Opinion
B324305
05-02-2023
In re Ashley M. et al., Persons Coming Under the Juvenile Court Law. v. LEAH G., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Stephen Watson, 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NOT TO BE PUBLISHED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. 18CCJP06266 Mary E. Kelly, Judge. Affirmed.
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Stephen Watson, Deputy County Counsel, for Plaintiff and Respondent.
WEINGART, J.
Appellant Leah G. (Mother) challenges the juvenile court's orders terminating her parental rights to three of her children, Ashley M., Sara M., and Clarissa M., pursuant to Welfare and Institutions Code section 366.26. The children's father, John M. (Father), is not a party to this appeal. Mother argues the juvenile court should not have terminated parental rights because the beneficial relationship exception to termination, described in section 366.26, subdivision (c)(1)(B)(i), applied. Mother also argues the court erred when it found it had no reason to know the children were "Indian children," as defined by the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) without the Los Angeles County Department of Children and Family Services (DCFS) first having inquired of paternal great-grandmother and paternal aunt about their Indian ancestry.
Further unspecified statutory references are to the Welfare and Institutions Code.
DCFS argues that although Mother had the burden to demonstrate the beneficial relationship exception applied, she remained silent when the juvenile court sua sponte inquired about the exception, and therefore forfeited the issue on appeal. DCFS further argues that even if we consider Mother's argument on the merits, the exception does not apply. Finally, DCFS does not oppose Mother's request that we remand the matter to permit DCFS to conduct an ICWA inquiry of paternal relatives.
We decline to treat the issue of the beneficial relationship exception as forfeited due to unique factual circumstances present in this matter, including the juvenile court's thorough analysis of the issue. Nonetheless, Mother has not established that the court reversibly erred in rejecting the beneficial relationship exception. Even assuming the record compelled the conclusion that Mother regularly visited the children and shared a substantial positive emotional attachment with them, the juvenile court did not abuse its discretion in finding the benefits of placement in their prospective adoptive home outweighed any detriment to the children from terminating that attachment. As for ICWA, we do not agree with the parties that a limited remand is warranted for additional ICWA inquiries because such inquiries are unlikely to uncover information that would bear meaningfully on whether the children are Indian children. We therefore affirm the juvenile court's orders terminating parental rights to the children.
FACTUAL AND PROCEDURAL BACKGROUND
A. Events Giving Rise to a Section 300 Petition
In August 2018, Mother, Father, and their five children, Alana M. (born 2001), Raquel M. (born 2003), Ashley (born 2008), Sara (born 2009), and Clarissa (born 2015), came to the attention of DCFS following a referral alleging that, among other things, the parents used illegal substances. On September 11, 2018, Father tested negative for all substances; however, Mother tested positive for methamphetamine and amphetamine. DCFS detained the children and placed them with caregivers through a foster agency.
Prior to the termination of parental rights, both Alana and Raquel turned 18 years old. They are not subjects of this appeal. Accordingly, at times, we confine our recitation of the facts to only the three younger children, Ashley, Sara, and Clarissa.
B. Petition through Disposition
On September 28, 2018, DCFS filed a petition pursuant to section 300, subdivision (b)(1) alleging the children had suffered or were at substantial risk of suffering serious harm as a result of Mother's substance abuse, Father's failure to protect the children, and the parents permitting an unrelated adult (Sophia) who reportedly abused substances to reside in the home and have access to the children.
This person was later identified as paternal uncle's wife, Sophia A.
On October 1, 2018, the juvenile court ordered the children detained from their parents and that the parents have monitored visitation with the children.
During its investigation, DCFS obtained prior child welfare reports indicating the juvenile court had temporarily removed Alana, Raquel, Ashley, and their half-sibling K.G. from Mother and Father in 2009 due to, among other things, Father's substance abuse and that in 2015, Mother tested positive for methamphetamine. On October 26, 2018, DCFS amended the section 300 petition to include allegations that Father had a 10- year history of drug use, had a warrant issued for his arrest in July 2015 for prior drug convictions, and had been arrested in April 2017 for "[p]ossession/[u]se" of a controlled substance.
Non-minor K.G. was not a subject of the dependency proceedings.
In October 2018, each of the four older children told a DCFS social worker that they never saw their parents use drugs. Alana stated Mother took good care of them, that she missed her parents, and that she wanted to go back home. Raquel stated she loved and missed her parents, that Mother was kind and generous, and that Father was a good father. Ashley and Sara stated they were happy living at home with their parents. Clarissa, age three, would not speak to the social worker. Paternal great grandmother, who lived in the family home, denied any knowledge that the parents used drugs or hit the children. Sophia admitted that she used methamphetamine and heroin and sometimes relapsed. Mother denied using substances and questioned the accuracy of the September 11, 2018 drug test.
On February 7, 2019, the juvenile court sustained the first amended section 300 petition and removed the children from Mother's and Father's custody. The court ordered unmonitored visitation for the parents and for DCFS to assess paternal aunt, Linda M., for overnight visitation.
The record alternatively describes Linda as paternal aunt and paternal great aunt. For purposes of consistency, we refer to her as Linda. The record also sometimes refers to paternal grandmother instead of paternal great grandmother. However, Father lived with paternal great grandmother and stated he and paternal grandmother did not have a relationship. Thus, it appears a number of record references to paternal grandmother should be to paternal great grandmother.
C. Visitation and Mother's Relationship with the Children, October 2018 through February 2019
During the period between the children's initial detention and the disposition hearing, Mother maintained regular contact with the children. In October 2018, Mother visited with the children at a mall or park for six hours each week.
