Opinion
A166523
06-27-2023
In re R.L., a Person Coming Under the Juvenile Court Law. v. J.L., Defendant and Appellant. CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, Plaintiff and Respondent,
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J2000193
Richman, J.
J.L. (Father) appeals from the juvenile court's order terminating his parental rights over his son R.L. He argues the juvenile court erred in (1) declining to apply the beneficial relationship exception under Welfare and Institutions Code, section 366.26, subdivision (c)(1)(B)(i) and (2) failing to comply with the duty to inquire under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and related California law (§ 224 et seq.). We reject the first contention, but agree with the second, and so we will conditionally reverse the order and remand only for compliance with ICWA and related California law.
Further undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
The Dependency Proceedings
Initial Proceedings
Father and P.B. (Mother) are the parents of R.L., born in April 2012. R.L. has been diagnosed with severe autism, ADHD, and seizure disorder, is non-verbal, and is eligible for Regional Center Services due to his developmental disabilities.
On February 24, 2020, the Contra Costa County Children and Family Services Bureau (Bureau) filed a petition under section 300, subdivision (b)(1), failure to protect. The petition alleged the parents had engaged in multiple domestic violence acts in R.L.'s presence since 2017, the family home was in an unsanitary and unsafe condition, and Father had mental health diagnoses that he failed to adequately address.
According to the detention/jurisdiction report, the parents had a child welfare history concerning R.L. Police received reports in June 2017, October 2017, November 2018, and January 2020 that the parents were involved in numerous domestic violence incidents, sometimes in the presence of R.L.
The report also indicates that Mother has two older daughters from previous relationships; she and Father began dating in approximately 2012; Father lived in the same house as the daughters at some point; and both Mother and Father had a child welfare history as to the daughters, including allegations that Mother abused and neglected the children, and that Father "was a pedophile." Those proceedings would later become relevant to the Bureau's recommendation for the disposition hearing in these proceedings to bypass reunification services to the parents.
On February 11, 2020, the Bureau received a child welfare referral based on a report that then seven-year-old R.L. had been going to school smelling like cat urine on several occasions in the last three months. In addition, R.L.'s backpack and lunch smelled like cat urine, his lunch was moldy, cockroaches were inside his lunch box, and he had been absent from school one to two days per week.
On February 20, a social worker investigated the family's apartment in Bay Point and interviewed the parents. There were eight cats inside the apartment, which had a "strong pungent ammonia odor and musty smells," as well as "an unpleasant noticeable odor of cats [and] cat urine." The kitchen was cluttered with food boxes, and there were pans on the counters and in the sink. The refrigerator had several food items that were not covered.
During the home visit, Father called the paternal grandmother (Grandmother) who lived in Kansas, and had her speak to the social worker. Grandmother said she was "very concerned" about R.L. and the parents' "inability to properly care for him with his many disabilities." She also stated the parents used substances.
Father disclosed he had been diagnosed with bipolar disorder, anxiety, and depression but was not taking his prescribed medications. He agreed to contact his doctor to determine what medications he needed to address his mental health condition.
The social worker explained to the parents that the apartment needed to be cleaned and until that was completed, R.L. would have to stay elsewhere. The parents agreed to deep clean the apartment. However, they could not locate a safe place for R.L. to stay while they cleaned the apartment.
Grandmother stated she wanted to care for R.L. but would not be able to come to California until the following month. A paternal aunt who lived in Concord contacted the Bureau and expressed concern about the parents' ability to provide a safe and stable home for R.L. and his needs, but was unable to care for him. The Bureau also contacted a maternal aunt who lived across the street from the parents. She offered her home to R.L. but stated there was no place for him to sleep because a roommate was sleeping on the couch. Because the parents could not find a safe place for R.L. to stay while they cleaned the apartment, the Bureau decided to move forward with detaining R.L.
At the detention hearing on February 25, the juvenile court detained R.L., elevated Father to presumed father status, and granted the parents supervised visitation of a minimum of once per week.
On June 4, the court held the jurisdiction hearing. Pursuant to a negotiated resolution, the parents pleaded no contest to amended language in the petition that alleged they had engaged in multiple acts of domestic violence, they failed to provide R.L. with adequate care and shelter based on unsafe and unsanitary conditions in the family home, and Father failed to adequately address his mental health diagnoses. The court found the amended petition allegations to be true and set a disposition hearing.
In its disposition report, the Bureau recommended that the court adjudge R.L. a dependent, bypass reunification services to the parents based on their child welfare history related to Mother's two older daughters, and set a section 366.26 permanent placement hearing.
In prior dependency proceedings on behalf of the two daughters, it was alleged Mother failed to protect them due to her involvement in domestic violence, and that one of daughters had been, or was at risk of being, sexually abused by a member of her household. Mother was offered reunification services, but she did not make any progress in her case plan and failed to reunify. It was also reported that Father had a criminal history involving sexual offenses with minors and had been a registered sex offender since August 2012. Accordingly, the Bureau requested that the court deny services to both parents, due to Mother's failure to reunify with R.L.'s older sisters (§ 361.5, subd. (b)(10)(A)) and Father's status as a registered sex offender. (Id., subd. (b)(16).)
