In re Alisha P. CA1/5 ( 2023 )

Filed 6/20/23 In re Alisha P. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION FIVE
In re ALISHA P., a Person Coming
Under the Juvenile Court Law.
SONOMA COUNTY DEPARTMENT
OF HUMAN SERVICES, A165803
Plaintiff and Respondent,
v. (Sonoma County
KYLEE B., Super. Ct. No. DEP-4986-02)
Defendant and Appellant.
Kylee B. (mother) appeals from the juvenile court’s order terminating
her parental rights over her now six-year-old daughter Alisha P. under
Welfare and Institutions Code section 366.26.1 She contends the Sonoma
County Department of Human Services (Department) failed to comply with
the inquiry requirements of the Indian Child Welfare Act of 1978 (ICWA)
(25 U.S.C. § 1901 et seq.) and related California law (Welf. & Inst. Code,
§ 224 et seq.) and that the juvenile court erred in finding that ICWA does not
apply. Mother further asserts the juvenile court erred in finding that the
All statutory references are to the Welfare and Institutions Code
1
unless otherwise stated.
1
parental benefit exception under Welfare and Institutions Code section
366.26, subdivision (c)(1)(B)(i) does not apply. We agree that the Department
failed to comply with the inquiry requirements of ICWA and related
California law; however, we disagree that the juvenile court erred in
determining that the parental benefit exception does not apply. Accordingly,
we conditionally affirm the juvenile court’s order terminating parental rights
and remand for the limited purpose of compliance with ICWA and related
California law.
FACTUAL AND PROCEDURAL BACKGROUND
We focus on facts relevant to resolution of the ICWA issue and other
limited background information to provide relevant context. We provide
further relevant facts regarding the parental benefit exception in the
discussion section.
Alisha was born in September 2016. Two days after her birth, the
Department filed a juvenile dependency petition alleging that Alisha came
within the juvenile court’s jurisdiction under section 300, subdivision (j). The
petition alleged Alisha was at risk of abuse because her half sibling Brody B.
was physically abused by Alisha’s then alleged father, Ryan P. (father), while
in the care of father and mother, and Brody B. was removed from mother’s
care due to her failure to protect him from father’s physical abuse. Mother
and father each filed Judicial Council Forms, form ICWA-020, on
September 21, 2016, denying any known Indian ancestry. Initially, Alisha
was briefly detained from parental custody and then placed back in the care
of mother and father while they lived in the home of the paternal
grandparents with a safety plan. In October 2016, the juvenile court
sustained the petition, declared Alisha a dependent, found that ICWA does
not apply, and ordered family maintenance services. The ICWA finding
2
section of the court’s order states that mother and father denied Indian
heritage and provides no information regarding whether extended family
members were questioned. In September 2017, after approximately 12
months of family maintenance services, the juvenile court dismissed the
case.2
On July 1, 2020, the Department filed the dependency petition at issue
in this appeal. It alleged Alisha, who was then three years old, came within
the juvenile court’s jurisdiction under Welfare and Institutions Code section
300, subdivisions (b)(1), (c), (d), (g) and (j), and that she suffered or was at
risk of suffering serious physical harm, serious emotional damage, and sexual
abuse in her parents’ care. The petition alleged Alisha was at risk of harm
due to father’s mental illness and self-harming behavior while caring for
Alisha; father’s physical and sexual abuse of Alisha’s half siblings, which
resulted in his arrest on June 23, 2020, for felony violations of Penal Code
section 288, subdivisions (b)(1) (lewd act on child or dependent person),
(a) (lewd act on child under 14 years), and (c)(1) (lewd act on child of 14 or 15
years and at least 10 years older than child), and Penal Code section 243.4,
subdivision (a) (sexual battery); and mother’s substance abuse, which
resulted in her arrest on November 6, 2019, for driving while intoxicated and
causing an accident.
In the separate proceeding regarding Alisha’s half sibling Brody,
2
mother did not reunify with Brody. Mother’s parental rights over Brody were
terminated in November 2017, and Brody was adopted by his maternal
grandparents. A May 9, 2018 status review report regarding Brody’s
dependency proceeding states that on November 12, 2015, the juvenile court
found that ICWA did not apply to Brody. The report provides no details
regarding the extent of the ICWA inquiry. The parties do not cite to the
actual order in which the ICWA finding regarding Brody was made, and the
order does not appear to be part of the appellate record in this matter.
