Opinion
B324872
09-19-2023
In re PEYTON K., a Person Coming Under the Juvenile Court Law. v. KAREN K. et al., Defendants and Appellants. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Lauren Kelly Johnson for Defendant and Appellant Karen K. Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant Tyler K. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Peter Ferrera, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 21CCJP04543 Charles Q. Clay, Judge. Affirmed.
Lauren Kelly Johnson for Defendant and Appellant Karen K.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant Tyler K.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Peter Ferrera, Deputy County Counsel, for Plaintiff and Respondent.
CHAVEZ, J.
Karen K. (mother) and Tyler K. (father) separately appeal from the juvenile court's order terminating their parental rights to Peyton K. (born September 2021). Mother argues the juvenile court erred in denying her petition filed pursuant to Welfare and Institutions Code section 388 seeking a change of the juvenile court's order denying her reunification services. Mother further argues the juvenile court erred in finding the parental benefit exception to termination of parental rights found in section 366.26, subdivision (c)(1)(B)(i) inapplicable. Father's sole argument is the judgment should be conditionally reversed and remanded with directions to achieve initial inquiry compliance under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and California's equivalent law (Welf. & Inst. Code, § 224 et seq.)
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
We find no reversible error, therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Initial investigation and detention
The Los Angeles County Department of Children and Family Services (DCFS) received a referral in September 2021 after Peyton was born at home. Mother had tested positive for fentanyl during a pre-natal appointment, but declined to drug test at the hospital.
Mother and father had extensive histories with DCFS. In January 2019, Peyton's sibling Palmer K., then two months old, was found in a car containing drugs and drug paraphernalia. Officers found hypodermic syringes loaded with heroin in the parents' vehicle while Palmer was present in the car. Family reunification services were offered and subsequently terminated. The parents' parental rights to Palmer were terminated, and the child was adopted by the maternal grandparents.
Peyton's paternal half-sibling, Kingston K., was declared a dependent of the court in 2010 based on the child's mother having mental health and substance abuse problems and father having a history of substance abuse. During the case, father was arrested by his probation officer for missing required drug tests and submitting diluted tests. Father failed to reunify with Kingston, and his parental rights were terminated. Kingston was adopted by the paternal grandparents.
An Orange County social worker assigned to Palmer's case informed DCFS that the parents used and tested positive for drugs including heroin and methamphetamine, and both parents engaged in criminal activity to pay for their addictions.
Peyton tested positive for benzodiazepines at birth. Mother, who claimed to have suffered from anxiety for over 10 years, had taken Xanax. The hospital social worker was concerned further testing may be compromised due to the passage of time. Peyton appeared healthy and was not suffering from withdrawals.
Mother's admission history and physical report revealed a long history of drug abuse. During pregnancy, she used fentanyl. Mother started a drug rehabilitation program during her third trimester and had been on maintenance medication. She had one prenatal visit at 36 weeks after having no prenatal visits since early June.
Mother admitted using drugs to a social worker after losing custody of Palmer in 2018. Mother had reported the social worker who removed Palmer for having used mother's and father's criminal histories against them, believing this was the primary reason the child was removed. Mother admitted going on a "downward spiral" and being "on and off" drugs since Palmer's removal. Mother refused to provide the social worker with information about the drugs she was using, as mother did not feel that it mattered. When she found out she was pregnant, mother and father went into separate drug rehabilitation programs. Mother stated she completed a 30-day program and since completion, had attended a 12-step program twice a week. In response to the social worker's request for contact information for her sponsor, case manager or therapist at the drug program, mother denied knowing the information but said she would provide it to the social worker.
Mother claimed losing Palmer had caused her to become aware of her addiction, self-reflect, and take accountability. She was "aware of not needing to have anyone step in and be a part of our lives."
When mother was asked to explain why she declined a drug test at the hospital, mother could not recall being asked or declining to test. She reported having been prescribed Ativan for panic attacks by a "pain specialist," and had last used the drug one week prior to Peyton's birth. Mother felt this caused the child to test positive for benzodiazepines. Mother declined to provide the specialist's contact information.
In an interview on September 23, 2021, father expressed he did not believe that DCFS intervention was necessary as he and mother were "doing well" and "clean from all substances." Father was willing to drug test, but declined to answer questions regarding his drug use. Father claimed he had recently completed a drug program, but he had no completion letters. He said he had not used drugs since he found out that mother was pregnant, and two weeks earlier had attended a 12-step meeting, but he could not recall the location of the meeting. Father did not feel that intervention or supervision by DCFS was necessary.
Though scheduled to drug test on September 23, 2021, neither parent appeared for the scheduled testing.
On September 24, 2021, father's therapist at his recent drug treatment program reported that father did not complete the program and that father was aware that he had not completed it. The therapist added that father left the program against medical and clinical advice and had entered the program three times during the previous year, but never completed it. The therapist opined that father had mental health issues and drug issues that he needed to address in order to properly parent.
The maternal grandparents did not allow mother or father to visit Palmer unless they were clean, and they had not visited Palmer for a year and a half. Maternal grandmother reported mother's substance abuse became a problem in 2010, and she had sent mother to rehabilitation programs at least six times. She believed the parents were currently sober.
The parents each had criminal histories including convictions and arrests for narcotic-related crimes, burglary, and fraud-related crimes.
A removal warrant was approved, and Peyton was initially placed with the maternal grandparents.
Section 300 petition and subsequent events
A section 300 petition on behalf of Peyton alleging the child was at risk of serious physical harm as a result of testing positive at birth for benzodiazepines, mother's history of substance abuse including heroin and methamphetamine, mother's current use of fentanyl, and the fact that mother failed to reunify with Palmer was filed on September 28, 2021. The petition alleged that the child was at risk of serious physical harm due to father's history of substance abuse and failure to reunify with Palmer. The petition further alleged Peyton was at risk of harm due to both parents' mental and emotional problems and criminal histories.
The juvenile court ordered Peyton remain detained from parental custody.
