Opinion
B325331
12-27-2023
In re HADLEY H., a Person Coming Under the Juvenile Court Law. v. STELLA H., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Carol A. Koenig, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Tracey Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. 18CCJP07791 Kristen Byrdsong, Judge Pro Tempore. Conditionally affirmed with instructions.
Carol A. Koenig, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Tracey Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
ROTHSCHILD, P. J.
Stella H. (Mother) and Christopher H. (Father) (not a party to this appeal) are the parents of Hadley H., born July 2013. Mother appeals from orders denying her request for a bonding study and terminating her parental rights over Hadley. In challenging the latter order, Mother argues that the court reversibly erred in concluding the parental-benefit exception did not apply. (See Welf. &Inst. Code, § 366.26, subds. (c)(1)(B) &(c)(1)(B)(i).) Mother also argues that respondent, Los Angeles Department of Children and Family Services (DCFS), did not satisfy its initial duty of inquiry under California law implementing the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA).
All subsequent statutory references are to the Welfare and Institutions Code.
We conclude the court did not reversibly err in denying Mother's request for a bonding study or in concluding Mother had failed to establish the parental-benefit exception applies. We conditionally affirm with instructions that DCFS comply with its initial inquiry duty under ICWA in the manner both parties agree on appeal DCFS failed to do.
FACTUAL BACKGROUND
A. Initiation of Instant Dependency Proceedings
In December 2018, Hadley, now age 10, was taken into protective custody when Mother was involuntarily hospitalized after a suicide attempt. Based on Mother's substance abuse and mental health issues, DCFS then detained Hadley from Mother (and Father). On these same bases the juvenile court ultimately sustained a section 300 petition declaring Hadley a dependent of the court. Specifically, the petition identified, and the court agreed, inter alia, that Mother's unresolved issues with abusing opiates, morphine, amphetamine, methamphetamine, and prescription medication, and her diagnoses of oppositional defiant disorder, anxiety, angry outbursts, depression with suicidal and homicidal ideation and self-mutilation behavior, rendered her incapable of providing Hadley with regular care and supervision.
Father was incarcerated at the outset of the dependency proceedings and is not scheduled for release until August 2023. He had not had contact with Hadley since she was approximately 2 years old, did not want to reunify her, and was not involved in the proceedings below.
At the disposition hearing, the court ordered Hadley removed from Mother (and Father) and ordered Mother to participate in various services related to mental health, substance abuse, and parenting, and that she submit to weekly and random drug testing. The court granted Mother monitored visitation.
On December 20, 2018, Hadley was placed with S.G. (Hadley's preschool teacher) and her husband, M.G. (collectively, the caregivers), with whom Hadley remain[ed] placed as of the most recent information in the record.
B. Termination of Reunification Services
Mother's visits with Hadley during the initial reunification period were positive, but based on Mother's failure to make substantial progress with her case plan over the extended 18-month reunification period, the court terminated her reunification services on September 4, 2020.
In April 2021, Mother petitioned under section 388 to reinstate reunification services based on her being in substantial compliance with her case plan. Both DCFS and Hadley's caregivers supported this, and recommended to the court that continuing to work towards reunification with Mother was in Hadley's best interest. Hadley told DCFS that she wanted to return to Mother's home and frequently asked about it. DCFS further reported that Hadley was not likely to be adopted if parental rights were terminated, as she was experiencing severe tantrums and violent physical aggression toward the caregivers. In May 2021, the court granted Mother's petition, reinstated Mother's services, and again extended the reunification period.
Mother's visits continued to be positive, and Mother was "punctual and engaged" and "appropriate" during visits. She and Hadley "sang songs, read books, played board games, drew pictures, and talked about a variety of things (family, animals, etc.)." As a result, in August 2021, Mother's visits were liberalized to be unmonitored and longer in duration.
By September 2021, however, Mother had discontinued her participation in mental health services and was "unable to demonstrate that she can maintain a sober lifestyle." Specifically, "she had a diluted [drug] test on [August 23, 2021], then tested positive for methamphetamines and amphetamine on [August 31, 2021]," yet denied drug use. She did not appear for any drug tests in October 2021 and on one occasion in September 2021, and rejected DCFS efforts to assist her in re-enrolling in substance abuse treatment. DCFS restricted Mother's visits to being monitored and once a week, after which Mother became "inconsistent with visits in that she arrive[d] late or she [was] a no show." Hadley "appeared to be upset when unsupervised visits were reverted to monitored visits" and "was in physical distress in that she cried and asked several questions about 'why things had changed.'" Hadley also "verbally expressed how upset she was when . . . [M]other was inconsistent for visits." Although Hadley was generally "observed to be happy and social," "she [would] shut[ ] down (stop[ ] talking, change[ ] the topic of conversation, shout[ ], become[ ] defiant, [or] throw[ ] things) when her feelings [were] addressed or . . . [M]other's name [came] up in a conversation. Hadley reported feeling mad at . . . [M]other" and "wrote a letter explaining how angry she [was]." Hadley requested Mother no longer participate in family therapy sessions.
