Opinion
B325203
09-26-2023
In re Raul I., a Person Coming Under the Juvenile Court Law. v. J.I., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. CK74745C Marguerite D. Downing, Judge. Affirmed.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
EGERTON, J.
Father appeals from the juvenile court's order terminating his parental rights to his then-15-year-old, medically fragile son, Raul. Father contends: the court erred when it found the beneficial parental relationship exception to adoption did not apply; reversal of the order is required due to the failure of the Los Angeles Department of Children and Family Services (DCFS) to give mother proper notice of the hearing terminating parents' rights; and DCFS failed to make an adequate inquiry of Raul's available family members under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) and related California law (Welf. &Inst. Code, § 224 et seq.). We find no prejudicial error and affirm.
Undesignated statutory references are to the Welfare and Institutions Code. Because ICWA uses the term "Indian," we do the same for consistency, although we recognize other terms are preferred. (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.)
FACTUAL AND PROCEDURAL BACKGROUND
Raul came to the attention of DCFS in September 2008 when he was 13 months old. He was brought to the hospital suffering from bilateral retinal hemorrhaging, a subdural hematoma to his brain, and blunt head trauma-injuries consistent with shaken baby syndrome. Mother's explanations for Raul's injuries were suspicious. DCFS detained Raul and his siblings Ruby (age 6) and Rodrigo (age 4) and filed a section 300 petition on their behalf. Raul remained hospitalized. After a criminal investigation, mother confessed to having shaken Raul because he wouldn't stop crying. She was arrested and incarcerated in early October 2008.
Parents were the married, biological parents of all three children. Father was not at home when Raul's injuries occurred, nor was mother's brother who lived with the family.
Raul was transferred to the "Totally Kids" sub-acute hospital around November 2008. Father visited him there two to three times during the week and on weekends. He also called to check on the child. A hospital social worker said Raul was a" 'sad baby,'" but when father visited, he was very happy and smiled. Raul was calm and at ease in father's presence and had a hard time when father left.
In a November 2008 progress report, DCFS reported father had been very cooperative and had "by all means done anything and everything asked of him and more to ensure the well[-]being of all his children." DCFS noted father had "a lot of support from family and friends." Mother's sister Justa watched Raul's siblings when he first was admitted to the hospital, and an uncle, or first cousin, Gabriel and his wife Marciela also had been helping with Raul's siblings.
In February 2009, after parents waived their rights and submitted on the petition, the juvenile court sustained an amended version of the petition, declared the children dependents, and removed them from mother's custody. The court released Ruby and Rodrigo to father's custody but removed Raul from both parents and ordered him suitably placed due to his required 24-hour medical care. The court ordered DCFS to provide family reunification services to mother as to all three children and to father as to Raul, and to provide father with family maintenance services as to Ruby and Rodrigo. The court granted father unmonitored visits with Raul and gave DCFS discretion to release Raul to him.
1. Reunification period
Raul continued to receive 24-hour care at Totally Kids. In its September 23, 2009 status review report, DCFS reported father visited Raul two to three times a week, and every weekend father brought Raul's siblings with him to visit. Each visit lasted from one to three hours, and father was very interactive and loving toward Raul.
Father also attended all of Raul's medical appointments and expressed his concerns. Raul's doctor did not believe the child's condition would improve. He thought Raul would require 24-hour nursing care for the next couple of years. Due to severe brain trauma, Raul could not communicate. He also had uncontrollable movements of his limbs, suffered cortical blindness, and continued to have a tracheostomy and a G-tube for feeding because he could not swallow. DCFS planned to initiate medical training for father so he could begin day visits with Raul outside of the facility, as part of a plan to transition to overnight, weekend visits. Father had demonstrated his commitment to ensuring Raul received his loving attention and the best medical care.
As of April 2009, mother was incarcerated but had completed a parenting class and kept in contact with the social worker through letters (written in Spanish). DCFS recommended the court continue mother's reunification services.
The court conducted a combined section 366.21 (as to Raul) and section 364 (as to his siblings) hearing on September 23, 2009. Mother appeared in custody, represented by counsel. The court terminated jurisdiction over Raul's siblings and issued a custody order granting father, also present, sole custody of them. The court found Raul suitably placed and continued reunification services.
Father told DCFS that, due to his work schedule, he could not begin medical training to care for Raul until December 2009. As of March 2010, Raul's health was stable, but he remained nonambulatory and nonverbal. His condition was unlikely to change.
DCFS held a meeting to plan for Raul's transition to the family's care. Maternal aunt Justa was designated as father's backup caretaker. Father continued to be loving and attentive during visits with Raul, made time to attend as many of Raul's medical appointments as possible, and was committed to Raul getting the best medical care. DCFS reported Raul benefitted from father's and his siblings' consistent, nurturing contact.
DCFS's subsequent reports from October 2010 through January 2019 reflect father visited Raul at his care facilities during the week, and on weekends with Raul's siblings, and describe the quality of those visits as "strong and beneficial" or "appropriate and beneficial" for Raul.
Mother remained incarcerated for willful injury and corporal injury to a child. She continued to write to the DCFS social worker. On April 5, 2010, mother received a reduced two-year sentence in state prison with credit for time served. Because she was undocumented, mother would be deported upon release and prohibited from reentering the United States for at least five years. Mother told the social worker she planned to live with her mother and brother in "DF, Mexico."
At a review hearing in April 2010, both parents appeared with counsel. The court ordered Raul suitably placed, ordered DCFS to provide parents with further reunification services, and gave DCFS discretion to release Raul to father.
In its October 25, 2010 status review report, DCFS reported mother had been released from prison on July 3, 2010, and deported to Mexico. She had not contacted DCFS nor asked about her children. Father said he had no contact information for her. DCFS thus recommended terminating mother's reunification services.
Father had complied with his case plan and cooperated with DCFS. Although father and maternal aunt Justa had been participating in medical training to care for Raul's specific medical needs since March 2010, father had been unable to complete it. As of July 23, 2010, father had been unable to demonstrate what he had been taught. The trainer informed DCFS that she did not think father "would be able to become comfortable with the daily care for his son." Maternal aunt Justa had been doing well in the training, but in September 2010 she stopped participating and returned to Mexico. Father admitted he felt uncomfortable and did not yet have confidence in his ability to have Raul placed in his home. He said it had been difficult to balance his older children's needs with his job and Raul's medical appointments, which he regularly attended. He wanted Raul to remain at Totally Kids and said he would restart the medical training.
DCFS noted "[t]he understanding and hands on training is extremely important and vital to Raul's livelihood in order to avoid any risk and safety issues that may arise if [father is] not prepared adequately to care for Raul." DCFS acknowledged father was not unwilling to care for Raul but had been unable "to grasp the concept of Raul's medical regimen and needs." DCFS recommended the court terminate father's reunification services but said it would continue to work with him to ensure he received the training necessary to reunify with Raul.