DCFS made efforts to contact the parents and provide drug testing referrals for the parents, but the parents did not respond.
On November 18, 2021, Peyton was placed in the home of paternal aunt, Lauren K. The parents continued to fail to respond to the social worker's efforts to reach them and had not scheduled any visits with Peyton. The parents also refused to sign consent forms necessary for Peyton to receive services. Paternal aunt was appointed co-holder of the child's educational and developmental rights. DCFS recommended the parents not receive family reunification services based on their failure to reunify with Palmer and, in the case of father, his failure to reunify with Kingston.
On December 20, 2021, paternal aunt reported that both parents informed her they had entered rehabilitation programs. Father admitted that both parents had been using fentanyl, marijuana, methamphetamine, Xanax, and alcohol. The following week, paternal aunt reported that both parents had left their rehabilitation programs. Paternal aunt and maternal grandmother had been receiving text messages from the parents requesting money but no inquiries about Peyton's welfare or any attempt to schedule a visit. Mother and father failed to appear for eight scheduled drug tests.
Adjudication and disposition
On January 18, 2022, the juvenile court sustained an amended version of the section 300 petition and continued the matter for disposition.
On January 21, 2022, the juvenile court declared Peyton a dependent of the court, removed her from parental custody, and bypassed family reunification services based on the parents' failure to reunify with Peyton's siblings and prior terminations of parental rights. A hearing pursuant to section 366.26 to select and implement a permanent plan was scheduled.
Interim reports
Paternal aunt provided updates on the parents, specifically in February 2022, the parents obtained paternal aunt's social security number and attempted to use it to apply for credit cards and a $1 million loan; they attempted to enroll in treatment in Santa Cruz, California; and father went missing in Santa Cruz for awhile.
In May 2022, paternal aunt reported the parents were going to enter treatment and maternal grandmother had provided the parents $1,600 through Venmo. Though the payment cleared, the parents did not enter treatment.
In May 2022, DCFS reported the whereabouts of the parents were unknown. There had been no visitation with Peyton since she was placed with paternal aunt, nor had they attempted to arrange visitation. Neither parent had made an effort to contact DCFS, despite the dependency investigator and social worker making multiple attempts to contact the parents.
A July 22, 2022 status review report stated there was a strong bond and attachment between Peyton and paternal aunt, who provided the child with structure and routine and who was committed to providing permanency to the child through adoption.
Parental contact
On May 19, 2022, mother contacted the social worker for the first time and requested help setting up visitation. A visitation schedule was arranged at the DCFS office, monitored by the social worker or an available human services aide. Mother visited six times in June 2022. She brought a diaper bag, as well as toys, books, and snacks. She read to Peyton, fed her, played with her, talked with her, and sent her home with a new outfit after every visit.
On May 26, 2022, father contacted the social worker to arrange visits with Peyton. DCFS noted father had not contacted DCFS for the first eight months of the case but set up visits for father to occur with mother. However, due to father's work schedule, he attended only one visit.
Although both parents began to show an interest in Peyton eight months after her birth, neither parent provided a residence address. They both indicated they were in a methadone program but provided no further information.
Mother claimed she had been in a methadone program for the previous two months and had two jobs. Mother, 35 years old, admitted she had addiction issues since the age of 21. She felt the methadone was helping her with her cravings. Mother said that although she visited when Peyton was placed with maternal grandmother, mother had issues with paternal aunt. She added her lack of visitation with Peyton during that time was because she "wasn't in a good space," but she had turned her life around in the last couple of months. A tentative visitation schedule of twice per week was agreed upon.
On June 3, 2022, father reported he had been participating in a methadone maintenance program for the previous two months. He provided the first name of his counselor and program director and a contact telephone number. Father also reported attending a 12-step program daily. He admitted he had been using drugs for more than 10 years but claimed he had not used heroin for the past two years. Father acknowledged using fentanyl "occasionally" but said he did not use cocaine, methamphetamine, or alcohol. Father wanted to try to reunify with Peyton.
On July 13, 2022, DCFS received a call from the paternal great-uncle, Tim K., who said he had been a police officer for more than 20 years as well as a federal agent. He advised DCFS of an incident in May 2022 when father had contact with law enforcement while "picking up dope" at a motel. Father reportedly used the great-uncle's name and was released, which paternal great-uncle said was a pattern. Paternal great-uncle described father as charming and manipulative and did not believe father would stay away from using fentanyl or heroin as "he ha[d] overdosed a half dozen times this year alone." He said it was mother's and father's pattern to go in and out of treatment.
On July 15, 2022, in response to a request by father, the juvenile court ordered make-up visits occur for missed visits, that a written visitation schedule be provided to the parents, that the visits occur at a convenient location and that the parents' visits were not to occur together. The court added as a condition of visitation the parents submit to drug testing.
In a supplemental section 366.26 report dated August 19, 2022, DCFS reported the parents had not had any contact with Peyton from November 18, 2021, to May 2022. Father's behavior towards the social worker had been erratic, confrontational, and threatening. DCFS reported no impediments to finalizing adoption with paternal aunt and her husband.
Facts related to ICWA
DCFS filed an ICWA-010(A) form for Peyton indicating an inquiry of father was made on September 23, 2021. Father provided no reason to believe that Peyton was an Indian child.
At the October 1, 2021 initial hearing, father completed a parental notification of Indian status (ICWA-020) form indicating none of the statements related to Indian status on the form applied. The juvenile court acknowledged receipt of the form and noted it had no reason to know that ICWA applied as to father.
On October 4, 2021, mother submitted an ICWA-020 form also indicating that Indian status did not apply. The juvenile court found it had no reason to know that ICWA applied as to mother and father.
On June 23, 2022, mother again indicated that ICWA did not apply.
On June 30, 2022, father again indicated that ICWA did not apply.
On September 23, 2022, paternal aunt indicated to DCFS there was no American Indian ancestry in her family.
