Filed 8/12/22 In re D.M. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

APPEAL from an order of the Superior Court of the County of Los Angeles, Stephanie M. Davis, Judge Pro Tempore. Affirmed, in part, and conditionally reversed, in part, and remanded with instructions.

Sean Angele Burleigh, under appointment by the Court of Appeal, for Defendant and Appellant.

Dawyn R. Harrison, Acting County Counsel, and Kim Nemoy, Assistant County Counsel, and Veronica Randazzo, Deputy County Counsel, for Plaintiff and Respondent.

_________________________________

I. INTRODUCTION

A.C. (mother) appeals from an order terminating her parental rights to her three children (the children), D.M. (born in 2010), J.M. (born in 2013), and C.M. (born in 2015). Mother contends the juvenile court abused its discretion when it concluded the beneficial parental relationship exception did not apply and erred by failing to ensure that the Department of Children and Family Services (the Department) conducted a sufficient initial inquiry under the the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1902 et seq.) and related state statutes (Welf. & Inst. Code § 224.2)[1]. We conclude that conditional reversal is necessary to ensure compliance with ICWA, but otherwise affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Jurisdiction, Disposition, and Reunification Services

On May 15, 2017, the Department filed a section 300 petition alleging that, due to their methamphetamine use, the parents[2] were unable to care for the children and were placing them at risk of harm. At the detention hearing the same day, the court detained the children and ordered monitored visitation for the parents.

On April 23, 2018, the juvenile court sustained an amended petition that additionally alleged the parents had placed the children at risk of harm by engaging in physical altercations with one another. At the June 15, 2018, disposition hearing, the court removed the children from the parents and ordered reunification services.

In a November 2018, status review report the Department advised that mother had made satisfactory progress in her programs and that her visitation with the children had been liberalized to unmonitored visits. It therefore recommended that the children be returned to mother and that she and the children receive family maintenance services. On December 13, 2018, the juvenile court terminated its suitable placement order and returned the children to mother with the recommended services.

On February 1, 2019, mother sought and received permission from the juvenile court to take the children to Great Falls, Montana, from February 1 through 11 to visit maternal great-grandmother. The order provided that the children were not to have contact with mother’s “male companion” or any other unauthorized persons.

On February 12, 2019, a social worker contacted mother about the children’s whereabouts. Mother explained that they were still in Montana due to a snow storm and related car trouble. Mother also admitted that she had “unenrolled” D.M. and J.M. from their California school before she left and enrolled them in a Great Falls school. When the social worker was unable to check on the children’s welfare, she contacted mother and told her the children must be returned to California immediately. Although mother explained that she wanted her case transferred to Montana, she eventually agreed to return to California with the children.

On March 27, 2019, a reporting party advised a social worker that mother had moved to a new address in Great Falls, was currently using heroin and methamphetamine, and was selling drugs. Later that same day, the social worker received a new allegation of abuse and neglect of the children by mother and her boyfriend, Thomas Y. According to the reporting party, Thomas Y., had “‘beat [mother] up seriously and there was a police chase in Great Falls . . . that was all over the news.’” On April 5, 2019, a Montana social worker informed the Department that mother had tested positive for methamphetamine and that the children had made allegations of domestic violence, drug use, and physical abuse against mother and Thomas Y.

B. Failure to Reunify and Termination of Services

On April 8, 2019, the Department filed a section 387 supplemental petition alleging that mother had recently tested positive for methamphetamine and that her continued drug use and failure to comply with the juvenile court’s orders endangered the children’s physical health and safety and placed them at risk of serious harm. In a detention report filed that same day, the Department attached a Montana protective services report advising of D.M.’s claim that one of mother’s boyfriends would lock J.M. in a closet for extended periods of time until he fell asleep, and J.M.’s claim that a boyfriend would make him watch scary movies when he would not listen or go to bed. Neither child, however, identified the boyfriend. The report also explained that D.M. had exhibited “extremely parentified” behaviors, particularly toward C.M. And it disclosed that mother told D.M. that D.M. “ha[d] to be [C.M.’s] mom right now.” The detention report stated that the children, who had been returned to California, were placed with paternal grandmother.

