Opinion
B329789
02-15-2024
In re ELENA P. et al., Persons Coming Under Juvenile Court Law. v. Z.P. Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant. Tarkian &Associates, Arezoo Pichvai for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 20LJJP00568 Jennifer W. Baronoff, Judge Pro Tempore. Affirmed.
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant.
Tarkian &Associates, Arezoo Pichvai for Plaintiff and Respondent.
CHANEY, J.
In May 2023, in a hearing held under Welfare and Institutions Code section 366.26, the juvenile court terminated the parental rights of appellant mother Z.P. to her three children, Elena, Az, and Al. On appeal, Mother contends the court erred in finding she failed to establish the parental-benefit exception as to Az and Al, and in finding the Indian Child Welfare Act (ICWA) inapplicable when the Los Angeles County Department of Children and Family Services (DCFS) conducted an inadequate inquiry into the children's potential Indian heritage.
Undesignated statutory references are to the Welfare and Institutions Code.
"Az" and "Al" have unusual first names, the use of which could jeopardize their anonymity. Because they also share a last name, we refer to them as "Az" and "Al" rather than by their initials.
While the parental rights of the children's father, Abel P., was also terminated, he is not a party to this appeal.
We conclude the court did not err in finding Mother had failed to establish the parental-benefit exception, and that any deficiencies in DCFS's ICWA investigation were harmless. Accordingly, we affirm the court's orders.
FACTUAL AND PROCEDURAL BACKGROUND[
We limit our summary to the facts and procedural history relevant to the issues appellant raises on appeal.
A. DCFS Files a Petition
In September 2020, Mother reported to the police that Father had been sexually abusing Elena (born November 2009). Although Mother had obtained a two-year Domestic Violence Restraining order in 2019, which required Father to stay away from Mother and the three children except for visits supervised by a professional, Mother admitted to the police that she "frequently" invited Father to the home for "unmonitored visits." After Father had left the home following the latest visit, Elena told Mother she did not want to see him anymore because he had been touching her pelvic area and making her uncomfortable. Mother told the police that when Father visited, he slept in the same bed as her and the children. When questioned, Elena stated the abuse had been ongoing for two years, that Father had also sexually abused her siblings, and that Father had offered Elena narcotics.[ The police alerted DCFS.
The police report stated that Mother admitted knowing about the offer of narcotics.
A children's social worker (CSW) interviewed Elena, who confirmed Father had been sexually abusing her since she was seven or eight years old. She discussed an incident in which Father "showed them some white stuff on his thing and told her little brother, Az[], to lick it."[ When Az refused, Father instructed Elena to do it. Elena stated that Father explained the "white stuff" was "the stuff that made a baby in her mother and that if he put it in her it will make a baby in her." Elena also stated that Father put his fingers "inside," put his mouth on her breast, kissed her mouth, and put his penis inside her buttocks.
Az was born in July 2017.
Elena reported that the previous night, while Mother, Elena, and her two siblings were all sleeping in the same bed- Mother on one end, Elena on the other, with Az and Al between them,[ Elena felt "something inside" her vagina, and something touching her breast. Elena stated she tried to move away, but Az was next to her and she did not want to wake him; Elena then saw Father, who told her to be quiet. Elena explained that this time when Father put his hand in her vagina, it hurt, and so she told Mother after he left.
Al was born in April 2019.
Elena also reported that, in another incident, Father had forced her to orally copulate him, which "made the white stuff come out." During these activities, Mother was in another room or asleep. Elena additionally told the CSW that she used to see Father hit Mother a lot, leaving bruises. Elena added that Father also hit her and Az-but not Al-and that Father had once slapped her three times; Elena told Mother about the slapping incident.[
According to the police report, Elena claimed Father also hit her with "coat hangers, cords, and belts."
The CSW spoke with Mother, who claimed Elena had just told her of the sexual abuse and she immediately reported it to the police. Mother explained she had obtained a restraining order against Father because he used to hit her. Nevertheless, she let him stay with her and the family despite the order because she felt bad that he had nowhere to sleep. Mother denied any Indian ancestry. DCFS took temporary custody of Elena, Az, and Al.