In a last-minute information report, DCFS informed the court it had received a letter from mother stating she was living in Mexico with her maternal grandmother. Father had informed her of the hearing and of what was going on in court. She wrote that she missed her children and was "sad and lonely . . . in her country without them." Mother gave DCFS the address where she was living but stated she did not have a working telephone number yet.
Mother's counsel appeared at the October 25 hearing, as did father with his counsel. The court continued the matter for a contested hearing set by father. The court conducted the continued section 366.22 hearing on December 8, 2010. (Mother's counsel appeared.) The court terminated reunification services for both parents and identified long-term foster care as Raul's permanent plan-specifically, a planned permanent living arrangement with Totally Kids.
2. Post-reunification period-Totally Kids
Raul remained placed at Totally Kids. In February 2012, father told the social worker he was unable to pursue the medical training to care for Raul-he was very busy caring for Raul's siblings and trying to maintain his job. He was comfortable with Raul continuing to receive care from Totally Kids.
The facility's staff reported father was very interactive, affectionate, and loving with Raul. In June 2013, DCFS described Raul as happiest when father visited and took him on strolls in his wheelchair. The social worker "observed Raul to giggle and smile whenever [ ] father [was] present and respond positively to his loving affections." DCFS reported it had ceased looking for an adoptive home for Raul as of December 19, 2012, "due to the valuable relationship [father] has with his son." DCFS also found Raul "continu[ed] to benefit from [his] continued relationship with father and older siblings."
On December 17, 2013, the court ordered DCFS "to explore reunification with [father] contingent upon Raul no longer [needing] a trache[ostomy] and being medically stable."
As of DCFS's June 2014 report, efforts again were underway to train father medically to care for Raul and transition the child home. In November 2014, Totally Kids' staff had told DCFS that, as soon as the pulmonologist cleared Raul for "decannulation from his trachea," father would begin his medical training. Father was "anxious" to bring Raul- now seven-home.
Mother-apparently back from Mexico-appeared at a December 2014 hearing and was reappointed counsel. (Her counsel had been relieved at a December 2012 hearing.) The court ordered DCFS to ensure parents received appropriate medical training.
In its report filed June 16, 2015, DCFS noted father again had begun medical training. As this was father's fifth attempt at the training, the facility had advised DCFS it might not offer the training again if father did not complete it this time.
Mother again appeared with counsel at the June 2015 hearing. The court ordered DCFS to address her visits in its next report.
In October 2015, Raul's pulmonologist cleared his decannulation from his trachea. As of DCFS's December 2015 report, father had not yet completed the necessary medical training, however. DCFS stated father was "anxious to have his Raul back home" and "underst[ood] that he must complete the necessary child specific medical training at Totally Kids prior to moving forward with having Raul return back home." A discharge meeting was scheduled for December 17, 2015, to discuss with father Raul's daily needs and care, and father's completion of the required training, including an overnight stay with Raul at the facility.
DCFS also reported that mother had been visiting Raul on Sundays at Totally Kids-they would attend mass together and, afterward, mother would spend "quality time" with Raul. She was loving and affectionate during her visits; DCFS said her visits were "appropriate and beneficial for Raul."
The court held a status review hearing on December 15, 2015. (Mother again appeared with her counsel.) The court, as it had earlier, continued to find Raul's planned permanent living arrangement at Totally Kids appropriate. The court gave DCFS discretion to release Raul to father.
3. Post-Reunification period-RCN Pediatrics
On June 14, 2016, DCFS reported Raul had moved to a new care facility "RCN Pediatrics," as of February 23, 2016. He remained there until December 27, 2018. Father had completed his overnight medical training with Totally Kids on January 31, 2016. DCFS initiated services to transition Raul into father's home once Raul's tracheostomy was reversed.
Raul was hospitalized for removal of his tracheostomy on February 18, 2016. During Raul's hospitalization, father told the social worker he could not assume Raul's care, as he had to find a larger home suitable to accommodate Raul. Raul was discharged on February 23, 2016, and placed at RCN Pediatrics. The staff there described Raul as "a happy child that will smile often." His teacher also said he was "alert and content during classroom activities."
As of June 3, 2016, father still had not found a home where he would feel comfortable bringing Raul. Father said he was able to visit Raul more regularly at RCN Pediatrics, which was closer to his house. During his visits, father was attentive, loving, and playful with Raul and participated in his daily care. Father comfortably changed Raul's diaper and assisted with his G-tube feedings. Mother visited Raul on Sundays with maternal uncle at RCN Pediatrics.
In December 2016, DCFS reported father had found an apartment that would accommodate Raul's wheelchair, but it had to be renovated before he could move in. Parents continued to visit Raul as previously reported. Mother again appeared with counsel, as did father, at the December 13, 2016 hearing.
On March 14, 2017, DCFS visited father's new apartment and authorized father to have overnight weekend visits with Raul. Father immediately began these visits. The placement staff said Raul appeared to anticipate the visits and was happy after returning from them.
DCFS referred father for in-home nursing care for Raul, but the agency did not have a nurse readily available. Father's goal was to have Raul returned to his care, but, as a single, working parent, he was unable to take extended time off from work to care for Raul. Raul also likely required hip surgery.
Mother no longer was visiting Raul. Father believed she had returned to Mexico. Mother continued to be represented by counsel at court hearings, however.
In December 2017, DCFS reported Raul had had hip surgery in September and was in a partial body cast. He thus had not had any overnight visits with father since his surgery. Raul continued to enjoy his visits with father and his siblings, however, and reportedly giggled and smiled during them. Raul -now 10 years old-remained at RCN Pediatrics. Father said he was not yet ready to have Raul come home.
Father appeared for the December 22, 2017 status review hearing, and mother was represented by counsel. The court found Raul was not a proper subject for adoption and his placement at RCN Pediatrics remained appropriate with the specific goal of returning Raul to home of father. The court noted Raul's placement continued to be necessary and appropriate, not due to "any failure of the parents," but as a result of his medical condition.
4. Post-reunification period-the B.s' home
DCFS's June 2018 report noted Raul remained at RCN Pediatrics. Father continued to have positive visits with Raul at the facility, but Raul still had not had an overnight visit at father's home since his September 2017 surgery. Due to his surgery, Raul also had not attended school on campus until April 2018.
In its report filed December 21, 2018, DCFS told the court Raul would be placed in the medical family foster home of Mr. and Mrs. B. on December 27. Raul had been hospitalized for a few days in September to transition him to a Ketogenic diet to help decrease his seizures. Because Raul was at RCN Pediatrics, however, California Children's Services (CCS) and Medi-Cal would not cover the cost of the prescribed Ketogenic formula. CCS told the social worker that if Raul were placed in a lower level of care, such as a parent's home or a foster home, the formula would be covered. The hospital donated a three-month supply; the treatment was effective in reducing Raul's seizures. Raul's neurologist recommended he remain on the Ketogenic diet.