At the April 9, 2019, detention hearing, the juvenile court detained the children from mother, continued their current placement, and granted mother, who was still in Montana, monitored visitation.

In the June 5, 2019, jurisdiction/disposition report, the social worker reported that she interviewed D.M. and J.M. on May 29, 2019, but was unable to obtain any information pertinent to the allegations; and she confirmed C.M. was too young to be interviewed. The social worker also reported that although D.M. appeared anxious, she loved paternal grandmother and mother. The Department recommended the section 387 petition be sustained, that the children be removed from mother, and that she be provided with reunification services.

In the July 9, 2019, last minute information for the court, the Department attached a report from the Great Falls Police Department describing in detail a February 24, 2019, domestic violence incident between mother and Thomas Y. during which mother sustained serious injuries.

In a last minute information for the court for a hearing on November 22, 2019, the Department reported that mother called her social worker and expressed a desire to visit with the children as soon as possible.

At the November 22, 2019, hearing, the juvenile court removed the children from mother and terminated reunification services.

C. Section 366.26 Report and Status Review Reports

In a March 9, 2020, section 366.26 report, the Department noted that the children had been placed with paternal grandmother for over two years and that she had provided a “supportive and caring environment which ha[d] assisted the children in maintaining their emotional well[-]being” and had assured that all their needs had been met. Paternal grandmother wanted to adopt the children.

Paternal grandmother stated that D.M. slept well most nights, but had “a few night terrors;” J.M. had night terrors that woke “him up nearly every night;” and C.M. slept well. D.M. wanted to remain in the care of paternal grandmother; J.M. felt safe with mother, but did not want to talk about where he would like to live; and C.M. wanted to live with mother.

Mother returned from Montana in October 2019 and resumed weekly monitored visits with the children for two hours twice a week. Although mother was “attentive and playful with [the] children,” she had to be admonished not to coach D.M. about what to say in court regarding where she would like to live.

In a May 21, 2020, status review report, the Department explained that due to the COVID-19 pandemic, mother’s visits were suspended, but she participated in daily one-hour video calls that the children enjoyed. Although each child had expressed a desire to live with mother, the Department continued to recommend adoption as the most appropriate permanent plan.

In the January 4, 2021, status review and section 366.26 reports, the Department advised that the children were well cared for by paternal grandmother and she expressed a strong desire to adopt them. Due to paternal grandmother’s concern for the children’s mental health, the Department referred the children for mental health services and they were currently participating in weekly individual therapy. All three children expressed a desire to live with mother, but also expressed that they were happy living with paternal grandmother and they appeared “to be well[-]adjusted in [her] home . . . .” D.M. stated that she felt safe with and loved paternal grandmother and would like to be adopted; J.M. liked visiting with mother, but also wanted to be adopted; and C.M. wanted “to go with mother,” but loved and felt safe with paternal grandmother.

As to visitation, mother had moved back to Montana, was living with “her ex-boyfriend,” and had not visited with the children since the first week of September 2020. But she did “call the children consistently.”

In a July 6, 2021, status review report, the Department reported that the children were doing well in the care of the paternal grandparents who continued to meet all their needs.[3] The children were also doing well in school and D.M. and J.M. had recently completed individual therapy. Paternal grandmother advised that J.M. was still having problems sleeping and could not fall asleep without her in his room. He was also easily scared by loud noises. The social worker referred C.M. for individual counseling because he made concerning statements during interviews.

After returning from Montana in January 2021, mother resumed regular visits with the children. She would give the children food and gifts and was generally appropriate; but she continued to try to talk to D.M. about court. During one visit, she was dropped off and picked up by Thomas Y. who, according to both paternal grandmother and the children, drove “really slow in front of them and would randomly stop.” Paternal grandmother reported that Thomas Y.’s behavior scared the children and “led to [J.M. having] nightmares again.”