Three days later, DCFS filed a petition on behalf of all three children under section 300, subdivisions (a), (b)(1), (d), and (j). Counts a-1, b-3, and j-3 identically alleged Father physically abused Elena by repeatedly slapping her face and striking her with coat hangers, cords, and belts, and that Mother failed to protect Elena. Counts a-2, b-4, and j-4 identically alleged Father physically abused Az by striking him with coat hangers, cords, and belts, and that Mother failed to protect Az. Counts a-3 and b-5 identically alleged that Father had a history of physical violence toward Mother, including violence committed in front of Elena, and Mother failed to enforce a Criminal Protective Order protecting Mother and the children from Father. Counts b-1, d-1, and j-1 identically alleged that Father sexually abused Elena by "kiss[ing] the child's mouth and sodomiz[ing] the child's anus," "orally copulat[ing] the child's breast, vagina and anus," "undress[ing] and forc[ing] the child Elena and the child's sibling Az[] to simultaneously orally copulate [Father]'s penis," "ejaculat[ing] in the presence of the child and forc[ing] the child and the child's sibling Az[] to hold and masturbate [Father]'s erect penis," "forc[ing] the child to watch pornographic videos," "fondl[ing] the child's breast and vagina with [his] hands," and "fondl[ing] the child's breast and vagina under the child's clothing when the mother was in the home." Counts b-2, d-2, and j-2 identically alleged Father sexually abused Az by forcing him and Elena to "simultaneously orally copulate" Father, "ejaculat[ing] in the presence of the child and forc[ing] the child and the child's sibling Elena to hold and masturbate [Father]'s erect penis." The counts also alleged Mother knew or should have known about the sexual abuse and failed to protect the children. An unsigned ICWA-020 form was filed with the court on Mother's behalf, indicating no Indian ancestry. The court found a prima facie case to detain the children. Mother was granted monitored visits, with DCFS having the discretion to liberalize the visits.
In November 2020, DCFS filed an amended petition, adding one count under section 300, subdivision (b), and one count under subdivision (j). Counts b-6 and j-5 identically alleged that Father was a current user of methamphetamines and had once offered methamphetamines to Elena and Az, and that Mother knew about this and failed to protect the children.
B. DCFS Investigates
A dependency investigator (DI) interviewed the children but could get meaningful statements only from Elena. Elena confirmed the physical and sexual abuse from Father.[ She claimed that Mother knew about the physical abuse and "didn't know but had a feeling" about the sexual abuse. Elena also relayed that Father would hit Az, but "just in his hands." She added that Father prevented her from telling anyone by warning her that if she did, he would go to jail and she would go to a foster home. Elena reported that she saw Father smoke from a "thingy" several times, which was a "line with a circle that had a hole," and which smelled like "smoky water." Father once asked Elena and Al whether they wanted to "try it."
Elena clarified that Father would put his penis on her buttocks, but did not insert it into her anus or vagina.
Mother admitted to knowing about Father slapping Elena, and claimed the slapping incident led her to get a restraining order. She denied any knowledge of Father hitting Elena with coat hangers, cords, or belts. Mother told the DI that Father "loves the children and [she] has no concerns that he will hurt them." Mother also confirmed Father's domestic violence toward her, admitting that sometimes the violence happened in front of Elena.[ One year prior, Mother had suspected Father may have molested Elena, but both Father and Elena denied it. Mother knew about Father's drug use as early as November 2019.[
The maternal grandmother, interviewed by phone, also confirmed that she would "often see bruises on [M]other['s] thighs" and described Father as "lunatico."
In a later interview with the DI, she "adamantly denied having knowledge of [F]ather . . . offering Elena and Az[] methamphetamines." She denied telling law enforcement anything different. In that same interview, she explained that she permitted Father access to the children despite the restraining order "because he appeared to be changing."
As of November 2020, Mother was visiting with the children for three hours on Tuesdays and six hours on Saturdays, and speaking with them telephonically for 30 minutes at a time on Mondays, Wednesdays, and Fridays.
In November 2020, Father was charged with various counts of sexual misconduct towards the children. When he was arrested, police found a small bag of methamphetamine in his pocket.
C. The Court Removes the Children But Grants Mother Unlimited Visits
In January 2021, the children were placed with their paternal aunt and uncle, Nora and Alfredo P.[ In March 2021, a new visitation agreement was implemented, with Mother visiting the children at Nora and Alfredo's home for three hours on Monday, three hours on Thursday, and six hours on Saturday. The visitation agreement stated in bold font: "Any other adults attending the visitation must be approved by CSW prior to the visitation."
Alfredo is Father's brother.
In March 2021, an unsigned ICWA-020 form was filed on behalf of Father, indicating no Indian ancestry. In April 2021, Elena stated she did not want to visit with Mother during the schooldays because it interfered with her homework time.[ Elena also asked that Mother not bring other family members or friends to the visit, as they made her uncomfortable. DCFS informed Mother that no one else should be present at her visits with the children without DCFS approval. In May 2021, DCFS permitted Mother to visit the children unmonitored.
Previously, when Mother had been caring for Elena, Elena had a high absentee rate and failing grades due to the family being homeless, and Mother lacking transportation to take Elena to school.
At the May 2021 adjudication hearing, Mother entered a plea of no contest to portions of the amended petition, and the court found other portions to be true as to Mother. Specifically, the court found true as to Mother counts b-1 and j-1 (Mother's failure to protect Elena from Father's sexual abuse), counts b-2 and j-2 (Mother's failure to protect Az from Father's sexual abuse), count b-5 (Mother's failure to protect the children from Father's domestic violence toward her), and counts b-6 and j-5 (Mother's failure to protect the children from Father's methamphetamine use). Allegations regarding Mother were struck from the remaining counts. As to Father, the court struck count a-3 and found the remainder to be true. The court ordered family reunification services for Mother, but denied them for Father. The court removed the children from both parents but, over DCFS's objections, ordered "no cap" on visits for Mother, ordered that visits be unmonitored, and ordered that weekend visits were to "include overnight visits . . . without a limit." The court expressly ordered that "no other adult is to be present during any visitation unless approved by DCFS."