In October 2018, a DCFS social worker met with father to explain the situation. Father was not ready to care for Raul at home. The social worker explained that, if DCFS identified an appropriate family foster home for Raul, it would ensure he remained on the Ketogenic diet, which was reducing his seizures. Father agreed to move Raul to a foster home if DCFS found one able to meet all of Raul's health care needs.
The B.s both are registered nurses and familiar with the Ketogenic diet. They were willing to maintain Raul's follow-up medical appointments and to accommodate weekly family visits. DCFS believed Raul would benefit from a family home setting.
Raul remained non-verbal, but he smiled and giggled when content and cried when uncomfortable. Father planned to resume overnight visits with Raul soon. Mother still had not visited Raul.
In its report filed June 25, 2019, DCFS informed the court Raul had transitioned smoothly into the B.s' home. Raul seemed comfortable and was alert and smiling, especially when the B.s' younger children were around him. The B.s accommodated weekly visits by allowing Raul's family to visit in their home and transporting Raul to father's home on alternating Sundays. Father still had not had any overnight visits with Raul since September 2017. Mrs. B. reported it was "evident that Raul enjoys his visits with his family" because he smiles and responds to father's affection. DCFS continued to "assess" the "quality of family visits" as "strong and beneficial for Raul."
Raul was re-hospitalized for about five days in April 2019 due to increased seizure activity. Mrs. B. communicated regularly with father. He was happy with the care the B.s were providing to his son.
In late December 2019, DCFS reported Raul continued to appear comfortable in the B.s' care. Mrs. B. described him as" 'a happy boy' that loves one to one attention from her family and especially from her younger children." DCFS stated Raul continued to have beneficial weekly visits with father and his siblings. Raul again was hospitalized with pneumonia and increased seizure activity in December 2019.
Father was present for the January 8, 2020 status review hearing. The court found parents' progress had been insufficient "because Raul needs extensive medical assistance." The court found a section 366.26 hearing was not in Raul's best interests, however, as adoption was not appropriate and there was no one willing to accept legal guardianship. The court found Raul's permanent plan of placement in the medical family foster home of the B.s remained appropriate, "with a specific goal of helping to stabilize his medical condition, given the ability to access his family, and also to prepare him for long term regional center assistance."
In its status review report filed June 22, 2020, DCFS stated Raul continued to appear happy, well cared for, and comfortable in the B.s' care. Although father told the social worker he visited Raul regularly on Sundays, the B.s told the social worker father's visits were inconsistent. When the social worker asked him about it, father "became defensive." He explained his visits with Raul had been limited due to the demands of his work schedule and the other two children, now ages 18 and 16. When asked about overnight visits, father admitted he knew he could have resumed them as of December 27, 2018, but he hadn't felt prepared to do so. DCFS stated father provided no meaningful reason for not having resumed overnight visits other than to say his two older children needed his full-time care and support.
DCFS had a team meeting with father in April 2020 to discuss possible barriers to his reunification with Raul. Father said there were none; he believed he had done everything necessary to reunify with Raul. During the meeting, father said he visited Raul regularly and consistently and attended all of Raul's medical appointments.
The B.s told the social worker father had visited Raul only five times since his placement with them: once in early 2019 and mid-2019 and three times at father's home between mid-2019 and February 2020. The B.s said they offered to bring Raul to father's home more often, but father never took them up on their offer.
The B.s also said that, until a scheduled procedure in February 2020, father had not participated in Raul's medical appointments. He did participate by phone in Raul's annual Individualized Education Program (IEP) meeting in January 2020 but had not participated in Regional Center meetings or services.
When the COVID-19 pandemic began, father chose not to visit Raul in person and said he would resume visits when the pandemic ended. (As a result, his last in-person visit during that supervision period was February 2020.) The social worker encouraged father to maintain phone contact with Raul during the shelter-in-place order. Since mid-April, father called the B.s about once a week. As of the writing of the report, June 18, 2020, however, father had not scheduled any video visits with the B.s. Mother continued to have no contact with Raul; her whereabouts in Mexico remained unknown.
Father self-reported his inability to have overnight visits or to provide full-time care for Raul. He asked to have another year or more to get himself ready for Raul's placement or to increase his visitation schedule.
DCFS noted that, although father's reunification services were terminated nine and a half years earlier, DCFS had given him ample opportunities since then to reunify with Raul. As of April 2020, father said he still needed more time because "he was too busy with his other children, who need[ed] his total support and attention." As Raul now had been in the system for more than 11 years, DCFS was considering recommending adoption or legal guardianship as Raul's new permanent plan. The B.s were willing to provide Raul with permanency. DCFS recommended Raul remain with the B.s and receive permanent plan services with the goal of adoption.
In February 2021, DCFS reported father's only visit with Raul during that supervision period had been in August 2020, on Raul's birthday. Father otherwise had limited contact with the B.s through "random phone calls." Father did not try to contact the B.s during December and January.
In a last minute information report filed March 9, 2021, DCFS stated father still hadn't visited Raul-in-person or virtually-and hadn't contacted the B.s or Raul since October 2020. DCFS also reported mother had not contacted DCFS since her deportation to Mexico, following her July 3, 2010 release to the Immigration Department. Father believed mother was living in Mexico but had no contact information for her and hadn't spoken to her in years. DCFS had submitted a due diligence request for mother on March 8, 2021 and was waiting on the results.
DCFS's statement was not entirely accurate. As DCFS previously reported, mother had written the social worker from Mexico. She also had returned to California and visited Raul at Totally Kids and RCN Pediatrics and had appeared at court hearings before returning to Mexico.
At an April 26, 2021 hearing, mother's counsel objected that notice was improper because it did not state DCFS was considering setting a section 366.26 hearing. The court continued the matter for DCFS to provide proper notice. At the May 28, 2021 permanency planning hearing, the court identified adoption as Raul's permanent plan. Counsel continued to represent mother at subsequent hearings.
In its November 2021 status review report, DCFS noted father and Raul's siblings had visited Raul only three times during the current supervision period in June, August, and November 2021. The B.s said father's visits took place in their home, and each visit lasted one to two hours. During visits, the B.s provided all medical care and feedings for Raul. The B.s reported father made little effort to maintain regular phone contact with them.
The juvenile court held a status review hearing on December 15, 2021. Adoption remained Raul's permanent plan. The court ordered DCFS to give notice for the setting of a section 366.26 hearing. On February 1, 2022, the court found notice "not proper" and again ordered DCFS to give appropriate notice of the section 366.26 hearing. On March 2, 2022, the court found notice proper and set the hearing for June.
5. Section 366.26 report and status review report
DCFS filed a section 366.26 report and status review report on June 10, 2022. The reports described DCFS's due diligence search-completed April 22, 2022-to locate mother in California. No address for mother was found, nor did DCFS have current contact information for any relatives, aside from father. Father continued to report that neither he nor the children had had contact with mother. DCFS asked the court to find its due diligence report sufficient and that further notice be sent to mother's counsel.