On June 22, 2021, the social worker received photographs of mother and Thomas Y. which appeared to have been taken recently. The social worker spoke to mother on July 7, 2021, who initially denied that she was seeing Thomas Y., but later admitted that she was seeing him when confronted with the photographs. Mother believed that Thomas Y. was a “changed person” because he had completed his treatment program and she had been advised by her domestic violence group that it was “ok” to see him under such circumstances.

During the social worker’s most recent home visit, J.M. told her that he “‘want[ed] to stay [at paternal grandmother’s home and that he did not] want to be in a place where [he would be] tortured.’” According to J.M., Thomas Y. would “‘torture [the children]. But [it was] okay, [because he was] safe [at paternal grandmother’s home].’” D.M. said she wanted to stay at paternal grandmother’s house and did not want to live with mother because of Thomas Y. C.M. wanted to stay at paternal grandmother’s house because he “‘[got] to see [mother].’”

At the July 27, 2021, section 366.26 hearing the juvenile court ordered that Thomas Y. and other unauthorized persons could not be present at mother’s visits with the children.

In an October 29, 2021, last minute information for the court, the Department reported that mother had returned to Montana for a funeral in mid-August and was now residing there. Since her departure, mother had called the children almost daily during the week. Mother reported that the calls went “‘well’” and the children missed her.

D. Section 366.26 Hearing

On December 14, 2021, the juvenile court held the section 366.26 permanency planning hearing. Mother’s counsel argued that “there can be no doubt . . . that [mother] maintained contact with her children.” Counsel added that the court therefore “ha[d] to look at what’s going to happen to [the children] if suddenly they can’t have any contact with [mother] . . . .” In counsel’s view, “the most likely scenario is that, one, they’re very upset because suddenly they can’t talk to [mother] again, and they do have a close parental bond based on all of the contact that they’ve had. . . . [T]wo, that they’re—you know, it’s very likely that they’ll . . . blame themselves or blame [paternal] grandmother.”

Following argument by all counsel, the juvenile court stated that it was “very familiar with the cases that have been cited [by the parties], particularly [In re Caden C. (2021) 11 Cal.5th 614 (Caden C.)] and [In re D.M. (2021) 71 Cal.App.5th 261].” The court explained that, under those cases, “the parent is required to establish by a preponderance of the evidence that the parent has regularly visited with the children, that the children would benefit from continuing the relationship, and that terminating the relationship would be detrimental to the children. [¶] With respect to those required findings . . . [w]hile I think that there is evidence of what the court—I guess what could be termed as consistent contact between . . . mother and the children, the court also not only has to look at that, but has to look at the quality of that contact.”

According to the juvenile court, the evidence that mother continued to have a relationship with the man who abused her and allowed him to “carelessly . . . be seen by the children” demonstrated “a complete lack of sensitivity toward the children and appropriateness during visits.” The court also emphasized that all of the children “expressed fear of [seeing Thomas Y.]” and J.M. had trouble sleeping after that experience. The court clarified that it was “not using this [evidence] to demonstrate any proof of failure to complete the case plan, because that is not part of what the court can consider, but, rather it’s a demonstration of . . . mother’s complete insensitivity as to how her children may be feeling at seeing this person during a visit and having any concerns for their emotional health. So that is not visitation of a parental nature in this court’s mind.”

In assessing “the quality of the visits,” the juvenile court noted that although mother brought food to visits, “it is not the quality of a visit between parent and child. And the visits are monitored. The social worker ha[d] to redirect . . . mother . . . a number of times during visits because she attempts to talk to the children about court. And so . . . mother’s behavior is not appropriate.”[4] Based on the evidence of the “nature and quality of . . . mother’s visits,” the court determined that “they [did] not rise to the level of support of a parental bond.”

Following those findings, the juvenile court concluded that, “based on the totality of the evidence, . . . mother has not met the burden by a preponderance of the evidence as required. . . . t is clear that . . . the permanence [the children] are seeking by their own actions and statements clearly outweigh any benefit they would have [from] continuing contact with . . . mother.” The court terminated mother’s parental rights and freed the children for adoption.