D. The Court Orders Mother's Visits to Be Monitored
In early October 2021, DCFS filed a petition under section 388 asking the court to revoke Mother's unlimited overnight visitations and implement monitored visits during the day, citing several concerns regarding Mother's behavior during the visits, injuries to the children, and Mother's truthfulness.
DCFS reported that in early July 2021, Al had returned from a visit with a "linear bruise," which Mother explained as occurring after she and Al were showering together, and Al slipped and fell backwards.
In late July 2021, Az had informed Nora (his aunt and caregiver) that, in the previous visit with Mother, he had slept on the sofa at the house of Mother's "guy friend," and that Al had slept in the same bed as Mother and her "guy friend." When asked, Mother denied this and claimed that Az "lies" often.[
In later interviews, Az's daycare teacher described him as a "very honest boy," and Nora reported no concern over his truthfulness, giving an example of Az stating, "no tablet today I was bad" when she picked him up from daycare.
In late August 2021, Al had several scratches on her legs and two "dots on her hand that [the] caregiver reported were deep." Mother claimed Al had fallen from her bicycle, but Az explained Al got her injuries from falling on "pokies" at "Daniel's house." When informed of Az's statement, Mother responded, "oh I see," and proceeded to explain that the family was at Daniel's house, Daniel had had some carpet taken up, and there were "little pieces of wood" with "little nails sticking out on the outer part of the room near the walls"; Mother theorized that Al may have fallen on those.[ Mother initially denied Daniel was present during the overnight visit but later admitted he was. Three days later, DCFS hand-delivered a copy of the court's order that no other adult was to be present during the visits and Mother signed an affidavit acknowledging that she had been informed no other adult was to be around during her visits without DCFS approval, and that overnight visits were to take place where she lived.
In a November 2021 hearing, Mother testified that Daniel was a friend who offered his house for Mother to use for visits with the children.
In mid-September 2021, DCFS learned from Mother's "Parent Partner" that Mother was minimizing Father's abuse of Elena, claiming it happened only once, and that Father did nothing beside take Elena's bra off and touch her breasts.
Eleven days later, DCFS learned that Az had shared that he had gone to the beach with Mother and the maternal grandmother that weekend, as well as "other adults."
Two weeks after that, Mother informed the CSW she "planned a play date with Elena and her friends and the friend's parents were present at the visit," as well as the maternal grandmother. The CSW again reviewed the court order and Mother stated she understood.
In October 2021, Al again returned from a visit with bruises. Mother stated the bruises occurred from Al slipping three times; Mother explained that the falls were caused by Al's shoes, so she "changed her shoes out right away." But in a last minute information filed with the court before the hearing on the petition, DCFS informed the court that when the CSW had visited the family after Al returned from that visit, Nora confirmed Al was wearing the same shoes she had left with. In the 45 minutes in which the CSW observed Al wearing those shoes, she appeared to move without difficulty, and neither fell nor slipped.
Elena stopped wanting to participate in overnight visits with Mother, without saying why. Further, in mid-October, the CSW was informed that Mother would slap Az and "pull him 'hard enough [to] where he got quiet.'" Mother denied this but when the CSW asked Az if anyone ever hit him during his visits with Mother, "he curled up[,] covered his face with his arms and whispered something." When the CSW repeated the question, Az "again covered his face with his arms and whispered something and then said 'no.'" He changed the subject and began jumping on the bed.
Mother's visits were reverted to monitored pending the hearing on the section 388 petition. In November 2021, Elena began refusing to visit with Mother altogether, stating she did not feel safe because Mother would tell her that Elena reminded her of Father. However, in monitored visits with Az and Al in mid-November, the CSW "observed [M]other to be attentive to the children's needs as she provides the children with food and snacks during visits." She also "play[ed] with the children during visits and has been observed to comfort children by hugging them, engaging them in prayer and reassuring the children she loves them." But when Az was asked his preference between visits in which the CSW was present or not, he chose visits where the CSW was present, and reported that when he had overnight visits with Mother, "he would sleep at different people['s] homes."
In a November 2021 status report, DCFS indicated the children were doing well in Nora and Alfredo's care, and Nora reported the children were adjusting well in their home. Elena seemed happy during visits from the CSW and reported all her needs were being met. Az was also doing well and Al was observed as being attached to Nora. As for Mother, she continued to participate in and complete court-ordered programs and was observed to be appropriately comforting to Az when Az learned Father was imprisoned, and attentive to Az and Al otherwise. However, the WRAP Around team reported that Mother minimized Elena's abuse and expected her to "move on already" and DCFS expressed concern that Mother was not addressing the issues that occasioned the dependency case in the first place.
