Filed 6/9/22 In re H.A. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from an order of the Superior Court of Los Angeles County, D. Zeke Zeidler, Judge. Conditionally affirmed with directions.

Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant.

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

INTRODUCTION

Paige M. appeals from the juvenile court’s order under Welfare and Institutions Code section 366.26[1] terminating her parental rights to her son, H.A., who is now almost two years old. She argues the juvenile court made an “unclear” or “ambiguous” finding, and may have considered improper factors, in ruling the parental-benefit exception under section 366.26, subdivision (c)(1)(B)(i), did not apply. She also argues the Los Angeles County Department of Children and Family Services failed to conduct an adequate inquiry under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq. (ICWA)) and related California law. We conclude that the juvenile court erred by failing to follow the test in In re Caden C. (2021) 11 Cal.5th 614 for determining whether the parental-benefit exception applies, but that the error was harmless. We also conclude the court failed to ensure the Department complied with its duty of inquiry under ICWA and related California law. Therefore, we conditionally affirm the order terminating Paige’s parental rights and direct the juvenile court to ensure the Department conducts a proper inquiry into H.A.’s possible Indian ancestry.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Juvenile Court Detains H.A., Asserts Jurisdiction, and Removes Him from Paige

In June 2020 Paige gave birth to H.A. Both Paige and H.A. tested positive for marijuana. A Department social worker interviewed Paige, who admitted she used marijuana during her pregnancy “to help with her anxiety symptoms due to childhood trauma.”

The Department filed a petition under section 300, subdivision (b)(1), alleging that Paige’s substance abuse placed H.A. at risk of serious physical harm, that Paige’s history of mental and emotional problems rendered her incapable of providing him with regular care and supervision, and that Hallett A., H.A.’s presumed father, failed to protect him from Paige’s endangering behavior. The court detained H.A., but released him to Paige and Hallett under the supervision of the Department. The following month, the court granted the Department’s request for an expedited removal order because Paige was not complying with the safety plan and because her recent behavior suggested she might flee with H.A. The Department subsequently filed an amended petition adding allegations that Hallett had a history of substance abuse that rendered him incapable of caring for H.A. and that Paige and Hallett had a history of domestic violence that endangered H.A.

The juvenile court sustained amended counts against Paige under section 300, subdivision (b)(1), and declared H.A. a dependent child of the court. Based on the results of a paternity test that indicated Hallett was not H.A.’s father, the court dismissed the counts against Hallett. The court removed H.A. from Paige and ordered Paige to complete a drug and alcohol program, drug testing, domestic violence classes, parenting classes, and mental health counseling. The court also ordered Paige’s visits with H.A. to be monitored.

B. Paige Fails To Reunify with H.A., and the Court Terminates Her Parental Rights

For the six-month review hearing, the social worker reported that H.A. was thriving in the care of his caregiver, S.S., was “emotionally attached” to S.S., and appeared “very comfortable in the home.” The Department stated Paige had made minimal progress in the court-ordered programs and recommended termination of reunification services and adoption by S.S. The court found that returning H.A. to Paige would create a substantial risk of detriment and that Paige had not made substantial progress toward alleviating or mitigating the causes necessitating placement. The court terminated reunification services and set a selection and implementation hearing under section 366.26.

In a subsequent status report, the social worker stated H.A. had a “healthy” and “strong” attachment to S.S. Summarizing the quality of Paige’s visitation, the social worker reported that Paige visited with H.A. once a week for two hours (except for a five-week period when Paige was incarcerated) and that, for the most part, Paige was “appropriate during the visits,” engaged with H.A., and understood his cues and cries. During a visit on October 16, 2021, however, Paige “was not engaged” with H.A. and displayed some “concerning behaviors,” such as discussing conspiracy theories and making statements about “the cartels” and “the Department participating in child trafficking.” The monitor ended the visit early because she did not feel comfortable with Paige’s behavior and was concerned Paige “could hurt someone during the visit.” The monitor also reported that Paige called her daily and made “bizarre” statements. The caregiver reported that Paige had been calling her “at all hours of the day” and talked about H.A. “not being safe.” Paige told the social worker that she believed the social worker was engaged in “child trafficking” and “organ harvesting.” The social worker stated that Paige’s “thoughts seemed to be disorganized,” that Paige “began to get aggressive” during the phone call, and that Paige asked for the location of H.A.’s day care center.