3
The petition included Judicial Council Forms, form ICWA-010(A),
stating that the Department made an “Indian child inquiry” and that the
child has no known Indian ancestry. Specifically, the Department stated:
“[Father] and [mother] were interviewed at their home on September 23,
2016. Both parents reported having no Indian Ancestry. No new information
has been provided regarding this matter.”
The Department’s detention report stated that Alisha had an extra
chromosome and might have mild cerebral palsy. She required assistance
with walking and used a “ ‘pacer,’ ” which was described as similar to a
walker. She received physical therapy, occupational therapy and speech
services at school and home, where she lived with her paternal grandparents.
Mother was no longer living at the home of the paternal grandparents
because they told her to leave after several concerning incidents involving
mother’s negligent driving and then her arrest for DUI. Mother reported she
was staying with various friends while she looked for stable housing. Mother
visited Alisha at the paternal grandparents’ home several times a week.
Regarding ICWA, the detention report stated that the juvenile court
previously found, in November 2015, that ICWA does not apply as to mother3
and that on July 1, 2020, the paternal grandmother “denied any documented
Indian Ancestry and denied they were associated with any tribe.” On July 2,
2020, father filed Judicial Council Forms, form ICWA-020, checking the box
stating “I have no Indian ancestry as far as I know.” (Boldface and
underscoring omitted.)
3It appears that the Department’s detention report is referencing the
juvenile court’s prior ICWA finding in the dependency proceeding involving
Brody. As noted, the order making the referenced finding does not appear in
the appellate record before this court.
4
Mother and father both appeared at the July 2, 2020, detention
hearing. The juvenile court detained Alisha. Neither parent was questioned
regarding ICWA. The juvenile court stated, “There’s information that ICWA
does not apply. We will keep this as an open question and readdress it at the
jurisdiction.” However, the minute order from the July 2, 2020 detention
hearing includes a finding that ICWA does not apply.
On July 24, 2020, the Department filed an amended petition pursuant
to section 300, subdivisions (b)(1), (d), (g) and (j). The amended petition
alleged that father was diagnosed with bipolar disorder and major depressive
disorder and engaged in self-harm while caring for Alisha and her half
sibling. Additionally, it was alleged that Alisha was at risk of being sexually
abused by father, who sexually abused six known victims within the home,
including Alisha’s half siblings. Father allegedly took lengthy showers with
Alisha, who was particularly vulnerable due to her developmental disabilities
and delayed speech. The amended petition alleged father had been
incarcerated since June 23, 2020. It further alleged that mother had
knowledge of the allegations that father sexually abused her son Brody and
father’s son Ryan and that she failed to protect Alisha from father by
continuing to allow her to reside with father and to be with father
unsupervised. Mother allegedly also had mental health and substance abuse
problems that impaired her ability to make sound judgments and provide
regular care and supervision for Alisha. Mother was convicted of DUI based
on the incident in November 2019, and she was diagnosed with generalized
anxiety disorder, attention deficit disorder, and a genetic disorder that causes
developmental disability on a spectrum of severity.
The amended petition again attached Judicial Council Forms, form
ICWA-010(A), stating that the Department made an “Indian child inquiry”
5
and that the child has no known Indian ancestry. The amended petition did
not provide any further explanation regarding the scope of the Department’s
ICWA inquiry.
The July 27, 2020, combined jurisdiction/disposition report stated that
ICWA does not apply and that “[t]he Court previously made a finding that
ICWA does not apply to Alisha, and no additional information has been
received to suggest Alisha is an Indian Child.” It summarized discussions
with mother, father, paternal and maternal grandparents, and paternal and
maternal aunts, but it did not state that any of them was questioned
regarding ICWA. Alisha was placed with her paternal grandparents, but the
Department was assessing placement with other relatives. At the time of the
report, Alisha was staying with her paternal aunt while the paternal
grandparents traveled out of state. The report recommended sustaining the
amended petition and offering mother and father reunification services.
On July 29, 2020, at the combined jurisdiction/disposition hearing,
mother and father submitted to jurisdiction. Neither parent was questioned
at the hearing regarding ICWA. The juvenile court sustained the amended
petition, removed Alisha from the parents’ custody, and ordered reunification
services.