In November 2021, the court granted DCFS's section 388 petition, ordering that Mother's visits be monitored. Two days later, at the six-month review hearing, the court found Mother's progress had been substantial and ordered six more months of reunification services.
E. The Court Terminates Reunification Services
In a March 2022 status report, DCFS informed the court that Elena typically refused to visit with Mother, and only asked to do so sporadically. The children continued to do well in Nora and Alfredo's home. Mother continued visiting with Az and Al and, while Mother struggled initially, the monitoring CSW observed that as the visits progressed, Mother "was able to provide structured visits for the children that consisted of age appropriate play time and family meals. Mother was observed to engage in playing board games, encourage the children to share, and [M]other was able [to] follow-through with time out consequences. Mother's home was observed to [be] clean during visits. Mother provided the children with snacks and dinner during visits. Mother was observed to ask the children about their day and take interest in the children during visits. CSW observed [M]other to be affectionate with the children, hug and kiss them and tell them that she loves them." In January 2022, Mother's visits with Az and Al were again permitted to be unmonitored, and occurred for two-and-a-half hours per day, four days a week. However, in February 2022, Mother was arrested and cited for driving under the influence.
While Mother continued to participate in court-ordered services, when DCFS spoke with her counselor-an individual affiliated with the Lancaster Baptist Church who did not appear to be a licensed therapist-the counselor stated that the focus of their sessions was on God's love and how to move on. When advised of DCFS's concerns regarding Mother's failure to protect the children, the counselor responded that DCFS could not "blame her for the actions of the dad." The counselor continued that Mother had "put her trust in this person and this person blew it," that the man was the leader of the family and the "head of the household," and that Mother was "left to forgive him and pick up the pieces." In its status review report filed with the court, DCFS expressed its concerns that Mother was unable and unwilling to accept responsibility for her actions in failing to protect the children and recommended the termination of reunification services.
In March 2022, Father wrote a 10-page letter to the court, claiming that, when he was a child, his brother Alfredo-one of the children's two caregivers-physically abused him. Father also implied that Alfredo was a misogynist and a sexual predator. Accompanying the letter was a one-page note expressing his desire to participate in the next court hearing and asking that his mother be given access to his "file." The paternal grandmother's cell phone number was included in this note.
In an April 2022 last minute information, DCFS informed the court that in mid-March 2022, DCFS received information that Mother was communicating with Father and minimizing the sexual abuse of the children. In April 2022, Mother denied any forms of communication with Father.
In a May 2022 last minute information, DCFS informed the court that a CSW spoke with an officer at the state prison where Father was housed; the officer reported Father had called Mother 22 times so far in 2022, and that the calls were "actual conversations." The officer also stated that in April 2022, there was a call in which Mother or Father-the record does not specify who-"said that the [social] worker was asking if they had been in communication with each other. The parents were heard to say [']you know what to say if they ask,['] and the response was [']yes.[']" When the CSW asked Mother about this new information, she initially repeated her denial of any communication with Father, then stated "I can't remember" when asked when she last had contact with him. Mother refused to say any more without first speaking to her attorney but when the CSW asked whether the children were on any of the calls with Father, Mother responded, "no."
In a July 2022 last minute information, DCFS informed the court that, in June 2022, Elena showed a CSW a typewritten letter she claimed was from Father, given to her by Mother.[ Elena stated she had not mentioned the letter previously because Mother had asked her not to tell. A CSW also discovered that Mother was still bringing unauthorized adults to her visits with Az and Al and instructing the children to keep it a secret. In mid-June 2022, Mother texted the CSW to protest that, according to Az, Nora told him that Mother should not be going to therapy with him because he did not need Mother there. However, when the CSW asked Az if anyone had ever told him that Mother should not be going to therapy with him, Az responded, "that's a story my mom told me." When asked about the story, Az elaborated, "my mom told me my tia [aunt] Nora doesn't want her to go with me, because she don't want me to live with my mom." When asked whether Nora actually told him this, Az replied, "no[,] my mom told me that story." Az's therapist informed the CSW that Az had stated "it makes him 'feel bad when someone tells him to lie.' "
The letter was a typed Bible passage, and was undated, unsigned, and unaddressed.
At a July 2022 review hearing, the court terminated Mother's reunification services and set a hearing for permanency planning under section 366.26.[ Mother's visits were again ordered to be monitored. The court also ordered DCFS to "include ICWA interviews with all known relatives" in its next report.
While Mother filed a Notice of Intent to File Writ Petition to challenge the order setting the section 366.26 hearing, ultimately no such writ petition was filed.
