Opinion
B301552
06-02-2020
In re A.L. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.L. et al., Defendants and Appellants.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant J.L. Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant M.D. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Stephen D. Watson, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. Nos. CK67166F & 17CCJP01223A) APPEALS from an order of the Superior Court of Los Angeles County, Victor G. Viramontes, Judge. Affirmed. John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant J.L. Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant M.D. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Stephen D. Watson, Deputy County Counsel, for Plaintiff and Respondent.
____________________
I. INTRODUCTION
Father J.L. (father) and mother M.D. (mother) appeal from an order terminating their parental rights to their children, A.L. and H.L., pursuant to Welfare and Institutions Code section 366.26. Mother contends that the Los Angeles County Department of Children and Family Services (Department) failed to provide adequate notice or comply with its duty of inquiry under the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) and California law (§ 224 et seq.). Father joins in mother's argument. Father also contends the juvenile court erred when it did not apply the parental benefit exception pursuant to section 366.26, subdivision (c)(1)(B)(i). We affirm.
Further statutory references are to the Welfare and Institutions Code.
II. BACKGROUND
A. Jurisdiction and Removal of A.L. and H.L.
On August 15, 2017, the Department filed a petition alleging that A.L. (who was then 17 months old) was subject to dependency jurisdiction pursuant to section 300, subdivisions (a), (b)(1), and (j) because, among other things, father's violence against mother and abuse of alcohol placed A.L. at risk of serious physical harm.
On that same date, the juvenile court conducted a detention hearing at which mother and father were both present. Mother and father denied Indian ancestry and the court found that there was no reason to know A.L. was an Indian child.
On October 19, 2017, the juvenile court declared A.L. a dependent of the court and ordered him removed from his parents' custody. The court ordered reunification services be provided for father and ordered father to participate in a domestic violence batterer intervention program, parenting classes, and individual counseling. It permitted father to have monitored visits with A.L.
On October 20, 2017, the Department filed a petition alleging jurisdiction over two-week old H.L., pursuant to section 300, subdivisions (a), (b)(1), and (j). The basis for jurisdiction was the same as that for jurisdiction over A.L.
On October 23, 2017, the juvenile court conducted a detention hearing. Although mother had earlier denied Indian ancestry, at the detention hearing, mother's counsel stated that she may have 40 percent Indian ancestry through her father (maternal grandfather). Mother added that she had recently learned of her Indian ancestry from her brother (maternal uncle), but she did not know the name of her tribe. Nor did mother know maternal grandfather or maternal uncle's telephone numbers, but she offered to obtain maternal uncle's telephone number and provide it to the court. The court ordered the Department to obtain further information from mother and to submit such information to the appropriate tribe. The court also ordered H.L. detained from father but released to mother.
On November 15, 2017, pursuant to a removal order, the Department removed H.L. from mother's custody.
On December 5, 2017, the juvenile court declared H.L. a dependent of the court and ordered her removed from her parents' custody. Father was granted reunification services and monitored visits. The court also ordered father to participate in a domestic violence counseling program, parenting classes, and individual counseling, and to submit to drug tests. B. ICWA Inquiry
The juvenile court granted mother reunification services with the children and permitted her to have monitored visits. The court subsequently ended reunification services for mother, and ultimately terminated her parental rights to the children. Mother challenges only the court's compliance with ICWA and does not otherwise contend it erred in terminating her parental rights.
During the first week of November 2017, a social worker spoke with maternal great uncle and maternal great aunt, who were assisting mother by caring for H.L.
On November 7, 2017, mother told a social worker that she was 40 percent Indian and that her tribe was "'American Indian.'" Mother stated that maternal grandfather was currently in a hospital in North Carolina. She claimed that she had no further information about her Indian heritage and declined to provide contact information for any family member whom the social worker could contact for additional information.
On December 1, 2017, a social worker spoke with maternal great aunt, who wished to visit the children.
On December 28, 2017, mother again failed to provide further information about her Indian ancestry to the Department.
The record does not include any further details about mother's communications with a social worker on this date.
On January 4, 2018, the Department sent ICWA notices regarding H.L. to the Bureau of Indian Affairs and the Secretary of the Interior. The ICWA notices identified maternal grandfather and maternal grandmother by name and listed maternal grandfather's state of residence as North Carolina. The notice stated that other information about the maternal grandfather was "[u]nknown."