Raul was hospitalized twice during this period: from March 6 to April 26, 2022, and from May 21 to May 28, 2022. During Raul's first hospitalization, father made himself available to hospital staff as needed to sign releases and visited Raul weekly. He also visited Raul at his bedside during the second hospitalization. Father had canceled an earlier visit scheduled for February 13, 2022, however.
DCFS described the overall quality of father's visits as "[i]nconsistent and [p]oor." (Boldface type omitted.) He continued "to make very little effort to follow up with [Raul's] care" with the B.s or DCFS. The B.s remained willing to provide Raul with permanency through adoption and to care for him "until and after the age of maturity."
6. Section 366.26 proceedings
Father appeared by telephone-assisted by a Spanish language interpreter-at the scheduled June 28, 2022 section 366.26 hearing. DCFS asked to continue the hearing and to notice mother's attorney on her behalf. Mother's counsel appeared and objected on the ground there was no indication DCFS had made any efforts to find mother in Mexico where its due diligence report stated mother likely lived. Counsel for DCFS stated they had used all the search functions they had and looked into relatives and social media. The court found the due diligence complete and ordered DCFS now could notice mother through her counsel.
As to the permanent plan of adoption, father's counsel objected both to the plan and to the reports' statements that father's visits had been inconsistent and of low quality. Counsel represented father wanted more visitation and had attempted to reach the social worker and caretaker, but they had not answered his calls. Counsel asked for a written visitation schedule. The court ordered the visitation schedule and continued the section 366.26 hearing to September.
In a last minute information report filed September 13, 2022, DCFS advised the court it had given mother notice of the section 366.26 hearing through her counsel, on July 26, 2022. DCFS recommended the court find notice proper and terminate parents' parental rights over Raul.
In a section 366.26 addendum report filed a week later, DCFS reported the B.s were committed to adopting Raul and wanted to provide him with a permanent home and ensure he continued to thrive. The B.s had been meeting Raul's physical, emotional, developmental, and psychological needs. Mr. B., a nurse, was at home full-time and able to care for Raul "completely." Mrs. B. also was a nurse and had training and experience in appropriately caring for Raul. They both attended Raul's medical appointments and advocated for him when necessary. DCFS noted the B.s were not interested in a post-adoption contact agreement with parents.
On September 27, 2022, the court found notice of the section 366.26 hearing was proper as to mother and reiterated it had found notice proper as to father. Father's counsel asked that DCFS set up visits for father-his last visit had been in August for Raul's birthday. Mother's counsel also was present.
DCFS filed a last minute information report the day before the October 28, 2022 section 366.26 hearing. DCFS advised the court that, on October 17, 2022, father had told the social worker he did not want to lose custody of Raul and believed he had gone "above and beyond to be part of [Raul's] life and visit." He stated he had maintained regular contact with the B.s about Raul. Father said he wanted to regain custody of Raul as soon as possible and would be consistently visiting Raul on Sunday afternoons. He explained that was the only day available to visit Raul due to his work schedule and his having to drop off his adult daughter at school. DCFS noted that, before this visitation plan, father's visits "were sporadic and, on average, 1 to 2 times per year."
Father was present at the hearing. Mother was not, but her appointed attorney appeared. Raul's counsel joined DCFS's recommendation to terminate parental rights and argued no exception to adoption applied. Counsel argued father had not met the first prong of Caden C. as father had not had regular, consistent visitation with Raul. Counsel asserted father was granted overnight weekend visits but had never had any overnight visits with Raul and, until recently, had not been visiting Raul at all except for a few times a year.
Counsel for mother asked for a continuance so mother could appear, which the court denied. Counsel objected to termination of parental rights.
In re Caden C. (2021) 11 Cal.5th 614 (Caden C.) [discussing application of beneficial parent relationship exception to adoption under section 366.26, subd. (c)(1)(B)(i)].
Father's counsel asked the court to apply the Caden C. exception to termination of parental rights. He asserted father had maintained visits with Raul and currently was visiting regularly and consistently. Counsel stated visits did not occur "as much as Father would like because of the location of Raul's placement." Counsel noted the DCFS case worker had spoken to father that weekend about a possible home inspection and placement. Counsel also clarified that father had overnight visits before the pandemic. He conceded father's visits "were a little more sporadic" after the pandemic. He noted father had a new case worker and there was less communication. Father's counsel also conceded father had been granted overnight visits after the pandemic but did not take advantage of those visits. Counsel continued, "Father was in a different situation back then. And . . . he is in a different situation now and is able to have overnights.... Father has been doing all he needs to do to be reunified with Raul. He has been participating in [his] medical appointments." Counsel asked that father's parental rights not be terminated, but, if they were, that the prospective adoptive parents create a post-adoption contact agreement with father.
DCFS joined in minor's counsel's argument. Counsel argued that, for the "bond exception" to apply, the court would have to find termination of parental rights "to be detrimental to the child." Counsel argued that, "although father has been present in Raul's life for some time, it's not to a degree that he has established such a bond that it would be detrimental if it were [terminated]." Counsel recognized that, since father was "getting back on his feet," he might be in a position to take advantage of overnight visits, but "it's a bit too late at this point."
DCFS's counsel continued, "Raul is ready to be adopted. This case has been open for a number of years and Raul is bonded to his caretakers, and based on the lack of quality visits that the father has had and the evidence before the court, today, it appears that the only thing going for father is a future bond that he could make, which is just not unfortunately present today."
Having considered and received into evidence DCFS's three most recent reports-two filed in September 2022 and one filed in October 2022-the court found Raul was adoptable and it would be detrimental to return him to parents' custody. The court noted Raul was 15 years old at that point with extensive medical needs, had been in foster care since he was 13 months old, and had been in the prospective adoptive parents' care since 2018. The court then found there was no exception to adoption and terminated parents' parental rights. Father appealed.
Raul wasn't placed with the B.s until December 27, 2018.
7. Additional facts relating to ICWA
In ICWA-010(A) forms signed September 23, 2008, a DCFS social worker declared she made an Indian child inquiry and Raul and his siblings had no known Indian ancestry. On September 24, 2008, mother and father each signed and filed ICWA-020 parental notification of Indian status forms, checking the box, "I have no Indian ancestry as far as I know." At the detention hearing that same day-at which parents and maternal aunt and uncle were present-the juvenile court found ICWA did not apply. The court also ordered DCFS to prepare a PRI (prerelease investigation) report as to paternal uncle Rodrigo.
Parents originally had expressed interest in having DCFS place the children under the care of relative Gabriel (referred to as mother's first cousin, maternal uncle, and paternal uncle) and his wife. DCFS also interviewed Gabriel in October 2008 for its jurisdiction/disposition report.
DCFS did so and recommended the children temporarily be detained with paternal uncle Rodrigo and his wife. The court ordered the children be detained with paternal uncle or any appropriate relative. DCFS's jurisdiction/disposition report filed October 28, 2008 noted "[t]he children have extended family members who have been involved and continue to support the father and help him with anything related to the children."