At the section 366.26 hearing, counsel for Paige argued it would be in H.A.’s best interest not to terminate Paige’s parental rights because she “plays a parental role” during her regular visits. The court acknowledged that Paige maintained consistent visitation and that the visits, “to some extent,” “may have conferred a parental role and relationship.” But the court found the visits did not amount to “a parental role and relationship to the extent that it outweigh[ed] the benefits of permanence in adoption, [or] that it would be detrimental to the child to sever the parent-child relationship.” The court terminated Paige’s parental rights and ordered the Department to provide permanent placement services. The court also denied Paige’s petition under section 388, finding Paige failed to present sufficient evidence of a change of circumstances. Paige timely appealed from both orders, but challenges only the order terminating her parental rights.

DISCUSSION

Paige argues the juvenile court’s ruling the parental-benefit exception did not apply “requires reversal” because the court made an ambiguous finding and may have considered factors the Supreme Court deemed improper in In re Caden C., supra, 11 Cal.5th 614. The Department argues that the court did not err and that any error was harmless. On the ICWA issue, Paige contends, and the People concede, the juvenile court failed to ensure the Department complied with the inquiry requirements under ICWA and related California law. We conclude the court committed both errors. Because the first error was harmless and the second was not, we conditionally affirm the juvenile court’s order terminating Paige’s parental rights and direct the juvenile court to ensure the Department complies with its obligations under ICWA and related California law to conduct an adequate inquiry into H.A.’s possible Indian ancestry.

A. The Juvenile Court Erred in Analyzing Whether the Parental-benefit Exception Under Section 366.26, Subdivision (c)(1)(B)(i), Applied

1. Applicable Law and Standard of Review

“To guide the court in selecting the most suitable permanent arrangement” for a dependent child “who cannot be returned to a parent’s care,” section 366.26 “lists plans in order of preference and provides a detailed procedure for choosing among them.” (In re Caden C., supra, 11 Cal.5th at pp. 629-630; see § 366.26, subd. (b); In re A.L. (2022) 73 Cal.App.5th 1131, 1149.) If the court finds that the child “is likely to be adopted” and that “there has been a previous determination that reunification services be terminated, then the court shall terminate parental rights to allow for adoption.” (In re Caden C., at p. 630; see § 366.26, subd. (c)(1); In re Katherine J. (2022) 75 Cal.App.5th 303, 316.) “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.” (In re Caden C., at pp. 630-631; see § 366.26, subd. (c)(1)(B)(i)-(vi), (4)(A); In re B.D. (2021) 66 Cal.App.5th 1218, 1225.)

One of those reasons, the parental-benefit exception, requires the parent to establish by a preponderance of the evidence (1) “the parent has regularly visited with the child,” (2) “the child would benefit from continuing the relationship,” and (3) “terminating the relationship would be detrimental to the child.” (In re Caden C., supra, 11 Cal.5th at p. 629; see § 366.26, subd. (c)(1)(B)(i); In re L.A.-O. (2021) 73 Cal.App.5th 197, 206.) “The first element—regular visitation and contact—is straightforward. The question is just whether ‘parents visit consistently,’ taking into account ‘the extent permitted by court orders.’” (In re Caden C., at p. 632; see In re Katherine J., supra, 75 Cal.App.5th at p. 316.)

To establish the second element, that the child would benefit from continuing the parental relationship, the parent must show 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.” (In re Caden C., supra, 11 Cal.5th at p. 636; see In re J.D. (2021) 70 Cal.App.5th 833, 854.) 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.’” (In re Caden C., at p. 632; see In re J.D., at p. 854.) “[C]ourts often consider how children feel about, interact with, look to, or talk about their parents.” (In re Caden C., at p. 632; see In re J.D., at p. 854.)

“Concerning the third element—whether ‘termination would be detrimental to the child due to’ the relationship—the court must decide whether it would be harmful to the child to sever the relationship and choose adoption.” (In re Caden C., supra, 11 Cal.5th at p. 633; see In re Katherine J., supra, 75 Cal.App.5th at p. 317.) “When it weighs whether termination would be detrimental, the court is not comparing the parent’s attributes as custodial caregiver relative to those of any potential adoptive parent(s). . . . Accordingly, courts should not look to whether the parent can provide a home for the child.” (In re Caden C., at p. 634; see In re Katherine J., at p. 317.) “When the relationship with a parent is so important to the child that the security and stability of a new home wouldn’t outweigh its loss, termination would be ‘detrimental to the child due to’ the child’s beneficial relationship with a parent.” (In re Caden C., at pp. 633-634; see In re Katherine J., at p. 317.)