On November 28, 2018, the juvenile court ordered that DCFS report the nature and quality of the visits between the children and the parents. The juvenile court also ordered DCFS to make efforts to facilitate monitored visitation with the children on Christmas.
In a last minute information (LMI) for a hearing scheduled for February 5, 2019, DCFS reported that except for one instance, Mother visited the children once a week, on Saturdays from 12:00 to 6:00 p.m. at a shopping mall. Father, who stated he had two fractured lower back discs and was disabled due to chronic back pain and obesity, missed some visits and sometimes asked Mother to take him home early. Mother would do so and then return to visit with the children alone. The parents were not able to visit with the children during Christmas. Linda, who was to facilitate the visit, did not feel comfortable having Mother and Father in her home; Father did not feel comfortable meeting in a public setting.
D. Status Reviews of Parents' Progress in Case Plans
Between January 2019 and July 8, 2019, Mother tested negative for substances 18 times and did not miss any tests. She also completed a 12-week parenting course.
Father was arrested on March 4, 2019. Between January 3 and May 2, 2019, he tested negative for substances three times, had no positive results, and missed six tests. In June 2019, Father informed DCFS that he would not appear for any more drug tests. In July 2019, Father told DCFS that he would not attend any court-ordered programs. Throughout the remainder of the proceedings, Father did not submit to any drug testing or participate in his case plan.
In July 2019, DCFS observed that although Mother made significant progress in her case plan, she had not gained independence or ability to provide a safe and stable environment for her children as she continued to live and have a relationship with Father. DCFS also reported that Linda, who had overnight visits with the children twice a month, expressed an interest and willingness to take legal guardianship of the children if they did not reunify with their parents.
In an updated case plan, DCFS observed the placement goal for Alana, who would soon be turning 18 years old, was for "[s]elf-[m]aintenance."
At an August 8, 2019 status review hearing, the juvenile court found progress by the parents was substantial, but that continued reunification services and jurisdiction were necessary. After Mother indicated she might move to Kansas to live with maternal grandfather, David G., and maternal aunt, Toni G., the juvenile court ordered DCFS to initiate an Interstate Compact on the Placement of Children (ICPC) evaluation of maternal grandfather and maternal aunt.
Mother and Father participated in an after-court visit with the children following this hearing.
On January 17, 2020, DCFS reported Mother was in compliance with her case plan and court-ordered programs. She tested negative for substances 23 times over a five-month period and did not miss any tests. However, she continued to live with Father, and DCFS reported it could not recommend the children be returned to the parents until they were able to provide a safe and stable environment.
On February 6, 2020, the juvenile court found Mother was in substantial compliance with the case plan and the only barrier to her reunification with the children was Mother obtaining housing separate from Father. It ordered a housing assessment referral for Mother to receive a Family Reunification Housing Subsidy (FRHS), that the suitable placement order remain in effect until she obtained new housing, and that the children be released to Mother's custody within five days of her obtaining permanent housing. The juvenile court also ordered Father not to reside with Mother.
On March 16, 2020, DCFS reported Mother was assigned a case manager for housing assistance, "but is currently on a waiting list." On February 21, 2020, Mother disclosed she continued to live with Father and paternal family and that she did not have anywhere to go until FRHS was available. The social worker "informed Mother that [DCFS] ha[d] concerns that [she was] still dependent on [F]ather and ha[d] not shown initiative to reunify with the children or even search for alternative living plans. Mother stated that she [was] [F]ather's in[-]home caregiver and receive[d] funding for caretaking. Mother stated that when she move[d] out she [would] no longer be [F]ather's caregiver and . . . would get a job at a local . . . Walmart." DCFS concluded, "[M]other has not made steps to live and operate independently from [F]ather . . . as Mother . . . stated that she does not have enough financial support or resources to live on her own." DCFS recommended adoption for the children, pending ICPC approval of maternal grandfather and maternal aunt.
On January 21, 2021, DCFS reported Mother continued to live with Father and provide in-home care for him. She also continued to look for housing and employment. Mother observed many leasing offices required a higher deposit than anticipated due to COVID-19, creating an obstacle to her obtaining independent housing. Mother's housing assistance case manager confirmed she spoke with Mother multiple times a week and that Mother actively looked for housing and a job; but due to COVID-19, "they have run into a few issues with leasing offices accepting their housing subsidy." Between March 3, 2020 and January 6, 2021, Mother tested negative for substances 16 times. She missed a total of three tests during that period, although for two of those instances, she was present at the testing site, but did not provide a sufficient specimen.
On February 5, 2021, the juvenile court determined it would not be safe to return the children to Mother if she continued her employment as Father's in-home caregiver. The juvenile court observed that although it had made its disposition order two years prior, extraordinary circumstances existed due to the COVID-19 pandemic, and continued jurisdiction and reunification services for Mother were warranted.
On April 22, 2021, DCFS reported Mother moved with Father, paternal great grandmother, and a maternal cousin into a new home in Victorville, California. Mother continued to provide in-home care for Father. Mother stated she would apply for a job at a "temp agency." Mother's case worker advised the social worker that Mother had just been approved for Section 8 housing and was looking for housing that accepted both FRHS and Section 8.