The Department’s status report in advance of the six-month review
hearing recommended that reunification services to mother be continued but
that reunification services to father be terminated due to his guilty plea to
felony charges of sexual battery and incest. The Department reported that
Alisha was placed with her paternal aunt in Santa Rosa and that mother was
living and working in Fort Bragg. Regarding ICWA, the report repeated the
statement that the court previously found that ICWA does not apply and no
additional information had been received. The report did not state that the
6
Department questioned any of Alisha’s extended family regarding ICWA. At
the six-month review hearing on January 20, 2021, the juvenile court
continued reunification services for mother. On February 24, 2021, the
juvenile court terminated reunification services for father. No ICWA issues
were raised at either of the hearings in January and February 2021.
The Department’s July 7, 2021, status report recommended
termination of reunification services as to mother and the setting of a section
366.26 hearing. The Department reported that mother was not consistently
attending Alisha’s medical and therapy appointments. Mother also failed to
timely sign Alisha’s individualized education program agreement on multiple
occasions, as well as other documents necessary for Alisha to obtain
additional therapy services for her disability. Mother also failed to complete
her psychological evaluation and random drug testing. The report repeated
the Department’s prior statements regarding ICWA and did not contain any
information about extended family members being questioned regarding
possible Native American ancestry.
The Department filed an addendum report on October 29, 2021, in
which it again recommended termination of reunification services and the
setting of a section 366.26 hearing. The addendum report contained no
information regarding ICWA; however, the Department’s proposed findings
stated that ICWA does not apply. A contested 12-month review hearing was
held on October 29, 2021, and November 9, 2021. The juvenile court adopted
the proposed findings, terminated reunification services for mother, and set a
section 366.26 hearing.
On February 14, 2022, the Department filed a section 366.26 report
recommending termination of parental rights and a permanent plan of
adoption. The Department reported the potential adoptive parents are
7
Alisha’s paternal great-aunt and her husband, who live in Oregon. The
Department was awaiting home approval for the proposed adoptive parents.
The report contained the same information regarding ICWA as the prior
reports.
On February 25, 2022, April 6, 2022, and June 9, 2022, the Department
filed addendum reports containing the same recommendations. The
addendum reports did not mention ICWA. The June 9, 2022 report stated
that the potential adoptive parents were approved for placement and were
planning to move Alisha into their home in mid-June 2022.
The juvenile court held the section 366.26 hearing on June 17, 2022.
The paternal grandfather briefly appeared, before the juvenile court excluded
him from the proceedings after minor’s counsel objected to his presence. The
juvenile court did not question the paternal grandfather regarding ICWA.
The court considered and rejected mother’s argument that the parental
benefit exception applied. It terminated parental rights as to both parents
and ordered adoption as Alisha’s permanent plan.
DISCUSSION
I. ICWA Inquiry
Mother contends the Department failed to conduct an adequate initial
ICWA inquiry because it did not inquire of Alisha’s extended family members
other than her paternal grandmother. She further argues the error was not
harmless under the standards used in In re Benjamin M. (2021) 70
Cal.App.5th 735, 744–745 (Benjamin M.), and In re K.H. (2022) 84
Cal.App.5th 566, 608–611, 620. The Department concedes that the duty of
inquiry requires it to contact extended family members about possible Indian
ancestry; however, it contends any error was harmless because mother,
father and the paternal grandmother denied any Indian ancestry. As
8
explained, on this record, where multiple extended family members were
contacted by the Department but apparently never questioned regarding
ICWA, we do not believe the error was harmless.4
ICWA establishes minimum federal standards that a state court must
follow before removing an Indian child from his or her family. (In re D.S.
(2020) 46 Cal.App.5th 1041, 1048.) California incorporated ICWA’s
requirements into its statutory law. (Ibid.) Section 224.2 creates three
distinct duties regarding ICWA in dependency proceedings. (In re D.S., at p.
1052.)
The first duty is the initial duty to inquire, which is “an affirmative and
continuing duty” imposed on both the juvenile court and the Department.