On the same date, maternal grandfather reported to DCFS that neither he nor maternal grandmother had any American Indian ancestry.
On October 12, 2022, the juvenile court determined its previous finding that this was not an ICWA case remained in full force and effect on the basis of DCFS's subsequent investigation. DCFS was ordered to advise the court of any new information regarding potential Indian ancestry.
Filings under section 388
On August 12, 2022, mother filed a petition pursuant to section 388, requesting the juvenile court modify its previous order bypassing family reunification services and grant her reunification services for six months. Attached to the petition were two pages of a lease; a letter indicating mother had been admitted to a methadone program; a letter from a doctor dated July 12, 2022, indicating mother was being treated for anxiety and doing well; a letter dated August 11, 2022 from a marriage and family therapist indicating mother was a patient for weekly one hour sessions; an August 4, 2022 drug screen positive only for methadone; and signed meeting cards and meeting verification forms relating to attendance at 12-step meetings.
Father filed a section 388 petition on August 16, 2022. He sought Peyton's return to his custody or family reunification services with liberalized visitation. He was attending 12-step meetings, counseling, and drug testing. Father's attached documents were similar to mother's and included a letter from his doctor indicating that he was being treated for bipolar disorder.
On August 19, 2022, the juvenile court summarily denied mother's petition, stating the proposed order did not promote the best interest of the child. On the same date, father's section 388 petition was set for hearing.
On August 26, 2022, mother filed a second section 388 petition requesting Peyton be returned to her custody or that she receive family reunification services and liberalized visitation. Mother attached an October 2021 certificate showing her completion of a 12-hour parenting skills class, an August 11, 2022 letter indicating her enrollment in substance abuse treatment and individual counseling sessions in March 2022, and a letter from a person who had been mother's sponsor since March 2022.
DCFS filed written opposition to father's section 388 petition recommending it be denied. DCFS had spoken with father's methadone counselor, who stated father "doses daily" with 90 mg of methadone. Father was in the stabilization period, and would not be tapering off the dosage for six months or more. Father's counselor noted father needed to work on "tolerating his emotions given his anger issues." Father had been in methadone treatment since March 31, 2022, but refused to authorize release of his drug test results before August 1, 2022. Father missed scheduled drug tests on July 19, 28, and August 1, 2022. DCFS assessed father to be in the early stages of recovery, and his requests did not serve Peyton's best interests.
DCFS also recommended denial of mother's section 388 petition. As to visitation, it was noted that mother had only made herself available for visitation after the initial section 366.26 hearing in May 2022. The record contained visitation notes and photographs detailing recent positive visits between mother and Peyton. In a July 15, 2022 visit, Peyton laughed and appeared comfortable and happy throughout the visit. During a July 18, 2022 visit at maternal grandmother's home, it was reported that Peyton was "building a wonderful bond with [mother]." On August 1, 2022, it was reported that Peyton loved being with mother and seemed attached to her. A synopsis of an August 10, 2022 visit stated that Peyton was happy during the visit and was affectionate with her. However, DCFS opined that because Peyton was very young and had just begun bonding with mother, it would not be beneficial to disrupt the child's schedule and be apart from the only caregiver she had known since infancy.
Further, mother was in the beginning stages of recovery, having entered the methadone program on March 31, 2022. Mother's dosage of methadone had increased. Her case manager noted "it takes awhile to get stabilized on methadone because fentanyl is so strong." Mother's dosage was not yet stabilized. Mother failed to submit to drug testing on July 19, 28, and August 1, 2022. After August 1, 2022, all her tests were positive for methadone and negative for all other substances.
A letter mother submitted from Lance Bialik, MFT, contained no letterhead, no license number, and no phone number. DCFS unsuccessfully attempted to locate Lance Bialik, MFT. In addition, a certificate for an online parenting course completed by mother was not recent and failed to meet DCFS requirements.
On September 1, 2022, the juvenile court scheduled a hearing to address mother's section 388 petition.
Also on September 1, 2022, the social worker and supervising social worker spoke with mother and father by phone informing the parents that no visit would take place on September 3, 2022, because Peyton was unavailable. Paternal aunt communicated the same information to maternal grandparents. DCFS submitted a copy of an email dated September 2, 2022, from mother to the social worker, copying the maternal grandparents and father, acknowledging no visit would occur on September 3, 2022. Despite being so advised, maternal grandfather and father drove to paternal aunt's home accompanied by two sheriffs and a helicopter.
Paternal aunt stated maternal grandparents were aware that she did not want mother and father to know where she lived, but they disregarded her wishes. DCFS opined that maternal grandparents did not appear to be appropriate monitors.
On September 6, 2022, mother and father told the social worker that they never agreed to the visitation schedule, and they were not going to attend the two visits scheduled that week.
Hearings on the section 388 petitions
On October 4, 2022, the hearing on father's section 388 petition began. Father and his "accountability partner," whom father met at an AA meeting, testified.
Peyton's attorney pointed out that none of father's testimony had to do with Peyton's best interests. Father's drug history dated back to at least 2009, father did not meet with DCFS until June 2022, and father's behavior was uncooperative and sometimes threatening towards the social worker. DCFS agreed, noting father's circumstances were changing but not changed, and that father did not testify as to the best interests of the child.
The hearing on mother's section 388 petition commenced on October 5, 2022. Maria H., mother's AA sponsor, testified that mother's sobriety date was March 28, 2022, and that to the best of her knowledge, mother had maintained her sobriety since then. Mother was on step two of the 12 steps, which was believing a power greater than yourself can restore your sanity. Maria H. understood mother had a substance abuse problem for about 10 years, but acknowledged it could be longer than 10 years. Mother was doing well in recovery. Maria H. spoke with mother by phone daily and saw her at meetings.
Maternal grandmother had been monitoring mother's visits with Peyton twice per week since July 15, 2022. The visits lasted two hours. The child would put her arms out and want to go to mother. Over the last few weeks, it was hard for the child to leave mother. Maternal grandmother had seen mother and child bonding as mother fed and changed Peyton's clothes.