A “substantial evidence standard of review applies to the first two elements. The determination that the parent has visited and maintained contact with the child ‘consistently,’ taking into account ‘the extent permitted by the court’s orders’ [citation] is essentially a factual determination. It’s likewise essentially a factual determination whether the relationship is such that the child would benefit from continuing it.” (In re Caden C., supra, 11 Cal.5th at pp. 639-640; see In re Katherine J., supra, 75 Cal.App.5th at pp. 317-318; In re L.A.-O., supra, 73 Cal.App.5th at p. 206.)

“The third element—whether termination of parental rights would be detrimental to the child—is somewhat different. As in assessing visitation and the relationship between parent and child, the court must make a series of factual determinations. . . . [¶] Yet the court must also engage in a delicate balancing of these determinations as part of assessing the likely course of a future situation that’s inherently uncertain. . . . The court makes the assessment by weighing the harm of losing the relationship against the benefits of placement in a new, adoptive home. And so, the 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.” (In re Caden C., supra, 11 Cal.5th at p. 640; see In re Katherine J., supra, 75 Cal.App.5th at p. 318; In re L.A.-O., supra, 73 Cal.App.5th at p. 206.)

2. The Juvenile Court Erred in Analyzing the Factors Identified in In re Caden C.

At the section 366.26 hearing, which occurred over six months after the Supreme Court’s decision in In re Caden C., supra, 11 Cal.5th 614, the juvenile court failed to adequately assess whether Paige proved the second element of the parental-benefit exception. As discussed, “the juvenile court is required to examine the record to ascertain whether the parent has proven by a preponderance of the evidence that ‘the child has a substantial, positive, emotional attachment to the parent.’” (In re B.D., supra, 66 Cal.App.5th at p. 1227; see In re Caden C., supra, 11 Cal.5th at p. 636; In re Katherine J., supra, 75 Cal.App.5th at p. 319 [“Caden C. requires juvenile courts to do more than summarily state that a parent has not occupied a parental role in his child’s life”].) Not only did the juvenile court fail to determine whether H.A. had a significant emotional attachment to Paige, the court did not make any finding at all about the relationship between Paige and H.A.; the court stated only that the visits “may have” allowed Paige to assume a “parental role.” Moreover, the court’s use of the term “parental role,” without any further explanation or findings, left open the possibility the court considered improper factors in finding the parental-benefit exception did not apply. As the court in In re L.A.-O., supra, 73 Cal.App.5th 197 explained: “Unfortunately, the words ‘parental role’ standing alone, can have several different meanings. . . . [¶] They can mean being a good parent—nurturing, supportive, and guiding. Caden C., however, tells us that the parental-benefit exception does not require being a good parent; it does not require that the parent have overcome the struggles that led to the dependency, and it does not require that the parent be capable of resuming custody.” (Id. at p. 210; see In re Caden C., supra, 11 Cal.5th at p. 634.)

For example, the juvenile court here may have equated “parental role” with Paige’s ability to care for H.A. That would have been an inappropriate consideration. (See In re L.A.-O., supra, 73 Cal.App.5th at pp. 211-212 [juvenile court’s “terse” ruling the parents had “‘not acted in a parental role in a long time’” “seems to have meant that they were not capable of taking custody, or had not been good parents, or had not been providing necessary parental care,” which would have been improper considerations]; In re J.D., supra, 70 Cal.App.5th at pp. 864-865 [juvenile court’s “conclusory” finding on the second element was “problematic” because the reviewing court could not “be sure whether the juvenile court’s determination that [the] mother did not occupy a ‘parental’ role encompassed factors that Caden C. deem[ed] irrelevant”]; In re B.D., supra, 66 Cal.App.5th at pp. 1230-1231 [in finding the parents “failed to show the existence of a parental relationship,” the juvenile court’s statement the grandmother provided for the children’s daily needs indicated the court “considered improper factors at the second step of the analysis”]; see also In re D.M. (2021) 71 Cal.App.5th 261, 270 [by equating “parental role” with attendance at medical appointments and understanding the children’s medical needs, the juvenile court considered inappropriate factors]; compare In re Katherine J., supra, 75 Cal.App.5th at pp. 319-320 [although the juvenile court “concluded that father ‘has not occupied a significant parental role,’” the court “also explained what it meant by this” by finding that the father’s unresolved substance abuse and violence “destabilized” his daughter’s life and “fatally” compromised his attempts “to maintain a strong, positive emotional attachment” with her].) The juvenile court erred in applying the second element of the Caden C. analysis.

3. But the Error Was Harmless

Although the juvenile court erred at the second element of the parental-benefit exception analysis under Caden C., the error was harmless. “The California Constitution prohibits a court from setting aside a judgment unless the error has resulted in a ‘miscarriage of justice.’ [Citation.] We have interpreted that language as permitting reversal only if the reviewing court finds it reasonably probable the result would have been more favorable to the appealing party but for the error. [Citation.] We believe it appropriate to apply the same test in dependency matters.” (In re Celine R. (2003) 31 Cal.4th 45, 59-60; see Cal. Const., art. VI, § 13; In re J.P. (2017) 15 Cal.App.5th 789, 798.)