(§ 224.2, subd. (a).) Section 224.2, subdivision (b) provides that if a child is
removed from his or her parents and placed in the custody of the
Department, the Department has a duty to inquire whether the child is an
Indian child, and the inquiry “includes, but is not limited to, asking the child,
parents, legal guardian, Indian custodian, extended family members, others
who have an interest in the child, and the party reporting child abuse or
neglect, whether the child is, or may be, an Indian child . . . .” California
Rules of Court, rule 5.481(a)(5), provides that the petitioning agency “must on
an ongoing basis include in its filings a detailed description of all inquiries,
4 Alisha’s prospective adoptive placement is with her paternal great-
aunt and her husband. The Department does not argue that ICWA inquiry
error is harmless because Alisha’s proposed adoptive placement is with
extended relatives. Accordingly, we do not address this issue. (See In re
Oscar H. (2022) 84 Cal.App.5th 939, 938–939, 941 [majority finds placement
with extended family does not prove ICWA inquiry error is harmless because
a proper ICWA inquiry could have resulted in the case “follow[ing] a different
path with a different outcome”]; id. at p. 941 (dis. opn. of Stratton, P. J.)
[dissent finds harmless error because “[t]he minor is not in danger of being
separated from his biological family, the evil ICWA was enacted to prevent”].)
9
and further inquiries it has undertaken, and all information received
pertaining to the child’s Indian status, as well as evidence of how and when
this information was provided to the relevant tribes. . . .”
The juvenile court is also required to make an ICWA inquiry. (§ 224.2,
subd. (c).) “At the first appearance in court of each party, the court shall ask
each participant present in the hearing whether the participant knows or has
reason to know that the child is an Indian child. The court shall instruct the
parties to inform the court if they subsequently receive information that
provides reason to know the child is an Indian child.” (§ 224.2, subd. (c).)
The duty of further inquiry arises when the Department or the juvenile
court has “reason to believe” the proceedings involve an Indian child but
“does not have sufficient information to determine that there is reason to
know that the child is an Indian child . . . .” (§ 224.2, subd. (e).) A “reason to
believe” exists if the agency or the juvenile court “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.” (§ 224.2, subd. (e)(1).) If the Department
or the juvenile court has a “reason to believe that an Indian child is involved
in a proceeding,” the court or the Department must “make further inquiry,”
which includes interviewing the parents and extended family members and
contacting the Bureau of Indian Affairs for assistance in identifying the
tribes in which the child may be a member or may be eligible for
membership. (§ 224.2, subd. (e), (e)(2).)
Finally, if the inquiry gives the Department or the juvenile court a
“reason to know” the child is an Indian child, then notice pursuant to ICWA
must be sent to the pertinent tribes. (§ 224.2, subd. (f).)
“The juvenile court must determine whether proper notice was given
under ICWA and whether ICWA applies to the proceedings.” (In re
10
Charlotte V. (2016) 6 Cal.App.5th 51, 57.) If the juvenile court finds “that
proper and adequate inquiry, further inquiry, and due diligence were
conducted under . . . section 224.2 and, if applicable, notice provided under
. . . section 224.3, and the court determines there is no reason to know the
child is an Indian child, the court may make a finding that [ICWA] does not
apply to the proceedings.” (Cal. Rules of Court, rule 5.482(c)(1); § 224.2,
subd. (i)(2).) Any such finding must be reversed by the juvenile court “if it
subsequently receives information providing reason to believe that the child
is an Indian child,” and the juvenile court must then “order the social worker
. . . to conduct further inquiry under . . . section 224.3.” (Cal. Rules of Court,
rule 5.482(c)(2).)
Here, the record indicates that although the Department had contact
with multiple extended family members, including the paternal grandfather,
a paternal aunt, a paternal great-aunt, the maternal grandparents, and a
maternal aunt, it only ever questioned mother, father, and the paternal
grandmother regarding ICWA. Thus, the initial inquiry was inadequate.
(§ 224.2, subd. (b).)