In an LMI filed prior to a hearing on May 7, 2021, DCFS reported that Mother stated a family friend who owned a taxicab agency had hired her, but she continued to look for more secure employment. Mother also planned to apply for jobs at Walmart or Home Depot and was waiting for her Section 8 voucher. At the May 7, 2021 hearing, DCFS argued the statutory reunification period had been exhausted. The juvenile court observed that the pandemic had caused the matter to be delayed and that the housing situation was not within Mother's control as she waited for the Section 8 voucher. Therefore, the court continued the section 366.25 24-month permanency review hearing.
On July 7, 2021, the juvenile court again continued the permanency review hearing. It ordered DCFS to assess paternal and maternal relatives for placement and to report as to Mother's wish to move to Kansas with the children and live with maternal aunt.
Mother stated maternal grandmother raised her and that Mother has an older sister and younger brother. Father stated he did not have a relationship with paternal grandmother and that paternal great grandmother raised him. He has one brother and one sister.
In an LMI filed on August 11, 2021, DCFS reported that paternal great grandmother and maternal cousin lived in the same home as Father. Therefore, those relatives could not provide placement for the children. Alana lived with Linda, who reported that she was not in a position to provide placement for all the children permanently. Finally, although the children originally had resisted moving to Kansas, they now stated they were ready to move to Kansas if that was what was best for them, although they preferred to be with Mother. Mother reported she planned to apply to Walmart online but was interested in learning if she also could move to Kansas. DCFS reached out to the ICPC coordinator to determine if this was possible.
On August 12, 2021, pursuant to an agreement between the parties, the juvenile court continued the section 366.25 hearing to allow for the creation of a transition plan to Kansas, including an assessment relating to whether Mother and the children could reside with maternal aunt.
In a September 1, 2021 LMI, DCFS reported maternal aunt stated that Mother may come to live with them but that she was concerned Mother would not secure employment and contribute to the household. The ICPC coordinator stated she could not assure that Kansas would accept "adding Mother on" to the already approved home study. Further, she stated Kansas "may require the family restart the process all over again[,] leaving the children to stay in foster care when relative placement has already been approved." The coordinator indicated she would report to DCFS once she heard from the state of Kansas on these issues.
On September 1, 2021, the juvenile court ordered the children placed with maternal aunt and maternal grandfather in Kansas. The court further ordered that Mother could have one overnight visit with the children and that DCFS assess Mother for extended visits. The court continued the section 366.25 hearing over DCFS's objection.
On October 28, 2021, the children were placed with maternal aunt and maternal grandfather in Kansas.
On December 28, 2021, DCFS reported that if Mother moved in with the children, maternal aunt and maternal grandfather would lose funding, which they needed to support the children. Therefore, maternal aunt urged Mother to get a job at Walmart or Target and then transfer to a position in Kansas with one of those companies. Maternal aunt reported that Mother did not appear motivated to find work and move. Maternal grandfather expressed he was not sure about having Mother live with them as she "has not done what she is supposed to" and seemed to doubt Mother "tr[ied] her hardest to get [the children] back." Mother stated she was no longer looking for housing in California as her plan was to move to Kansas and live with the children. The social worker reminded Mother that she could not live with maternal aunt and grandfather because they would lose the funding they needed to care for the children. Mother stated Father would send her money after she got to Kansas, that she would get a job once she moved there, but also that she would not move to Kansas until she could live with maternal aunt and grandfather.
On January 31, 2022, the juvenile court terminated reunification services for Mother and Father and scheduled a permanency planning hearing for May 31, 2022. The juvenile court also ordered DCFS to "speak to the children about what their desires are and to assess the quality of Mother's visitation and bond with the children to determine whether legal guardianship is the appropriate permanent plan." Mother's counsel stated, "I object, your honor," but provided no basis for his objection.
On February 1, 2022, Mother filed notices of intent to file writ petitions to review the order setting the section 366.26 hearing. Mother did not file a petition and this court deemed the writ non-operative.
DCFS reported maternal aunt wanted to adopt the children but was not interested in legal guardianship. On August 1, 2022, the juvenile court found adoption was an appropriate plan for Ashley, Sara, and Clarissa.
On July 14, 2022, DCFS reported that Raquel, who was 18 years old at the time, moved back to California and resided with Mother, Father, and paternal great grandmother.
E. Visitation and Mother's Relationship with the Children, March 2019 through July 2022
1. Before the Children Moved to Kansas
In a July 22, 2019 status review report, DCFS reported the children visited with their parents every Saturday from 1:00 to 6:00 p.m. Mother took the children to the mall, which allowed them to do a variety of different activities such as eating, shopping, going to the movies, and going to the arcade. Mother continued to support and bond with the children by calling them and attending events such as graduations and celebrations for them. Raquel, Sara, and Ashley expressed that they missed their parents and wanted to return home. The social worker observed Clarissa become upset and cry when she had to separate from her family.
In an October 4, 2019 LMI, DCFS reported the children appeared bonded to their foster caregiver. The children disclosed they enjoyed living in the caregiver's home and being able to visit their parents on weekends. They also stated they looked forward to the holiday season and becoming reacquainted with their maternal grandfather and maternal aunt in Kansas. On December 16, 2019, DCFS filed an ex parte application to permit the children to travel to Kansas from December 28, 2019 through January 3, 2020. DCFS observed the children had never traveled out of state before and they requested Mother attend the visit with them. However, Mother did not have the resources to buy an airline ticket.