Section 361.5, subdivision (b)(10)(A) authorizes the denial of services to a parent who has failed to reunify with another child or whose parental rights to another child were terminated if the court finds that the parent "has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling...." Section 361.5, subdivision (b)(16) authorizes the denial of services to a parent who "has been required by the court to be registered on a sex offender registry ...."
As to the present proceedings, Mother made no progress in any services since the detention hearing, including missing scheduled drug tests. Father also did not take advantage of services. It was also reported that the parents no longer lived together.
Visitation logs reflected that visits transitioned from in-person to virtual in March 2020 due to the pandemic. Both parents consistently visited with R.L. and were "appropriate."
On September 24, 2020, the court held the disposition hearing, found clear and convincing evidence to bypass reunification services to Mother and Father, and set a section 366.26 hearing for January 21, 2021. The parents were granted monitored visitation of at least once per week.
First Section 366.26 Hearing
In its report prepared for the section 366.26 hearing, the Bureau noted that R.L. had been placed in a Regional Center group home to meet his needs and specialized care.
Grandmother expressed interest in adopting R.L. or guardianship if adoption was not possible. She stated she had a support system to help care for R.L., namely a paternal aunt who lived close to her in Kansas and worked as a support specialist for adults living with developmental disabilities. The Bureau began the process of obtaining an Interstate Compact on the Placement of Children (ICPC) home study of Grandmother's home. Once that process was completed, the Bureau would evaluate placement with Grandmother.
The parents consistently attended visits, which occurred virtually twice per week. R.L. did not fully participate during the visits. He would occasionally look at the screen but often times was busy playing with his toys. Due to the limited interaction, the video calls typically lasted between five and ten minutes. Grandmother also had virtual visits with R.L., but he did not interact much with her either.
The Bureau recommended R.L.'s continued placement in foster care, with the goal of permanent placement with a fit and willing relative.
On January 21, 2021, the court held the first of two section 366.26 hearings, adopted the Bureau's recommendations, and set a six-month postpermanency planning review hearing (§ 366.3) on July 1. The parents were granted supervised visitation twice per week.
Post-Permanency Review
In its six-month post-permanency review report, the Bureau related R.L.'s school reports that he was displaying aggressive behavior. This included scratching, pinching, clapping, biting, or tossing objects at other people, and destroying classroom materials. He also would injure himself by biting his hand and gouging his eyes out of their sockets.
However, one of R.L.'s teachers reported that she got him to wave at her once. And although he could not respond to any icons or words displayed on the computer," 'he would show us he was interested by eye gaze and orienting his body toward the screen.'" R.L. also was receiving physical, speech, and occupational therapy.
In terms of his development, R.L. learned to understand some gestures, although he did not always respond to his name. He was able to take off his clothes but needed help putting them on. He wore diapers and was not toilet trained.
The social worker also reported that Grandmother's ICPC evaluation had been approved. The Bureau sought the court's approval for moving forward with placing R.L. with Grandmother and laid out its plans for helping him move to Kansas. Father expressed his support for R.L.'s move to Kansas with Grandmother.
Both parents attended virtual visits with R.L. twice per week and attempted to engage him. But R.L. did not engage well during the video calls, though he occasionally looked towards the camera.
In its 12-month post-permanency review report, the Bureau noted R.L. had moved to Kansas with Grandmother on August 24. Mother moved to Las Vegas and intended to remain there. Father no longer lived in Bay Point and was "co[u]ch surfing." He stated he did not want to move to Kansas because he had many connections to the Bay Area.
The social worker observed that R.L. was doing well in the care of his Grandmother, who appeared to be meeting his needs. R.L. was enrolled in a specialized day program for students with autism. He was attending school in person and riding the bus. He also was receiving speech and occupational therapy. Grandmother was in the process of setting up behavioral support services for R.L. She took him to medical, eye, and dental appointments and scheduled an appointment with a neurologist for him.
Grandmother regularly sent the social worker photos of R.L., who would often be smiling in them. According to the social worker, R.L. "appears to enjoy being with his grandmother" and was "comfortable" in her care. Grandmother also reported that R.L." 'will come up to me and put his cheek to me, so I can give him a kiss all the time, warms my heart.' "
R.L. made further developmental progress. He was able to take his shoes and socks on and off and use the toilet. He also was working with Grandmother on not pinching and biting, and on feeding himself. He no longer tried to pop his eye out of its socket. And he was sleeping well.
The parents had one in-person with R.L. before he moved to Kansas. During that visit, Father "talked sweetly to [R.L.]" and told him he loved him. R.L. scratched and bit Father but the behavior ended quickly. Father was tearful during the visit but engaged R.L. R.L. became agitated towards the end, but the visit ended without incident.
Father also visited with R.L. everyday over the phone and every other day over video chat. R.L. could not have a two-way conversation over the phone. As for Mother, she video chatted with R.L. three or four times during the reporting period, but R.L. would take the phone and then push it away. Other times, when Mother called and R.L. was asleep or in the middle of an activity, Grandmother asked her to call back, but Mother did not call back.