On January 12, 2018, the juvenile court ordered the Department to follow up with mother and comply with its notice requirements under ICWA.
On January 31, 2018, a social worker left a telephone message for mother, asking if mother had any additional information about Indian ancestry.
On February 5, 2018, a social worker interviewed mother's cousin to determine whether she could serve as a monitor for visits and concluded that she could not.
On February 9, 2018, the juvenile court conducted a hearing on the ICWA notices. Regarding the Department's duty of inquiry, the court stated: "[M]other has claimed a possible Indian ancestry for [H.L.] The Department did have a conversation with . . . mother further. She stated that the tribe she believes is American Indian which is really not specific enough to identify any particular tribe for notice. [¶] The Department did send out notices to the Bureau of Indian Affairs and the Secretary of Interior including the names of the relatives that mother had identified as having possible Indian ancestry. I will find that these notices are appropriate." The court requested that the Department provide any update about ICWA notices at the next status hearing. The record reflects no further updates. C. 12 Months of Visits
Following their removal from their parents' custody, both children were placed with the same extended family member, Ms. L.
From December 2017 to April 2018, father participated in monitored visits with his children two days per week. Although father was mostly appropriate during visits, he also struggled in his interactions with the children. He became easily frustrated with A.L. and would say he was going to leave the visit or make a mean face that scared A.L. During one visit, he shouted at A.L. to "'stop!'" when A.L. hit H.L. As to H.L., father refused to change her diaper, stating that he did not feel comfortable doing so because he had witnessed his sister being molested as a child. H.L. would cry when father held her.
At the children's respective six-month review hearings, the juvenile court found there was a substantial probability that the children would be returned to father's custody within six months and permitted father unmonitored visits with both children.
By September 2018, father's visits with A.L. and H.L. were further improved. Father was affectionate and well-bonded with both children and provided consistent and appropriate care during visits. The Department found A.L. was comfortable with father and recommended returning A.L. to father's care.
Between October 13, 2018, and December 15, 2018, father had six overnight visits with A.L. and an extended Thanksgiving visit. A.L. seemed to be adjusting to father.
On December 10, 2018, father's live-in fiancée, Y.P., called the police to report a domestic violence incident with father. Y.P. told the police that father had punched himself in the face and chest, took scissors out of the kitchen cabinet, and started to cut his own throat, leaving red marks.
On January 10, 2019, Ms. L. contacted a social worker and requested that father not attend visits smelling of alcohol. The social worker directed Ms. L. to discontinue a visit if she suspected that father was under the influence of alcohol or drugs. When asked, father denied consuming alcohol before a visit.
On January 23, 2019, the Department filed a request to return father to monitored visits with A.L. and H.L. The juvenile court granted the request pending the next hearing.
On January 30, 2019, Ms. L. told a social worker that during the most recent visit, father and the children appeared to have lost interest in each another. Father had broken down crying and told Ms. L. that he would not "stress" about getting his children back and he knew that the children were in good hands with her. Father smelled of alcohol. D. A.L. and H.L.'s 12-Month Review Hearing
On February 14, 2019, the juvenile court conducted the 12-month review hearing for both children and concluded that returning the children to father's custody would create a substantial risk of detriment to them. The court terminated father's reunification services and set a hearing pursuant to section 366.26. E. Section 366.26 Report
On May 31, 2019, the Department filed a report pursuant to section 366.26. Ms. L. expressed interest in adopting the children. The Department noted that she met the children's needs and they were comfortable in her home. Ms. L. and the children had a healthy and bonded relationship.
Father continued to have one monitored visit a week. Ms. L. stated that father was not engaged during the visits and had minimal interactions with the children. F. Father's Section 388 Request
On August 13, 2019, father filed petitions pursuant to section 388 requesting that the children be returned to his custody or, alternatively, that he be provided reunification services and unmonitored visits. Father asserted that he was attending weekly individual counseling sessions, participating in substance abuse and parenting classes, attending college, and visiting the children weekly. Father also submitted letters in support. G. September 5, 2019, Interim Review Report
As of the September 5, 2019, interim review report, father continued to participate in hour-long monitored visits. Father appeared for one visit intoxicated, which caused Ms. L. to refuse the visit. He was not attentive to or patient with the children. On one occasion, he disciplined A.L. by slapping him on the face. Father often told Ms. L. that he did not believe that A.L. and H.L. were his biological children. The children appeared to be uncomfortable and insecure with father. Ms. L. offered to allow father to have longer visits but he declined, stating he had "'stuff to do and I'm allergic to your cats.'"