DCFS's February 2021 interim review report notes, "there is no ICWA ruling for this case." (Boldface type omitted.) DCFS asked the court to "make an ICWA ruling to facilitate finalization of the adoption at a later date." At a March 11, 2021 permanency planning review hearing, the juvenile court found this "[wa]s not an ICWA case." DCFS's subsequent June 2022 section 366.26 and status review reports stated, "On 3/04/2009 the Court found that this is not an ICWA case. Therefore, the Indian Child Welfare Act does not apply."
As father notes, there is no report of a juvenile court hearing on March 4, 2009 in the record.
At the September 27, 2022 permanency planning hearing, the juvenile court asked father, through an interpreter, if anything had changed from his original statement that he did not have "Native American Indian ancestry." Father's interpreter answered, "[N]o, he is Mexican." The court then found ICWA did not apply as to father. The court ordered DCFS to prepare a last minute report, including "an update re: ICWA" by October 27, 2022.
In that report, DCFS advised the court a social worker called father on October 4, 2022 to ask about his Native American heritage. Father said he had "no knowledge of Native American ancestry in his family nor mother's family." He said there were no other family members to ask about Native American ancestry. Raul's siblings-although now adults -also had no information on the subject. The social worker called father again on October 17, 2022. Father again denied having knowledge of Native American ancestry in his or mother's family. He said that, while he had no contact with mother, Raul's now-adult sibling Ruby had regular telephone communication with her. The social worker asked father to ask Ruby to give either him or the social worker mother's phone number. Father agreed to ask Ruby to contact the social worker. As of the writing of the report-signed October 20, 2022-the social worker had not heard from Ruby.
At the October 28, 2022 section 366.26 hearing, the juvenile court reiterated its "previous finding that the court has . . . no reason to know that the Indian Child Welfare Act applies or that this is an Indian Child."
DISCUSSION
1. The court did not err in terminating father's parental rights
a. Applicable law and standards of review
Under section 366.26, once the juvenile court terminates reunification services and determines a dependent child is adoptable-a finding not in dispute here-it must select adoption as the permanent plan and terminate parental rights unless it finds doing so would be detrimental to the child under one of several statutory exceptions. (§ 366.26, subd. (c)(1); Caden C., supra, 11 Cal.5th at pp. 630-631.)
The beneficial parent relationship exception applies where the parent has "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) Our Supreme Court has clarified the three elements a parent must prove, by a preponderance of the evidence, to establish the exception: (1) the parent's regular visitation and contact with the child; (2) the child's "substantial, positive, emotional attachment to the parent," "the continuation of which would benefit the child"; and (3) that the termination of "that attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home." (Caden C., supra, 11 Cal.5th at pp. 631, 636.)
In assessing whether terminating parental rights would be detrimental to the child, the court must perform a "case-specific inquiry," asking, "does the benefit of placement in a new, adoptive home outweigh 'the harm [the child] would experience from the loss of [a] significant, positive, emotional relationship with [the parent?]' [Citation.] 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." (Caden C., supra, 11 Cal.5th at pp. 633-634.)
"A showing the child derives some benefit from the relationship is not a sufficient ground to depart from the statutory preference for adoption." (In re Breanna S. (2017) 8 Cal.App.5th 636, 646, disapproved on another ground in Caden C., supra, 11 Cal.5th at pp. 637-638, fns. 6-7.) Rather, the parent must show the relationship "promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
In evaluating the existence of a beneficial parental relationship, courts consider several factors, including "[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 Autumn H., supra, 27 Cal.App.4th at p. 576.) The Caden C. court clarified, however, that a parent's failure to make adequate progress with her case plan or "continued struggles" with issues that led to the dependency-standing alone-do not preclude application of the exception. (Caden C., supra, 11 Cal.5th at pp. 637-638.)
We review the court's findings as to whether the parent has maintained regular visitation and whether the child would benefit from continuing the parent-child relationship for substantial evidence. (Caden C., supra, 11 Cal.5th at pp. 639640.) In so doing, we do" 'not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts,'" and we will uphold the juvenile court's determinations even where substantial evidence to the contrary also exists. (Id. at p. 640.) Where, as here, a parent contends the court erred in finding he did not meet his burden of proof, we must determine whether "the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.' [Citation.]" (In re I.W. (2009) 180 Cal.App.4th 1517, 1528, disapproved on another ground in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1003, fn. 4, 1010, fn. 7.)
"[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." (Caden C., supra, 11 Cal.5th at p. 640.)
b. The court did not err in finding no exception to adoption
It is undisputed that, for the first ten years of these dependency proceedings, father consistently visited Raul, and Raul had developed a positive, beneficial attachment to father. The record reflects father regularly visited Raul one to three times a week from the onset of Raul's detention until DCFS placed Raul with the B.s in late 2018. And, DCFS repeatedly assessed father's relationship with Raul as "strong and beneficial" to Raul. After DCFS placed Raul with the B.s, however, father stopped his weekly visits. DCFS thus argues father failed to establish prong one of the beneficial parent relationship exception. And, even if his more limited visitation during Raul's years with the B.s was consistent enough, that limited visitation had changed the nature of Raul's and father's relationship.
As to the first element, before Raul was placed with the B.s, father regularly visited him two to three times each week-first at Totally Kids and then at RCN Pediatrics. The record conflicts as to the extent of father's visitation with Raul during 2019 after Raul first went to live with the B.s. In its June 2020 report, DCFS reported that, according to the B.s, father's visits were inconsistent, and he had visited Raul only five times since his placement with them. Yet, in June 2019, DCFS reported the B.s were accommodating weekly family visits. Mrs. B. also had informed DCFS that Raul enjoyed those visits, and DCFS continued to describe father's and the siblings' visits as "strong and beneficial for Raul." In December 2019, DCFS similarly reported Raul continued to have beneficial, weekly visits with father and his siblings. And, at the January 2020 status review hearing, the court commended father for visiting Raul when he was able, appearing in court, and staying engaged in Raul's case. The court told father, "I have to say that Raul is in a better place because you care enough to be there. I want you to stay strong."
At some point, father stopped visiting Raul as much. Part of that was due to the pandemic: father didn't want to visit Raul -a vulnerable, medically fragile child-in person. During that time, father called Raul weekly through the B.s, yet he never arranged to have a video visit with Raul. Father visited Raul on his birthday in August 2020, but as of March 2021, he had neither visited since August nor contacted the B.s since October 2020. He then visited three times between June and November 2021 and had irregular telephone contact with the B.s.
Nevertheless, father maintained contact with Raul and remained involved in his case. For example, in October 2019 he approved a PT assessment for Raul, in January 2020 he participated by phone in Raul's annual IEP meeting, he visited Raul in the hospital in spring 2022, and he reestablished weekly visits before the October 2022 hearing. Father told DCFS his lack of visitation after Raul left RCN Pediatrics was due to his need to work and care for his older children (as a single parent). At the section 366.26 hearing, father's counsel added that the B.s' home was farther away from father's home than Raul's prior placement.