Maternal grandfather testified that he too had been monitoring visits over the summer and saw Peyton grow and become more attached to mother. Peyton would cling to mother and often cry at the end of visits when mother put her in the car seat. Maternal grandfather had seen a change in mother over the previous year as she became more communicative and responsible.
Mother testified she was addressing her heroin problem through methadone maintenance in an outpatient program. She attended daily to dose, and met with a counselor at least twice per month. Mother acknowledged having issues with drugs for about 15 years, since she was 21 years old. Since starting the methadone program, mother was attending AA meetings. Initially she attended daily, but now attended three to five times per week.
During her 15 years of abusing substances, mother attended about 10 prior rehabilitation programs. Her longest period of sobriety was three years. Mother said she relapsed when she stopped doing things like going to meetings, talking with her sponsor, working the steps, and engaging in prayer and meditation. Mother confirmed she was working on the second step of the 12-step program.
Mother testified that she began visiting Peyton in March 2022. She visited twice weekly, for two hours per visit. Mother said the best visits were when she and Peyton spent the entire time smiling and laughing. It was hard on both of them when visits ended.
After hearing mother's testimony, the court heard argument. Mother's attorney argued that mother's circumstances had changed now that she was involved in treatment, noting that bonding between mother and Peyton as support for the conclusion that a change of order was in the child's best interest.
Peyton's attorney argued mother's petition should be denied, noting that Peyton had been with paternal aunt for a year, and mother had a history of drug use dating back to at least 2013. The child's attorney asserted mother's circumstances were changing but not changed, and that granting mother reunification services would deprive the child of permanency.
The juvenile court denied both mother's and father's section 388 petitions, finding no evidence of changed circumstances, only changing circumstances. The court further noted the requested changes were not in the child's best interest in light of the length of time Peyton had been with paternal aunt versus the period of time the parents had been visiting.
Contested section 366.26 proceedings
The contested section 366.26 hearing was held on October 11, 2022. Maternal grandfather testified about the difficulty he had arranging visits with paternal aunt, leading to having "to go through social services." Maternal grandfather testified that in September 2022 when paternal aunt told him on a Friday that there was no Saturday visit, he did not "buy [it]." He decided to ask for law enforcement "just to make sure everything was without a problem." Father and two police officers accompanied him, but he denied there was a helicopter. After that visitation was harder to schedule because paternal aunt did not want to see him. Maternal grandfather denied being told paternal aunt's residence was to remain confidential.
Maternal grandmother testified that mother visited with Peyton "almost every day" while Peyton was placed in her home early in the case. Mother would feed, change, and hold the baby. When mother resumed visiting in June 2022, Peyton was 10 months old. Mother brought toys and diapers to the visits and read and played with the child. They bonded during each visit. Peyton would sometimes cry when mother put her in the car to leave.
Mother confirmed that when Peyton was placed with the maternal grandparents, she visited almost daily. She acknowledged there was a time after November 2021 when she did not visit very much, explaining it was because she did not get along with paternal aunt. At the end of May 2022 she contacted the social worker and started visiting the child by the second week in June. When she resumed visits, Peyton "came right to [her]" as if Peyton recognized mother. Peyton was "clingy" and did not want to be put down.
The child's attorney argued that the court should terminate parental rights, noting that the parents had not met the first prong of the beneficial parental relationship exception because they stopped visiting the child after November 2021 without explanation. The child's attorney asserted that the final two prongs of the test were also not met, as the child did not have a substantial emotional attachment to either parent such that she would benefit from continuing the relationship or that termination of the relationship would be detrimental to her.
Father's counsel argued against termination of parental rights, asserting that father made efforts to maintain regular visitation and that it would be detrimental to Peyton to terminate parental rights as it would deprive her of a father figure. Mother's counsel joined the comments of father's counsel and asserted that mother had visited regularly within the confines of the visitation she was allowed. Mother's counsel argued that Peyton would benefit from continued contact with mother to a degree that "would outweigh [an] adoptive home."
DCFS responded that the beneficial parental relationship exception to termination of parental rights did not apply, noting there was a significant portion of the child's life when the parents were absent and had no contact with her. DCFS also argued that no evidence was presented suggesting that the parent-child relationship was so substantial as to outweigh the benefits of permanency, especially because the child had spent most of her life with paternal aunt and had spent only limited time with the parents.
The juvenile court found by clear and convincing evidence that Peyton was likely to be adopted, thereby placing on the parents the burden of showing that one of the exceptions to termination of parental rights was applicable.
The juvenile court addressed the beneficial parental relationship exception and found that it did not apply, noting: "The visits initially were, according to the testimony, frequent. But there was a period, a significant period of time during which there was no visitation; and at the time the .26 report was prepared, and that was filed on May 3rd, 2022, there had been no visits since the child was placed with the current caretaker and the parents' whereabouts, at least to [DCFS], were unknown. So there was no contact."
The court further noted the visits were consistent only "for a period of . . . three and a half months up to today's hearing."
As to the benefit to the child, the court cited In re Autumn H. (1994) 27 Cal.App.4th 567, which defines the required relationship as one "that promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new adoptive parents." The court found that "over the short term of three months-three and a half months, even at twice a week, two hours a day, the testimony that the court has heard . . . there was no evidence that that has become a significant relationship, [or] one that would outweigh the sense of belonging that she would have and ultimately the positive benefit of adoption." The court specifically noted that it heard no evidence of detriment to the child.
On October 12, 2022, father filed a notice of appeal.
Mother filed a notice of appeal the next day.
DISCUSSION
I. Denial of mother's section 388 petition
Mother argues the juvenile court abused its discretion in denying her section 388 petition, which sought either a release of Peyton to mother's custody or a grant of family reunification services.