In its third post-permanency review hearing report, the Bureau recommended that the court set an additional section 366.26 hearing to determine the most appropriate permanent plan for R.L. R.L. appeared to be thriving in Grandmother's care. She continued to schedule and attend R.L.'s medical, dental, and neurological appointments.
Grandmother also reported on R.L.'s developmental milestones. He was making progress on feeding himself, bathing, dressing himself, brushing his teeth, washing his hands, and using the toilet. He completed simple tasks such as turning the lights on and off. He also was learning to use verbal cues and started calling Grandmother "ma."
Grandmother continued to send the social worker photos and videos of R.L. He appeared happy in them and expressed a wider range of emotions, which was in contrast to him being non-verbal and rarely smiling when he first moved in with Grandmother. R.L. enjoyed many activities, such as spinning around, looking out the window, hanging in a swing outside, taking walks, and going to a children's gym.
The social worker did not hear from the parents during the reporting period. According to Grandmother, the parents were homeless. Father, however, maintained visits with R.L. He regularly called or video chatted with R.L., and Grandmother stated those "interactions [went] well." Mother was inconsistent with her visits, and R.L. was not receptive to her calls, as he would push the phone away.
On June 2, 2022, the court called the matter for a post-permanency review hearing, but the parents did not appear. It then set an additional section 366.26 hearing for September 29, 2022.
The Second Section 266.26 Hearing
In its report for the upcoming section 366.26 hearing, the Bureau recommended the court terminate parental rights to free R.L. for adoption by Grandmother.
R.L. continued to make developmental progress. He said the word "red" and used the toilet twice at his school. He was able to say "help, ma" to Grandmother, and he once said, "stop." He also could communicate by making sounds and/or gestures. In addition, he was working on feeding himself with a spoon and fork. R.L.'s summer school teacher reported that he made growth in the area of physical aggression. By the end of summer school, he "was following morning routines" and "did a great job of gesturing to staff for what he wanted."
In describing R.L.'s mental and emotional status, the social worker reported: "Even though [R.L.] has special needs and is non-verbal, he is able to display his happiness through his laughter and smiles. During monthly Facetime calls with the paternal grandmother and [R.L], the [social worker] observed the paternal grandmother to be attentive, playful, and affectionate towards [R.L.]. [He] in turn would laugh or smile at the paternal grandmother when she tickles him or give[s] him snacks. The ICPC social worker . . . observed similar interactions between the paternal grandmother and [R.L.] In his June 2022 contact note, [that social worker] stated that the paternal grandmother 'really enjoys [R.L's] company. . . (she) always has plenty of time for him and she keeps plenty of food in the house . . . (she) is really good at teaching him things. He also loves his trampoline and the rain. [R.L.] is currently safe in his living situation-no concerns."
During the reporting period, Mother called R.L. only a couple of times. R.L. did not engage with her and had no expression during the visits. Father either video chatted or called R.L. three to four times per week. R.L. was more engaged in his virtual visits with Father-he looked at the screen and appeared to recognize Father's voice.
In analyzing the likelihood of adoption and the proposed permanent plan of adoption, the Bureau recounted that R.L. had been in out-of-home care for the past two and a half years and had been in his current placement with Grandmother for over one year. According to the Bureau, while the parents had contact with R.L., "there is no indication that [R.L.] identifies the parents as his parents and given his Autism diagnosis, [he] is unable to engage in a two-way conversation or have any length of conversation with the parents. [¶] The paternal grandmother loves [R.L.] unconditional [sic] and is committed to providing him with a safe, stable and permanent home. Thus, severing parental rights in order for the child to be adopted will not interfere with an existing parent/child relationship."
On September 29, 2022, the court held the second, contested section 366.26 hearing. Both parents appeared, objected to the termination of parental rights, and argued the beneficial relationship exception to adoption applied. The court then stated its findings, beginning with its determination that R.L. was adoptable. It then turned to whether the beneficial relationship exception applied to either parent.
First, the court addressed "whether the parents have maintained regular contact and visitation." The court found that mother did not maintain regular contact and visitation, while father, who "speak[s] more frequently with [R.L.], multiple times a week, and visits with [R.L.] regularly," did.
Second, the court assessed whether the parents had "a substantial relationship with [R.L.]" In light of mother's failure to maintain consistent visitation, the court found that she did not have a substantial relationship with R.L. As to father, however, the court stated, "It's hard to determine the extent of the relationship between [R.L.] and his father" due to R.L.'s limitations. The court then said, "It seems apparent that [R.L.] recognizes [father's] voice" and "his picture on video chats," before finding "there is some relationship between [Father] and [R.L.]"
Lastly, the court found that R.L. "would greatly benefit by the adoption" and that he "would not suffer a significant detriment by losing any relationship that he may have with his parents." It stated, "Again, the mother does not have a significant relationship with [R.L.], and Father does have a relationship but it is of limited significance." The court continued, "[N]either parent has been to see [R.L.] in the 13 months that he's been in Kansas. So other than the phone calls and video chats, there has been no personal contact between either parent and [R.L.]" The court concluded, "And so I do find the benefits of adoption and permanency for [R.L.] in a loving and stable home that provides for all of his special needs and has enabled him to flourish and to thrive and to improve since he has been with his grandmother, that benefits of permanency through adoption with the grandmother do outweigh any relationship between [R.L.] and either [Mother] or [Father]." Accordingly, the court terminated parental rights.