Paige, who had the burden of proving the applicability of the parental-benefit exception (§ 366.26, subd. (c)(1)(B)(i); In re Caden C., supra, 11 Cal.5th at p. 635), did not introduce any evidence H.A. had a substantial, positive, and emotional attachment to her. (Compare In re D.M., supra, 71 Cal.App.5th at p. 271 [father testified that the children wanted to return to him and that the youngest child cried when their visits concluded]; In re J.D. supra, 70 Cal.App.5th at p. 856 [mother introduced logs of her virtual visits with her son that detailed the depth of their bond].) Nor was there any evidence suggesting H.A. had such an attachment. (Compare In re B.D., supra, 66 Cal.App.5th at p. 1229, fn. 4 [evidence of the way the children greeted their parents with hugs and expressed sadness at the end of visits suggested the parents had a “beneficial relationship” with their children].)

To the contrary, the evidence showed a relationship that, at times, may have been harmful to H.A. Paige generally visited regularly, although she missed five weeks of visits approximately three months before the selection and implementation hearing because she was incarcerated. At a visit shortly after her release, Paige did not engage with H.A. Instead, she made unusual and unfounded accusations against the Department, which prompted the monitor to end the visit early and express concern Paige might hurt someone. This episode could not have been a positive experience for H.A. (See In re Caden C., supra, 11 Cal.5th at p. 637 [“A parent’s struggles may mean that interaction between parent and child at least sometimes has a ‘“negative” effect’ on the child.”]; In re A.L., supra, 73 Cal.App.5th at p. 1159 [evidence the father’s prior substance abuse had a negative impact on the child “was germane to the court’s assessment of ‘“the strength and quality”’ of the parent-child relationship”].) Thus, even if the juvenile court had considered whether H.A. formed a strong attachment to Paige and had disregarded any consideration of Paige’s inability to provide for H.A.’s daily needs, it is not reasonably probable the court would have found Paige met her burden on the second element of the parental-benefit exception.

Paige argues the court’s error was not harmless because the social worker reported that Paige’s visits were appropriate and that she was able to understand H.A.’s cues and cries. That evidence, however, showed only that Paige may have formed an attachment to H.A., not the other way around. (See In re Caden C., supra, 11 Cal.5th at p. 632 [considering the factors relating to the child and the child’s particular needs “properly focuses the inquiry on the child”]; In re B.D., supra, 66 Cal.App.5th at p. 1230 [“it is critical for the juvenile court at the second step of the analysis to consider the evidence showing whether the parent’s actions or inactions ‘continued or developed a significant, positive, emotional attachment from child to parent’”].)

Paige also faults the social worker for not providing more information about Paige’s interactions with H.A. during their visits. To the extent Paige is challenging the adequacy of the social worker’s report, she forfeited her challenge by not raising it in the juvenile court and raising it on appeal, for the first time, in her reply brief. (See In re S.B. (2004) 32 Cal.4th 1287, 1293 [“a reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court,” and “the appellate court’s discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue”]; In re G.C. (2013) 216 Cal.App.4th 1391, 1399 [father forfeited his right to challenge the adequacy of a report for the selection and implementation hearing because he failed to raise the issue in the juvenile court]; In re Karla C. (2010) 186 Cal.App.4th 1236, 1269 [we need not address arguments raised for the first time in the reply brief].)

B. The Juvenile Court Failed To Ensure the Department Adequately Investigated H.A.’s Possible Indian Ancestry

Paige contends, the People concede, and we agree the juvenile court failed to ensure the Department fulfilled its obligation to conduct an adequate inquiry under ICWA and related California law. We also accept the Department’s concession that remand is appropriate to allow the Department to conduct a proper inquiry and to allow the juvenile court to ensure the Department conducts such an inquiry.

1. Relevant Proceedings

Paige denied any Indian ancestry in her initial interview with the social worker, and on her ICWA-020 form she checked the box indicating she did not have any known Indian ancestry. At the detention hearing, the juvenile court, referring to Paige’s denial of Indian ancestry, stated: “The court does not have reason to know or believe the child is an Indian child as defined by the Indian Child Welfare Act. The Indian Child Welfare Act does not apply.” The record does not reflect the court made any further inquiries or findings relating to ICWA at the selection and implementation hearing or in any other proceeding.

