be fully informed
[citation].” (Id. at p. 779.) For this purpose, the ‘record’ includes
both the record of proceedings in the juvenile court and any
proffer the appealing parent makes on appeal.” (Ibid.)
The record here provides no “reason to believe” E. is an
Indian child. Mother repeatedly informed DCFS she had no
Native American heritage and never provided any updated
information throughout the proceedings. Nothing elsewhere in
the record or appellate briefing suggests otherwise. There is also
no indication in the record that the self-reporting from mother
was not fully informed. As to father, mother had no contact
information for him or any of his family members, and DCFS’s
efforts to locate him throughout the case were unsuccessful.
32
Under the Dezi C. framework and the circumstances presented
here, the inadequate ICWA inquiry is harmless.
DISPOSITION
The order terminating mother’s parental rights is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
CURREY, ACTING, P.J.
ZUKIN, J.⁕
⁕
Judge of the Los Angeles County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
33