A. Applicable law and standard of review
Section 388 allows a parent to petition the juvenile court to change or modify a previous order upon grounds of change of circumstance or new evidence. (§ 388, subd. (a).) Once the petition is filed, the juvenile court has two options: to summarily deny the petition or to grant the parent a hearing on the merits of the petition. (In re Aljamie D. (2000) 84 Cal.App.4th 424, 431.) At the hearing, the parent has the burden of proving: (1) a change of circumstances or new evidence that warrants the proposed modification of a prior order; and (2) that the proposed modification is in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.)
"In determining whether [a section 388] petition makes the required showing, the court may consider the entire factual and procedural history of the case." (In re K.L. (2016) 248 Cal.App.4th 52, 62.) "[T]he petitioner must show changed, not changing, circumstances." (In re Mickel O. (2011) 197 Cal.App.4th 586, 615.) "The change of circumstances or new evidence 'must be of such significant nature that it requires a setting aside or modification of the challenged prior order.'" (Ibid.)
The denial of a section 388 petition is reviewed for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) Under this standard, we"' "will not disturb [the juvenile court's] decision unless the [juvenile] court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination." '" (Ibid.)
B. Changed circumstances
In order to demonstrate changed circumstances, mother was required to show changes "relate[d] to the purpose of the order and . . . such that the modification of the prior order is appropriate." (In re A.A. (2012) 203 Cal.App.4th 597, 612.) "In other words, the problem that initially brought the child within the dependency system must be removed or ameliorated." (Ibid.) The juvenile court did not abuse its discretion in determining that mother failed to make the required showing in this case.
The problem that brought Peyton within the dependency system was mother's long history of drug abuse. Mother, who was 35, admitted she began abusing drugs at the age of 21. Mother further admitted to having unsuccessfully attended rehabilitation programs in the past approximately 10 times. Mother relapsed each time. Mother's drug abuse led to termination of mother's parental rights to her older child, Palmer, who was declared a dependent of the court in 2019 after law enforcement found heroin and paraphernalia in the family car while Palmer was present. Mother failed to reunify with Palmer, and he was later adopted by the maternal grandparents. The maternal grandparents told mother and father that they could not visit Palmer unless they were clean and submitted to home drug tests. The parents did not visit the child for a year and a half.
Mother tested positive for fentanyl during a prenatal appointment related to her pregnancy with Peyton. Peyton tested positive for benzodiazepines at birth. While mother claimed she was prescribed this medication for panic attacks, she failed to provide information regarding the pain specialist who prescribed the medication. Mother declined to take a drug test at the hospital and failed to test at the request of DCFS following Peyton's birth. After November 2021, mother and father had no contact with DCFS for approximately six months.
Mother's reported sobriety date was March 28, 2022. Thus, at the time the juvenile court ruled on her section 388 petition on October 7, 2022, she purportedly had been sober for just over six months. Mother was at the beginning stages of treatment. She testified she was working on the second step of the 12-step program. Mother's case manager in her methadone treatment program reported that mother was not yet stabilized on her dosage.
The juvenile court was not required to credit mother's assertion that she became sober on March 28, 2022. Mother failed to test at the request of DCFS on July 19 and 28, and August 1, 2022. The juvenile court was permitted to infer from mother's failure to test that she was concealing continued drug use. (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1217 [missed drug test is properly considered a positive test].)
Long-standing substance abuse is a serious problem that cannot be easily ameliorated. In In re Amber M. (2002) 103 Cal.App.4th 681 (Amber M.), for example, a juvenile court did not abuse its discretion in determining that while a mother was progressing in treatment, she was not ready for custody of her children. (Id. at p. 687.) The mother's substance abuse had started more than 17 years earlier and although she had been sober for 372 days, she had previously relapsed twice.
In addition, the coordinator of her treatment program testified that she was in the beginning stages of recovery and that she was only on step three of her 12-step program. (Id. at p. 686.) And in In re Clifton B. (2000) 81 Cal.App.4th 415 (Clifton B.), a father did not establish changed circumstances even though he was in full compliance with his treatment plan and had been sober for seven months. The father had a long history of substance abuse, dating back to his college days, and the Clifton B. court noted that "200 days was not enough to reassure the juvenile court that the most recent relapse would be his last." (Id. at p. 424.)
Mother argues that a parent such as mother who has a long history of substance abuse should not face barriers that are impossibly high. Mother cites In re Hunter S. (2006) 142 Cal.App.4th 1497, 1506-1508, as support for her argument that because mother was bypassed for services and had limited visitation, the juvenile court erred in determining that the progress she showed was not enough. Hunter S. is distinguishable. In Hunter S., the juvenile court failed to enforce its visitation order and delegated its discretion as to whether any visits occurred. (Id. at p. 1507.) Under those circumstances, the court erred in focusing on the absence of a bond between the mother and child because the court had denied the mother the opportunity to revive her relationship with her son. (Ibid.) No such error occurred in this case.
Mother's progress, like those of the parents in Amber M. and Clifton B., must be viewed in light of her 15 years of drug abuse and numerous relapses. The juvenile court did not err in determining that she had shown changing, but not changed, circumstances.
C. Best interests of the child
Because the juvenile court did not err in determining that mother failed to show changed circumstances, we need not address the best interests of the child. However, we note the juvenile court did not err in determining that there was insufficient evidence that mother's proposed change of order would be in Peyton's best interests.
Mother claimed that once she resumed visits, the visits went well. The child enjoyed spending time with mother, and the record shows positive interaction between the two. However, at the time of the hearing on mother's section 388 petition, one year-old Peyton had been living with paternal aunt for 11 months. At that stage of the proceedings, the court was required to shift its focus to the child's need for permanency and stability. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) The record shows that paternal aunt was providing Peyton with structure and routine, and had formed a strong bond with the child. Mother's evidence that she had recently commenced positive visits with the child was insufficient to show that it was in Peyton's best interest to reunify with, or be returned to, mother. The juvenile court did not abuse its discretion in so holding.
II. Beneficial parental relationship exception to termination of parental rights
Mother next argues that the juvenile court erred in finding the beneficial parental relationship exception to termination of parental rights found in section 366.26, subdivision (c)(1)(B)(i) inapplicable.
