Opinion
A166196
08-30-2023
In re G.C., a Person Coming Under the Juvenile Court Law. v. C.C. et al., Defendants and Appellants CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. J20-00064)
STREETER, J.
C.P. (Mother) and C.C. (Father) appeal after the juvenile court terminated their parental rights to their son G.C. (born in 2017). Mother and Father (with each joining the other's arguments) contend (1) the court erred by declining to apply the parental-benefit exception to termination set forth in Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i), based on G.C.'s relationship with Mother, and (2) the Contra Costa County Children and Family Services Bureau (Bureau) and the court did not comply with the duty of initial inquiry imposed by state statutory provisions implementing the federal Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) to determine whether G.C. is an Indian child.
Undesignated statutory references are to the Welfare and Institutions Code.
"[B]ecause ICWA uses the term 'Indian,' we do the same for consistency, even though we recognize that other terms, such as 'Native American' or 'indigenous,' are preferred by many." (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1 (Benjamin M.).)
We conclude the court did not err in declining to apply the parental-benefit exception. As to ICWA, we find the Bureau's error in conducting its initial inquiry was harmless. We therefore affirm.
I. BACKGROUND
A. The Dependency Proceedings
G.C. was removed from parental custody in early 2020 after the Bureau filed a petition under section 300 alleging in part that Mother had mental health issues and had attempted suicide; Father had engaged in domestic violence against Mother; G.C.'s older half-sibling required counseling "to address the impact of witnessing these acts"; and both parents had substance use problems. At jurisdiction and disposition hearings in August and October 2020, the court sustained amended allegations (from which the substance use allegations were deleted on condition that the parents engage in testing), declared G.C. a dependent, and ordered that Mother and Father receive reunification services.
In its reports during the reunification period, the Bureau stated G.C. had been diagnosed with autism. He had developmental challenges, including difficulties with self-feeding, sleeping, communication, sensory issues (including sensitivity to water and light), and behavioral issues (including tantrums and oppositional behavior), although he could also be " 'very sweet.'" G.C. had been referred to the Regional Center and was involved in speech and occupational therapy. The Bureau stated: "The care of this child involves consistent care, boundaries and specialized techniques to help [G.C.] integrate into his environment."
Reunification efforts were ultimately unsuccessful. At the 18-month review hearing in January 2022, the court terminated reunification services to both parents and set a selection and implementation hearing under section 366.26, which was held in August 2022.
At the section 366.26 hearing, the court found G.C. was likely to be adopted by his maternal grandfather and step grandmother, with whom he had been placed for over a year. Turning to the parental-benefit exception to termination of parental rights, the court found Father had not established the elements necessary to apply the exception under In re Caden C. (2021) 11 Cal.5th 614 (Caden C.) (which we discuss further below). The court found Mother had established the first two Caden C. elements-she had maintained regular visitation with G.C., and she had shown she had a positive relationship with G.C. (as illustrated in positive reports of Mother's visits with G.C.) that provided him with some benefit. As to the third element of the exception, the court found the benefits to G.C. of adoption by his grandparents outweighed the harm resulting from the loss of his relationship with Mother. On August 25, 2022, the court entered an order terminating Mother's and Father's parental rights and selecting adoption as the permanent plan for G.C.
Mother and Father appealed the order terminating parental rights.
Father's notice of appeal states he is also appealing the court's order denying a petition he filed under section 388 seeking reinstatement of services and custody of G.C. But in his appellate briefs, Father presents no specific challenge to the court's order denying the section 388 petition (other than his argument under ICWA that he directs primarily to the order terminating parental rights).
B. Facts and Procedure Relevant to ICWA
In August 2019, when the Bureau was investigating the allegations that led to the filing of the dependency petition, a social worker spoke to Mother's sister (G.C.'s maternal aunt). The Bureau did not (at that time or thereafter) inquire of the aunt about whether Mother, Father, or G.C. had Indian heritage.