Facts Related to ICWA
At the outset of the case, the parents informed the Bureau they did not have Native American heritage. At the detention hearing on February 25, 2020, the court found there was "[n]o reason to believe the child is an Indian child."
In its February 25 disposition report, the Bureau stated it had mailed nine "notification letters for family finding . . . to possible paternal relatives" and ten "to possible maternal relatives." However, the Bureau received no responses.
Throughout the proceedings, the Bureau was in contact with some of R.L.'s extended family members, particularly Grandmother, a paternal aunt who lived in Concord, and a maternal aunt who lived across the street from the parents' former apartment in Bay Point. Grandmother also informed the Bureau that R.L. had another paternal aunt who lived close to her and would offer her support in taking care of R.L.
At the section 366.26 hearing on September 29, 2022, the Bureau's counsel informed the court that a social worker had asked Grandmother about possible Indian heritage, and Grandmother stated she was not aware of any such heritage on her side of the family. There is no indication that the Bureau also interviewed other known relatives.
DISCUSSION
The Juvenile Court Did Not Err in Terminating Parental Rights Father first argues the order terminating parental rights must be reversed because the juvenile court erred in finding the beneficial relationship exception to adoption did not apply. We disagree.
In In re Eli B. (2022) 73 Cal.App.5th 1061, we summarized the applicable law:
"The beneficial relationship test is an exception to the presumptive rule of terminating parental rights after reunification efforts have failed, in order to free a child for adoption. (In re J.D. (2021) 70 Cal.App.5th 833, 852 (J.D.).) . . . [T]he Supreme Court [in In re Caden C. (2021) 11 Cal.5th 614 (Caden C.)] has recently explained its scope and proper application. [Citation.]
"As clarified by the Supreme Court,' "the parent asserting the parental benefit exception must show, by a preponderance of the evidence, three things. The parent must show regular visitation and contact with the child, taking into account the extent of visitation permitted. Moreover, 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. And the parent must show that terminating that attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home. When the parent has met that burden, the parental-benefit exception applies such that it would not be in the best interest of the child to terminate parental rights, and the court should select a permanent plan other than adoption."' (J.D., supra, 70 Cal.App.5th at p. 852, quoting Caden C., supra, 11 Cal.5th at pp. 636-637.)
"We review the juvenile court's ruling on the first two elements for substantial evidence. (J.D., supra, 70 Cal.App.5th at p. 853.) We review its ruling on the third element under a hybrid standard, reviewing its factual determinations concerning the detriment analysis for substantial evidence but its ultimate weighing of the relative harms and benefits of terminating parental rights for an abuse of discretion. (Ibid.)" (In re Eli B., supra, 73 Cal.App.5th at pp. 1067-1068.)
Under the substantial evidence standard, we" 'must review the whole record in the light most favorable to the [order] below to determine whether it discloses . . . evidence which is reasonable, credible, and of solid value ....'" (In re Angelia P. (1981) 28 Cal.3d 908, 924, superseded by statute on other grounds as stated in In re Cody W. (1994) 31 Cal.App.4th 221, 229-230.) And an abuse of discretion is shown where the juvenile court" '" 'has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.'" '" (Caden C., supra, 11 Cal.5th at p. 641, quoting In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
Father contends he proved all three elements of the beneficial relationship exception. As he points out, the juvenile court found that he met the first element set forth in Caden C., specifically that he consistently visited with R.L. This finding is unchallenged.
What Father does challenge are the court's findings that he did not meet his burden of proving the second and third elements-that a "substantial, positive, emotional attachment to the parent" existed and that "terminating 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. 636-637.)
With respect to the second element, Father asserts that R.L. has a positive, substantial attachment to him, because he "has been a continuous and positive presence in [R.L.'s] life." Father points to evidence that during virtual visits, he "made ongoing efforts to engage [R.L.]," that R.L. appeared to recognize his voice, and that R.L. looked at the screen as opposed to not paying attention. We do not agree that this evidence suffices to demonstrate that R.L. had a "substantial, positive emotional attachment" to him within the meaning of Caden C.
"A positive attachment between parent and child is necessarily one that is not detrimental to the child but is nurturing and provides the child with a sense of security and stability," and "an emotional attachment is one where the child views the parent as more than a mere friend or playmate and [whose] interactions with the parent were not ambivalent, detached, or indifferent." (In re B.D. (2021) 66 Cal.App.5th 1218, 1230.) In evaluating the second element, courts "assess whether the 'child would benefit from continuing the relationship.'" (Caden C., supra, 11 Cal.5th at p. 632.) "Again here, the focus is the child. And the relationship may be shaped by a slew of factors, such as '[t]he age of the child, the portion of the child's life spent in the parent's custody, the "positive" or "negative" effect of interaction between parent and child, and the child's particular needs.' . . . [C]ourts often consider how children feel about, interact with, look to, or talk about their parents. [Citations.] Doing so properly focuses the inquiry on the child, even as courts must remain mindful that rarely do '[p]arent-child relationships' conform to an entirely consistent pattern...." (Ibid.)