E. [i]ICWA Proceedings

The May 15, 2017, section 300 petition attached one ICWA-010(A) form indicating that no Indian child inquiry had been made as to D.M., but that the child had no known Indian ancestry. In the detention report of the same date, the Department reported that mother had confirmed that none of the children had Indian ancestry and therefore concluded that ICWA did not apply. It also reported that father was not available to provide information on the children’s Indian ancestry.

At the May 15, 2017, detention hearing, both mother and father submitted ICWA-020 forms averring that they did not have Indian ancestry. At the hearing, the juvenile court found that it had no reason to know that the children were Indian children under ICWA.

The July 17, 2017, addendum report stated that mother was born in Mexico and brought to the United States by her mother when she was three and that her father’s family resided in Montana. The July 17, 2017, first amended section 300 petition attached ICWA-010 forms for each child indicating that no ICWA inquiry had been made in connection with the filing of that petition. The July 7, 2017, jurisdiction/disposition report stated that, on May 15, 2017, the juvenile court found ICWA did not apply.

There are no indications in the record, between May 15, 2017, through December 14, 2017, when the juvenile court issued its order terminating parental rights, that the Department made any further inquiry regarding ICWA, or that the court ordered any further inquiry.

III. DISCUSSION

A. Beneficial Parental Relationship Exception

Mother contends that the juvenile court abused its discretion because it considered factors that “contravened” the holding in Caden C., supra, 11 Cal.5th 614. According to mother, the court relied on factors disapproved by that decision, namely, her progress toward remedying her issues with domestic violence and whether her contacts with the children were “parental” in nature. She also asserts that the court made findings not supported by the evidence and misinterpreted the children’s statements about placement as pertaining to their wishes about adoption.

1. Legal Principles

“[T]he goal at the section 366.26 hearing is ‘specifically . . . to select and implement a permanent plan for the child.’ [Citations.] To guide the court in selecting the most suitable permanent arrangement, the statute lists plans in order of preference and provides a detailed procedure for choosing among them. [Citation.] According to that procedure, the court must first determine by clear and convincing evidence whether the child is likely to be adopted. [Citation.] If so, and if the court finds that there has been a previous determination that reunification services be terminated, then the court shall terminate parental rights to allow for adoption. [Citation.] But if the parent shows that termination would be detrimental to the child for at least one specifically enumerated reason, the court should decline to terminate parental rights and select another permanent plan. [Citation.]” (Caden C., supra, 11 Cal.5th at pp. 630–631.)

One such enumerated exception to the termination of parental rights is the beneficial parental relationship exception. (§ 366.26, subd. (c)(1)(B)(i).) In order to demonstrate that this exception applies, a parent must show: “(1) regular visitation and contact, and (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., supra, 11 Cal.5th at p. 631.)

“As to the second element, courts assess whether ‘the child would benefit from continuing the relationship.’ (§ 366.26, subd. (c)(1)(B)(i).) . . . [T]he 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.’ [Citation.]” (Caden C., supra, 11 Cal.5th at p. 632.) It is the parent’s burden to show “that the child has a substantial, positive, emotional attachment to the parent—the kind of attachment implying that the child would benefit from continuing the relationship.” (Id. at p. 636.)

“When it weighs whether termination would be detrimental, the court is not comparing the parent’s attributes as [a] custodial caregiver relative to those of any potential adoptive parent(s). . . . [C]ourts should not look to whether the parent can provide a home for the child; the question is just whether losing the relationship with the parent would harm the child to an extent not outweighed, on balance, by the security of a new, adoptive home.” (Caden C., supra, 11 Cal.5th at p. 634.) Relevant factual determinations include “the specific features of the child’s relationship with the parent and the harm that would come from losing those specific features,” “how harmful in total that loss would be,” and “for the particular child, how a prospective adoptive placement may offset and even counterbalance those harms.” (Caden C., supra, 11 Cal.5th at p. 640.)