After the dependency proceeding began in early 2020, both Father and Mother completed ICWA-020 forms about whether they have Indian heritage. On forms filed in January and August 2020, Father checked a box stating, "I have no Indian ancestry as far as I know." Mother initially (in June 2020) submitted a form on which she did not state she had Indian heritage, but in August 2020, she stated, "I am or may be a member of, or eligible for membership in" the Cherokee and "Paqua" tribes.
Based on this response, the court asked Mother about her Indian heritage at the August 13, 2020 jurisdiction hearing. Mother stated her great-great-grandmother was part of the Paqua tribe. The court asked Mother to work with the social worker and provide any additional information that she or others in her family might have about Indian ancestry. The court also directed that the Bureau conduct a further inquiry and that ICWA be addressed at the disposition hearing, which the court set for October 1, 2020.
In preparation for the October 1, 2020 hearing, the social worker prepared a memorandum and an attached due diligence report describing the Bureau's further inquiry efforts under ICWA. The memorandum states the Bureau conducted further inquiry with Mother, provided informal notice to the identified tribes and to federal and state agencies, and had not received any responses. The Bureau stated that, due to the limited information provided by Mother, it had no reason to believe or reason to know G.C. was an Indian child. The Bureau requested that the court find ICWA did not apply.
In the report attached to the memorandum, the Bureau stated that Mother reported her mother (G.C.'s maternal grandmother) had no Indian ancestry. Mother stated her father (G.C.'s maternal grandfather) and his parents had an affiliation with the Cherokee and Pascua Yaqui tribes. In addition to speaking with Mother, the Bureau spoke with Father's mother (G.C.'s paternal grandmother), who stated Father had no Indian ancestry.
At the disposition hearing on October 1, 2020, the court found the Bureau had exercised due diligence in conducting further inquiry under ICWA. The court found that, based on the information available to it, there was no reason to believe or know that G.C. was an Indian child, and therefore ICWA did not apply.
At the August 2022 hearing under sections 366.26 and 388, the social worker testified she had spoken with the maternal grandfather about whether he had Indian ancestry. The grandfather stated he had no Indian ancestry. Both of his parents were deceased. The grandfather stated one of his parents was 100 percent German, and the other was 100 percent Irish. There was never any indication they had any Indian ancestry. Later in that hearing and in its written order terminating parental rights, the court again found (with no disagreement from the parties) that G.C. is not an Indian child and that ICWA does not apply.
II. DISCUSSION
A. The Parental-Benefit Exception
Mother contends the juvenile court should have applied the parental-benefit exception to termination of parental rights based on G.C.'s relationship with her. Father joins this claim on the basis that if we reverse the termination of Mother's parental rights, we must reverse the termination of his parental rights as well. (See Cal. Rules of Court, rule 5.725(a)(1) [prohibiting termination of parental rights of only one parent except in limited circumstances]; In re DeJohn B. (2000) 84 Cal.App.4th 100, 110.)
Father does not present a separate appellate claim that the juvenile court should have applied the parental-benefit exception based on G.C.'s relationship with Father. We therefore need not address the Bureau's brief argument on that point.
1. Legal Standards
After a juvenile court determines a child is adoptable, it must "terminate parental rights and order the child placed for adoption" unless a statutory exception applies. (§ 366.26, subd. (c)(1).) One such exception is the "parental-benefit exception," whose scope the Supreme Court clarified in Caden C., supra, 11 Cal.5th 614. This exception applies when there is "a compelling reason for determining that termination would be detrimental to the child" because a 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).) As explained in Caden C., to establish the exception, a parent must demonstrate: "(1) regular visitation and contact, and (2) a relationship, the continuation of which would benefit the child such that (3) the termination of parental rights would be detrimental to the child." (Caden C., 11 Cal.5th at p. 631, italics omitted.)