We acknowledge father visited Raul sporadically for a period. Nevertheless, for purposes of this opinion, we assume father's ten plus years of consistent visitation-from Raul's removal in September 2008 until he was placed with the B.s in December 2018 (and seemingly later)-satisfied prong one of the exception.
As to the second element, DCFS concedes its own reports reflect its finding that Raul had a beneficial relationship with father. That relationship, DCFS argues, no longer benefited Raul after he was placed with the B.s and father stopped visiting regularly. As we discussed, despite not visiting Raul as frequently as he had, father maintained contact with him and had resumed weekly Sunday visits before the section 366.26 hearing. Based on the many years father and Raul shared a positive relationship, we can infer the court found Raul continued to benefit from his relationship with father.
Nevertheless, father has failed to demonstrate that termination of his parent-child relationship with Raul would be detrimental to Raul when balanced against the benefits of adoption. (Caden C., supra, 11 Cal.5th at pp. 636-637.) Raul may have continued to derive some benefit from his relationship with father. But, as DCFS notes, Raul and father no longer shared the frequent contact and affection characteristic of their earlier relationship. Moreover, until his placement with the B.s, Raul had spent most of his life in care facilities and had been in father's custody for only 13 months. By the time of the section 366.26 hearing, Raul had been living with the B.s for almost three years and ten months. He had spent only his first 13 months in father's care. The B.s were committed to giving Raul permanency and stability, advocating for him, and caring for his special medical needs in their home.
Without doubt, father loves Raul very much. After 14 years in the system-and considering father's reduced contact with Raul over the almost four years preceding the section 366.26 hearing-we cannot say the juvenile court abused its discretion in implicitly concluding the benefits Raul would receive through adoption outweighed the loss of his relationship with father. (In re A.L. (2022) 73 Cal.App.5th 1131, 1156 [juvenile court need not recite its specific findings in concluding the beneficial parent relationship exception does not apply].) There was no evidence before the court that the positive contact between father and Raul was so beneficial as to outweigh "the security and sense of belonging available" in the adoptive home of the B.s "or that [Raul] would be greatly harmed if th[at] positive relationship were terminated." (In re I.R. (2014) 226 Cal.App.4th 201, 213.) We note the same bench officer who sustained the initial section 300 petition presided over the section 366.26 hearing, as well as many other hearings held throughout these unusually lengthy proceedings. She was in the best position to determine whether, on balance, Raul would suffer detriment if his ties to father were severed when considering the benefit a permanent, stable, safe new home would provide. We cannot say the court acted arbitrarily in deciding the beneficial parent relationship did not apply here. (Caden C., supra, 11 Cal.5th at p. 641.)
2. Father has no standing to challenge any purported notice error as to mother
Father contends DCFS failed to exercise reasonable diligence to locate mother in Mexico and serve her with notice of the section 366.26 hearing in violation of her constitutional right to due process. DCFS contends father lacks standing to challenge the order terminating parental rights based on mother's lack of notice, and, alternatively, any purported error was harmless.
"[T]he general rule is that' "[a]n appellant cannot urge errors which affect only another party who does not appeal." '" (In re Joshua M. (1997) 56 Cal.App.4th 801, 807 (Joshua M.).) "A corollary to this general rule is the principle that,' "[w]here the interests of two parties interweave, either party has standing to litigate issues that have a[n] impact upon the related interests." '" (In re J.R. (2022) 82 Cal.App.5th 569, 581 (J.R.).) The juvenile court also generally "may not terminate the rights of only one parent under section 366.26." (Cal. Rules of Court, rule 5.725(a)(1); see also rule 5.725(f) [rights of all parents must be terminated to achieve the objective of an order terminating parental rights-"to free the child for adoption"].)
Relying on J.R., father argues his "interests are intertwined" with mother's, as a reversal of the order terminating mother's parental rights for inadequate notice would justify reversal of the order terminating his parental rights. In J.R., Division One of this court concluded-based on the "unique facts" of that case-a father had standing to assert the mother's due process right to proper notice in his appeal from an order terminating their parental rights because "DCFS's failure to afford [the] mother with constitutionally adequate notice of the proceedings warrant[ed] the reversal of the order terminating both parents' rights." (J.R., supra, 82 Cal.App.5th at pp. 572573, 581, 585-586.) DCFS had initiated the dependency proceedings there based on the father's physical abuse of his son. (Id. at pp. 572-573.) At the outset of the proceedings, the father claimed he had migrated from El Salvador, where the mother lived, and said she had abandoned their son. (Id. at p. 574.) Nothing indicated DCFS attempted to find the mother in that country, however. Rather, DCFS searched records and databases concerning California residents-as it did here-and, when that search was unsuccessful, ultimately served mother through publication in a Los Angeles-based newspaper. (Id. at p. 573.) After declaring the child a dependent and removing him from both parents, the juvenile court denied reunification services to mother because her whereabouts were unknown. (Id. at p. 575 &fn. 4; § 361.5, subd. (b)(1) [reunification services need not be provided to parent whose whereabouts are unknown].) At some point, the mother called a DCFS social worker from Guatemala, where she said she had gone to search for her son after the father had taken him. (J.R., at p. 576.) There was no evidence DCFS told the mother during the call that she could ask for visitation or otherwise afforded her the opportunity to participate in the proceedings. (Id. at pp. 585, 592.)
Notably, the mother in J.R. never appeared in the case- either personally or through counsel-and never was given an opportunity to reunify with her son, having been denied those services outright. (J.R., supra, 82 Cal.App.5th at pp. 575-576, 585, 592.) In essentially concluding the father's interests in J.R. were intertwined with the mother's, Division One explained the mother-if she participated in the proceedings after receiving proper notice-potentially could have reunified with her son, making adoption of the child inappropriate. (Id. at pp. 581-582, 585-586.)
The circumstances here are distinguishable. Critically, mother not only had notice of-and personally participated in- the adjudication and disposition stage of the section 300 petition, but she was granted reunification services. Mother thus would have had no grounds to ask the court to reinstate her reunification services for lack of notice in contrast to the mother in J.R., who had no opportunity to participate in the dependency proceedings or to reunify with her son. (J.R., supra, 82 Cal.App.5th at pp. 575-576, 585, 592-593 &fn. 34 [noting that had mother appeared at the section 366.26 hearing, she could have filed a section 388 petition "contesting the validity of [the juvenile court's] prior orders barring her from reunifying with [her son]," based on lack of notice, or asked the court to change its prior rulings sua sponte].) As a result, reversal of the order terminating mother's parental rights to provide notice here would not benefit father as it would have the father in J.R. (Id. at pp. 585-586 [noting father could ask for visitation if mother appeared after reinstatement of her parental rights and obtained custody of their son, which he could not do if termination of his parental rights were not conditionally reversed based on lack of notice to mother].)
