Opinion
B324550 B324553
01-29-2024
In re A.H., a Person Coming Under the Juvenile Court Law. v. A.H., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Conditionally affirmed and remanded with directions. Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Veronica Randazzo, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 20CCJP00121 Debra R. Archuleta, Judge.
Conditionally affirmed and remanded with directions. Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Veronica Randazzo, Deputy County Counsel, for Plaintiff and Respondent.
WILEY, J.
A father appeals the order terminating his parental rights. He claims the juvenile court erred in finding the parental benefit exception (see Welf. &Inst. Code § 366.26, subd. (c)(1)(B)(i)) did not apply to his relationship with his daughter, and further argues that the court erred in finding the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (the Act) did not apply. We find no error in the juvenile court's determination that father did not meet the parental benefit exception but conditionally affirm and remand to allow the Los Angeles County Department of Children and Family Services and the juvenile court to comply with the Act and related California law. Further undesignated citations are to the Welfare and Institutions Code.
I.
A.H. is the father of a child born in July 2019. We refer to him as father. The child, whose initials are also A.H., has never lived with father. We refer to her as the child or A.H. She was removed from the custody of both parents at the age of approximately six months. Her mother, with whom she lived prior to removal, is now deceased. Since shortly after removal, A.H. has lived with Carol, an extended family member who is prepared to adopt her.
Both parents claimed Cherokee ancestry early in the case. The Department contacted several maternal relatives, all of whom denied any knowledge of Cherokee ancestry on the maternal side of A.H.'s family. The Department admits that it did not contact paternal relatives or the Cherokee tribes to investigate father's claims regarding Cherokee ancestry.
At a later date, father claimed additional Indian ancestry, indicating possible connections to the Blackfeet tribe through his grandmother and mother. He told the Department that his mother (A.H.'s paternal grandmother) would be the only remaining living relative who would have relevant information. The social worker reported making several attempts to contact the paternal grandmother, but these attempts were unsuccessful because she did not have a working telephone and was eventually too ill to be interviewed, according to father. The Department did contact the Blackfeet tribe by several methods, and reported the possible Blackfeet connection to the Bureau of Indian Affairs. In his appellate briefing, father briefly mentions his claims regarding Blackfeet ancestry but does not address the Department's investigation of them.
A.H. was removed from her parents' custody because of domestic violence between her parents. Though evidence conflicted as to how the incident began, law enforcement was called to father's apartment (where mother was visiting) when an altercation between them turned physical. Officers reported that father was initially uncooperative and used A.H., who was present during the incident, as a shield when the officers drew their weapons. Charges against father concerning this incident were eventually dropped when mother refused to cooperate with the investigation.
At the time of removal, father claimed that he had been seeing A.H. every other day. At the § 366.26 hearing, father testified that he had been seeing A.H. every day before removal. After removal, father visited A.H. regularly, first with monitored and then unmonitored visits, and had several overnight visits in December 2021 and January 2022. The social worker reported that the visits were generally positive and appropriate, and that A.H. appeared happy to be with her father.
After the Department filed a case concerning one of A.H.'s half siblings at the beginning of 2021, father's visits with A.H. were again monitored. Father took a break of several weeks from visits to absorb the change. After that, and until the time of the § 366.26 hearing, the visits were once weekly in a park or restaurant, monitored, increasing in time from two to about four hours. Father would sometimes end the visit early if A.H. behaved poorly; the monitor reported that father seemed uncomfortable with correcting A.H.'s behavior and would give her back to the monitor and end the visit if A.H. misbehaved or was not engaged. Father did not take advantage of the Department's offers to facilitate telephone calls or virtual visits outside of his monitored visits.
The § 366.26 hearing was held on November 9, 2022, with father present. Father objected to termination of his parental rights and argued that the beneficial parental relationship exception applied. The Department argued that A.H. was specifically and generally adoptable and no exception to adoption applied, noting that while A.H. and father had generally positive interactions, severing the relationship between father and child would not deprive the child of a substantial positive emotional attachment as father had only been a friendly visitor. Counsel for A.H. joined and agreed, arguing father failed to visit the child to the fullest extent permitted by the juvenile court's orders, the child did not exhibit any signs of emotional distress because of father's absence, and the child would not suffer any detriment if father's parental rights were terminated.
The juvenile court found that notice was proper, that A.H. was likely to be adopted, that no statutory exception applied, and that adoption was in A.H.'s best interests. It terminated father's parental rights, freeing A.H. for adoption by Carol, who has been A.H.'s caretaker since she was six months old. The juvenile court's December 7, 2022, Nunc Pro Tunc minute order reflecting the juvenile court's true findings and orders made on November 9, 2022 was attached as Exhibit 2 to the Department's unopposed Request for Judicial Notice of the trial court record. We grant the Department's Motion to Augment and Request for Judicial Notice, filed August 8, 2023.
II.
The juvenile court properly found that the parental benefit exception did not apply. At the permanency planning hearing, the focus is on the best interests of the child, and the default option is adoption. (In re Caden C. (2021) 11 Cal.5th 614, 631632 (Caden C.).) Only in exceptional circumstances, laid out in the statute, is it appropriate for the juvenile court to select a different plan. (Id. at pp. 630-631.)