“A parent’s continued struggles with the issues leading to dependency are not a categorical bar to applying the exception. . . . [¶] But[,] . . . ssues such as those that led to dependency often prove relevant to the application of the exception . . . . A parent’s struggles may mean that interaction between parent and child at least sometimes has a ‘“negative” effect’ on the child. [Citation.]” ([i]Caden C., supra, 11 Cal.5th at p. 637.)

“A substantial evidence standard of review applies to the first two elements.” (Caden C., supra, 11 Cal.5th at p. 639.) “[T]he ultimate decision—whether termination of parental rights would be detrimental to the child due to the child’s relationship with his parent—is discretionary and properly reviewed for abuse of discretion.” (Id. at p. 640.)

2. Analysis

Contrary to mother’s assertion, in our view, the juvenile court did not consider factors that are prohibited by Caden C., supra, 11 Cal.5th 614. The court did not find that mother’s lack of progress served as “a categorical bar” to the application of the exception. (Id. at p. 637.) Instead, it expressly acknowledged that it was considering mother’s conduct in the context of assessing the quality of the contacts between mother and the children, and found that mother’s decision to allow the children to observe Thomas Y. demonstrated “a complete lack of sensitivity toward the children and appropriateness during visits.”[5] The court was permitted to consider mother’s decision to bring her abuser to her visit with the children in determining whether the beneficial parental relationship exception applied. (Caden C. supra, 11 Cal.5th at p. 637; In re Katherine J. (2022) 75 Cal.App.5th 303, 309 [Caden C., “does not prohibit the juvenile court from determining . . . that the negative impact of [the parent’s] unresolved issues on [the children] were antithetical to the kind of beneficial parental relationship required by section 366.26. Caden C. expressly approves this type of reasoning”].)

Similarly, we reject mother’s contention that the juvenile court impermissibly considered whether she played a “parental role” in her relationship with the children. As articulated in Caden C., supra, 11 Cal.5th 614, a court is prohibited from “comparing the parent’s attributes as [a] custodial caregiver relative to those of any potential adoptive parent(s)” and may not consider “whether the parent can provide a home for the child.” (Id. at p. 634.) But in considering whether the beneficial parental relationship exception applies, courts may consider “the quality of the visits between [the parent] and the child.” (In re D.M., supra, 71 Cal.App.5th at p. 270.) In our view, the court here permissibly considered the nature of her relationship with the children in deciding whether the exception applied.

In any event, even assuming for purposes of this appeal that mother met the first two elements of the beneficial parental relationship exception, that is, that mother had regular visitation and contact with the children, and that there was some benefit to the continuation of the relationship, we conclude that the juvenile court did not abuse its discretion when it found that the termination of mother’s parental rights would not be detrimental to the children. In finding that mother had failed to demonstrate that the exception applied, the court cited the evidence showing that (1) during at least one visit, mother had allowed the children to witness her being dropped off and picked up by Thomas Y.; (2) based on Thomas Y.’s behavior, the children were scared, and J.M. was again experiencing night terrors; (3) following the visit involving Thomas Y., both D.M. and J.M. expressed that they did not wish to live with mother because of her relationship with him; and (4) at more than one visit, mother tried to coach D.M. on how to testify in court. Based on this record, we defer to the court’s finding that the permanence provided by adoptive placement “clearly outweigh[ed] any benefit [the children] would have [from] continuing contact with . . . mother.”

Finally, we reject mother’s contention that the juvenile court abused its discretion by failing adequately to consider the children’s wishes when it terminated her parental rights. Here, D.M. and J.M. both stated that they wished to be adopted. That they may also have expressed their love for mother does not demonstrate that the court failed to adequately consider the children’s wishes in terminating mother’s parental rights. (See Sonoma Land Trust v. Thompson (2021) 63 Cal.App.5th 978, 984 [“Unless an appellant demonstrates otherwise, we assume the trial court followed the law and acted within its discretion”]; Schneer v. Llaurado (2015) 242 Cal.App.4th 1276, 1285 [it is a “fundamental principle that appellate courts do not reweigh facts and generally must defer to the trial court’s resolution of credibility and conflicts in the evidence”].)