Father told a social worker that he no longer drank alcohol or used illicit drugs and claimed that his visits with the children were going well. According to father, he and the children were well bonded and he should be permitted unmonitored visits. Father claimed that he consistently requested more visits but Ms. L. was too busy to accommodate him. Further, father denied that he had engaged in an altercation with Y.P. H. Section 388/Section 366.26 Hearing
On October 15, 2019, the juvenile court conducted a hearing on father's section 388 petitions and on the termination of father's parental rights pursuant to section 366.26.
Father testified that he was still participating in parenting classes, counseling, anger management, and substance abuse programs. Father was learning how to speak with his children and how to discipline them appropriately. Father consistently visited his children and would speak, play, and read to them. Father denied slapping A.L., physically abusing Y.P., or cutting his own throat with scissors.
Ms. L. testified that father sometimes smelled of alcohol during visits. Further, A.L. told her that father had struck him on the cheek and pinched him when A.L. pushed H.L.'s head to the floor. A.L. told Ms. L. that he wanted to punch father. Ms. L. stated father's visits were mostly appropriate.
The juvenile court denied father's section 388 petitions. The court found father made a sincere effort and participated in a multitude of programs but had not completed the domestic violence program and did not accept responsibility for the domestic violence incident with Y.P. The court found that father had slapped A.L.
The juvenile court made a reference to a domestic violence incident that occurred in February 2019, which we infer was a reference to the domestic violence incident with Y.P. in December 2018.
As to the section 366.26 hearing, the juvenile court found by clear and convincing evidence that the children were adoptable. Then, the court concluded that the parental benefit exception did not apply, stating, "father has maintained regular visitation, but there is not a sufficient bond here to establish the exception provided for under a [section 366].26 hearing. [¶] In addition, I'm finding that any benefit accruing to the children from a relationship with . . . father is outweighed by the physical and emotional benefit the children will receive through the permanency and stability of adoption and that adoption is in the best interest of the children. [¶] The court finds it would be detrimental to the children to be returned to the parents."
The juvenile court terminated both mother and father's parental rights and ordered adoption as the permanent plan. Both parents timely appealed.
III. DISCUSSION
A. ICWA and Duty of Inquiry
Mother contends the Department failed to adequately inquire into the children's possible Indian ancestry. "ICWA reflects a congressional determination to protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards a state court must follow before removing an Indian child from his or her family. [Citations.] For purposes of ICWA, an 'Indian child' is a child 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. [Citations.]" (In re Michael V. (2016) 3 Cal.App.5th 225, 231-232 (Michael V.).)
The juvenile court made an explicit finding that ICWA did not apply to A.L., but did not make an explicit finding for H.L. We conclude that the court impliedly found that ICWA did not apply to H.L. (Michael V., supra, 3 Cal.App.5th at p. 234.)
"Juvenile courts and child protective agencies 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. (§ 224.3, subd. (a); In re M.R. (2017) 7 Cal.App.5th 886, 904 . . . .) If the court or social worker 'knows or has reason to know' the child is or may be an Indian child, the social worker 'is required to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable, by interviewing the parents, Indian custodian, and extended family members' and 'any other person that reasonably can be expected to have information regarding the child's membership status or eligibility' in order to 'gather the information required' in section 224.2, subdivision (a)(5). (§ 224.3, subd. (c); Michael V., supra, 3 Cal.App.5th at p. 233; In re K.R. (2018) 20 Cal.App.5th 701, 706-707 . . . (K.R.); Cal. Rules of Court, rule 5.481(a)(4)(A).)" (In re N.G. (2018) 27 Cal.App.5th 474, 481.) "However, neither the court nor [the Department] is required to conduct a comprehensive investigation into the minor's Indian status. (In re S.B. (2005) 130 Cal.App.4th 1148, 1161 . . . ; In re Levi U. [(2000)] 78 Cal.App.4th [191,] 199 [no duty to 'cast about' for information].)" (In re C.Y. (2012) 208 Cal.App.4th 34, 39 (C.Y.).)