F. The Court Terminates Mother's Parental Rights
In November 2022, DCFS reported that "Mr. P, a paternal uncle, reported having no Native American Ancestry in his family," that it had called and texted the maternal grandfather with no response, and that the number given for Mother's brother was not in service. DCFS also asked Mother if she had any new information regarding Indian ancestry and had not yet received a response.
Mother continued to "come prepared to all her visits with learning activities, board games, nail polish to engage the children throughout the visit," to show "she is attentive to the children's needs during visits," and to demonstrate "her love and affection towards the children with hugs and kisses during the visits." Az and Al "appear to love their mother, as they run to her when they see her and greet her with open arms. For the most part, they are receptive to the mother when she prompts them to do something during the visit." When the CSW asked Mother why she believed her visits now needed to be monitored, Mother responded it was because she was speaking with Father. When the CSW stated it was also due to her coaching the children and having unauthorized adults during the visits, Mother responded that it was "funny" how she reported what the children were telling her and now it was being used against her, and how the children would not tell the CSW the truth because they knew they would have to return to the caregiver and they did not want to get into trouble.
In January 2023, DCFS reported that the maternal grandfather had responded to the CSW's text to deny Indian ancestry and state that his parents were from Mexico. Mother also responded stating she had no further information regarding Indian ancestry. Nora stated her husband's family was from Mexico, with no Indian ancestry, and Elena professed no knowledge of Indian ancestry from either of her parents. The children all seemed to be doing well under Nora and Alfredo's care. Mother's visits with Az and Al continued going well. Nevertheless, in a January 2023 hearing, the court set adoption as the permanent plan for the children.
A February 2023 last minute information updated the court on Mother's visits. DCFS stated that Mother had been consistently visiting Az and Al but not Elena (as Elena typically stated she did not want to visit with Mother). At the time of the last minute information, Elena had not visited with Mother for over a month. DCFS described the visits with Az and Al positively, stating that the children looked forward to the visit and that Mother would be affectionate, would plan a variety of activities, would provide food, and would help the children with their homework. However, DCFS also characterized Mother as the "fun" parent, and the visits like a "play date" for the children. DCFS concluded that while Mother behaved appropriately during the visits, she "has failed to put the children['s] needs over her own needs throughout the life of this case, which has led to the continual emotional and physical harm of all her children." DCFS cited as examples Mother's bringing unauthorized adults to her visits and then instructing her children to keep that a secret, and coaching Az to corroborate her lie to DCFS regarding Nora's views on conjoint therapy with Mother. Also, during a February 2023 visit, when Az asked Mother whether a certain room would be his, Mother confirmed that it would be, explaining that Az and Al would sleep in that room, and Elena in another room-despite knowing that DCFS was seeking to terminate her parental rights, and that the children would likely not be reunified with her.
In a February 2023 hearing, the court found ICWA inapplicable. No party objected to the finding.
In a March 2023 supplemental report, DCFS reported that Mother's visits with Az and Al continued to go well. DCFS also informed the court that Elena wanted to be adopted by Nora and Alfredo and that Az wanted to return to Mother but would like to remain with Nora and Alfredo if that were not possible. The CSW did not discuss the issue with Al due to her young age but noted Al seemed bonded with her caregivers. Another CSW had Al draw a "forever home" and asked her who would live in it with her. Al responded, "tia, tio (aunt and uncle), Julius, Cookie (Elena's nick name), um..Az[], cat Fenny." In a similar exercise done a week later, Al responded, "tia, tio (aunt and uncle), Cookie (Elena's nick name), Az[], Benny, Ricky, Social Worker, Vivi, Mami, Thomas, Gloria, Evelyn, Junior he was at Gloria's house."[
Az also drew a "forever home." Living in his house were "mommy, daddy, Al[], Cookie (Elena's nick name), my [paternal] grandma," "Shadow, Tio Gogi, Paola," "[m]y cousins . . ., their mom and dad, . . . my brown doggy Shadow, the white doggy . . . [and] I would want my tia."
When asked about visits with Mother, Az stated the visits went well because "me and Al[] play together" and they played "football and connetic [sic] four." Az stated that he would be sad after his visits with Mother "[b]ecause I miss daddy that much, he use to play with me swords," but that he would be happy before the visits "because I think of good ideas, we get to play football and connect four and swords and so much things." Al stated visits went well "because I listen," and that she enjoyed "eating food, and playing and playing football, and playing doll set and Ariel and playing with mom." When asked if she wanted to see Mother more or less, Al responded, "less, 4x a day [sic]."
In a March 2023 last minute information, DCFS informed the court that Mother had told a CSW that she had "received an email from Elena's school indicating that Elena has 24 absences and 26 absences [sic]." However, when the CSW contacted the school, the school informed her that Elena had "one absence and 13 tardies, 2 excused with doctor notes and 11 under 30 minutes." The school further stated it did not know why Mother would receive such an e-mail; the school expressed no concerns for Elena or her current caregivers.