Moreover, mother here participated in subsequent proceedings personally and/or through appointed counsel.The facts here are thus more akin to those in Joshua M., relied on by DCFS. There, a mother had no standing to contest an order terminating parents' parental rights based on the ineffective assistance of the nonappealing father's counsel where the father never complained about the quality of his representation and was present at the section 366.26 hearing. (Joshua M., supra, 56 Cal.App.4th at pp. 807-808.) The parents also were not aligned about the plan for their son. (Id. at p. 808.)
Mother appears to have been unrepresented by counsel for a two-year period-consisting of three review hearings-after she was deported. Her counsel was relieved at the December 19, 2012 hearing and reappointed at the December 16, 2014 hearing, at which mother also appeared. In the interim, Raul remained suitably placed at Totally Kids and his permanent plan remained long-term foster care. Before she appeared at the December 2014 hearing, mother had not participated in the dependency proceedings since April 2010, aside from sending DCFS a letter in October 2010.
Significantly, here, counsel appeared on mother's behalf at the hearings where the court terminated her reunification services and ordered adoption as Raul's permanent plan, and appeared and objected on mother's behalf at the section 366.26 hearing. Mother was not personally present at the section 366.26 hearing, as was the father in Joshua M., but when she submitted on the petition, she acknowledged she had been advised that, if she failed to reunify with her children, her parental rights could be terminated. Nor were there any facts, as in J.R., that only could be resolved by mother's appearance. (See J.R., supra, 82 Cal.App.5th at pp. 574, 576 [father claimed mother abandoned their son, while mother told a social worker father had forced her to sign her son's passport, taken her son out of their home country, and left mother behind to be kidnapped and killed].)
Mother's counsel here did raise the issue of inadequate notice on her behalf in contrast to the father's silence about his representations in Joshua M. But, like the father there, mother showed minimal interest in reunifying with her son. (Joshua M., supra, 56 Cal.App.4th at pp. 806, 810 [after his release from prison father failed to show up for 10 of 14 visits with his son].) After her release from prison and deportation in 2010, she did not contact Raul until she began visiting him several years later. She had neither seen nor spoken to him, nor contacted DCFS, since she returned to Mexico in 2017. Finally, father said he had no contact with mother. They thus could not have had a shared plan as to Raul's care-care necessary due to mother's actions.
Accordingly, given mother's significant participation in these proceedings, this is not a situation like that in J.R., where allowing father to challenge the adequacy of mother's notice would "allow[ ] mother to seek reunification with her son" or "promote[ ] participation of all relevant parties, thus providing the juvenile court with a full picture of the relevant facts." (J.R., supra, 82 Cal.App.5th at p. 573.)
In any event, as there was no complete deprivation of notice in this case, any purported error was not reversible per se. (Compare In re Marcos G. (2010) 182 Cal.App.4th 369, 386-387 [where there was no attempt to serve parent with notice of dependency proceedings, error was reversible per se] with In re Mia M. (2022) 75 Cal.App.5th 792, 806 [error in attempted notice of dependency proceeding is subject "to a harmless beyond a reasonable doubt standard of prejudice"]; see also In re Christopher L. (2022) 12 Cal.5th 1063, 1069, 1072, 1083 [holding adjudication of section 300 petition and denial of reunification services in absence of incarcerated father, who was not appointed counsel, violated father's due process rights but was not reversible per se].) Thus, even if we were to find father had standing to challenge the adequacy of mother's notice, we would conclude any purported error was harmless beyond a reasonable doubt. (See In re Christoper L., at p. 1083 [error subject to harmlessness analysis as its "prejudicial effects" were not beyond the court's ability to assess]; In re Mia M., at p. 806.) If mother appeared at the section 366.26 hearing, she would have had no grounds to ask the court to reinstate her reunification services under section 388. (In re A.A. (2012) 203 Cal.App.4th 597, 611612 [section 388 requires parent to demonstrate proposed change would promote the best interests of the child].) And, as a matter of law, mother could not have established the beneficial parental relationship exception to adoption, as it is undisputed she did not consistently visit Raul. (See In re James F. (2008) 42 Cal.4th 901, 918 ["If the outcome of a proceeding has not been affected, denial of a right to notice and a hearing may be deemed harmless and reversal is not required."].)
3. The court's no-ICWA finding
Father contends substantial evidence does not support the juvenile court's finding ICWA did not apply because DCFS failed to fulfill its initial duty of inquiry when it did not ask Raul's extended family members about his possible Indian status.
a. Applicable law and standard of review
Congress enacted ICWA" 'to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture.'" (In re Isaiah W. (2016) 1 Cal.5th 1, 7-8; see 25 U.S.C. § 1902.) Both ICWA and state law define 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." (25 U.S.C. § 1903(4); § 224.1, subd. (a) [adopting federal definition].)
The juvenile court and DCFS "have an affirmative and continuing duty to inquire whether a child . . . is or may be an Indian child." (§ 224.2, subd. (a).) As of January 1, 2019, whenever DCFS takes a child into its temporary custody, its duty of initial 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." (§ 224.2, subd. (b); Stats 2018, ch. 833, § 5 [adding section 224.2]; In re Ezequiel G. (2022) 81 Cal.App.5th 984, 998 (Ezequiel G.).) Extended family members include grandparents, aunts and uncles, siblings, sibling-in-laws, nieces, nephews, first or second cousins, and stepparents. (25 U.S.C. § 1903(2); § 224.1, subd. (c) [adopting federal definition].)
If that initial inquiry "provides [a] 'reason to believe' that an Indian child is involved in a proceeding-that is, if the court or social worker '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'-then the court or social worker 'shall make further inquiry' regarding the child's possible Indian status as soon as practicable. (§ 224.2, subd. (e).)" (Ezequiel G., supra, 81 Cal.App.5th at p. 999.) This duty of further inquiry "obligates [DCFS] to conduct further interviews to gather information, to contact the Bureau of Indian Affairs and state department of social services for assistance, and/or to contact the relevant Indian tribe(s)." (In re Dezi C. (2022) 79 Cal.App.5th 769, 780-781 (Dezi C.), citing § 224.2, subd. (e)(2), review granted Sept. 21, 2022, S275578.) And, once "there is 'reason to know' a child is an Indian child, [DCFS] shall provide notice to the relevant tribes and agencies in accordance with section 224.3, subdivision (a)(5). (§ 224.2, subd. (f).)" (Ezequiel G., at p. 999.)
"If the juvenile court finds that 'proper and adequate further inquiry and due diligence as required in this section have been conducted and there is no reason to know whether the child is an Indian child,' the court may make a finding that ICWA does not apply to the proceedings, 'subject to reversal based on sufficiency of the evidence.' (§ 224.2, subd. (i)(2).)" (Ezequiel G., supra, 81 Cal.App.5th at p. 999.) The court's finding that ICWA does not apply thus"' "implies that . . . social workers and the court did not know or have a reason to know the children were Indian children and that social workers had fulfilled their duty of inquiry." '" (In re Josiah T. (2021) 71 Cal.App.5th 388, 401.) Consistent with that directive," 'we review the juvenile court's ICWA findings under the substantial evidence test, which requires us to determine if reasonable, credible evidence of solid value supports' the court's ICWA finding." (Dezi C., supra, 79 Cal.App.5th at p. 777; cf. Ezequiel G., at pp. 995-996.)
b. Substantial evidence supports the court's no-ICWA finding, but even if there were inquiry error it was harmless
Both parents denied American Indian ancestry at the outset of these proceedings in 2008. DCFS had contact with several of Raul's extended family members at the beginning of the dependency, but the record does not indicate DCFS made an ICWA inquiry of them. At the time, however, the law did not require DCFS to ask family members about Raul's potential Indian status. Accordingly, DCFS did not violate its initial inquiry duty when it did not ask extended family members about parents' or Raul's Indian status before 2019.