Here, the court found Mother maintained regular visitation, and that element is not at issue. The court also found Mother showed she had a substantial relationship with G.C. that provided some benefit to him, satisfying the second element of the parental-benefit exception. (Caden C., supra, 11 Cal.5th at p. 636 [to establish the second element, "the parent must show that the child has a substantial, positive, emotional attachment to the parent-the kind of attachment implying that the child would benefit from continuing the relationship"].)
Mother argues, however, that the court erred in concluding she had not established the third element of the exception. In considering that element- "whether 'termination would be detrimental to the child due to' the relationship-the court must decide whether it would be harmful to the child to sever the relationship and choose adoption. (§ 366.26, subd. (c)(1)(B); see also id., subd. (c)(1)(D).) Because terminating parental rights eliminates any legal basis for the parent or child to maintain the relationship, courts must assume that terminating parental rights terminates the relationship. [Citations.] What courts need to determine, therefore, is how the child would be affected by losing the parental relationship-in effect, what life would be like for the child in an adoptive home without the parent in the child's life. [Citation.] . . . [T]he effects might include emotional instability and preoccupation leading to acting out, difficulties in school, insomnia, anxiety, or depression. Yet . . . a new, stable home may alleviate the emotional instability and preoccupation leading to such problems, providing a new source of stability that could make the loss of a parent not, at least on balance, detrimental." (Caden C., supra, 11 Cal.5th at p. 633.)
The first two elements of the parental-benefit exception-whether the parent has maintained regular visitation and "whether the relationship is such that the child would benefit from continuing it"-involve factual determinations that we review for substantial evidence. (Caden C., supra, 11 Cal.5th at pp. 639-640.) The third element, "whether termination of parental rights would be detrimental to the child," also requires "a series of factual determinations" that we review for substantial evidence. (Id. at p. 640.) But "the ultimate decision-whether termination of parental rights would be detrimental to the child due to the child's relationship with [the] parent-is discretionary and properly reviewed for abuse of discretion." (Ibid.)
2. The Juvenile Court Did Not Err or Abuse Its Discretion in Determining the Parental-benefit Exception Did Not Apply
Under the above standards, the juvenile court did not err or abuse its discretion in concluding Mother had not established the third element of the parental-benefit exception. The court carefully considered this issue, which it found to present "a very difficult and close call." As to the benefits of adoption, the court noted G.C. had developed a positive relationship with his grandfather and step grandmother, with whom he had been placed for over a year. The grandparents had "shown a dedication to providing him with a safe, healthy and positive life experience." G.C. felt at home with them and had "a very close, secure and loving relationship" with them. In their care, G.C. had made "great strides in his vocabulary, his daily activities of living, his ability to share with other children, and other aspects of his challenges."
Balanced against the benefits of adoption by his grandparents, the court noted that G.C. had a "positive relationship" with Mother. That relationship was a "substantial" one that provided some benefit to G.C. Stating it was a "difficult" and "challenging" decision, the court concluded "that [G.C.] would receive more benefit from being adopted and the permanency through adoption than from maintaining the relationship with his mother."
The court noted several factors that contributed to its conclusion. G.C., who was five years old at the time of the section 366.26 hearing, had not lived with Mother for more than two and a half years, and during that time he had seen her only during visits. G.C. looked to the prospective adoptive parents (i.e., the grandparents) "for his everyday needs, for his comfort, his security and for love on a daily basis." He had recently shown some reluctance to visit with Mother, although the visit logs showed that once he got there, he clearly enjoyed the visits with Mother. As to telephone calls with Mother, he sometimes chose not to take the calls or ended them early.
And crucial to the court's decision were the benefits to G.C. of stability and consistency given his special needs. The court stated: "To me, the most significant factor, in addition to the time he has spent with his grandparents and time he has been away from his mother on a daily basis, is his special needs and the importance of permanency, consistency, structure and certainty in his life." Based on these factors favoring "the permanency of adoption," the court adopted the Bureau's recommendation to terminate parental rights and select adoption as the permanent plan for G.C.
