Opinion
B322789 B323042
08-14-2023
In re M.C., et al., Minors B-D, Persons Coming Under the Juvenile Court Law. v. GABRIELA F., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Gina Zaragoza, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County Super. Ct. No. 18CCJP03001B-D, Martha Matthews, Judge, Nancy Ramirez, Judge. Conditionally affirmed and remanded with directions.
Gina Zaragoza, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.
WILEY, J.
A mother appeals the orders of two juvenile courts, one of which terminated her parental rights to her daughter M.C. and son J.G., and the other of which terminated her parental rights to her son G.G. The mother claims the juvenile court erred in finding the parental-benefit exception did not apply to her relationships with M.C. and J.G. She further argues both juvenile courts erred in finding the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (the Act) did not apply to any of the three children. We find no error in the juvenile court's determination that the mother 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 both juvenile courts to comply with the Act and related California law. Undesignated citations are to the Welfare and Institutions Code.
I
The mother has four children: B.L., born in April 2009, M.C., born in August 2016, J.G., born in December 2017, and G.G., born in September 2020. The juvenile court has removed all four children from the mother. Because the mother's challenge to the court's finding about the parental-benefit exception involves only M.C. and J.G., we focus on the facts relevant to those children. We address the facts relevant to M.C., J.G., and G.G. as to the inquiry into their possible Native American ancestry.
The Department filed a petition as to M.C. and J.G. in May 2018. The sustained petition alleged J.G.'s father engaged in acts of domestic violence against the mother and that the mother failed to protect the children by allowing J.G.'s father access to them. The sustained petition also alleged both J.G.'s and M.C.'s fathers had a history of illicit drug use. The juvenile court detained the children from their fathers but kept them with the mother. The court removed the children from the mother in September 2018 due to ongoing domestic violence with J.G.'s father. The Department placed M.C. and J.G., along with their siblings, with caregivers Mr. and Ms. W. In October 2019, an amended sustained petition alleged the mother had an unresolved history of drug abuse.
M.C. and J.G. did very well in the care of Mr. and Ms. W. The Department reported the children were bonded and affectionate with the caregivers; they called Ms. W. "momma." The children were happy and thrived in Mr. and Ms. W.'s care. Mr. and Ms. W.'s home is the only one the children can remember. Mr. and Ms. W. met all of the children's emotional, physical, and educational needs. M.C. has an Individualized Education Plan to address significant delays in expressive/responsive language. She receives mental health services. J.G. also has an Individualized Education Plan for delays in expressive/responsive language. J.G. received mental health services and met his treatment goals. The caregivers were very involved in and supportive of the children's therapeutic and educational experiences. Mr. and Ms. W. were willing to adopt all four of the children. The Department found no issues or concerns and approved Mr. and Ms. W. as adoptive parents.
The mother initially visited the children about three times a week after their detention. Ms. W. reported the visits were "very good." Ms. W. characterized mother as loving, affectionate, and nurturing toward the children. The mother would take the children to the park, McDonald's, the mall, or her work. She would sometimes bring presents. Ms. W. would invite the mother to join them for activities in the community or events such as trick-or-treating. Ms. W. noted some concern that mother would spend time on her phone during the visits or fail to correct misbehavior she found funny. The visits became less frequent when the mother entered a drug treatment program and again later in the case when the mother saw the children only about once a week. In a December 2021 interview, Ms. W. reported the mother had only had a few in person visits in the last couple months and few virtual visits. When asked how the children felt about the visits, Ms. W. reported "the little ones don't mind." She also said the mother mostly focuses on G.G., the infant, during visits.
The mother did not make substantial progress on her case plan, and the juvenile court terminated her reunification services. The mother filed a section 388 petition asking the court to reinstate reunification services, which the court denied.