Sections 224.2 and 224.3 were repealed and revised as sections 224.3 and 224.2, respectively. (Stats. 2018, ch. 833, §§ 4-7.)
"We review the [juvenile] court's findings whether proper notice was given under ICWA and whether ICWA applies to the proceedings for substantial evidence. [Citation.] Deficiencies in ICWA inquiry and notice may be deemed harmless error when, even if proper notice had been given, the child would not have been found to be an Indian child." (In re D.N. (2013) 218 Cal.App.4th 1246, 1251; In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467; In re Karla C. (2003) 113 Cal.App.4th 166, 178-179.)
Mother first argues that the Department did not conduct a sufficient ICWA inquiry because it did not interview her "extended family members," namely, maternal great uncle, two maternal great aunts, and mother's cousin. According to mother, because the Department contacted these relatives for other case- related reasons, it was obligated to, but did not, inquire about Indian ancestry or acquire contact information for maternal uncle and maternal grandfather. Mother's argument is unavailing.
First, the record is silent as to whether the Department asked these maternal relatives about the children's Indian ancestry. In other words, there is nothing in the record that indicates these relatives were not interviewed and mother "must take the record as she finds it." (In re Charlotte V. (2016) 6 Cal.App.5th 51, 58.)
Second, even assuming we accept mother's assertion that the Department failed to ask these relatives about Indian ancestry, they were not "extended family members" for purposes of ICWA, which 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 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); see § 224.1, subd. (c) ["As used in connection with an Indian child custody proceeding, the term[] 'extended family member' . . . shall be defined as provided in Section 1903 of the federal [ICWA]"].) Thus, the Department was not required to inquire of these relatives about the children's possible Indian ancestry under section 224.2, subdivision (e)(1).
A "second cousin" is "[a] person related to another by descending from the same great-grandfather or great-grandmother." (Black's Law Dict. (11th ed. 2019).)
Finally, to the extent that mother argues these maternal relatives are persons "that may reasonably be expected to have information" concerning the children's Indian tribe membership status or eligibility (§ 224.2, subd. (e)(2)), we disagree. Mother cites numerous cases with a range of facts to support her contention that the Department failed to satisfy its duty of inquiry. We focus our analysis on the distinct facts of this case, keeping in mind that the Department had no obligation to "'cast about'" for information. (C.Y., supra, 208 Cal.App.4th at p. 39.) Here, mother had identified only maternal uncle and maternal grandfather as having information about the children's Indian ancestry and declined to provide information about anyone else who might have such information. Further, mother did not have contact information for either maternal grandfather or maternal uncle and did not provide such contact information even after she told the court that she would do so for maternal uncle. Thus, as to the Department's purported failure to ask these relatives for contact information for maternal grandfather and maternal uncle, we find the Department conducted an adequate inquiry. (See id. at p. 41 [finding social services department "must inquire as to possible Indian ancestry and act on any information it receives, but it has no duty to conduct an extensive independent investigation for information"]; In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1413 ["the obligation is only one of inquiry and not an absolute duty to ascertain or refute Native American ancestry"].) Substantial evidence supports a finding that the Department complied with its inquiry duties.
Mother next argues that the Department did not comply with its ICWA obligations as to H.L. because the notice it provided "contained sparse information." We disagree. The Department's notice included all the information it had, which was maternal grandfather's name and state of residence.
Mother also argues the Department failed to give ICWA notice as to A.L. We conclude that any error in failing to give ICWA notice as to A.L. was harmless. (See In re Cheyanne F. (2008) 164 Cal.App.4th 571, 577 ["Deficiencies in an ICWA notice are generally prejudicial, but may be deemed harmless under some circumstances"]; accord, In re Breanna S. (2017) 8 Cal.App.5th 636, 653 (Breanna S.).) Because the Department complied with its ICWA duties as to H.L. and A.L. and H.L. share the same parents, there is no reason to believe that a different result would have occurred if ICWA notice had been sent regarding A.L. B. Parental Benefit Exception
We next consider father's contention that the juvenile court erred in failing to apply the parental benefit exception to the termination of his parental rights. "At a section 366.26 hearing, the juvenile court selects and implements a permanent plan for the dependent child." (In re Noah G. (2016) 247 Cal.App.4th 1292, 1299 (Noah G.).) At this stage of the proceedings, the preferred plan is adoption. (Breanna S., supra, 8 Cal.App.5th at p. 645.) "First, the court determines whether there is clear and convincing evidence the child is likely to be adopted within a reasonable time. [Citations.] Then, if the court finds by clear and convincing evidence the child is likely to be adopted, the statute mandates judicial termination of parental rights unless the parent opposing termination can demonstrate one of the enumerated statutory exceptions applies." (Id. at pp. 645-646.)