The court's thoughtful ruling was not an abuse of discretion, and Mother has not shown the court's underlying factual determinations were unsupported by substantial evidence. (Caden C., supra, 11 Cal.5th at pp. 640-641 [outlining hybrid standard of review as to third element of parental-benefit exception].) It was reasonable for the court to conclude that, under the circumstances presented (including G.C.'s relationship with his grandparents and his need for consistency and stability due to his special needs), the permanency of adoption was more beneficial to G.C. than maintaining his relationship with Mother.
Mother's arguments to the contrary are not persuasive. Mother contends principally that the evidence of G.C.'s positive relationship with Mother was so strong as to compel the court to find the parental-benefit exception applied. Mother stresses the notes from G.C.'s visits with her, in which the visitation monitors described G.C.'s excitement to see Mother, the mutual affection and the playful and loving interactions between G.C. and Mother during visits, and G.C.'s disappointment on some occasions when a visit was ending. Mother also argues the visitation reports suggest she was a "stabilizing force" in G.C.'s life, because she was patient and calm, and she praised, encouraged, and comforted him.
This evidence does not establish the court erred. The court carefully considered the visitation evidence, noting that G.C.'s visits with Mother were "very positive," and that G.C. "does recognize her as his mother." The court stated: "[G.C.] enjoys their visits and they have loving interactions with each other during the visits." The court did not minimize the positive visitation evidence (and stated it was "not so concerned" about certain issues noted in the reports, such as Mother's bringing sweets to the visits and, on one occasion, wearing shorts so that track marks were visible on her legs). And, as noted, the court carefully weighed the evidence of G.C.'s positive relationship with Mother against the benefits of adoption. We do not agree with Mother that the evidence of the positive relationship between G.C. and Mother was so strong as to preclude the court from reaching the conclusion that the benefits of adoption weighed more heavily in the statutory balance.
Mother contends a few statements by the social worker during her testimony suggest the worker misunderstood the evidence (about whether the visits with Mother interfered with G.C.'s need for consistency) or misunderstood the requirements of the statutory exception to termination of parental rights (by mentioning Mother's past inability to provide G.C. with a stable living environment and her failure to comply with her case plan). Without parsing these brief statements and the social worker's surrounding testimony, we note we are reviewing the juvenile court's ruling, and the court did not adopt the challenged statements or base its decision on them.
Similarly, Mother argues the Bureau's counsel was mistaken in suggesting at the section 366.26 hearing that it was not clear whether the second element of the parental-benefit exception (i.e., a significant, positive relationship between G.C. and Mother) was satisfied. As noted, the court found the second element was satisfied. That the Bureau took a more equivocal view at the hearing does not establish any error by the court.
Mother next claims the court was incorrect to consider G.C.'s recent reluctance to visit. Mother notes there was evidence that, due to his autism, G.C. was" 'pretty oppositional in most everything he does,'" so the court should not have given weight to any reluctance to visit with Mother. But as noted, the court considered the evidence of G.C.'s recent reluctance to visit as one factor in its overall balancing analysis under the third element of the parental-benefit exception, and the court expressed a nuanced understanding of the issue, noting "five-year-olds change their minds" and acknowledging that, once G.C. arrived at the visits, he enjoyed them. Mother has not shown error.
Mother also asserts the court erred by noting the grandparents' ability to meet G.C.'s needs or by considering his bond with them. But contrary to Mother's suggestion, this is not a case where a juvenile court improperly found a child did not have a close bond with his biological parent because the prospective adoptive parent was in some sense a better caregiver or had a closer bond with the child. (E.g., In re J.D. (2021) 70 Cal.App.5th 833, 859 [addressing second step of Caden C. analysis; "[i]n proving the existence of a beneficial relationship, mother was not required to prove that J.D.'s attachment to her was his primary bond"]; In re S.B. (2008) 164 Cal.App.4th 289, 299-300 [similar].) Instead, as noted, the court here found G.C. did have a positive relationship with Mother that satisfied the second prong of Caden C. And at the third step, the court carefully weighed the potential detriment to G.C. from ending that relationship against the benefits he would derive from adoption, which included the permanency and certainty of placement in his grandparents' care. We find no error.