In February 2022, the juvenile court held the 366.26 hearing for M.C. and J.G. The court found the children were adoptable. The Department's recommendation was a permanent plan of termination of parental rights and adoption by Mr. and Ms. W. The mother argued the parental-benefit exception under section 366.26, subd. (c)(1)(B)(i) applied. The court said its tentative ruling was to find the exception did not apply because although the "mother has done a good job of maintaining a consistent and healthy supportive relationship," it did not "rise[] to the level of being such a close and significant bond that it outweighs . . . the value of the stability and permanence of adoption." The court accepted evidence and heard argument from the parties. The mother testified that the children told her they loved her, called her "mother," and ran to hug her at the beginning of visits. She testified she talked to the children about their experiences at school and their hobbies. She discussed the children's education and medical issues. Minors' counsel argued the children's bond with the mother was not strong enough to outweigh the benefits of adoption.
The court adopted its tentative finding, noting the mother had not progressed from monitored visits nor done "the day-today work of parenting" for the last three and a half years while the children were in the care of Mr. and Ms. W. Thus, despite the children's "positive relationship" with the mother, the case did not show "the kind of extraordinary circumstances . . . that would support a finding that mother's bond with the children is so significant that it outweighs the stability and permanence of adoption." The court noted it believed the adoptive parents would continue to facilitate visitation with the mother but made clear its decision would have been the same even were this not true.
The mother, M.C.'s father, and J.G.'s father all reported to the juvenile courts they did not have any Native American ancestry to their knowledge. The mother reported G.G. may have Native American ancestry on a form in September 2019. Both the mother and G.G.'s father reported to the court in October 2020 that they did not have any Native American ancestry to their knowledge. The Department concedes it was in contact with maternal grandparents, a maternal uncle, a maternal aunt, and each of the children's paternal grandmothers and made no inquiry to any of these individuals about possible Native American ancestry. The courts found they had no reason to know any of the children were Indian children.
The mother appeals the orders terminating her parental rights to M.C., J.G., and G.G.
II
The mother challenges the orders terminating her parental rights on two grounds. First, she contends the juvenile court erred in finding the parental-benefit exception did not apply as to her relationship with M.C. and J.G. Second, she argues the orders must be reversed because the courts erred in finding M.C., J.G., and G.G. did not have Native American ancestry without an appropriate inquiry under the Act. We affirm the court's ruling that the parental-benefit exception did not apply. We conditionally affirm and remand, however, for the Department and juvenile courts to conduct a proper inquiry under the Act.
A
The juvenile court properly found that the parental-benefit exception did not apply.
A juvenile court shall select adoption as the permanent plan for a child unless an exception applies. (In re Caden C. (2021) 11 Cal.5th 614, 631-632 (Caden).) One such exception is the parental-benefit exception. (§ 366.26, subd. (c)(1)(B)(i).) Parents bear the burden of proving this exception applies. (Caden, supra, 11 Cal.5th at p. 629.) To do so, parents must establish: (1) they visited the children regularly; (2) a substantial, positive, and emotional attachment exists between them and the children; and (3) terminating this attachment would be detrimental to the children. (Caden, supra, 11 Cal.5th at p. 636; see also id. at p. 631.) The exception comes into force 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.)
This determination is not a contest of who would be the better caregiver. (Caden, supra, 11 Cal.5th at p. 634.) Nor may the court use the parent's difficulty with mental health or substance abuse as a basis for determining the fate of the parental relationship. The goal is not to assign blame, to make moral judgments about the parent's fitness, to reward or punish a parent, or to show parental inadequacy. (Id. at p. 638; see also id. at p. 641-642.) Rather, the focus must remain on what is in the child's best interests. (Id. at p. 632.)
The juvenile court found the parental-benefit exception did not apply. The situation met the exception's first two criteria but not its third. In other words, the juvenile court found that the mother had had regular visits, and a substantial attachment did exist between mother and her children. The stumbling block was the third element. Even though the mother had "done a good job of maintaining a consistent and healthy supportive relationship with her children and [ ] that is beneficial to them," the court found the extent of the maternal relationship did not rise "to the level of being such a close and significant bond that it outweighs . . . the value of the stability and permanence of adoption."
The court stated this tentative view and asked the parties for comment. Minors' counsel agreed with the court's tentative ruling, noting that the children, who were four and five at the time of the hearing, had been in the caregivers' home for the last three and a half years: the majority of their lives. The mother's attorney gave her reasons for objecting. After hearing argument, the court stood by its tentative ruling.