Appellate courts are currently divided regarding the proper prejudice
standard to apply to such errors, and the issue is currently pending in the
Supreme Court. (See In re Dezi C. (2022) 79 Cal.App.5th 769, review granted
Sept. 21, 2022, S275578.) The Department argues that we should follow In re
A.C. (2022) 75 Cal.App.5th 1009 and In re Dezi C., supra, 79 Cal.App.5th 769,
rev.gr., and find the error harmless because nothing in the record, nor any
proffer on appeal, contains information suggesting a reason to believe Alisha
is an Indian child. We decline to follow this approach. As explained in
Benjamin M., “[r]equiring a parent to prove that the missing information
would have demonstrated ‘reason to believe’ would effectively impose a duty
11
on that parent to search for evidence that the Legislature has imposed on
only the agency.” (Benjamin M., supra, 70 Cal.App.5th at p. 743.) The
Department’s contention that we should find no prejudice because there is no
evidence that any extended family member had any information pertaining to
whether Alisha has Indian heritage misses the point. On this record, we
cannot know what information Alisha’s extended relatives may have.
Nothing suggests any of them (excepting the paternal grandmother) was ever
asked about potential Indian ancestry either in the current dependency
proceeding or in the prior dependency proceeding initiated in 2016.
We find the inadequate initial inquiry is not harmless. (In re Y.W.
(2021) 70 Cal.App.5th 542, 556.) The Department’s initial inquiry duty
expressly requires that it interview extended family members. (§ 244.2,
subd. (b); see In re H.V. (2022) 75 Cal.App.5th 433, 438–439 [conditionally
affirming and remanding disposition order with directions to interview
extended family members].) The information from the extended family
members is likely to be at least meaningful in determining whether Alisha is
an Indian child. (See In re Antonio R. (2022) 76 Cal.App.5th 421, 426, 435
[“In most circumstances, the information in the possession of extended
relatives is likely to be meaningful in determining whether the child is an
Indian child, regardless of whether the information ultimately shows the
child is or is not an Indian child”]; In re A.C., supra, 75 Cal.App.5th at pp.
1016, 1018 [finding prejudice and remanding for ICWA compliance where
extended family members were not interviewed]; In re K.H., supra, 84
Cal.App.5th at p. 610 [finding that “where the opportunity to gather the
relevant information critical to determining whether the child is or may be an
Indian child is lost because there has not been adequate inquiry and due
diligence, reversal for correction is generally the only effective safeguard”].)
12
Accordingly, we remand for ICWA compliance.
II. Termination of Parental Rights
Mother claims the juvenile court erred when it terminated her parental
rights and found the parental benefit exception inapplicable. We find no
error.
A. Legal Framework
At a section 366.26 hearing, the juvenile court selects a permanency
plan for the dependent child. (§ 366.26, subd. (b).) At this stage of the
proceedings, if the juvenile court finds by clear and convincing evidence that
the child is likely to be adopted, “the court shall terminate parental rights
and order the child placed for adoption.” (§ 366.26, subd. (c)(1).) However,
section 366.26, subdivision (c) provides certain enumerated exceptions which
permit the juvenile court, “ ‘in exceptional circumstances [citation], to choose
an option other than the norm, which remains adoption.’ ” (In re Caden C.
(2021) 11 Cal.5th 614, 631 (Caden C.).) The exception relevant here is the
parental benefit exception. (§ 366.26, subd. (c)(1)(B)(i).) To prove this
exception applies, the parent must establish “(1) regular visitation and
contact, (2) a relationship, the continuation of which would benefit the child
such that (3) the termination of parental rights would be detrimental to the
child.” (Caden C., at p. 631.) As to the first element, the juvenile court
considers whether the parent visits consistently, “taking into account ‘the
extent permitted by court orders.’ ” (Id. at p. 632.) As to the second element,
the court assesses whether the child has a “substantial, positive, emotional
attachment to the parent . . . .” (Id. at p. 636.) In making this determination,
the proper focus is on the child, and the court may consider factors such as
“ ‘[t]he age of the child, the portion of the child’s life spent in the parent’s
13
custody, the “positive” or “negative” effect of interaction between parent and
child, and the child’s particular needs.’ ” (Id. at p. 632.)
Regarding the third element, the juvenile court decides “whether the
harm of severing the relationship outweighs ‘the security and the sense of
belonging a new family would confer.’ ” (Caden C., supra, 11 Cal.5th at p.
633.) As explained by the Supreme Court, the juvenile court is not comparing
the parent’s attributes as custodial caregiver to those of the potential
adoptive parents. Instead, “the question is just whether losing the
relationship with the parent would harm the child to an extent not
outweighed, on balance, by the security of a new, adoptive home.” (Id. at p.
634.)