Finally, Mother suggests a legal guardianship with the grandparents would provide structure and stability for G.C. while maintaining his relationship with Mother. The court could consider the social worker's testimony that, in the Bureau's view, adoption would provide greater consistency than a guardianship. But in any event, adoption is the legislatively preferred permanent plan and is to be selected unless a statutory exception applies. (§ 366.26, subds. (b), (c)(1).)
Brandon C., cited by Mother on this point, is not to the contrary. In that case, the appellate court held that, on the record before it, there was sufficient evidence supporting a juvenile court order finding the parental-benefit exception applied, declining to terminate parental rights, and selecting guardianship as the permanent plan. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1533-1534, 1537-1538.) For the reasons we have discussed, the record here supports the different conclusion reached by the juvenile court, i.e., that the exception does not apply and that therefore adoption with termination of parental rights is the appropriate plan.
B. ICWA
Father argues the order terminating parental rights must be reversed (or conditionally affirmed) because the Bureau failed to comply with its duty under ICWA and related California provisions to make an initial inquiry of "extended family members," specifically G.C.'s maternal aunt, about G.C.'s possible Indian heritage.
1. Legal Standards
"Congress enacted ICWA in 1978 to address concerns regarding the separation of Indian children from their tribes through adoption or foster care placement, usually in non-Indian homes. [Citation.] ICWA established minimum standards for state courts to follow before removing Indian children from their families and placing them in foster care or adoptive homes." (In re D.S. (2020) 46 Cal.App.5th 1041, 1048.) California has adopted various procedural and substantive requirements of ICWA, including in sections 224.2 and 224.3, which impose distinct duties of: (1) inquiry, (2) further inquiry, and (3) notice. (In re D.S., supra, 46 Cal.App.5th at pp. 1048-1050, 1052.)
First, the initial duty of inquiry includes asking the parents, extended family members, and other involved parties whether the child is, or may be, an Indian child. (§ 224.2, subd. (b).) Second, when the court or the social services agency has "reason to believe" that an Indian child is involved, "further inquiry" regarding the possible Indian status of the child is required. (§ 224.2, subd. (e).) The further inquiry includes communication with tribes to gather and share information, but this sharing of information is distinct from formal ICWA notice. (§ 224.2, subd. (e)(2); In re D.S., supra, 46 Cal.App.5th at p. 1049.) Finally, if the inquiry establishes a reason to know an Indian child is involved, notice must be provided to the pertinent tribes. (§ 224.3, subds. (a), (b).)
2. Analysis
Here, as noted, following the initial inquiry of Mother and Father (to which Mother responded she believed she had Indian heritage), the court directed the Bureau to conduct a further inquiry. The Bureau later filed a report documenting its follow-up efforts, which included speaking with Mother and with the paternal grandmother and sending informal notices to the relevant tribes, to which the Bureau received no responses. The court also asked Mother to work with the social worker and provide any additional information that she or other family members might have about Indian ancestry, but the record does not reflect Mother provided any further information. The social worker later spoke with the maternal grandfather, who denied any Indian heritage. Based on these efforts, the court found ICWA did not apply.
On appeal, Father contends the court's finding is erroneous because the Bureau, at the initial inquiry stage, should have asked G.C.'s maternal aunt (with whom the Bureau had spoken as to other matters) about G.C.'s possible Indian heritage. Section 224.2, subdivision (b) provides that, when a social services agency takes a child into temporary custody, its duty to inquire "includes, but is not limited to, asking the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child." (§ 224.2, subd. (b).) The term "extended family member" includes an aunt. (§ 224.1, subd. (c) [incorporating definition from federal ICWA provision]; 25 U.S.C. § 1903(2) [" 'extended family member' . . . shall be a person who has reached the age of eighteen and who is the Indian child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent"].)