In an April 2023 last minute information, DCFS informed the court that the visits with Az and Al continued to go well. DCFS added that while Mother did well with talking to the children and encouraging good behavior, she was "observed to be inconstant [sic] with follow-th[r]ough of consequences and falls back on giving in to the children's demands, such as candy, chips and telephone access." Additionally, while the children enjoyed their time with Mother, they did not appear fearful or hesitant to return to their caregivers' home-the CSW noted that when the caregiver picked them up, "they will greet her and beg[i]n sharing about their day." A May 2023 supplemental report also stated visits continued going well.
In May 2023, the court held a section 366.26 hearing. No witnesses testified. Elena and Al's attorney argued for the termination of parental rights, arguing an insufficient bond between Mother and the children to establish an exception to termination. Az's attorney "incorporated" the argument made by the other children's attorney and added there was not a "significant positive or emotional attachment at this time with" Az. The attorney continued that she saw no benefit to continuing the relationship with Mother, that the current caregivers were meeting all of the children's needs, and that terminating Mother's parental rights would not pose a detriment to Az. Mother's counsel argued that Mother consistently visited the children and had developed a parental bond-not just an emotional bond but one in which Mother occupied a parental role-with Az and Al, the severance of which would be detrimental.[ Counsel also claimed that, while it took Mother some time to "sever" the relationship with Father, she had filed for divorce and terminated all communications with him. Father's counsel objected to the termination of Mother's parental rights, but submitted to the court regarding the termination of Father's rights. DCFS's counsel joined with the argument proffered by the minors' counsel, arguing that the current caregivers had been providing for the children for three years and were very likely to adopt them. Citing our Supreme Court's decision In re Caden C. (2021) 11 Cal.5th 614, counsel argued that Mother failed to establish the existence of a parental benefit exception to termination of parental rights. Counsel contended that while Mother's visits were regular, and she was consistent in setting boundaries and expectations, she was inconsistent in "follow-through," and often fell back on giving in to the children's demands.
Mother's counsel also argued that, while Mother had failed to establish this bond with Elena due to Elena's refusal to visit, this was not Mother's fault.
The court stated that it had considered all the documentary evidence and the parental benefit exception did not apply. The court agreed with the analysis set forth by DCFS counsel regarding the application of In re Caden C. The court elaborated that with Elena, there was no regular visitation and contact. As to Az and Al, the court recognized that "it could be argued that they do have regular and consistent contact with their mother," but also stated it could not find that there was a substantial, positive, emotional attachment between Mother and Az and Al. The court found Az and Al loved and cared for Mother and had fun at the visits but that Mother also had issues with knowing how to redirect the children. The court further stated that, while it did not find a beneficial relationship, even assuming one existed, the benefit of the relationship did not outweigh the benefits of terminating parental rights and proceeding with adoption. The court therefore terminated both parents' parental rights. Mother timely appealed.
DISCUSSION
A. The Court Did Not Err in F inding the Parental-Benefit Exception Inapplicable
"Even when a court proceeds to select a permanent placement for a child who cannot be returned to a parent's care, the parent may avoid termination of parental rights in certain circumstances defined by statute. One of these is the parental-benefit exception." (In re Caden C., supra, 11 Cal.5th at p. 629.)Our Supreme Court articulated "three elements the parent must prove to establish the exception: (1) regular visitation and contact, and (2) a relationship, the continuation of which would benefit the child such that (3) the termination of parental rights would be detrimental to the child." (Id. at p. 631, emphasis in original.) All parties agree that Mother established regular visitation with Az and Al.
(§ 366.26, subd. (c)(1) ["If the court determines . . . that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption . . . unless . . . [¶] . . . [¶] (B) The court finds a compelling reason for determining that termination would be detrimental to the child" because "(i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship"].)
In determining whether a beneficial relationship exists, the court considers "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., supra, 11 Cal.5th at p. 632.)
In deciding whether termination of parental rights would be detrimental to a child, a juvenile court must consider "what life would be like for the child in an adoptive home without the parent in the child's life." (In re Caden C., supra, 11 Cal.5th at p. 633.) "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)." (Id. at p. 634.) "[T]he question is just whether losing the relationship with the parent would harm the child to an extent not outweighed, on balance, by the security of a new, adoptive home." (Ibid.)
While "[a] substantial evidence standard of review applies to the first two elements," "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 pp. 639-640.)
Mother contends the court erred both in finding she failed to establish the existence of a beneficial relationship with Az and Al, and in finding that the termination of parental rights would not be detrimental to them. We discern no error.
1. Beneficial Relationship
"[W]hen examining whether the parent-child relationship exception applies[,] 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.'" (In re B.D. (2021) 66 Cal.App.5th 1218, 1230.) An "emotional attachment is one where the child views the parent as more than a mere friend or playmate and who[se] interactions with the parent were not ambivalent, detached, or indifferent." (Ibid.)