On January 17, 2020, DCFS reported the children, including Clarissa, were thriving and had formed a strong bond with their caregivers. The children visited with their family each weekend, alternating between spending time with their parents and with Linda. Mother "continue[d] to support and bond with her children by visiting, calling them and attending events such as graduations and celebrations for the children." The children stated they did not want to leave their current placement if they could not return home or stay with family members. The caregivers reported the children looked forward to seeing their family on the weekends and that it kept them focused during the week.
On March 16, 2020, DCFS reported the children "continue[d] to be vocal about their desire to reunify with their family."
On January 21, 2021, DCFS reported that due to the COVID-19 pandemic and the mature age of the caregivers, Mother was not able to visit with the children in person. However, Mother spoke with the children almost daily telephonically and through video calls, and "the children kn[e]w that they c[ould] call [Mother] whenever they want[ed] to speak with her." The duration of the calls depended on the mood of the children or their activities, and usually lasted between "30 to 46 minutes." Mother and children usually spoke about how the children's day went and school. Raquel stated on several occasions that she would like to be with her family. She also stated that she was not interested in going anywhere else and did not want to leave her current placement unless she was going to live with her family. Sara and Ashley also stated several times that they missed their family and wanted to return home. The children expressed that they did not want to be placed out of state as they enjoyed their current placement and that if they did not reunify with Mother, they did not want to go anywhere else.
By April 11, 2021, the children resumed weekly, in-person visits with Mother and Father. The children expressed they were "very happy" to be able to visit with their parents in person again and continued to be vocal about wanting to reunify with Mother and Father. The children understood DCFS's recommendation, however, that the children be placed with relatives out of state. The children also expressed that they felt safe and cared for with their current caregivers and were happy to be together. DCFS reported that the caregivers and children formed a strong bond.
In August 2021, DCFS reported that the children indicated they were "ready to move to Kansas if that [wa]s what [was] best for them but would like to ultimately be with their mother."
On October 28, 2021, the children moved to Kansas.
2. After the Children Moved to Kansas
On December 28, 2021, DCFS reported that Mother continued to speak with the children for 20 to 25 minutes nearly every day by video or telephone calls.
On March 24, 2022, Sara's psychologist reported she was struggling with changes in school and home environments, and that she was bullied at school. Clarissa's therapist reported Clarissa was experiencing an increase in dysregulation in emotions and behavior since moving to Kansas.
On April 19, 2022, Ashley and Sara reported their maternal aunt and grandfather had been very loving and supportive towards them. Ashley indicated that it took her some time to adapt to living in another state, but she was very happy with maternal aunt and grandfather and wanted to remain in their care. Sara stated, "[E]verything is going good. I like it here better than California." When asked how they felt about remaining with maternal aunt and grandfather as their "forever home," Ashley responded, "I like it here. Everything is good," and Sara responded, "I feel good about it. They are always there for me." Ashley and Sara also indicated that Clarissa had similar behavioral issues at their prior placement. Clarissa did not want to speak to the social worker. Maternal aunt reported Clarissa was in therapy and that she and Clarissa would begin conjoint therapy.
On May 5, 2022, maternal aunt reported to DCFS that Mother continued to have daily or almost daily contact with the children through telephone or video calls. The calls lasted about 30 minutes each. The conversations usually concerned how the children's day went, how they were doing, and school. Mother and Father helped advise Sara when she had trouble at school. According to maternal aunt, the calls did not involve in-depth conversations, but "[j]ust surface questions," and there were times the children did not want to participate in the phone or video visits.
On May 12, 2022, DCFS reported, "The state of Kansas requires paternal rights to be terminated before an Adoption ICPC can be completed. Once parental rights are terminated, the Adoption ICPC packet will be submitted to initiate approval of the family for adoption in the state of Kansas."
This position is not unusual. "[M]ost, if not all, states are unwilling to do an [ICPC] adoptive home study until parental rights are terminated." (Seiser & Kumli, Cal. Juvenile Courts Practice & Procedure (2022) § 2.128.)
On July 14, 2022, DCFS reported the children continued to have virtual video calls with Mother for about 30 minutes every evening. Maternal aunt stated the children were having a hard time adjusting to their new school and state, but she was patient and helped them to adjust, and reported that overall, they were doing well and enjoyed Kansas. She observed that Ashley and Sara had become more social, come out of their rooms more when at home, went to the pool with maternal aunt, and that all three girls were making friends. The Kansas social worker reported, "The children are doing really great in the home. Still adjusting, the only concern I will add is Clarissa. Clarissa is very hyper and struggles with following the rules and directions. I have set [maternal aunt] up with a therapist and Clarissa has been going. The therapist does want Clarissa to have [a] brain scan. [Maternal aunt] is setting up those medical appointments." DCFS reported the children were "thriving and doing well" with maternal aunt and grandfather. Clarissa exhibited fewer behavioral issues and Sara and Ashley were also attending weekly therapy. Sara and Ashley stated they enjoyed living in Kansas and felt happy and safe. Sara reiterated that she was happy there and that she liked it better than California because maternal aunt spent time with them and they went out to eat, watched movies, and joined their aunt at the pool. Ashley stated that she was doing well and enjoyed when they went swimming, out to eat, and to the movies. Clarissa also stated she is safe and happy living with her siblings and maternal aunt and grandfather.