B. ICWA

Mother contends that the Department’s initial inquiry into the children’s Indian ancestry was inadequate under ICWA because it was aware of and in contact with extended family members who may have had relevant information, but it did not ask them about Indian ancestry. The Attorney General submits the matter for decision without taking a position on the adequacy of the Department’s initial inquiry.

The Department’s inquiry duties under ICWA are well established. “‘Following changes to the federal regulations concerning ICWA compliance, California made conforming amendments to its statutory scheme regarding ICWA, effective in 2019. [Citation.] . . . [T]he resulting clarification of law, found in part in section 224.2, “creates three distinct duties regarding ICWA in dependency proceedings. First, from the [Department]’s initial contact with a minor and his family, the statute imposes a duty of inquiry to ask all involved persons whether the child may be an Indian child. (§ 224.2, subds. (a), (b).) Second, if that initial inquiry creates a ‘reason to believe’ the child is an Indian child, then the [Department] ‘shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.’ (Id., subd. (e), italics added.) Third, if that further inquiry results in a reason to know the child is an Indian child, then the formal notice requirements of section 224.3 apply. [Citations.]” [Citation.]

“‘At the first step, “[s]ection 224.2, subdivision (b) specifies that once a child is placed into the temporary custody of a county welfare department, such as the [Department], 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.’” [Citation.]’ [Citation.]

“We review claims of inadequate inquiry into a child’s Indian ancestry for substantial evidence. [Citation.]” (In re H.V. (2022) 75 Cal.App.5th 433, 438–439.)

Because the record reflects that the Department’s initial inquiry in May 2017 was limited to mother and father and did not include reasonably available extended family members, such as paternal grandmother, we conditionally reverse the order terminating parental rights and remand for further proceedings to ensure adequate initial inquiry under ICWA.

IV. DISPOSITION

The juvenile court’s determination that no exception to adoption applied is affirmed, but the order terminating mother’s parental rights is conditionally reversed and remanded for proceedings required by this opinion. The court shall order the Department to make reasonable efforts to interview available family members about the possibility of the parents’ Indian ancestry and to report on the results of that investigation. Based on the information reported, if the court determines that no additional inquiry or notice to tribes is necessary, the order terminating mother’s parental rights is to be reinstated. If the court determines additional inquiry or notice is warranted, it shall make all necessary orders to ensure compliance with ICWA and related California law.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

I concur:

MOOR, J.

In re D.M., et al.

B317352

BAKER, J., Concurring in Part and Dissenting in Part

I agree the juvenile court did not err in finding the parental benefit exception inapplicable. I disagree, however, with the majority’s decision to remand for further ICWA inquiry. (In re H.V. (2022) 75 Cal.App.5th 433, 441 (dis. opn. of Baker, J.); see also In re Ezequiel G. (July 29, 2022, B314432) ___ Cal.App.5th ___; In re J.S. (2021) 62 Cal.App.5th 678, 688 [applying substantial evidence standard of review].)

BAKER, Acting P. J.

[1] All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.

[2] Father is not a party to this appeal.

[3] The Department previously referenced only paternal grandmother as the children’s caregiver.

[4] The court also initially commented that mother’s behavior was “appropriate” but this seems to have been a misstatement as the court ultimately concluded that mother behaved inappropriately.

[5] Mother asserts that the juvenile court misstated the date on which Thomas Y. dropped off and picked up mother from a visit (July 27, 2021, instead of February 22, 2021) and also mistakenly said that Thomas Y. drove mother to more than one visit. But it was undisputed that, on at least one occasion in February 2021, Thomas Y. appeared at the location of mother’s visit and behaved in a manner that scared the children and paternal grandmother. That traumatizing incident, when combined with the expressed desire of both D.M. and J.M. not to live with or be in contact with Thomas Y., was sufficient to support the court’s determination that the termination of parental rights would not be detrimental to the children.