Assuming the Bureau's initial inquiry was inadequate (and the court erred by finding to the contrary), we find the error is not prejudicial. A deficiency in an agency's initial inquiry under section 224.2 is an error of state law (In re K.H. (2022) 84 Cal.App.5th 566, 606), and "we may not reverse unless we find that the error was prejudicial." (Benjamin M., supra, 70 Cal.App.5th at p. 742.)
We therefore need not address the Bureau's argument that there was no error because the Bureau substantially complied with statutory requirements.
The Courts of Appeal have taken varying approaches to assessing prejudice in this context, and our Supreme Court will decide that question. (In re Dezi C. (2022) 79 Cal.App.5th 769, 777-779 (Dezi C.), review granted Sept. 21, 2022, S275578.) Without detailing the full" 'continuum'" of prejudice standards (Dezi C., at p. 777), we conclude the error was harmless under either of the "middle ground" approaches (In re K.H., supra, 84 Cal.App.5th at pp. 614, 616) taken by the appellate courts-the "readily obtainable information" standard set forth in Benjamin M. and the "reason to believe" standard adopted in Dezi C. (Benjamin M., supra, 70 Cal.App.5th at p. 744 [deficient initial inquiry requires reversal "where the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child"]; Dezi C., at p. 779 [failure to conduct proper initial inquiry "is harmless unless the record"- including any proffer on appeal-"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"].)
Pending guidance from the Supreme Court, we decline to hold that reversal is required in a broader set of circumstances (see In re K.H., supra, 84 Cal.App.5th at pp. 608-618 [outlining competing approaches]; In re S.S. (2023) 90 Cal.App.5th 694, 697-699, 710-711; id. at pp. 712-713 (conc. opn. of Viramontes, J.)), or that a conditional affirmance with a remand for further ICWA proceedings is appropriate here (see In re J.K. (2022) 83 Cal.App.5th 498, 507-508 & fn. 5; id. at p. 512 (conc. opn. of Gilbert, P. J.)).
Here, after Mother stated she might have Indian ancestry, the Bureau, at the court's direction, conducted a further inquiry by speaking with Mother (and the paternal grandmother) and sending informal notices to the affected tribes, an effort that elicited no responses. And significantly, the social worker later spoke with G.C.'s maternal grandfather (Mother's father), who denied any Indian heritage. The maternal grandfather was the only parent who Mother had believed might have Indian ancestry; Mother reported her mother (G.C.'s maternal grandmother) had no Indian ancestry. (And both Father and the paternal grandmother stated Father had no Indian ancestry.)
On this record, where the Bureau's follow-up to Mother's initial statements revealed no further information about possible Indian ancestry (and where the one grandparent who Mother believed had such ancestry stated he did not), we conclude any deficiency in the Bureau's initial inquiry (specifically, the failure to inquire of the maternal aunt) is not a prejudicial error requiring reversal. Under Benjamin M., it is not "likely" any information obtained from the maternal aunt would "bear meaningfully upon whether [G.C.] is an Indian child," or, alternatively stated, "would have shed meaningful light on the inquiry that the agency had the duty to make." (Benjamin M., supra, 70 Cal.App.5th at p. 744.) That the maternal aunt would have meaningful information that the maternal grandfather himself did not report does not seem likely to us. This is not a case "where the probability of obtaining meaningful information" through "continued inquiry" is "reasonable in the context of ICWA." (Ibid.) For the same reasons, we conclude the record does not "contain[] information suggesting a reason to believe" G.C. may be an Indian child under ICWA. (Dezi C., supra, 79 Cal.App.5th at p. 779, review granted.) The alleged error therefore was harmless under Dezi C. as well. (Ibid.)
III. DISPOSITION
The order denying Father's section 388 petition is affirmed. The order terminating Mother's and Father's parental rights and selecting adoption as G.C.'s permanent plan is affirmed.
WE CONCUR: BROWN, P. J. GOLDMAN, J.