Mother bore the burden to establish the parental-benefit exception, and "where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law." (In re I.W. (2009) 180 Cal.App.4th 1517, 1528, disapproved on other grounds in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.) Mother contends "overwhelming" evidence demonstrates that Az and Al benefited from their relationship with Mother. While we agree the record contains evidence to support such a conclusion, we do not find the evidence so one-sided as to compel this conclusion.
(a) Evidence That Mother Acted as a Playmate
In a last minute information submitted three months before the court made its determination, DCFS described Mother's visits with Az and Al in a positive manner but also characterized Mother as the "fun" parent, and the visits like a "play date" for the children. DCFS concluded that while Mother behaved appropriately during the visits, she "has failed to put the children['s] needs over her own needs throughout the life of this case, which has led to the continual emotional and physical harm of all her children."
In a last minute information filed one month before the court's determination, Mother was "observed to be inconstant [sic] with follow-th[r]ough of consequences and falls back on giving in to the children's demands, such as candy, chips and telephone access." When asked what he enjoyed about his visits with Mother, Az responded that he and Al played together, and that he got to play football and Connect Four and "swords" and "so much things." Similarly, Al stated she enjoyed "eating food, and playing and playing football, and playing doll set and Ariel and playing with mom."
(b) Evidence That Mother's Actions Affected the Children Negatively
Moreover, ample evidence supported a conclusion that, far from benefiting the children, Mother's actions at times harmed them. For example, despite a clear court order and numerous reminders from DCFS that no unauthorized adults were to participate in her visits with the children, Mother repeatedly included such adults in those visits, and then instructed the children to keep that inclusion a secret; Az told his therapist that he felt bad when asked to lie.
Mother herself lied to DCFS in several instances regarding injuries suffered by Al. When Al fell on exposed nails in a house where Mother's visits were not supposed to occur, Mother initially claimed Al's injuries were due to falling off her bicycle. She became more forthcoming only after learning that Az had already explained the truth. When Al suffered bruises on another visit, Mother claimed they were due to Al's shoes, which Mother said she immediately "changed . . . out." But during a CSW visit that occurred immediately after that visit, Nora confirmed that Al was wearing the same shoes as when she went on the visit. Further, the CSW observed that Al had no issues walking in those shoes. There was also evidence that Mother slapped Az during visits and instructed him not to tell anyone, causing him distress.
When Az had informed Nora that, during one of the overnight visits with Mother, he had slept on a couch while Mother, Al, and a "guy friend" slept together in a bed, Mother attempted to discredit Az by stating he lied often.
Mother informed DCFS of several untrue "concerns" that appeared designed to cast doubt on the caregivers' ability to care for the children. Mother claimed to DCFS that she had received an e-mail from Elena's school that she had been absent more than 20 times-but Elena's school stated she had only one absence and did not know why Mother would have received such an e-mail. Mother complained to DCFS that Az had said that Nora told him Mother should not attend therapy with him, but Az denied that Nora had said any such thing, instead claiming it was a "story" that Mother told him.
Mother also kept in contact with Father-the children's abuser-and lied to DCFS about it until confronted with evidence. Mother additionally reportedly minimized the sexual abuse Elena endured at the hands of Father, and Elena claimed Mother gave her a letter from Father.
Finally, although Mother knew that her reunification services had been terminated, and that DCFS was seeking to terminate her parental rights, she still encouraged Az to believe that the children would be moving in with her soon.
Other evidence in the record supports a conclusion that Mother acted in a parental role with the children and had a positive relationship with them. But, viewed as a whole, we cannot say the evidence compels a conclusion contrary to the one drawn by the juvenile court: that Mother failed to establish such a beneficial relationship.
Mother analogizes her situation to that in In re B.D., supra, 66 Cal.App.5th 1218. B.D. is inapposite. There, the appellate court found that "the record suggests that in finding the parents did not meet their burden of proof the juvenile court relied heavily, if not exclusively, on the fact that the parents had not completed their reunification plans and were unable to care for the children based on their long-term and continued substance abuse." (Id. at p. 1228.) The appellate court also stated that "the record does not convince us that the juvenile court examined the nature of the parent-child relationship before the dependency proceeding or the visits and contact between the parents and children during the dependency proceeding, to evaluate whether a significant positive emotional attachment existed between the parents and children." (Ibid.) Neither concern exists here. Nothing in the record suggests the juvenile court focused heavily or exclusively on Mother's failure to complete reunification services. Moreover, the juvenile court expressly examined the nature of the parent-child relationship and the quality of Mother's visits, concluding that Az and Al had fun with Mother, and loved her, but that Mother was similar to a playmate and had issues with redirecting the children.
2. Detriment
Because "[i]nteraction between natural parent and child will always confer some incidental benefit to the child," "we interpret the 'benefit from continuing the [parent/child] relationship' exception to mean the relationship promotes the well-being of the child to such a degree as to outweigh the wellbeing the child would gain in a permanent home with new, adoptive parents." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The juvenile court determined that even were there some benefit from Mother's relationship with Az and Al, that benefit was outweighed by the benefit they would gain from the permanence of adoption.