Here, by the time of the second section 366.26 hearing, R.L. had been out of his parents' care for over two-and-a-half years, and had lived with Grandmother for over 13 months. Although Father consistently visited with R.L. over video chat, they had no in-person contact since R.L. had moved to Kansas with Grandmother. Also, while R.L. recognized Father's voice and appeared to engage in visits, there is no evidence that R.L. derived a sense of security or stability from those visits, or that he saw Father as more than a friend or playmate. Indeed, the evidence does not even show that R.L. considered Father a friendly visitor or playmate.
We understand that evaluating a parent-child bond with R.L., who was developmentally disabled and non-verbal, may be very difficult, as the court acknowledged. However, descriptions of R.L.'s interactions with his caregivers showed he was able to interact and express his emotions. For example, the social worker observed that in photos and during video chats with R.L. and Grandmother, he appeared to "enjoy being with his grandmother." "Even though [R.L.] has special needs and is non-verbal," the social worker explained, "he is able to display his happiness through his laughter and smiles. During monthly Facetime calls with the paternal grandmother and [R.L.], the [social worker] observed the paternal grandmother to be attentive, playful, and affectionate towards [R.L.] [R.L.] in turn would laugh or smile at the paternal grandmother when she tickles him or give[s] him snacks." The social worker also observed that when R.L. moved in with his grandmother, he "rarely smiled," but over time began "to express a wider range of emotions." In addition, Grandmother reported that R.L. called her "ma," and would" 'come up to [her] and put his cheek to [her], so [she] can kiss him a kiss all the time." Further, R.L.'s schoolteachers observed that he could communicate through making gestures and was even able to wave at one of his teachers on one occasion.
All of this evidence demonstrates that R.L. was able to interact and express a range of emotions, despite his developmental challenges. When viewed against this evidence, R.L.'s interactions with Father were neutral on balance. Evidence that R.L. recognized Father's voice and engaged in video visits with him by looking at the screen demonstrated "some" relationship that was "of limited significance," as the court put it. But the existence of "some" relationship between Father and R.L. is a far cry from the "substantial, positive, emotional attachment" that the beneficial relationship exception requires. (Caden C., supra, 11 Cal.5th at p. 636.)
For the first time in his reply brief, Father argues the court's failure to "elaborat[e] on its reasoning" for this finding "requires reversal." His failure to raise this argument in his opening brief allows us to disregard it. (See Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761, fn. 4.) The argument lacks merit in any event. A juvenile court is not required to recite specific findings of fact relative to its conclusions regarding each of the three elements of the beneficial relationship exception prior to finding the beneficial relationship exception does not apply. (In re A.L. (2022) 73 Cal.App.5th 1131, 1156.) Although a juvenile court's statement of its findings or an explanation of the reasons for its decision may be helpful in conducting appellate review, it is not a legal requirement. (Ibid.) Furthermore,"' "[w]e must indulge in every presumption to uphold a judgment" '" (id. at p. 1161), including the presumption the court "considered all the pertinent matters presented to it and ruled in favor of the prevailing party." (Lydig Construction, Inc. v. Martinez Steel Corp. (2015) 234 Cal.App.4th 937, 945.) Based on its statement that Father's relationship with R.L. was "of limited significance," we presume the court impliedly found that R.L. lacked a substantial, positive emotional attachment to Father.
Father relies on In re M.G. (2022) 80 Cal.App.5th 836 (M.G.) to argue that he proved the second element of the exception, but that case undermines his position. In M.G., a bonding study was performed because the three-year-old child was non-verbal and developmentally disabled, and the study was intended to assess the child's bond with his developmentally disabled parents. (Id. at p. 845.) Relying on the bonding study, the juvenile court found the parents" 'have not established a bond with the child such that the parental rol[e] can be viewed by this court in a positive ma[nn]er'" and terminated parental rights. (Ibid.)
The appellate court reversed the order terminating parental rights, stating that the juvenile court relied on a bonding study that "offered minimal if any information about the nature of the child's relationship with his parents in the context of their development disabilities." (M.G., supra, 80 Cal.App.5th at p. 850.) The court stated that although "evaluating a parent-child bond with a three-year-old, non-verbal, below-age level developmentally disabled child visiting his developmentally disabled parents by video may be very difficult[,] . . . even a description of observations of [the child's] interactions with his regular [non-parent] caregivers might have shed light on [the child's] ability, if any, to interact and to express his emotions." (Ibid.) But the study did "not address this issue whatsoever"; it "simply summarize[d] observations of a hyperactive three-year-old with developmental and express language delays over a video chat" and provided "no information . . . informatively analyzing the parent-child interactions ...." (Ibid.) Further, the study compared "the parents' ability to manage [the child's] medical and developmental need to the caregiver's ability to meet the children's needs," a factor the court explained was improper under Caden C. (M.G., at p. 851.) Thus, the M.G. court concluded substantial evidence did not support the juvenile court's finding that no emotional bond existed to support the second Caden C. element. (M.G., at p. 851.)