Around this time Hadley's caregivers also indicated that they would be willing to provide a permanent adoptive home for Hadley. Hadley began referring to her caregivers as "mom and dad" and referring to their daughters as "sisters."
In January 2022, based on Mother's relapse, failure to reenroll in services, and inconsistent visits with Hadley, the court again terminated Mother's services and set a section 366.26 hearing to determine a plan for Hadley's permanent placement.
C. Reports in Connection with Section 366.26 Hearing
The DCFS reports for the section 366.26 hearing describe a strong bond between Mother and Hadley, but also the emotional and behavioral toll the inconsistency and unpredictability of Mother's visits took on Hadley. For example, the reports included DCFS's assessment that Hadley "demonstrat[ed] a bond with . . . [M]other" but that "throughout the history of the case[,] . . . [M]other continuously arrive[d] late and cancel[ed] visits when upset," which the caregivers reported was very difficult for Hadley and caused her to appear sad and angry. The caregivers reported that Hadley became anxious and would cry herself to sleep when "[Mother] had not checked in with her."
Consistent with this, one DCFS report relays statements from Hadley's long-time therapist that it "[was] evident that . . . [M]other and [Hadley] have a strong bond with one another," and that when Hadley learned she would no longer have visits with Mother if adopted, "she appeared to be devastated." The therapist nevertheless concluded that "continued contact with . . . [M]other seems like it will negatively affect Hadley's mental health in the end," given the inconsistency of Mother's visits and Hadley's negative reaction to that inconsistency.
The reports also reflect an increasing level of tension between Mother and the caregivers, which at times affected Mother's visits with Hadley. The reports described the maternal caregiver, S.G., as making negative comments, sometimes in front of Hadley, regarding the food, activities, or gifts Mother had brought for Hadley during visits. On some occasions, S.G. threw away or did not permit Hadley to take home clothes Mother had purchased for Hadley, despite Hadley expressing a desire to keep them.
In anticipation of a July 2022 birthday visit, the caregivers instructed Hadley she was only allowed to take home one gift from Mother. Mother presented Hadley with two bags of gifts and a chocolate ice cream cake. Hadley chose one gift, but both the social worker and Mother pushed her to choose another gift as well. Mother became upset and walked away cursing, then returned and told the social worker that she was going to have Hadley removed from the caregivers. "Hadley appeared to be in physical distress as . . . [M]other was trembling out of frustration." Mother walked away a second time and began cursing again. The social worker then terminated the visit.
Hadley said Mother scared her during this visit and requested a break from visiting Mother, so the two had no visits in August 2022. Visits were to resume in September, but Mother did not show up for the first two visits, and Mother and Hadley did not interact with each other in any significant way during the September 22, 2022 visit that did take place.
On September 26, 2022, DCFS met with the caregivers to admonish them not to speak negatively about Mother in Hadley's presence, and to make clear that Hadley must be allowed to accept gifts from Mother, subject only to reasonable restrictions, such as limiting the amount of sugary foods. At an October 26, 2022 hearing, the court also reiterated orders already in place requiring the caregivers not to speak negatively about Mother in Hadley's presence, and admonished S.G. that her continuing to do so was "cruel" and causing Hadley emotional harm. The caregivers informed the court that Hadley's therapist had educated them on the importance of adhering to these rules, and that they would no longer make any negative comments about Mother or prevent her from giving Hadley gifts. The record does not reflect that the caregivers continued to do so after the July 2022 birthday visit.
None of the scheduled visits took place in October or November 2022, on some occasions because a monitor was not available, on some occasions because Mother failed to confirm the visit (as she was required to do), and on some occasions because Mother confirmed a visit but did not show up.
In November 2022, DCFS met twice with Hadley privately (although still in the caregivers' home) to explain to her the significance of adoption as opposed to legal guardianship. During the first meeting, Hadley stated she wanted the caregivers to adopt her, but was worried about this hurting Mother's feelings. During the second meeting, Hadley "emphatically stated that she wanted to move forward with the plan of adoption." At this point, the caregivers indicated they were only interested in adopting Hadley and were no longer open to legal guardianship.