Mother contends the court abused its discretion in making this determination "by failing to adequately assess the detriment to Az and Al of terminating parental rights." She elaborates that the only reasonable conclusion to be drawn from the evidence is that "Az and Al loved their mother, saw her as their mother, were strongly bonded to her, expected and desired to see her regularly, and will suffer extreme heartache and detriment if they were to never see her again."
"A court exceeds the limits of legal discretion if its determination is arbitrary, capricious or patently absurd. The appropriate test is whether the court exceeded the bounds of reason." (In re L.W. (2019) 32 Cal.App.5th 840, 851, citing In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) Examining the record as a whole, we cannot say the court's determination was arbitrary, capricious, or patently absurd.
There is little doubt that Az and Al loved Mother and enjoyed their visits with her. It is also clear that Az stated he wanted to live with Mother-although, we note that Az's "forever home" included not only Mother but "daddy, Al[], Cookie (Elena's nick name), my [paternal] grandma," "Shadow, Tio Gogi, Paola," "[m]y cousins . . ., their mom and dad, . . . my brown doggy Shadow, the white doggy . . . [and my] tia."
But there is also evidence that the children were happy with the caregivers. Az stated that if he could not live with Mother he would be happy to live with his caregivers. Al appeared bonded to Nora. When the children's visits with Mother ended, they were comfortable returning to their caregivers, and chatted about their day. Mother does not dispute that the caregivers were meeting the children's needs, and the record consistently stated that Al had bonded with Nora.
Additionally, as described above, some of Mother's behavior harmed the children: instructing or coaching them to lie, trying to sow unwarranted doubt about their caregivers' abilities, and telling the children they would be moving back in with her, despite knowing that her reunification services had been terminated, and that DCFS was attempting to terminate her parental rights.
In light of the entire record, the court could reasonably conclude that, while the children may have loved Mother and enjoyed visiting with her, continuing the relationship would only unsettle and confuse the children in the long run, and the benefits therefrom were outweighed by the benefits of the permanence stemming from adoption.
B. Any Error in Finding ICWA Inapplicable Was Harmless
After DCFS temporarily takes a child into custody, it must "ask[] 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).) Mother does not dispute that, in response to queries from DCFS, she, Father, and every other relative asked all denied any potential Indian heritage. But she claims DCFS nevertheless conducted an insufficient inquiry because DCFS failed to inquire of the maternal grandmother, the paternal grandmother, and Alfredo (a paternal uncle and one of the children's caregivers).
The record is unclear as to whether DCFS asked Alfredo regarding potential Indian heritage. A DCFS report states that "Mr. P, a paternal uncle, reported having no Native American Ancestry in his family." In DCFS reports, Alfredo and Nora are often referred to as "Mr. and Mrs. P." Further, in a lengthy letter Father wrote regarding his childhood and the alleged abuse he suffered from his brother Alfredo, he never mentioned having another brother. However, DCFS states in its appellate brief that "there is no evidence the social worker interviewed the maternal grandmother, the paternal grandmother, and one paternal uncle about ICWA, [but] the social worker did interview the mother, the father, the maternal grandfather, another paternal uncle, and Nora, and they all denied the family had any American Indian ancestry." We will take DCFS at its word that there are at least two paternal uncles.
Assuming arguendo DCFS's inquiry was inadequate, any such error was harmless under the definition of prejudice set forth in In re Benjamin M. (2021) 70 Cal.App.5th 735. (In re Darian R. (2022) 75 Cal.App.5th 502, 509; In re S.S. (2022) 75 Cal.App.5th 575, 582.) "According to Benjamin M., the failure to ask extended family members about Indian ancestry would be prejudicial if 'the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child.'" (Darian R., at p. 509, citing Benjamin M., at p. 744.)
While information from the grandmothers and the paternal uncle may have been "readily obtainable," nothing in the record supports a conclusion that such information "was likely to bear meaningfully upon whether" the children were Indian children. Every relative, including both parents, indicated they lacked Indian heritage. Additionally, both paternal and maternal relatives stated their families were from Mexico. Further, given the paternal uncle's desire to adopt the children, he had a strong incentive to bring to the court's attention any facts suggesting that Az or Al were Indian children. (See 25 U.S.C. § 1915(a) &(b) [Under ICWA, when Indian child subject of foster care or adoptive placement proceedings, "preference shall be given, in the absence of good cause to the contrary, to a placement with . . . [¶] . . . a member of the Indian child's extended family"].) The uncle's failure to raise any such issue implies that he is unaware of such facts. We therefore lack any basis upon which to conclude that further investigation would reveal new information that would bear meaningfully on the children's status as Indian children. Thus, even if DCFS's investigation were inadequate- an issue we do not decide-no remand is required.
DISPOSITION
The court's orders are affirmed.
We concur: BENDIX, Acting P. J. WEINGART, J.