Father argues that "M.G.'s case is largely analogous to [R.L.'s]." We disagree. In M.G., the only evidence as to the emotional attachment the child had with the parents was the bonding study, which offered minimal information about the nature of the child's relationship with his parents. (M.G., supra, 80 Cal.App.5th at p. 850.) Here, as detailed above, the record contains evidence that was missing in M.G.: "descriptions of observations of [R.L.'s] interactions with his regular caregivers" that "shed light on [his] ability. . . to interact and to express his emotions." (Ibid.) The evidence further shows R.L. was able to, but did not, express any emotions that indicated he had a substantial attachment to Father.
To the extent Father suggests the court here, as in M.G., improperly considered whether he "acted in a parental role" in evaluating the second element, that argument is forfeited because it was never raised below. (See In re J.R. (2022) 82 Cal.App.5th 526, 531, fn. 3.) Forfeiture aside, the claim fails on the merits. While the Bureau's report does contain a statement that R.L. did not appear to recognize Father as his parent, the court's ruling on the exception did not consider whether Father acted in a "parental role" or was able to provide a home for R.L.
In short, substantial evidence supports the juvenile court's finding that any relationship between R.L. and Father was insufficient under Caden C. to show that its continuation would benefit R.L.
Father's failure to meet his burden as to the second element under Caden C. was reason alone for the court to find the beneficial relationship exception inapplicable. Nonetheless, we address-and reject-his arguments concerning the third element, which required him to show that" 'termination [of his rights] would be detrimental to the child due to' the relationship," such that "it would be harmful to the child to sever the relationship and choose adoption." (Caden C., supra, 11 Cal.5th at p. 633.)
Here, Father offered no evidence as to how terminating the relationship would affect R.L., much less that it would have a detrimental effect on R.L.'s life or that it would outweigh the benefits offered by adoption. His appellate briefing likewise fails to provide a compelling reason why R.L. should not remain with the prospective adoptive parent, Grandmother. Thus, Father did not meet his evidentiary burden to establish that his relationship with R.L. was sufficiently compelling to outweigh the legal preference for adoption.
Substantial evidence supports the factual findings that the court made in determining the third Caden C. element was not met. And considering that evidence, we cannot say the court abused its discretion in concluding the benefit of adoption outweighed R.L.'s loss of any relationship with Father.
As the court observed, by the time of the September 2022 hearing, R.L. had been out of his parents' care for over two-and-a-half years and living with Grandmother for over 13 months. As the court also commented, R.L. was "in a loving and stable home that provides for all of his special needs and has enabled him to flourish and to thrive and to improve ...." Specifically, during the 13 months she cared for R.L., Grandmother attended to not only R.L.'s basic needs, but also his extensive developmental needs and medical conditions. In that environment, R.L. made demonstrable progress in many areas of his life. He was in fact said to be "thriving." Grandmother was committed to R.L. and repeatedly informed the Bureau of her desire to adopt him. She loved and developed a strong bond with R.L., offered him stability and security, and was committed to attending to all of his needs.
We therefore agree with the juvenile court that the stability R.L. would gain from the security afforded by adoption by Grandmother, who had cared for him for over one year and showed a commitment to supporting his special needs, weighed heavily on the scale in favor of adoption and, in the end, outweighed Father's limited relationship with R.L.
Father asserts that the court considered improper factors in analyzing the third element. He raises essentially the same arguments he made in connection with the second element, specifically that the court considered the extent to which he occupied a "parental role" and Grandmother's parental fitness as compared to his. (See Caden C., supra, 11 Cal.5th at p. 634 ["[w]hen 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)"].) Father did not raise these contentions in the juvenile court, and so he has forfeited them. (See In re J.R., supra, 82 Cal.App.5th at p. 531, fn. 3.)
Father's arguments are also unavailing. As noted, the juvenile court did not comment on whether Father acted in a "parental role" or was able to provide a home for R.L. Moreover, the court's focus on Grandmother's home environment was not to compare Father's parental attributes with that of Grandmother, but to see into what R.L.'s life looks like in his prospective adoptive home, without a parental relationship with Father. At this step, the juvenile court was required to "determine, for the particular child, how a prospective adoptive placement may offset and even counterbalance [the] harm" in terminating parental rights. (Caden C., supra, 11 Cal.5th at p. 640.) "In doing so, it may make explicit or implicit findings ranging from specific benefits related to the child's specific characteristics up to a higher-level conclusion about the benefit of adoption all told." (Ibid.) The court thus acted within its discretion in determining that for R.L., the permanency and stability that adoption would give him would outweigh any detriment he might experience from termination of his relationship with Father. That determination was not arbitrary, capricious, or patently absurd. (See id. at p. 641.)
For these reasons, we conclude the court did not err by declining to apply the beneficial relationship exception and terminating Father's parental rights.