Nevertheless, the juvenile court had a duty to determine whether Raul was an Indian child based on the facts and law that existed at the time of the October 2022 section 366.26 hearing. (See In re A.M. (2020) 47 Cal.App.5th 303, 320.) Substantial evidence supports the juvenile court's finding at the section 366.26 hearing that it continued to have no reason to know ICWA applied or that Raul was an Indian child. At the September 27, 2022 hearing, the court specifically asked father if anything had changed from his original statement back in 2008 that he had no American Indian ancestry. Father's interpreter responded on his behalf, "[N]o, he is Mexican." And, in October 2022, before the section 366.26 hearing, a social worker twice asked father about possible American Indian heritage. Both times he denied having knowledge of any American Indian heritage in his or mother's family. DCFS did not speak with mother, as it still had no contact information for her, but nothing in the record suggests mother would have changed her original denial of Indian ancestry.
As father notes, DCFS did not reach out to the extended family members it had had contact with early in the proceedings. Nothing in the record indicates those relatives remained available to DCFS, however. The relative who appeared most involved, maternal aunt Justa, had returned to Mexico in 2010. And, DCFS reported in June 2022-in connection with its due diligence report on mother's location-that it had no current contact information for any relatives, aside from father. In October 2022, father also had told DCFS there were no other family members to ask about American Indian ancestry, and Raul's now-adult siblings had no information. (See In re Q.M. (2022) 79 Cal.App.5th 1068, 1082 ["Where, as here, a parent largely fails to cooperate with DCFS or to provide names and contact information for extended family members, DCFS's ability to conduct an exhaustive ICWA inquiry necessarily is constrained. . . . While we believe it reasonable in many cases to require DCFS to follow up on leads provided by the parents, we cannot ask the agency to intuit the names of unidentified family members or to interview individuals for whom no contact information has been provided."].) On this record, substantial evidence supports the juvenile court's implicit finding that DCFS's ICWA inquiry "yielded reliable information about [the] child's possible tribal affiliation," and there was no reason to believe Raul was or may be an Indian child. (Ezequiel G., supra, 81 Cal.App.5th at p. 1009.)
But even if DCFS were required to try to contact extended family members who had been involved in the case years earlier, any error in failing to do so would be harmless. The record is devoid of any information suggesting a reason to believe Raul may be an "Indian child." (Dezi C., supra, 79 Cal.App.5th at p. 779 [holding a child welfare agency's "failure to conduct a proper initial inquiry into a dependent child's American Indian heritage is harmless unless the record contains information suggesting a reason to believe that the child may be an 'Indian child' within the meaning of ICWA, such that the absence of further inquiry was prejudicial to the juvenile court's ICWA finding"]; Ezequiel G., supra, 81 Cal.App.5th at p. 1014 [adopting Dezi C. test for assessing prejudicial error where an appeal is taken from an order terminating parental rights on the ground ICWA inquiry was inadequate].)
The only extended family members mentioned in the record with whom DCFS once had contact were uncles and aunts. Parents' siblings were unlikely to have information about the family's Indian ancestry that parents did not have already. Raul's siblings, who were young children when father was awarded custody of them, also would have had the same information as father regarding their possible Indian ancestry. And, had the social worker gotten mother's phone number from Ruby, a call to mother-who already had denied American Indian ancestry-likely would not have yielded any more information than DCFS already had.
Moreover, nothing in the record suggests parents' knowledge of their lack of American Indian ancestry might not be "fully informed" or calls into question their veracity in completing the ICWA-020 forms. (Dezi C., supra, 79 Cal.App.5th at p. 779.) Neither parent was adopted. Nor did anyone ever report possible American Indian heritage to DCFS. Finally, both parents were born in Mexico. They moved to the United States after they married in 1996. We can infer from the record that maternal and paternal grandparents also were not born in the United States. ICWA, however, applies only to children of federally recognized tribal entities recognized within the United States. (In re Jonathon S. (2005) 129 Cal.App.4th 334, 338, citing 25 U.S.C. § 1903(8) [" 'Indian tribe' is defined so as to include only federally recognized Indian tribes"]; see also In re Kenneth D. (2022) 82 Cal.App.5th 1027, 1034, review granted Nov. 30, 2022, S276649 [Bureau of Indian Affairs advised that "native heritage from Mexico would not trigger the ICWA"].) Thus, even if Raul had indigenous Mexican ancestry through mother or father, ICWA would not apply.
DISPOSITION
The juvenile court's order terminating parental rights is affirmed.
I concur: ADAMS, J.
LAVIN, Acting P.J., Concurring and Dissenting:
I agree father has failed to demonstrate that termination of his relationship with Raul would be detrimental to Raul when balanced against the benefits of adoption. I agree with father, however, that he has standing to challenge the order terminating parental rights based on mother's lack of notice of the section 366.26 hearing. (See In re J.R. (2022) 82 Cal.App.5th 569, 581582.) I also agree with father that DCFS did not exercise reasonable diligence in locating mother in Mexico and providing her notice of the hearing. (See In re DeJohn B. (2000) 84 Cal.App.4th 100, 102 ["Social services agencies, invested with a public trust and acting as temporary custodians of dependent minors, are bound by law to make every reasonable effort in attempting to inform parents of all hearings. They must leave no stone unturned."].) And "DCFS has failed to show beyond a reasonable doubt that if the agency had afforded mother constitutionally sufficient notice of the section 366.26 hearing, she would have failed to appear. Additionally, [¶] ... DCFS overlooks the fact that mother could have prevented the juvenile court from terminating her parental rights by filing a section 388 petition contesting the validity of its prior orders barring her from reunifying with [Raul]." (J.R., at pp. 592-593.)
Further, for the reasons set forth in my dissent in In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1015-1025, DCFS erred by not asking Raul's extended family members, including his adult siblings, whether Raul has any Indian ancestry-or at the very least, failing to document its efforts-and the error is prejudicial.
Given the due process notice violation and ICWA error, I would conditionally reverse the orders terminating parental rights for both parents. I would also direct the juvenile court to order DCFS to complete its duty of due diligence to discover mother's whereabouts and complete its inquiry of available relatives concerning familial Indian ancestry. (See In re Jayden G. (2023) 88 Cal.App.5th 301, 312.)
LAVIN, Acting P. J.