Opinion
B328740
06-25-2024
In re Ar. H. et al., Persons Coming Under the Juvenile Court Law. v. J.H., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Nancy R. Brucker, by appointment of the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Avedis Koutoujian, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 19LJJP00201CD, Donald A. Buddle, Judge. Affirmed.
Nancy R. Brucker, by appointment of the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Avedis Koutoujian, Deputy County Counsel, for Plaintiff and Respondent.
ZUKIN, J.
INTRODUCTION
J.H. (father) appeals from the juvenile court's order terminating his parental rights with respect to his children, Ar. H. and Ab. H. (children).Father argues that he has a beneficial parental relationship with the children. He also claims that the Los Angeles Department of Children and Family Services (Department) failed to properly inquire into the children's Indian ancestry, as required by the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and related state law. We affirm.
The children's mother, K.S., is not a party to this appeal.
Father previously filed an appeal from the trial court's jurisdictional findings and dispositional orders. (In re Ar. H. (Sept. 21, 2023, B320027) [nonpub. opn.].) This division affirmed those findings and orders. (Ibid.) The parties and counsel are well-versed in the facts and procedural circumstances of this case, so we will not re-state them in detail here.
DISCUSSION
I. Beneficial Parental Relationship Exception
If the juvenile court cannot return a child to the custody of their parents in the manner provided for by statute, the court must hold a hearing pursuant to Welfare and Institutions Code section 366.26. (In re Caden C. (2021) 11 Cal.5th 614, 630 (Caden C.).) The purpose of the hearing is to make a permanent plan for the child. (Ibid.) "[T]he statute lists plans in order of preference and provides a detailed procedure for choosing among them." (Ibid.) If the court determines that the child is likely to be adopted, and there are no reunification services in progress, then termination of parental rights is the default result. (Id. at pp. 630-631.) The parent may compel a different result by showing that they "have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).)
All future statutory references are to the Welfare and Institutions Code, unless otherwise stated.
A. Legal Standard
To establish this exception, the parent has the burden of proving three elements: (1) regular visitation, (2) a relationship which would benefit the child if continued and (3) that the loss of that relationship would outweigh the benefit of a new adoptive placement. (Caden C., supra, 11 Cal.5th at p. 631.) In this case, neither party disputes the trial court's finding that father met the first element. The issue is whether he met the second and third elements.
We review the court's finding on the second element for substantial evidence. (Caden C., supra, 11 Cal.5th at pp. 639-640.) We review the court's finding on the third element for abuse of discretion. (Id. at pp. 640641.) At no point may we substitute our own judgment for that of the trial court. (Id. at p. 641.)
B. Analysis
Courts consider a "slew" of factors to determine whether the beneficial relationship exception applies; these include the child's age, how long they have been in the parent's custody, and how the parents interact with the child. (Caden C., supra, 11 Cal.5th at p. 632.) The inquiry is focused on the perspective of the child, not the parent. (Ibid.) The court need not attempt the impossible task of reducing its determination to a set of quantifiable terms. (Ibid.)
In this case, the children were born 11 months apart, in January and December 2019. They were in father's sole legal custody until he pled guilty to federal drug charges in April 2021 and was incarcerated shortly thereafter. By the time of the section 366.26 hearing in April 2023, the children had spent the latter half of their lives in someone else's care. The children referred to one of their caregivers as "dad," but they used no similar terms to refer to father.
The only contact father could have with the children was by phone, ten minutes at a time, three times a week. Father testified that much of this time was spent talking with the grandparents rather than the children, who were put on the phone "sometimes." The majority of the time was spent on speaker phone with the grandparents. The phone calls were initiated by father, as permitted by his schedule.
The trial court found that father had not maintained a meaningful relationship with the children. Substantial evidence supports that finding. Having properly made that finding, the trial court had no obligation to proceed to the third element.
The children are young and have spent the more recent half of their lives outside father's care. They interact with him less than 30 minutes per week, on a group phone call that also includes their grandparents. They refer to someone else as "dad." It was reasonable to conclude that the children do not have a "substantial, positive, emotional attachment to the parent." (Caden C., supra, 11 Cal.5th at p. 636.)
Father points out that the Department was directed to provide the trial court with a report on the application of Caden C. to this case. He argues that no such report was provided. It is not clear what father believes is missing; the Department did file a report which addressed father's interactions with the children. In any event, as already noted, it was father's burden to prove the elements set forth in Caden C. It is not the Department's burden to supply him with evidence for that purpose. Nor does father specifically identify what additional evidence, if any, he expected to find in the Department's report.
The Department argues that father forfeited this issue by failing to raise it below. However, "[e]ven if the parent does not contest the state of the evidence, he or she preserves the right to challenge it as insufficient to support a particular legal conclusion." (In re Javier G. (2006) 137 Cal.App.4th 453, 464.) The issue is not forfeited.
Father argues that his own testimony was "replete with information" that showed a beneficial relationship with the children. He contends that the trial court failed to address the second element of the Caden C. test, which left it unable to perform the balancing required by the third element. But the court clearly considered the second element, discussing the fact that the children refer to someone other than father as "dad" and finding no evidence that the children either look forward to their phone calls with father or express sadness when he hangs up. The court specifically concluded that the second element had not been met. We may not reweigh the evidence to draw a different conclusion. (Caden C., supra, 11 Cal.5th at p. 640.)