A. Applicable law and standards of review
If the juvenile court cannot safely return a child to the parents' care, it must set a hearing pursuant to section 366.26 to select a permanent placement for the child. (In re Caden C. (2021) 11 Cal.5th 614, 629-630 (Caden C.).) The goal at the section 366.26 hearing is to select and implement a permanent plan for the child. (Ibid.) According to the statutorily prescribed procedure, the court must first determine by clear and convincing evidence whether the child is likely to be adopted. (§ 366.26, subd. (c)(1).) "If so, and if the court finds that there has been a previous determination that reunification services be terminated, then the court shall terminate parental rights to allow for adoption." (Caden C., at p. 630.) However, if the parent shows that termination of parental rights would be detrimental to the child for at least one of the specifically enumerated exceptions, then the court should decline to terminate parental rights and select another permanent plan. (§ 366.26, subds. (c)(1)(B)(i)-(vi), (4)(A).)
Mother argued that her parental rights should not be terminated under section 366.26, subdivision (c)(1)(B)(i), which applies when the parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. Under this exception, the parent must establish: (1) the parent has regularly visited the child; (2) the child would benefit from continuing the relationship; and (3) terminating the relationship would be detrimental to the child. (Caden C., supra, 11 Cal.5th at p. 629.)
"The first element-regular visitation and contact-is straightforward." (Caden C., supra, 11 Cal.5th at p. 632.) "The question is just whether 'parents visit consistently,' taking into account 'the extent permitted by court orders.'" (Ibid.)
The second element-whether the child would benefit from continuing the relationship-requires the juvenile court to focus on the child. (Caden C., supra, 11 Cal.5th at p. 632.) The juvenile court can consider "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.'" (Ibid.)
As to the third element, the juvenile court must consider "whether it would be harmful to the child to sever the relationship and choose adoption." (Caden C., supra, 11 Cal.5th at p. 633.) "What the court needs to determine . . . 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." (Ibid.) This is a "subtle, case-specific inquiry" the statute asks the courts to perform. (Ibid.)
The parent bears the burden of showing that the beneficial parental relationship exception applies. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) We review the juvenile court's findings as to the first two elements of the exception for substantial evidence. (Caden C., supra, 11 Cal.5th at pp. 639-640.) Under this standard, we do not" 'reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts'" and will uphold the juvenile court's determinations even where substantial evidence to the contrary also exists. (Id. at p. 640.) Where the juvenile court has determined that the parent did not meet his or her burden of proof regarding factual findings, we look to determine "whether the evidence compels a finding in favor of the parent on this issue as a matter of law." (In re Breanna S. (2017) 8 Cal.App.5th 636, 647 [disapproved on other grounds by Caden C., supra, 11 Cal.5th at p. 637, fn. 6].)
"[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." (Caden C., supra, 11 Cal.5th at p. 640.) Under this standard, a court abuses its discretion by making an arbitrary, capricious, or patently absurd determination. (Id. at p. 641.)
B. Regular visitation and contact with the child
The evidence supports the juvenile court's finding that mother failed to maintain regular visitation and contact with Peyton. The court noted that the parents failed to visit for a "significant period of time" after Peyton's detention and that mother only visited consistently during the three and a half months leading up to the section 366.26 hearing. The evidence is undisputed that mother had no contact with Peyton from November 18, 2021, through May 2022.
Mother argues that the juvenile court found that her visitation with Peyton from June 2022 to the time of the hearing was appropriate, regular, and frequent. On the basis of this recent regular visitation, mother submits that she met the first prong of the beneficial parental relationship exception. Mother cites no case law suggesting that such limited visitation, after such a significant lapse in visitation, qualifies as regular visitation for the purposes of the exception. Courts have held that periods during which the parent fails to visit the child weigh against a finding of regular visitation under section 366.26. (See, e.g., In re J.C. (2014) 226 Cal.App.4th 503, 531 [finding regular visitation prong not met where mother canceled visits and there were "periods of time when she failed to regularly visit" the child.]; In re I.R. (2014) 226 Cal.App.4th 201, 212 [finding regular visitation prong not met where "there were significant lapses in visits"].)
C. Beneficial relationship
Because mother did not meet the first requirement of the beneficial parental relationship exception, we need not discuss the remaining two. However, we note that mother has also failed to provide substantial evidence of a beneficial relationship with Peyton that" 'promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home'" with her adoptive parents, with whom she has been living for most of her life. (In re C.F. (2011) 193 Cal.App.4th 549, 555.)
Mother argues that her visits with Peyton were overwhelmingly positive. She described how Peyton came right to her after the break in visits, as if she recognized her. The child would cling to mother, and did not want to leave her at the end of visits. The testimony suggested that Peyton's bond with mother grew over time. It was observed that mother and the child were bonding more and more with every visit.
However, "[a] parent must show more than frequent and loving contact or pleasant visits." (In re C.F., supra, 193 Cal.App.4th at p. 555.) The parent must show that the child has a "substantial, positive, emotional attachment to the parent." (Caden C., supra, 11 Cal.5th at p. 636.) Mother in this matter had not shown more than frequent, loving visits occurring only very recently in the child's life. This evidence supported the juvenile court's decision.