"The parental benefit exception applies when there is a compelling reason that the termination of parental rights would be detrimental to the child. This exception can only be found when the parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(B)(i).)" (In re Anthony B. (2015) 239 Cal.App.4th 389, 395 (Anthony B.); accord, In re E.T. (2018) 31 Cal.App.5th 68, 75-76.) For the benefit prong of the exception, "[t]he issue . . . is not whether there was a bond between [f]ather and [the child]. The question is whether that relationship remained so significant and compelling in [the child's] life that the benefit of preserving it outweighed the stability and benefits of adoption." (Anthony B., supra, 239 Cal.App.4th at p. 396.)
Various factors affect the parent-child bond, including "[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 . . . ." (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) "[A] parental relationship is necessary for the exception to apply, not merely a friendly or familiar one." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350 (Jasmine D.).) "Evidence of frequent and loving contact is not enough to establish a beneficial parental relationship." (Noah G., supra, 247 Cal.App.4th at p. 1300.) "The juvenile court may reject the parent's claim simply by finding that the relationship maintained during visitation does not benefit the child significantly enough to outweigh the strong preference for adoption." (Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
There is a split of authority regarding the appropriate standard of review for determining whether the parental benefit exception to the termination of parental rights at a section 366.26 hearing applies. (See In re Caden C. (2019) 34 Cal.App.5th 87, 106, review granted July 24, 2019, S255839.) "We apply the substantial evidence standard of review to the factual issue of the existence of a beneficial parental relationship, and the abuse of discretion standard to the determination of whether there is a compelling reason for finding that termination would be detrimental to the child." (Anthony B., supra, 239 Cal.App.4th at p. 395.)
Father argues the juvenile court misapplied the law for the application of the parental benefit exception and cites in support the court's statement that "it would be detrimental to the children to be returned to the parents," which is not the standard by which to determine whether the exception applies.
We reject father's argument and conclude that the juvenile court applied the correct legal standard. The court expressly stated that there was "not a sufficient bond . . . to establish the exception provided for under" section 366.26, and "any benefit accruing to the children from a relationship with the father [was] outweighed by the physical and emotional benefit the children [would] receive through the permanency and stability of adoption and . . . adoption [was] in the best interest of the children." In context, the court's additional observation that it would be detrimental for the children to be returned to the parents was relevant to father's request, in his section 388 petitions, that the children be returned to his custody.
We next consider whether the juvenile court erred in concluding that the parental benefit exception did not apply. The court here found that even though father had maintained regular visitation with the children, any benefit the children enjoyed from their relationship with him did not outweigh the benefits of adoption. Substantial evidence supports the court's findings. A.L., who was three years old at the time of the section 366.26 hearing, had been removed from father's custody and placed with Ms. L. since he was 17 months old. H.L., who was two years old, had been detained from father since October 2017, the same month she was born, and had been in Ms. L.'s custody since November 2017. Thus, the children had spent most of their lives outside of father's custody.
Further, although it was undisputed that father had, at times, positive interactions with his children, substantial evidence supports a finding that the children did not enjoy significant benefits from their relationship with him. By January 2019, father and the children had lost interest in each other. Father appeared for visits smelling of alcohol and stated his belief that A.L. and H.L. were not his biological children. He slapped A.L. as a form of discipline and would not change H.L.'s diaper. Finally, by the time of the section 366.26 hearing, the children did not appear secure or comfortable with father.
On this record, the juvenile court did not abuse its discretion by finding that the parental benefit exception did not apply. "[I]t is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (Jasmine D., supra, 78 Cal.App.4th at p. 1350; accord, In re J.C. (2014) 226 Cal.App.4th 503, 533.)
IV. DISPOSITION
The order terminating parental rights is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
KIM, J. We concur:
RUBIN, P. J.
MOOR, J.