One such exception is the parental benefit exception. (§ 366.26, subd. (c)(1)(B)(i).) A parent bears the burden of proving this exception applies. (Caden, supra, 11 Cal.5th at p. 629.) To do so, a parent must establish: (1) he visited the child regularly; (2) a substantial, positive, and emotional attachment exists between him and the child; and (3) terminating this attachment would be detrimental to the child. (Id. at p. 636; see also id. at p. 631.) The court may apply the exception when a child cannot be in a parent's custody but severing the child's relationship with the parent, even when balanced against the benefits of a new adoptive home, would be harmful for the child. (Id. at p. 630.) At all stages, the focus of the analysis must remain on what is in the child's best interests. (Id. at p. 632.)
The juvenile court's findings regarding the first two elements of the Caden C. test are reviewed for substantial evidence. (Caden C., supra, 11 Cal.5th at p. 639.) The third element is reviewed under a "hybrid standard." (Id. at pp. 639641.) "[T]he ultimate decision - whether termination of parental rights would be detrimental to the child due to the child's relationship with his [or her] parent - is discretionary and properly reviewed for abuse of discretion." (Id. at p. 640.) Any factual determinations made in support of that decision, however, are reviewed for substantial evidence. (Ibid.) In sum, our review is deferential.
The record supports the juvenile court's ruling. While father's visits were positive, for the most part, A.H. did not express significant upset when visits ended. She was not distressed by the missed visits when father took a break of several weeks to absorb a change in visitation. While father testified that A.H. would run to him and call him "Daddy," he was limited in his ability to act in a parental role to her. For example, he remained uncomfortable even with correcting her misbehavior during monitored visits. Father only participated in once weekly monitored visits without any additional contact with A.H. He made little effort to contact A.H. or to learn anything about her life outside of these four hour visits. Father only attempted to contact A.H. outside of his scheduled visitation time by telephone and only after the Department noted his failure and assessed that the child would not be negatively affected by the termination of his parental relationship. In short, father did not establish the bond was more than that of a "friendly visitor."
Alone, even frequent and loving contact is insufficient to establish a beneficial parent-child relationship. (In re Noah G. (2016) 247 Cal.App.4th 1292, 1300.) There was no evidence that severing the bond would be destabilizing to A.S. (Caden C., supra, 11 Cal.5th at p. 629.) A.H. had bonded with Carol, the caregiver she had lived with for most of her life. She was thriving in that care. Carol had provided A.H. with a stable and loving home.
Father's relationship to A.H. met the exception's first criteria, and possibly its second, but not its third. Father had regular visits. The evidence presented suggests that some attachment did exist between father and daughter, though the extent of that attachment is uncertain as daughter did not appear significantly upset by father's absences. The Department reported that A.H. never exhibited any emotional distress or behavioral issues as a result of father's absence. The juvenile court noted at the time of the hearing that father did not choose to take advantage of all the visitation and contact with A.H. that was available to him.
The third criteria is the clear impediment. The juvenile court found "that any benefit accruing to the child from her relationship with the father is outweighed by the physical and emotional benefit that the child will receive through the permanency and stability of adoption. And, further . . . that adoption is in the best interest of this child." The juvenile court then terminated parental rights and ordered adoption as A.H.'s permanent plan.
Father asks us to substitute for the trial court's conclusion our own. He argues we should conclude that A.H. would derive greater benefit from preserving once weekly visits with father, a person with whom she has never lived, than she would from being permanently adopted by the person who has been her full time caretaker since she was six months old. We cannot agree.
The record shows the trial court did not abuse its discretion in balancing the harms and benefits of adoption. It shows A.H. would not be significantly harmed by the loss of the relationship she has with her father, and she would be substantially benefitted by gaining the physical and emotional stability of permanent adoption by the person who has provided her care since she was six months old. The juvenile court's decision on this third prong certainly was not arbitrary, capricious, or absurd. (See Caden C., supra, 11 Cal.5th at p. 641.) The trial court did not abuse its discretion. We affirm the court's decision.
III.
Both parents claimed Cherokee ancestry. The Department interviewed several maternal relatives about this claim, all of whom denied any knowledge of Cherokee ancestry. However, the Department failed to contact any paternal relatives or the Cherokee tribes directly. In his appellate briefing, father does not elaborate his claim regarding Blackfoot ancestry. He raises only his claim to Cherokee ancestry and alleges that the Department did not fulfill its duty to inquire of paternal relatives concerning the possibility that A.H. qualifies as an Indian child under the Act.
The Department concedes it failed in its duty under the Act to inquire about Native American ancestry: it failed to inquire of any paternal relative or of the Cherokee tribes regarding A.H.'s potential Indian ancestry. (See § 224.2, subds. (a) [Department and court have an affirmative and continuing duty to inquire] &(b) [initial inquiry duty includes asking extended family members whether child may be an Indian child].) The Department states in its responsive briefing that it would accept conditional remand to allow for completion of the required further inquiry. Father agrees that this is an appropriate result.
DISPOSITION
We conditionally affirm the order terminating father's parental rights with respect to A.H. The matter is remanded to the juvenile court with directions to comply with the inquiry provisions of Welfare and Institutions Code section 224.2, subdivision (e)(2). The juvenile court shall order that within 30 days of the remittitur, the Department perform further inquiry of A.H.'s potential Native American ancestry consistent with this opinion. If, after completing the further inquiry, the juvenile court finds the Act to be inapplicable to A.H., the order terminating parental rights shall remain in effect.
If the inquiry produces any additional information substantiating Native American ancestry, the Department and the applicable court shall proceed accordingly under the Act and related California law, including complying with the Act's notice provisions. In the event new notice is given and no tribe responds indicating A.H. is an Indian child within the meaning of the Act, or no tribe seeks to intervene, the order terminating parental rights shall remain in effect.
We concur: GRIMES, Acting P. J. VIRAMONTES, J.