A Limited Remand Is Required for Compliance with ICWA and Related California Law
Father next argues the juvenile court and the Bureau failed to fulfill their duties to adequately inquire into R.L.'s possible Indian heritage, pursuant to California law implementing ICWA. We agree.
"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 (D.S.), citing 25 U.S.C. § 1921; 25 C.F.R. § 23.106.) California has adopted statutes and rules that "implement, interpret, and enlarge upon" ICWA. (In re S.B. (2005) 130 Cal.App.4th 1148, 1157; see generally § 224 et seq.)
Under California law, the juvenile court and the Bureau "have an affirmative and continuing duty to inquire whether a child for whom a [dependency] petition . . . has been filed, is or may be an Indian child." (§ 224.2, subd. (a); Cal. Rules of Court, rule 5.481(a); see In re Isaiah W. (2016) 1 Cal.5th 1, 9, 14.)
"[S]ection 224.2 creates three distinct duties regarding ICWA in dependency proceedings." (D.S., supra, 46 Cal.App.5th at p. 1052.) At issue here is the first duty, which, "[a]lthough commonly referred to as the 'initial duty of inquiry,' . . . 'begins with the initial contact' [citation] and continues throughout the dependency proceedings." (In re J.C. (2022) 77 Cal.App.5th 70, 77 (J.C.).) That duty requires the Bureau to 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 and where the child, the parents, or Indian custodian is domiciled." (§ 224.2 subd. (b).) "Extended family members" include adults who are the 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." (25 U.S.C. § 1903(2); § 224.1, subd. (c).)
The juvenile court must determine whether ICWA applies to the child's proceedings. (In re Y.W. (2021) 70 Cal.App.5th 542, 552; In re Jennifer A. (2002) 103 Cal.App.4th 692, 705, fn. 5.) "[T]he court may not find that ICWA does not apply when the absence of evidence that a child is an Indian child results from a [Bureau] inquiry that is not proper, adequate, or demonstrative of due diligence." (In re Josiah T. (2021) 71 Cal.App.5th 388, 408, citing In re D.F. (2020) 55 Cal.App.5th 558, 570-571 [in turn citing § 224.2, subds. (g) and (i)(2)].)
We review the juvenile court's ICWA findings for substantial evidence, but "where the facts are undisputed, we independently determine whether ICWA's requirements have been satisfied." (D.S., supra, 46 Cal.App.5th at p. 1051.)
Although not addressed by either party, we note as a preliminary matter that the juvenile court did not make express findings as to whether ICWA applied. (See In re Jennifer A., supra, 103 Cal.App.4th at p. 705, fn. 5 ["the court must decide, one way or the other, whether the ICWA applies"].) However, the record indicates the court was aware of and considered the ICWA issue. At the detention hearing, the court expressly found there was "[n]o reason to believe [R.L.] is an Indian child." In its report for the September 29, 2022 section 366.26 hearing, the Bureau stated "[ICWA] does not apply" and referred to the court's earlier finding there was no reason to believe R.L. was an Indian child. The court stated at the September 29 hearing that it had read the report, before proceeding to terminate parental rights. Given all this, we will proceed on the understanding the court impliedly found ICWA does not apply. (See In re Asia L. (2003) 107 Cal.App.4th 498, 506 ["While the record must reflect that the court considered the issue and decided whether ICWA applies, its finding may be either express or implied"].)
Turning to Father's arguments, he claims the Bureau failed to discharge its duty of initial inquiry by failing to interview the paternal aunt in Concord, as well as other unidentified maternal and paternal relatives whom it tried to contact during the proceedings. The Bureau concedes it did not interview the paternal aunt about possible Indian heritage. We accept the concession.
The Bureau asked the parents, and eventually Grandmother, about Indian ancestry. But the Bureau did not conduct the same inquiry of the paternal aunt who lived in Concord and was in contact with the Bureau. The Bureau also contacted a maternal aunt who lived across the street from the parents' former apartment in Bay Point, but it did not interview her either. The record further discloses that the Bureau did not inquire of another paternal aunt, who ostensibly was available through Grandmother because she lived near Grandmother and would provide her with support in taking care of R.L. As a result, the Bureau failed to satisfy its duty of inquiry under section 224.2, subdivision (b).
We, however, reject father's claim the Bureau should have inquired of other unidentified maternal and paternal relatives. The Bureau sent "family finding" letters to "possible" paternal and maternal relatives, but never received any responses from them. To the extent Father argues the Bureau had a duty to inquire of relatives whom it could not reach, he cites no supporting authorities, and, in any event, case law suggests the contrary. (See D.S., supra, 46 Cal.App.5th at p. 1053, citing In re Levi U. (2000) 78 Cal.App.4th 191, 199 [ICWA does not require an agency "to 'cast about' for information or pursue unproductive investigative leads"]; accord, In re A.M. (2020) 47 Cal.App.5th 303, 323.)