The cases cited by mother are distinguishable. In In re S.B. (2008) 164 Cal.App.4th 289, the father established a beneficial relationship with the child where he was the child's primary caregiver for the first three years of her life, until she was removed from parental custody. The child continued to display a strong attachment to him even after she was removed from parental custody. (Id. at p. 298.) Here, in contrast, Peyton was never in mother's custody, and mother was just beginning to form a bond with the child. In Amber M., supra, 103 Cal.App.4th 681, a psychologist conducted a two-hour bonding study of mother and the oldest child and concluded that they shared a" 'primary attachment,'" a" 'primary maternal relationship,'" and that it would be detrimental to the child to sever that relationship. (Id. at p. 689.) The oldest child had been in mother's care for most of her life, the middle child had been in the mother's care for over half of his life, and the youngest had been in mother's care for seven months. (Ibid.) The court noted that "[t]he common theme running through the evidence from the bonding study psychologist, the therapists, and the [court appointed special advocate] is a beneficial parental relationship that clearly outweighs the benefit of adoption." (Id. at p. 690.) Here, the child did not spend any time in mother's custody, and mother did not have the benefit of objective professional evidence suggesting a significant bond. Finally, in In re Brandon C. (1999) 71 Cal.App.4th 1530, "[t]he trial court obviously credited testimony from both mother and grandmother that there was a close bond between mother and the boys, and that a continuation of contact would be beneficial to the children. DCFS did not present any evidence to the contrary." (Id. at p. 1537.) Because DCFS "failed to provide information to the court about the quality of the visits during the years preceding the section 366.26 hearing," the evidence weighed in favor of the existence of a beneficial relationship. (Id. at p. 1538.) Here, in contrast, there were detailed accounts of the frequency, content, and quality of the visits-and such evidence did not convince the juvenile court that the relationship benefitted the child to the degree necessary to deprive her of an adoptive home.
D. Detriment
The final consideration is whether termination of parental rights would be detrimental to the child. The court specifically noted that it heard no evidence of detriment to the child. Paternal aunt, with whom Peyton had lived for nearly her entire life, was committed to adopting her. Mother points to no specific evidence that it would be detrimental to Peyton to sever their relationship.
Mother argues that the juvenile court did not properly assess this factor. Specifically, mother argues that the juvenile court should have ordered a bonding study. However, she cites no authority that such a study was required, nor does she cite any portion of the record where she requested such a study.
Mother cites In re D.M. (2021) 71 Cal.App.5th 261, where the court found the evidence did not support the juvenile court's determination that the beneficial parental relationship exception did not apply where the court "said nothing about the attachment between father and his children." (Id. at p. 270.) However, D.M. is distinguishable because it focused on the juvenile court's imposition on the father of a requirement that he occupy a" 'parental role'" in his children's lives. (Ibid.) The court's comment was directed at the juvenile court's failure to focus on the correct issue-the relationship between the parent and children. Here, mother makes no argument that the juvenile court did not focus on that relationship. It did-finding that "over the short term of the three months-three and a half months, even at twice a week, two hours a day, the testimony that the court has heard . . . there was no evidence that that has become a significant relationship, [or] one that would outweigh the sense of belonging that she would have and ultimately the positive benefit of adoption."
The record supports the juvenile court's decision that mother failed to establish the beneficial parental relationship exception to termination of parental rights.
III. ICWA
Father challenges the juvenile court's termination of parental rights on the ground that DCFS and the juvenile court failed to comply with their initial inquiry duties under ICWA. Father argues that despite knowing the identity of, and directly communicating with, several of Peyton's extended family members, DCFS did not make inquiries to all extended relatives regarding Peyton's possible Indian ancestry. Father argues that the order terminating parental rights should be conditionally reversed pending ICWA compliance.
A. Applicable law and standard of review
ICWA and related California statutes reflect the Legislature's intent "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families." (25 U.S.C. § 1902; see In re K.R. (2018) 20 Cal.App.5th 701, 706, fn. 3.) An" 'Indian child'" is defined as any unmarried person under the age of 18 who is either a member of an Indian tribe or is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. (25 U.S.C. § 1903(4); Welf. &Inst. Code, § 224.1, subds. (a) & (b).)
"Because it typically is not self-evident whether a child is an Indian child, both federal and state law mandate certain inquiries to be made in each case. These requirements are sometimes collectively referred to as the duty of initial inquiry." (In re Benjamin M. (2021) 70 Cal.App.5th 735, 741 (Benjamin M.).) "The duty to inquire begins with the initial contact, including, but not limited to, asking the party reporting child abuse or neglect whether the party has any information that the child may be an Indian child." (§ 224.2, subd. (a).) The court and child welfare department "have an affirmative and continuing duty" to inquire whether a child for whom a petition under section 300 may be or has been filed may be an Indian child. (Ibid.)
Under California law, the child welfare department's initial duty of inquiry 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 and where the child, the parents, or Indian custodian is domiciled." (§ 224.2, subd. (b).) Under ICWA, the term" 'extended family member'" is "defined by the law or custom of the Indian child's tribe or, in the absence of such law or custom, 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." (25 U.S.C. § 1903(2).)
The juvenile court must also inquire at each participant's first appearance in court whether the participant knows or has reason to know that the child is an Indian child. (§ 224.2, subd. (c).) In addition, the juvenile court must instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child. (Ibid.)
If the "initial inquiry creates a 'reason to believe' the child is an Indian child, then the Agency 'shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.' ([§ 224.2], subd. (e), italics added.) . . . [I]f that further inquiry results in a reason to know the child is an Indian child, then the formal notice requirements of section 224.3 apply. (See § 224.2, subd. (c) [court is obligated to inquire at the first appearance whether anyone 'knows or has reason to know that the child is an Indian child']; id., subd. (d) [defining circumstances that establish a 'reason to know' a child is an Indian child]; § 224.3 [ICWA notice is required if there is a 'reason to know' a child is an Indian child as defined under § 224.2, subd. (d)].)" (In re D.S. (2020) 46 Cal.App.5th 1041, 1052.)
We review a juvenile court's ICWA findings under the substantial evidence test," 'which requires us to determine if reasonable, credible evidence of solid value supports' the court's ICWA finding." (In re Dezi C. (2022) 79 Cal.App.5th 769, 777, review granted Sept. 8, 2022, S275578 (Dezi C.).) Even if substantial evidence does not support the juvenile court's ICWA findings, we may not reverse unless we find that error was prejudicial. (Cal. Const., art. VI, § 13; Benjamin M., supra, 70 Cal.App.5th at p. 742.)