F. Termination of Parental Rights
1. Applicable Legal Principles
When a juvenile court cannot safely return a child to a parent's custody, the court must set a permanency planning hearing under section 366.26. (In re Caden C. (2021) 11 Cal.5th 614, 630 (Caden C.).)"' "[A]t a section 366.26 hearing, the court may select one of three alternative permanency plans for the dependent child-adoption, guardianship or long-term foster care." [Citation.] At this stage of the dependency proceedings, adoption is preferred because it ensures permanency and stability for the minors. [Citations.]' [Citation.] Thus, as a general rule, at a section 366.26 hearing, if the trial court finds that the child is adoptable, it must select adoption as the permanent plan and terminate parental rights. (§ 366.26, subds. (b)(1) &(c)(1).)" (In re L.A.-O. (2021) 73 Cal.App.5th 197, 205206; see Caden C., supra, at p. 631 [under § 366.26, adoption is "the norm"].)
Section 366.26, subdivision (c) states several exceptions to this rule. Relevant here, the beneficial relationship exception applies if "[t]he court finds a compelling reason for determining that termination would be detrimental to the child due to . . . [¶] . . . [t]he parents hav[ing] maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (Id., subd. (c)(1)(B)(i).)
Caden C. clarified that a parent must prove three elements for the beneficial relationship exception to apply. (Caden C., supra, 11 Cal.5th at p. 631.) Specifically, a parent must show by a preponderance of the evidence (1) "regular visitation and contact with the child, taking into account the extent of visitation permitted"; (2) "the child has a substantial, positive, emotional attachment to the parent-the kind of attachment implying that the child would benefit from continuing the relationship"; and (3) "terminating that attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home." (Id. at p. 636.)
When the parent has met that burden, "it would not be in the best interest of the child to terminate parental rights, and the court should select a permanent plan other than adoption." (Caden C., supra, 11 Cal.5th at pp. 636-637.) "Because terminating parental rights eliminates any legal basis for the parent or child to maintain the relationship, courts must assume that terminating parental rights terminates the relationship." (Id. at p. 633.) "What courts need to determine, therefore, is how the child would be affected by losing the parental relationship- in effect, what life would be like for the child in an adoptive home without the parent in the child's life." (Ibid.)
2. The Juvenile Court's Decision
On September 27, 2022, the juvenile court held the section 366.26 hearing. At the outset of the hearing, the court stated, "The question the court has is whether the visitation-I know the children are out of state, and the court would be-as I mentioned at calendar call, wanting to know if there would be any exception to the-to the [section 366].26, termination of parental rights, based on the parent/child bond." DCFS stated that before the parties addressed that issue, it wanted to report that the tribes denied Indian ancestry based on the information provided. The juvenile court found ICWA did not apply. The court then invited the parties to present argument or evidence. Mother's counsel stated, "on behalf of . . . [M]other, she would object to the court terminating her parental rights. If the court is inclined to do so, that will be over [M]other's objection." Mother's counsel did not make any additional arguments.
The children's counsel argued, "I don't think the parental bond can be established. The children are in Kansas. The parents are here. They have very limited contact with the children. Earlier in the case, Mother was offered the opportunity and there was discussion about her possibly moving to Kansas and maybe residing with a different relative and attempting to establish a relationship with the children. Instead[,] she's prioritized her relationship with . . . [F]ather and did not move forward in trying to establish a stronger bond with the children and I think clearly has not acted in a parental role as she has remained in a relationship with . . . [F]ather. ... [I]t's in their best interest for the court to terminate parental rights and to allow them to be adopted by those caregivers."
The juvenile court observed that Mother had daily contact with the children that usually lasted between 30 to 46 minutes. However, DCFS argued that the court ordered unmonitored visitation for Mother in February 2019, that Mother has not "taken advantage of these unmonitored visits," that the conversations with Mother have been "surface level," and "[w]e've stalled out at phone calls for the past three years." Turning to substantial and positive emotional attachment, DCFS argued the initial removal occurred four years ago, which was nearly Clarissa's entire lifetime and nearly all of Ashley's teenage years, that Mother could travel to Kansas to have in-person contact with the children, but did not do so, and that Mother's plans to move closer to the children never progressed.
The juvenile court observed DCFS reported Mother's conversations with the children were "surface," but also that when Sara had difficulty in school, the parents "stepped up and talked to the child." The court also noted the children were happy in their current placement and had not been with their parents since 2018. It stated it could find Mother met the first prong, although the visits were not of "high quality." However, it observed the parents also must show by a preponderance of the evidence that the children had a positive emotional attachment to them. The court noted an appellate court opinion directed courts to consider certain factors in making the determination, including the portion of the child's life spent in the parent's custody, the positive or negative effects of the interactions between parent and child, and the child's particular needs. It described Mother's visits as "surface," and the parents' contact with the children as "very limited," and noted "it's been a long time since they've acted in a parental role with the children." The juvenile court concluded the parents did not demonstrate that "the relationship between the parents and the children is of such a substantial positive, emotional attachment such that it would be harmful to the children if parents['] rights were terminated, and/or that the relationship is so important that the security and stability of the new home would not outweigh its loss and termination would be detrimental to the child due to some beneficial relationship with the parent." It found the children were adoptable and, upon finding it was in the children's best interests, terminated Mother's and Father's parental rights.
The phrase "parental role," standing alone, can have several different meanings, some of which are legally correct under In re Caden C., supra, 11 Cal.5th 614, and some which are not. (See In re L.A.-O., supra, 73 Cal.App.5th at pp. 210-211 [describing the difficulty in understanding what a court means when it uses the phrase" 'parental role' "]; see, e.g., In re Katherine J. (2022) 75 Cal.App.5th 303 [holding the juvenile court's statement that the father did not occupy a parental role was not error]; In re D.M. (2021) 71 Cal.App.5th 261 [holding the juvenile court prejudicially erred when it equated a parental role with attendance at the children's medical appointment and understanding their medical needs].) Mother does not argue that the juvenile court erred in stating she did not occupy a parental role and, thus, we do not consider this issue.