Responsibility for these omissions rests not only with the Bureau. The juvenile court, too, erred because it failed to ensure the Bureau had satisfied its inquiry duties before impliedly finding ICWA did not apply. (See In re Rylei S. (2022) 81 Cal.App.5th 309, 320 [juvenile court had a duty to ensure the child protective agency made the relevant inquiries and its failure to do so was error]; J.C., supra, 77 Cal.App.5th at p. 79 [same]; see also In re Antonio R. (2022) 76 Cal.App.5th 421, 431 (Antonio R.) ["section 224.2, subdivision (a), makes clear that the 'affirmative and continuing duty to inquire' whether a child is or may be an Indian child rests with both the Department and the court"].)
Having determined the court erred in making its ICWA finding, we turn to the issue of prejudice. The appellate courts are divided on what showing of prejudice warrants reversal for ICWA inquiry errors, and the issue is currently pending before our Supreme Court. (In re Dezi C. (2022) 79 Cal.App.5th 769, rev. granted Sept. 21, 2022, S275578 (Dezi C.).)
The varying standards for prejudice include, for example: (1) deficient inquiry necessarily infects the juvenile court's ruling and reversal is automatic and required ("automatic reversal rule") (In re G.H. (2022) 84 Cal.App.5th 15, 32; Antonio R., supra, 76 Cal.App.5th at pp. 432-437; In re A.R. (2022) 77 Cal.App.5th 197, 207; J.C., supra, 77 Cal.App.5th at p. 80; In re Y.W., supra, 70 Cal.App.5th 542, 556); (2) deficient inquiry is harmless unless the record below demonstrates or the parent on appeal makes an offer of proof or other affirmative assertion of Indian heritage ("presumptive affirmance rule") (In re A.C. (2021) 65 Cal.App.5th 1060, 1069 (A.C.); accord, In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430-1431); (3) a deficient 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 (In re Benjamin M. (2021) 70 Cal.App.5th 735, 744 (Benjamin M.)); and (4) deficient inquiry is harmless unless the record contains information suggesting a "reason to believe" the child is an Indian child. (Dezi C., supra, 79 Cal.App.5th at p. 779.)
Father argues we should not apply the presumptive affirmance rule. He relies heavily on Antonio R., supra, 76 Cal.App.5th 421, thus impliedly advocating for the automatic reversal rule. Under that rule, Father argues, the court's error mandates reversal. The Bureau argues that under any of the standards described above, any error was harmless. We conclude that reversal is required under each of the harmless error rules except the presumptive affirmance rule, which we decline to follow for reasons we explain.
Several courts have criticized the presumptive affirmance rule. (See In re K.H. (2022) 84 Cal.App.5th 566, 612-614, citing In re Y.M. (2022) 82 Cal.App.5th 901, 913-915; Dezi C., supra, 79 Cal.App.5th at pp. 777-778; Benjamin M., supra, 70 Cal.App.5th at pp. 743-744; A.C., supra, 65 Cal.App.5th at pp. 1074-1078 (dis. opn. of Menetrez, J.).) As explained in In re K.H., a presumptive affirmance rule requiring a parent to demonstrate evidence in the record or make an offer on appeal regarding possible Indian heritage would routinize consideration of new evidence on appeal, which is generally disfavored; shift the burden of investigation onto parents in dependency proceedings; and disregard the interests of the Native American tribes, because prejudicially deficient inquiries will go uncorrected if an appealing parent is unwilling or unable to make a meaningful proffer on appeal. (See In re K.H., supra, 84 Cal.App.5th at pp. 612-614 [and cited cases].) These criticisms are well taken. Accordingly, we will move on to analyze the error here under the other prejudice standards. We need not choose among the remaining standards because, under any of them, the error here was not harmless.
Under the reversible per se approach, reversal clearly would be required. Under Benjamin M., the Bureau's deficient inquiry was not harmless. As discussed, the record indicates that the paternal aunt and maternal aunt in California were available, that the other paternal aunt in Kansas was readily accessible through Grandmother with whom the Bureau had contact, and that these relatives' responses would have borne meaningful information on R.L.'s Indian status. (Benjamin M., supra, 70 Cal.App.5th at pp. 744-745.) The error also would not be harmless under the "reason to believe" standard under Dezi C., which may be met, for example, "if the record indicates that one or both of the parents is adopted and hence their self-reporting of 'no heritage' may not be fully informed." (Dezi C., supra, 79 Cal.App.5th at p. 789.) The record here indicates Mother "was raised by her grandmother" and contains no information on her biological parents. Father also stated he did not grow up with his biological father, who" 'was never around.'" Thus, the record suggests that both parents' "self-reporting of 'no heritage' may not be fully informed."
DISPOSITION
The order terminating parental rights is conditionally reversed. The matter is remanded with directions for the juvenile court to order the Bureau to comply with the duty of initial inquiry (§ 224.2, subd. (b)) as to available extended family members and, if applicable, the duty of further inquiry (§ 224.2, subd. (e)) and the duty to provide notice to the pertinent tribes (§ 224.3, subd. (a)). If the court determines ICWA does not apply, then it shall immediately reinstate the order terminating parental rights. If the court finds that ICWA applies, the court shall proceed in conformity with ICWA and related California law. The court shall enter its findings on the record as to whether ICWA applies and whether the Bureau complied with its duties under the law.
We concur: Stewart, P.J.