We review this determination for abuse of discretion. (Caden, supra, 11 Cal.5th at pp. 639-640.)
The court did not abuse its discretion. No evidence in the record supported the view that severing the bond between mother and children would be so detrimental to either child as to outweigh the benefits of adoption.
The mother argues the Department failed to provide an adequate record from which the strength of the children's bond to her could be assessed. She forfeited this objection by failing to raise it at trial. (See In re M.M. (2022) 81 Cal.App.5th 61, 67-68, rev. granted on other grounds, S276099, Oct. 12, 2022.)
The mother argues the Department failed to interview the children. The Department reports state the social workers did not ask the children due to their young ages. In addition, both children suffered from delays in expressive and responsive language skills. The Department did ask Ms. W., the caregiver, about the nature of the visits and about how the children felt about the visits. The Department reported this information to the court. Any error was harmless.
The mother argues the juvenile court considered improper factors, including the mother's failure to fulfill a parental role.
The court did not rely on inappropriate criteria. It began and ended its analysis by stating the correct Caden test. The court maintained a proper focus on what was good for the children. This court did not condemn the mother's "disengagement from treatment and case plan, [her] inability or unwillingness to remain sober, and deficient insight regarding her parenting." (Caden, supra, 11 Cal.5th at p. 642.) These were the errors the Caden opinion rejected. This juvenile court obeyed Caden and did not transgress it.
The court commented that the mother was not involved in the day-to-day parenting of the children, and this comment, in context, was fully consistent with Caden. Caden instructed juvenile courts to avoid deciding the issue by assigning blame, or by passing moral judgments about a parent's circumstances. This court did none of that. It expressed only respect for the mother: "First of all, I really appreciate that the mother has maintained this positive contact with her children. Regardless of the outcome of this hearing, that effort on her part will benefit the children, and the children will grow up knowing that their mother loves them even though maybe her circumstances do not allow her to take care of them for this time. They have a mother who cares about them." The court then explained why the children's bond with the mother did not eclipse the benefit of adoption, and part of the picture was that the mother had been involved in her children's lives only to a limited degree. The court's explanation was not an abuse of discretion.
The record offers sound support for the juvenile court's analysis. While mother's visits were very good, the children did not express distress when the visits ended. The children were not upset at the many missed visits toward the end of the reporting period. In short, the mother did not establish the bond was more than that of a "friendly visitor." There was no evidence that severing that bond would be destabilizing to either child. (Caden, supra, 11 Cal.5th at p. 629.) And the children had bonded with the caregivers they had lived with for the majority of their lives. They were thriving in that care. The court did not abuse its discretion.
B
As it concedes, the Department failed in its duty under the Act to inquire about Native American ancestry: it failed to inquire of known and available family members identified in the statute, including maternal grandparents, a maternal uncle, a maternal aunt, and the children's paternal grandmothers. (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 makes no argument why the Court should not find the error prejudicial and submits on the issue. This is a concession the error was prejudicial.
DISPOSITION
We conditionally affirm the orders terminating the mother's parental rights with respect to M.C., J.G., and G.G. The matter is remanded to the juvenile courts with directions to comply with the inquiry provisions of Welfare and Institutions Code section 224.2 by ordering contact with and inquiry of the maternal grandparents, the maternal uncle, the maternal aunt, and the children's paternal grandmothers. The juvenile courts shall order that within 30 days of the remittitur, the Department perform its initial inquiry of M.C.'s, J.G.'s, and G.G.'s potential Native American ancestry consistent with this opinion. If, after completing the initial inquiry, there is no reason to believe the children are Indian children, the orders terminating parental rights shall remain in effect.
If the inquiry produces any additional information substantiating Indian ancestry, the Department and the applicable court(s) 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 M.C., J.G., or G.G. are Indian children within the meaning of the Act, or no tribe seeks to intervene, the orders terminating parental rights shall remain in effect.
We concur: STRATTON, P. J., GRIMES, J.