In the course of assessing the needs of the family, the social worker spoke to one of H.A.’s maternal aunts, Ashely L., about whether she could monitor Paige’s visitation and with another of H.A.’s maternal aunts, Jennifer L., about whether she could be a caregiver for H.A. The social worker did not ask either of them whether H.A. might have Indian ancestry.

2. ICWA and Related California Law

ICWA provides that, “where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe . . . of the pending proceedings and of their right of intervention.”[2] (25 U.S.C. § 1912(a); see In re Isaiah W. (2016) 1 Cal.5th 1, 5; In re J.C. (2022) 77 Cal.App.5th 70, 76.) “This notice requirement, which is also codified in California law [citation], enables a tribe to determine whether the child is an Indian child and, if so, whether to intervene in or exercise jurisdiction over the proceeding.” (In re Isaiah W., at p. 5; see § 224.3; In re Y.W. (2021) 70 Cal.App.5th 542, 551; In re T.G. (2020) 58 Cal.App.5th 275, 288.)

“[J]ust as proper notice to Indian tribes is central to effectuating ICWA’s purpose, an adequate investigation of a family member’s belief a child may have Indian ancestry is essential to ensuring a tribe entitled to ICWA notice will receive it.” (In re T.G., supra, 58 Cal.App.5th at p. 289.) Section 224.2, subdivision (a), provides that courts and child protective agencies “‘have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 . . . is to be, or has been, filed is or may be an Indian child.’”[3] (See In re Isaiah W., supra, 1 Cal.5th at p. 9; In re H.V. (2022) 75 Cal.App.5th 433, 437.) Section 224.2, subdivision (b), requires the child protective agency to ask the child, parents, legal guardian, and “extended family members,” among others, “whether the child is, or may be, an Indian child.” (In re J.C., supra, 77 Cal.App.5th at p. 77; see In re Antonio R. (2022) 76 Cal.App.5th 421, 429; In re Y.W., supra, 70 Cal.App.5th at p. 552; Cal. Rules of Court, rule 5.481(a)(1).) “Thus, a juvenile court errs in making a finding ICWA does not apply to the proceedings without first ensuring that the Department has made an adequate inquiry under ICWA and California law, and if necessary, the court must continue the proceedings and order the Department to fulfill its responsibilities.” (In re Antonio R., at p. 431; see § 224.2, subd. (i)(2).)

3. The Court and the Department Breached Their Obligations Under ICWA and Related California Law

Although the social worker interviewed two maternal aunts, Ashely and Jennifer, who qualify under ICWA as H.A.’s “extended relatives” (In re Antonio R., supra, 76 Cal.App.5th at p. 430), the social worker did not ask them about H.A.’s possible Indian ancestry. That was error. (See In re J.C., supra, 77 Cal.App.5th at p. 79; In re Antonio R., at p. 431; In re Y.W., supra, 70 Cal.App.5th at pp. 552-553.) The juvenile court also erred in relying exclusively on Paige’s denial of Indian ancestry without asking the Department what efforts it made to fulfill its inquiry obligations under section 224.2. (See In re J.C., at p. 79; In re Antonio R., at p. 432; In re Y.W., at p. 555; see also In re A.R. (2022) 77 Cal.App.5th 197, 207 [“Stated plainly, it is the obligation of the government, not the parents in individual cases, to ensure the tribes’ interests are considered and protected.”].) Thus, substantial evidence did not support the juvenile court’s finding ICWA did not apply, and remand is appropriate for the court to ensure the Department conducts a proper inquiry. (See In re J.C., at p. 74; In re Antonio R., at p. 432.)

DISPOSITION

The juvenile court’s order terminating Paige’s parental rights is conditionally affirmed. The juvenile court is directed to ensure the Department complies fully with the inquiry and, if necessary, notice provisions of ICWA and related California law, including interviewing Ashely, Jennifer, and any other extended family members they may identify.

SEGAL, J.

We concur:

PERLUSS, P. J.

FEUER, J.

[1] Undesignated statutory references are to the Welfare and Institutions Code.

[2] “‘ICWA defines an “Indian child” as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.”’” (In re H.V. (2022) 75 Cal.App.5th 433, 437; see 25 U.S.C. § 1903(4); § 224.1, subd. (a).)

[3] Federal regulations implementing ICWA also require the court to “‘“‘ask each participant in an emergency or voluntary or involuntary child-custody proceeding whether the participant knows or has reason to know that the child is an Indian child’”’” and to “‘“‘instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child.’”’” (In re Y.W., supra, 70 Cal.App.5th at p. 551; see 25 C.F.R. § 23.107(a).)