Recently, in In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1004-1005, Division Three of the Second Appellate District devised a hybrid standard of review, reviewing for substantial evidence whether there is reason to know a child is an Indian child, and for abuse of discretion a juvenile court's finding that the agency exercised due diligence and conducted a" 'proper and adequate'" ICWA inquiry, reversing only on a showing that any ICWA error was prejudicial. (Id. at pp. 1004-1005.) The hybrid standard of review has been adopted by the Fifth Appellate District. (In re K.H. (2022) 84 Cal.App.5th 566, 600-601; In re E.C. (2022) 85 Cal.App.5th 123, 134.)
California appellate courts have taken varying positions on the rules for assessing whether a defective initial inquiry is harmless. The varying approaches have led to "a continuum of tests for prejudice stemming from error in following California statutes implementing ICWA." (In re A.C. (2022) 75 Cal.App.5th 1009, 1011; see Dezi C., supra, 79 Cal.App.5th at pp. 777-778.) Our division has adopted the following rule: "[A]n agency's failure to conduct a proper initial inquiry into a dependent child's American Indian heritage is harmless unless the record 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. For this purpose, the 'record' includes both the record of proceedings in the juvenile court and any proffer the appealing parent makes on appeal." (In re Dezi C., at p. 779.)
The California Supreme Court granted review of Dezi C. on September 8, 2022, S275578. In its opinion granting review, the Supreme Court has state that pending review, Dezi C. "may be cited, not only for its persuasive value, but also for the limited purpose of establishing the existence of a conflict in authority that would in turn allow trial courts to exercise discretion under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456, to choose between the sides of any such conflict." (In re Dezi C. (Sept. 21, 2022, S275578).)
B. ICWA initial inquiry
Father argues that despite knowing the identities of, and communicating with, several paternal and maternal relatives including paternal grandparents and paternal great-uncle, DCFS failed to ask these extended family members about Peyton's potential Indian ancestry. Thus, father argues, DCFS failed to fulfill its initial inquiry duty under section 224.2, subdivision (b).
DCFS concedes there is no evidence in the record that it inquired of these relatives regarding Peyton's possible Indian heritage. Thus, the issue of prejudice must be assessed.
C. Prejudice
Father argues that we should decline to follow the "reason to believe" rule set forth in Dezi C., supra, 79 Cal.App.5th at page 774. Father argues that the rule effectively absolves the social services agency of its inquiry duty and places the burden upon the parents to come up with information regarding the child's Indian ancestry. Father argues that we should apply either the "automatic reversal" rule (see In re A.R. (2022) 77 Cal.App.5th 197, 207; In re E.V. (2022) 80 Cal.App.5th 691, 698; In re G.H.(2022) 84 Cal.App.5th 15,. 32) or the "readily obtainable information" rule (see Benjamin M., supra, 70 Cal.App.5th at p. 745; In re Y.W.(2021) 70 Cal.App.5th 542, 555-556; In re Rylei S. (2022) 81 Cal.App.5th 309, 320-321; In re Y.M. (2022) 82 Cal.App.5th 901, 916-917; In re Josiah T.(2021) 71 Cal.App.5th 388, 403, 408-409; In re H.V.(2022) 75 Cal.App.5th 433, 438; In re Antonio R.(2022) 76 Cal.App.5th 421, 435-437; In re J.C., supra, 226 Cal.App.4th at p. 531). Father argues that any one of Peyton's extended family members could have possessed readily obtainable information likely to bear meaningfully upon the child's possible Indian ancestry.
DCFS asks that we follow the reasoning set forth in In re E.W. (2023) 91 Cal.App.5th 314 (E.W.). In E.W., both parents denied Indian ancestry. The agency subsequently interviewed a maternal aunt and paternal grandmother, both of whom denied Indian ancestry. However, on appeal, the parents pointed out that the agency had failed to inquire of a maternal cousin who had attended a hearing and the paternal grandfather, who also attended a hearing. (Id. at pp. 319-320.) On appeal, the parents sought" 'conditional affirmance and remand'" because the agency failed to satisfy its initial duty of inquiry. (Id. at p. 320.)
While the mother initially reported American Indian ancestry, she later reported that she completed genetic testing confirming that she had no American Indian ancestry. (E.W., supra, 91 Cal.App.5th at p. 318.)
The E.W. court noted that "[o]n its face, section 224.2, subdivision (b) requires an initial inquiry 'be made of at least all of the following: (1) the child, (2) the parents, (3) the legal guardian . . . (4) the Indian custodian . . . (5) all grandparents; (6) all aunts and uncles; (7) all adult siblings, (8) all siblings-in-law; (9) all nieces and nephews, (10) all first cousins, (11) all second cousins, (12) the reporting party, and (13) all others who have an interest in the child.'" (E.W., supra, 91 Cal.App.5th at p. 321.) The court referred to these requirements as" 'absurd at best and impossible at worst.'" (Id. at p. 322.) Instead of enforcing mechanical compliance with the statute, the E.W. court advocated for allowing the juvenile court significant discretion in determining compliance with ICWA. (Ibid.) Thus, the E.W. court determined that the question on appeal" 'should be whether the ICWA inquiry conducted has reliably answered the question at the heart of the ICWA inquiry: Whether a child involved in a proceeding "is or may be an Indian child." '" (Ibid.)
We decline to follow E.W., and instead follow Dezi C., supra, 79 Cal.App.5th at page 769, review granted. Under Dezi C., the agency's failure to conduct a proper inquiry under section 224.2, subdivision (b) is harmless unless the record contains a reason to believe that the child is an Indian child within the meaning of ICWA. No such evidence has been presented in this matter. While father highlights possible oversights in DCFS's broad duty to inquire, she does not cite any specific evidence suggesting a reason to believe that Peyton may be an Indian child within the meaning of ICWA. Therefore, any error is harmless.
DISPOSITION
The order is affirmed.
We concur: ASHMANN-GERST, Acting P. J. HOFFSTADT, J.