The juvenile court explained, "I'm not comparing whether these-the attributes between the maternal aunt and . . . Mother-and I'm not looking to whether Mother can provide a home. It's just rather losing the relationship would harm the child to an extent not outweighed on balance by the security of the new adoptive home. And I cannot find that here." It also observed that it did not consider whether the parents complied with their case plans in making its ruling.
G. ICWA
On September 6, 2018, a social worker interviewed Mother and Father, who denied having any knowledge of Indian ancestry. DCFS submitted Indian Child Inquiry Attachment forms with the section 300 petition indicating that Mother had denied Indian ancestry for all five of the children.
On October 1, 2018, Mother, Father, paternal great grandmother, and Linda attended the detention hearing. Mother and Father submitted parental notification forms indicating the children did not have Indian ancestry as far as they knew. The juvenile court asked each of the parents whether they had Indian ancestry, and each parent confirmed they did not. The juvenile court found Father was the presumed father of the children and that ICWA did not apply. In its minute order, the juvenile court ordered the parents "to keep [DCFS], their [a]ttorney[s] and the [c]ourt aware of any new information relating to possible ICWA status."
According to the jurisdiction and disposition report, on October 16, 2018, a social worker again asked Mother and Father whether the children had Indian ancestry and the parents denied the children had any. With the amended section 300 petition, DCFS submitted Indian Child Inquiry Attachment forms that indicated the children did not have Indian ancestry, but did not identify the date or inquiry or, for all but one child, the person questioned.
In May 2022, a social worker questioned maternal aunt about any Native American ancestry in the maternal family. She stated that maternal great grandmother was either one-fourth or one-eighth Cherokee from Oklahoma. On May 12, 2022, DCFS provided notice to the Bureau of Indian Affairs, Cherokee Nation, and the United Keetoowah Band of Cherokee Indians of Oklahoma. The forms did not identify any paternal relatives, noting instead that Father refused to speak with the social worker.
On May 23, 2022, DCFS attempted to speak with Father by telephone about possible Indian ancestry. Father did not respond. A social worker thereafter sent a text message to Mother's phone to inquire about Father's ancestry. The social worker also asked, "If he doesn't know, is there family I can speak with to ask about it." Mother responded, "No[,] he doesn't have any Indian de[s]cent." DCFS received return receipts from the Bureau of Indian Affairs, the Cherokee Nation, and the United Keetoowah Band of Cherokee Indians of Oklahoma.
On May 31, 2022, the juvenile court's minute order stated, "DCFS has an ongoing duty to inquire of all relatives and case participants about possible Native American/Alaskan Native Village heritage throughout the life of this case."
On September 12, 2022, DCFS reported that the Cherokee Nation and the United Keetoowah Band of Cherokee Indians of Oklahoma indicated based on the information relating to maternal relatives, the children were "[n]ot eligible and/or not enrolled" as members of the tribes.
On September 27, 2022, the juvenile court inquired whether there was any objection to finding ICWA did not apply. No party raised any objection, and the court found ICWA was not applicable. The parties appeared by video conference, and the record does not disclose whether paternal great grandmother or Linda attended the hearing.
Mother timely appealed.
DISCUSSION
A. The Beneficial Relationship Exception to the Termination of Parental Rights
1. Forfeiture
DCFS argues Mother forfeited her arguments relating to the applicability of the beneficial relationship exception by failing to raise them in the juvenile court.
An appellant's failure to raise a statutory exception to the termination of parental rights at a section 366.26 hearing forfeits the issue on appeal. (In re Erik P. (2002) 104 Cal.App.4th 395, 403 ["If a parent fails to raise one of the exceptions at the hearing, not only does this deprive the juvenile court of the ability to evaluate the critical facts and make the necessary findings, but it also deprives this court of a sufficient factual record from which to conclude whether the trial court's determination is supported by substantial evidence"].)
Mother argues, "[a]llowing [her] to raise the exception for the first time on appeal would not be inconsistent with this court's role of reviewing orders terminating parental rights for the sufficiency of the evidence." She notes the juvenile court sua sponte "considered the exception as though the parents [had] expressly raised it," "[a]ll the critical facts were considered by the juvenile court," and "the juvenile court's analysis of whether it found the beneficial relationship exception applied was detailed and thorough and based on the facts."
Mother also "requests this court exercise its discretion to consider her contention that the beneficial relationship applied." Although a reviewing court "has discretion to review claims not raised in the trial court that raise important legal issues, . . . 'the discretion must be exercised with special care,' particularly in dependency matters where 'considerations such as permanency and stability are of paramount importance.' [Citation.]" (In re Daisy D. (2006) 144 Cal.App.4th 287, 292, italics added.) The applicability of the beneficial relationship exception raises factual questions that are unsuitable for resolution on appeal in the first instance. (See ibid.)
Both parties' arguments have some merit. It is improper for a party to raise arguments on appeal that it failed to make before the trier of fact for several reasons, including that it deprives the responding party of an opportunity to present a complete opposition and for the trier of fact to consider the matter in the first instance. On the other hand, based on the particular facts of this case, the problems that ordinarily arise from a party's failure to raise an issue in the juvenile court are not present. As early as November 2018, the juvenile court ordered DCFS to report on the quality and nature of the parents' visits with the children. It did so. In January 2022, the juvenile court ordered DCFS to "speak to the children about what their desires are and to assess the quality of Mother's visitation and bond with the children to determine whether legal guardianship is the appropriate permanent plan." Thus, the juvenile court both assured the record included facts necessary to determine the applicability of the exception and placed the parties on notice that the exception may be at issue.