The trial court found that father failed to carry his burden of establishing a beneficial parental relationship. Substantial evidence supports that finding.
II. ICWA
ICWA exists "to protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards that a state court . . . must follow before removing an Indian child from his or her family." (In re Austin J. (2020) 47 Cal.App.5th 870, 881.) ICWA defines "Indian child" to mean any unmarried person who is under 18 and is either (a) already a member of an Indian tribe or (b) both eligible for membership in an Indian tribe and the biological child of a member of a tribe. (25 U.S.C. § 1903(4).) California law adopts the ICWA definition. (§ 224.1, subd. (a).)
"[B]ecause ICWA uses the term 'Indian,' we do the same for consistency, even though we recognize that other terms, such as 'Native American' or 'indigenous,' are preferred by many." (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.)
Both the juvenile court and the Department have an ongoing duty to inquire whether a child qualifies under that definition. (In re N.F. (2023) 95 Cal.App.5th 170, 176 (N.F.).) This duty applies in three phases: the initial inquiry, any further inquiry, and formal notice to the relevant tribe or tribes. The initial inquiry is the phase at issue here.
A. Governing Law
Upon initial contact with the child, the Department must ask those involved if they have any information about the child's heritage. (N.F., supra, 95 Cal.App.5th at p. 176 .) If the Department takes the child into temporary custody (as it did here), the department must inquire of "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." (Id. at p. 177, quoting § 224.2, subd. (b).)
The court may find that there is "no reason to know" that the child is an Indian child and that ICWA does not apply. (N.F., supra, 95 Cal.App.5th at p. 177.) Such a finding is an implied predicate to any order terminating parental rights. (In re Isaiah W. (2016) 1 Cal.5th 1, 10-15.) We review for substantial evidence. (In re H.V. (2022) 75 Cal.App.5th 433, 438.) Any parent may challenge ICWA compliance. (In re O.C. (2016) 5 Cal.App.5th 1173, 1180, fn. 5.)
If the Department makes an error in its inquiry, "our examination as to whether substantial evidence supports the juvenile court's ICWA finding ends up turning on whether that error by the Department was harmless." (In re Dezi C. (2022) 79 Cal.App.5th 769, 777, review granted, Sept. 21, 2022, No. S275578 (Dezi C.).) While there is a split of authority regarding the standard for harmless error, we follow Dezi C. in looking to see if "the record contains information suggesting a reason to believe" that further inquiry "might lead to a different result." (Dezi C., supra, 79 Cal.App.5th at p. 779.)
B. Inquiry
Father argues that the Department failed to interview certain relatives of the children's mother, K.S. (mother). This assumes that those family members were available to be interviewed. (See In re H.B. (2023) 92 Cal.App.5th 711, 720.) Both mother and father filed ICWA-020 forms, indicating they had no Indian ancestry. Although the Department interviewed the paternal grandmother, the record does not indicate that they asked her any questions about Indian heritage. The court found no reason to know that ICWA applied.
Later, at the request of the Department, the court ordered further interviews of the extended family. The Department then interviewed the children's maternal grandmother, who denied any Indian heritage. When the Department asked if there were any other relatives they could speak with, the grandmother said that she had sisters, but did not want the Department to contact them because she knew the family had no Indian ancestry. The record does not indicate any effort by the Department to re-interview the paternal grandmother, or any other paternal relatives.
Father argues that the Department was obliged to do more than simply accept the maternal grandmother's refusal to put them in touch with her sisters. We disagree. Father cites no case for the proposition that the Department must press family members for information they have already refused to provide. Nor did the trial court's order require the Department to do any more than simply ask the question and record the answer.
However, father correctly contends that the Department did not fulfil its obligation with respect to the paternal grandmother. Even had there been no order from the trial court directing further interviews, section 224.2, subdivision (b) required the Department to ask the paternal grandmother about Indian heritage when they interviewed her at the beginning of the proceedings. It does not appear that they did so. That failure was a breach of the Department's duty of inquiry.
C. Harmlessness
Although we conclude that the Department breached its duty, the record gives us no reason to believe that further inquiry would lead to a different result. (Dezi C., supra, 79 Cal.App.5th at p. 779.) Such a reason would exist where (a) the Department never followed up on a report of possible Indian heritage, (b) the Department never inquired about one parent at all, or (c) there is some indication that a parent may not be able to accurately self-report. (Ibid.) None of those reasons apply here.
There was never any report of possible Indian heritage on which the Department could follow up. Nor does the record show that the Department failed to inquire about father's ancestry at all. The record shows that father denied Indian ancestry, and even in his briefing on appeal he admits that he has no reason to think he has any such ancestry. And there is no indication that father would be in some way ignorant of his own heritage.
Father compares this case to In re Rylei S. (2022) 81 Cal.App.5th 309. But in that case, the parent had informed the court that she might have Cherokee ancestry through her father, and the Department failed to interview him. (Id. at pp. 314-315, 321.) Those are not the facts here.
The Department's error was harmless.
DISPOSITION
The orders terminating parental rights are affirmed.
We concur: CURREY, P. J., MORI, J.