B. Standard of Review
Caden C., supra, clarified that determinations regarding the parental
benefit exception are reviewed under a hybrid standard of review. (11
Cal.5th at pp. 639–640.) As to the first two elements, which are factual
determinations, the reviewing court applies a substantial evidence standard
of review. (Ibid.) The third element—whether termination of parental rights
would be detrimental to the child—is reviewed for abuse of discretion. (Id. at
pp. 640–641.) An abuse of discretion occurs only when “ ‘ “ ‘the trial court has
exceeded the limits of legal discretion by making an arbitrary, capricious, or
patently absurd determination.’ ” ’ ” (Id. at p. 641.) If two or more inferences
can reasonably be deduced from the facts, the reviewing court may not
substitute its judgment as to what is in the child’s best interests. (Ibid.)
14
C. Analysis
1. Consistent Visitation
The juvenile court found that mother met the first element of the
parental benefit exception in that she consistently visited Alisha. This
finding is not contested on appeal.
2. Significant, Positive, Emotional Attachment
The juvenile court found that Alisha does not have a substantial
emotional attachment to her mother. The juvenile court considered the
Department’s reports, which included summaries of the supervised visits
between mother and Alisha. The Department’s reports included the social
worker’s observations that although Alisha enjoyed the visits, she did not
seem upset when visits ended and did not ask for additional visits or video
calls with mother. The social worker reported that Alisha was generally
receptive to attention of others, a trait observed by Alisha’s teacher, day care
provider, and caregiver, and the social worker. According to the social
worker’s observations, Alisha’s relationship with mother was like that of a
“friendly visitor” and Alisha’s emotional attachment to her mother did not
appear to be significant. Mother did not offer any testimony or other
evidence regarding the relationship between her and Alisha.
The court commented on the Caden C. analysis of the parental benefit
exception and properly considered the fact that Alisha, who was then five
years old, had been out of mother’s care for more than one-third of her life. It
also properly considered Alisha’s special needs and found that Alisha looked
to her caregivers to understand and help her with her physical and emotional
issues. (Caden C., supra, 11 Cal.5th at p. 632.) The juvenile court found that
although mother and Alisha have a loving relationship, “the question goes
deeper than that.” The court stated that Alisha was bonded to her
15
caregivers, who met her needs, and found that she did not have a substantial
emotional attachment to mother.
Mother argues the juvenile court erroneously considered three
improper factors when it found that Alisha does not have a substantial
emotional attachment to mother. She asserts it was improper for the juvenile
court to (1) compare the caregiving provided by Alisha’s caregivers to that of
mother; (2) consider Alisha’s attachment to her caregivers and potential
adoptive parents; and (3) consider whether Alisha’s needs would be met in
her prospective adoptive home. We disagree that the juvenile court relied on
improper factors in determining whether Alisha had a positive, substantial,
emotional attachment to mother. Caden C. explains that in assessing
whether a child will benefit from continuing the relationship with the parent,
the focus is on 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
the parent and child and the child’s particular needs.’ ” (Caden C., supra, 11
Cal.5th at p. 632.)5
On review, the question before us is whether substantial evidence
supports the trial court’s determination that Alisha did not have a
substantial emotional attachment to her mother. (Caden C., supra, 11
Cal.5th at pp. 639–640.) Mother points to evidence that her interactions with
Alisha were positive and “ ‘very sweet,’ ” that Alisha was excited to see
5Caden C.’s comments cautioning against comparing the parent with
the caregiver or potential adoptive parents relate to the third element of the
parental benefit exception, where a court must weigh whether termination
would be detrimental to the child against the benefits of a new, adoptive
home. (Caden C., supra, 11 Cal.5th at pp. 634–635.) We discuss the
detriment finding in further detail post.
16
mother and called her “mommy,” and that they told each other they loved
each other. However, we do not reweigh the evidence and must uphold the
juvenile court’s factual determinations if they are supported by substantial
evidence, even if substantial evidence to the contrary also exists. (Id. at p.
640.) Moreover, the evidence mother cites does not show the level of
substantial emotional attachment required by the parental benefit exception.