Approximately eight months later, at the section 366.26 hearing, the juvenile court invited argument relating to the exception and, notwithstanding Mother's counsel's silence, articulated certain facts in favor of finding the exception applied in a dialogue with DCFS. Both DCFS and minors' counsel had an opportunity to argue and did argue against the applicability of the exception in the juvenile court. Additionally, on appeal, DCFS had an opportunity to respond and did respond to Mother's arguments relating to the exception.
Accordingly, we decline to find Mother has forfeited her appeal of the beneficial relationship exception given the discussion of this issue at the section 366.26 hearing. However, to the extent Mother makes new factual arguments on appeal that were not articulated by anyone at the section 366.26 hearing, those arguments are forfeited as they squarely implicate the concerns underlying the rules of waiver and forfeiture. (In re S.B. (2004) 32 Cal.4th 1287, 1293 ["the appellate court's discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue" as opposed to factual disputes]; In re C.M. (2017) 15 Cal.App.5th 376, 385 ["A party may not assert theories on appeal which were not raised in the trial court"].)
2. Standard of Review
As noted above, under Caden C., supra, 11 Cal.5th at p. 631, for the beneficial relationship exception to apply a parent must show by a preponderance of the evidence (1) "regular visitation and contact with the child, taking into account the extent of visitation permitted"; (2) "the child has a substantial, positive, emotional attachment to the parent-the kind of attachment implying that the child would benefit from continuing the relationship"; and (3) "terminating that attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home." (Id. at p. 636.) We review the first two elements or prongs of the test for substantial evidence. (Id. at p. 640.) "The substantial evidence standard of review takes on a unique formulation where, as here, 'the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals.' [Citations.] '[W]here the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law.' [Citation.] Specifically, we ask 'whether the appellant's evidence was (1) "uncontradicted and unimpeached" and (2) "of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding." [Citation.]' [Citation.]" (In re S.G. (2021) 71 Cal.App.5th 654, 671.)
As to the third element, "The court makes the assessment by weighing the harm of losing the relationship against the benefits of placement in a new, adoptive home. And so, the ultimate decision-whether termination of parental rights would be detrimental to the child due to the child's relationship with his parent-is discretionary and properly reviewed for abuse of discretion." (Caden C., supra, 11 Cal.5th at p. 640.) "A court abuses its discretion only when '" 'the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.'"' [Citation.] But '" '[w]hen two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.'"' [Citations.]" (Id. at p. 641.)
3. The Court Did Not Abuse Its Discretion in Concluding That the Benefits to the Children from Adoption by Their Caregivers Outweighed Any Detriment from Terminating Their Relationship with Mother
Even assuming that the record compels the conclusion that Mother satisfied the first two requirements of the beneficial relationship exception under Caden C. (regular visitation and a substantial emotional attachment), the court's conclusion on the third prong does not reflect an abuse of discretion, and we must affirm. Specifically, the court could" '" 'reasonably . . . deduce[] from [the record]'" '" that severing even a substantial emotional attachment with Mother would not be detrimental to the children, when considered in the larger context of the benefits to the children from being legally adopted by their current family caregivers. (Caden C., supra, 11 Cal.5th at p. 641 [no abuse of discretion when court's conclusion reflects one of" '" 'two or more inferences [that] can reasonably be deduced from the facts'"' "].)
Neither of Mother's two arguments to the contrary is persuasive. First, she argues it was detrimental to sever her relationship with the children, "given that they had a very substantial, emotional attachment to [M]other and looked to her for love and support." Even assuming Mother is correct that the record compels the conclusion that such attachment existed, it does not follow that severing that attachment by allowing the children to be adopted reflects a net detriment to the children. Mother identifies nothing in the record that would prevent the court from reasonably concluding the many benefits of allowing the children to find a permanent adoptive home with family members with whom the children also shared a bond outweighed any detriment from severing Mother's relationship with the children.
Mother next argues the children struggled when they moved to Kansas. This argument was not raised at the section 366.26 hearing, and therefore forfeited. Even if we were to consider it, Mother's argument is true in part, but it is not the whole picture. The record shows the children improved mentally and socially over time and began to thrive in maternal aunt's and grandfather's care. Further, maternal aunt was committed to providing the children with the resources and guidance they needed to continue to thrive. (See Caden C., supra, 11 Cal.5th at p. 640 [explaining that the juvenile court's balancing of factors when determining the third element will include "how a prospective adoptive placement may offset and even counterbalance [the] harms" arising from severing the parental relationship].) Ultimately, the children expressed they were very happy and doing well with maternal aunt and grandfather, and maternal aunt was not open to a legal guardianship arrangement with the children. Given this record, we cannot conclude the juvenile court abused its discretion.
Mother argues Clarissa "had extensive behavioral issues since her move to Kansas" that were "so concerning that Clarissa's counselor 'recommended a brain scan.'" However, on September 6, 2018-well before Clarissa moved to Kansas and while she was still in Mother and Father's care-Mother and Father acknowledged "Clarissa is very loud and has behavior problems." Paternal great grandmother described Clarissa as "very stubborn" and noted she "often yell[s] and scream[s]." That same day, the social worker observed Clarissa was very active and "testing limits." Thus, Clarissa's move to Kansas was not the only cause of her dysregulation in emotions and behavior. Indeed, Clarissa's counselor in Kansas recommended a brain scan in part to rule out in utero brain damage to Clarissa from Mother's substance abuse. Further, Clarissa's behaviors improved as she attended therapy in Kansas.
B. ICWA
The juvenile court and DCFS "have an affirmative and continuing duty to inquire whether a child for whom a [section 300] petition . . . has been filed, is or may be an Indian child."(§ 224.2, subd. (a).) Additionally, section 224.2, subdivision (b), states, in part, that "[i]nquiry includes, but is not limited to, asking . . . extended family members [and] others who have an interest in the child . . . whether the child is, or may be, an Indian child." 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).)
An" 'Indian child'" is an unmarried person under 18 years of age who is (1) a member of a federally recognized Indian tribe or (2) is eligible for membership in a federally recognized tribe and is the biological child of a member of a federally recognized tribe. (25 U.S.C. § 1903(4) & (8); see § 224.1, subd. (a) [adopting federal definitions], subd. (b) [expanding the age range stated in the federal definition to include persons over 18, but under 21, years of age].)
As prior decisions make clear, in the view of our division, DCFS's failure to inquire of extended family members does not result in automatic reversal. (See In re Adrian L. (2022) 86 Cal.App.5th 342; In re A.C. (2022) 75 Cal.App.5th 1009; In re S.S. (2022) 75 Cal.App.5th 575; In re Darian R. (2022) 75 Cal.App.5th 502.) Rather, we have generally evaluated the record to determine whether" 'the probability of obtaining meaningful information is reasonable in the context of ICWA.'" (In re Darian R., supra, at p. 509, quoting In re Benjamin M. (2021) 70 Cal.App.5th 735, 744.) Information available from extended family members must be both" 'readily obtainable,'" and" 'likely to bear meaningfully upon whether the child is an Indian child.'" (In re Benjamin M., supra, p. 744.) In making this determination, we have rejected "a wooden approach to prejudice" (In re A.C., supra, at p. 1017) and refused to require further inquiry when, based upon the particular circumstances presented by the record, it is apparent "that additional information would not have been meaningful to the inquiry" (In re Benjamin M., supra, at p. 743; see, e.g., In re S.S., supra, at p. 582).
Because federal law does not impose a duty on social workers to inquire of extended family members about tribal affiliation, any error would be under state law. (In re Benjamin M., supra, 70 Cal.App.5th at p. 742; In re A.C. (2021) 65 Cal.App.5th 1060, 1069.) The usual test for prejudicial state law error is whether," 'after an examination of the entire cause, including the evidence,'" we are "of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836; see In re Benjamin M., supra, at p. 742 [Watson standard applies to agency's failure to comply with initial duty of inquiry under California's ICWA-related law].)
Mother argues the trial court erred in finding ICWA did not apply before first requiring DCFS to inquire of readily available relatives, paternal great grandmother and Linda (paternal aunt or paternal great aunt), about the children's possible Indian heritage. DCFS acknowledges Mother's argument "does not lack merit" and "[i]n the interests of expeditiousness, . . . does not oppose remand for the purpose of making ICWA inquiry of the paternal [great] aunt and the paternal great-grandmother."
Paternal great grandmother and paternal great aunt do not fall within the express definition of extended family member. (See 25 U.S.C. § 1903(2).) However, they may qualify as "others who have an interest in the child" within the meaning of section 224.2, subdivision (b).
We do not agree with the parties that remand is warranted here because it is not reasonably likely paternal great grandmother and Linda have additional information that would bear meaningfully on the question of whether the children are Indian children. In In re Darian R., supra, 75 Cal.App.5th 502, we held that DFCS's failure to inquire of the children's maternal grandfather and maternal aunt was error, but that the error was harmless because both parents denied Indian ancestry, "[the] mother lived with maternal grandfather and aunt during the dependency proceedings, and she was under court order to continue to provide information relevant to ICWA" (id. at pp. 509, 510), and thus "it was unlikely that any further inquiry of family members would have yielded information about Indian ancestry." (Id. at p. 504.)
The facts here are similar to those in In re Darian. Both Mother and Father denied Indian ancestry when first asked by DCFS on September 6, 2018, and on their October 1, 2018 parental notification forms. When the juvenile court asked Mother and Father whether it was correct that they did not have Indian ancestry, paternal great grandmother and Linda were present. The court thereafter ordered Mother and Father-who lived with paternal great grandmother, and thus were in regular contact with her-to keep DCFS, their attorneys, and the court informed of any new information that they learned as to their Indian ancestry. Then, on October 16, 2018, DCFS again asked about the parents' possible Indian ancestry. The parents again denied having any. In March and May 2022, DCFS attempted to speak with Father about Indian ancestry again. He refused to speak with DCFS. Thus, in May 2022, a social worker sent a text message to Mother asking about Father's possible Indian heritage and whether there were relatives that may know if he did not know. Mother responded that Father does not have any Indian descent, indicating that she knew he did not and that there was no need to inquire of other relatives. Accordingly, we conclude additional ICWA inquiry of paternal great grandmother and of Linda is not likely to bear meaningfully on the question of whether the children were Indian children.
DISPOSITION
The juvenile court's orders terminating Mother's parental rights are affirmed.
We concur: ROTHSCHILD, P. J. CHANEY, J.