“A positive attachment between parent and child is necessarily one that is
not detrimental to the child but is nurturing and provides the child with a
sense of security and stability,” and “an emotional attachment is one where
the child views the parent as more than a mere friend or playmate and
who’s [sic] interactions with the parent were not ambivalent, detached, or
indifferent.” (In re B.D. (2021) 66 Cal.App.5th 1218, 1230.) Evidence that
Alisha enjoyed visits with mother is not enough to prove the kind of
emotional attachment required by the parental benefit exception. (See, e.g.,
In re Helen W. (2007) 150 Cal.App.4th 71, 81 [finding parental benefit
exception did not apply where evidence showed mother cared for young
children during visits and they called her “ ‘Mom’ ” yet spent most of their
lives out of mother’s custody]; In re Jason J. (2009) 175 Cal.App.4th 922, 938
[exception did not apply despite evidence parent was loving with child but
where there was no evidence child had “type of emotional attachment . . . that
would cause him to be greatly harmed if parental rights were terminated];
In re Autumn H. (1994) 27 Cal.App.4th 567, 571–573, 575–576 [exception
does not apply despite evidence of friendly visits between parent and child].)
We find substantial evidence contained in the Department’s reports supports
the juvenile court’s finding that Alisha did not have a substantial, positive,
emotional attachment to mother. (Caden C., at p. 636.)
17
3. Detriment/Benefit Balance
The juvenile court determined that termination of parental rights
would not be detrimental to Alisha and that any harm from severing the
relationship would not outweigh the benefits of adoption. We find no abuse of
discretion. (Caden C., supra, 11 Cal.5th at p. 641 [third element reviewed for
abuse of discretion].)
Mother’s argument that the juvenile court improperly compared the
caregiving of mother with that of Alisha’s caregivers and her potential
adoptive parents oversimplifies the issue. Caden C. explains that when a
juvenile court determines whether termination would be detrimental to a
child, “the court is not comparing the parent’s attributes as custodial
caregiver relative to those of any potential adoptive parent(s).” (Caden C.,
supra, 11 Cal.5th at p. 634.) Instead, “the question is just whether losing the
relationship with the parent would harm the child to an extent not
outweighed, on balance, by the security of a new, adoptive home.” (Ibid.)
Caden C. notes the juvenile court “must . . . engage in a delicate balancing . . .
[that] weigh[s] the harm of losing the relationship against the benefits of
placement in a new, adoptive home.” (Id. at p. 640.)
We find the juvenile court properly exercised its discretion in balancing
the harm to Alisha from termination of parental rights against the benefits of
an adoptive home. The juvenile court weighed Alisha’s positive relationship
with mother—although it found it not to be a substantial emotional
attachment—against her attachment to her caregiver and her potential
adoptive parents, who were able to meet her needs. The Department
reported that Alisha appeared excited to move to her potential adoptive
parents’ home. Alisha was comfortable and happy in her caregivers’ home
and was thriving from the structure, guidance, and consistent attention to
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her special needs. The court properly considered that Alisha’s special needs
will be met in the home of her potential adoptive parents. (Caden C., supra,
11 Cal.5th at p. 632.) The social worker opined that adoption would provide
Alisha with the love, care and stability needed to overcome obstacles related
to her special needs. She further opined that Alisha’s relationship with
mother was not “the substantial, positive, emotional relationship . . . that
would outweigh the stability and permanency of adoption.” On these facts,
we do not find that the juvenile court acted outside the bounds of its legal
discretion in determining that any harm from terminating mother’s parental
rights would not outweigh the benefits of placement in an adoptive home.
DISPOSITION
The order terminating parental rights is conditionally affirmed and
remanded to the juvenile court for the limited purpose of ensuring compliance
with the inquiry provisions of Welfare and Institutions Code section 224.2
and, if necessary, the notice provisions of section 224.3. The juvenile court
shall order that within 30 days of the issuance of the remittitur, the
Department complete an inquiry investigation into the child’s Indian
ancestry by interviewing available extended family members. If, on remand,
the juvenile court determines that ICWA does not apply, the termination
order shall remain in effect. If the court determines ICWA applies, it shall
vacate the termination order and proceed in accordance with ICWA and
related state law.
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_________________________
Jackson, P. J.
WE CONCUR:
_________________________
Burns, J.
_________________________
Chou, J.*
A165803/Sonoma County Dept. of Human Services v. Kylee B.
Judge of the Superior Court of San Mateo County, assigned by the
*
Chief Justice pursuant to article VI, section 6 of the California Constitution.
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