D. Request for Bonding Study
In July 2022, Mother requested a bonding study in anticipation of the section 366.26 hearing. The court granted the request in August 2022, ordering that the study be performed at Mother's (or Mother's counsel's) expense. A few weeks later, Mother requested that the court revise the order to permit Mother's counsel to select a private evaluator, or, in the alternative, that the court cover the cost of a court-appointed evaluator. Mother further requested that someone other than the caregiver transport Hadley to the evaluation.
DCFS objected to these requests, which the court denied. Ultimately, the court vacated its earlier order for a bonding study, instead ordering DCFS to file a Last Minute Information addressing Mother and Hadley's relationship. The court explained that it had ordered the bonding study only because the court "[did not] feel [DCFS] really addressed [Hadley's] . . . response and reaction to the visits [with Mother]," and that instead a Last Minute Information could address "all of these issues in terms of [Hadley's] response to the . . . visiting with Mother." The court provided no further explanation as to why it vacated the initial order.
E. Termination of Parental Rights
The court repeatedly continued the section 366.26 hearing for various reasons. It ultimately took place on November 29, 2022. DCFS recommended that parental rights be terminated and that adoption with the caregivers be the permanent plan for Hadley. Mother argued that the parental-benefit exception to termination of parental rights applied based on Mother's significant and unique bond with Hadley. Both DCFS and Hadley's counsel acknowledged the special bond between Hadley and Mother, but argued any benefits to Hadley therefrom were outweighed by the care and security her current adoptive home provided. Hadley's counsel also represented to the court that she had met privately with Hadley in anticipation of the hearing, and Hadley had again confirmed that she wanted the caregivers to adopt her.
Mother requested a further continuance because Hadley's regular therapist was on medical leave and not available to testify or prepare a current report, and the replacement therapist needed more time to build rapport with Hadley and formulate an opinion regarding Hadley's relationship with Mother. The court denied the request.
The court terminated parental rights, explaining that, although it recognized "Hadley does have a special relationship with her mother," that relationship did not outweigh the stability Hadley needed and would have in a place she had come to view as home with caregivers she viewed as parents. The court further concluded Mother had not consistently visited with Hadley as required for the beneficial relationship exception to apply. The court noted it had "given Mother the specific opportunity to benefit from more visitation, [and] Mother failed to take advantage of that opportunity," by repeatedly missing visits throughout the extended reunification period, something that had been "detrimental" to Hadley.
Mother timely appealed. On appeal, Mother challenges both the termination of her parental rights and the court's ruling vacating its previous order for a bonding study.
DISCUSSION
A. Parental-Benefit Exception and Bonding Study
1. Legal Framework
During a section 366.26 hearing, the court must choose one of three permanent plans: adoption, guardianship, or long-term foster care, with adoption being the preferred plan. (See § 366.26, subd. (b); In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) The juvenile court must choose adoption as the permanent plan and terminate parental rights unless one of several specifically enumerated exceptions applies.
One of these is the so-called parental-benefit exception. It applies when "[t]he court finds a compelling reason for determining that termination would be detrimental to the child" because "[t]he 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) &(c)(1)(B)(i).) In order to establish the exception, the parent bears the burden by a preponderance of the evidence to show each of the following: "(1) regular visitation and contact, and (2) a relationship, the continuation of which would benefit the child such that (3) the termination of parental rights would be detrimental to the child." (In re Caden C. (2021) 11 Cal.5th 614, 631, italics omitted.) If the exception applies, parental rights may not be terminated, and the court must instead order guardianship or long-term foster care. (§ 366.26, subd. (c)(4)(A) &(B).)
2. Bonding Study
On appeal, Mother first argues the court abused its discretion in denying her a bonding study to assist in establishing the beneficial relationship prong of the parental-benefit exception. Mother argues the study would have assisted her in establishing the beneficial relationship requirement of the exception. But for reasons we explain below, the court did not reversibly err in concluding Mother failed to establish the separate regular visitation requirement. Thus, even assuming, arguendo, that the court should have ordered the study, the court still would have correctly concluded the parental-benefit exception did not apply, and therefore Mother was not prejudiced by the denial of her request.
3. Parental-Benefit Exception
Mother next argues the court erred in concluding the parental-benefit exception does not apply. On appeal, we review any factual determinations for substantial evidence. (In re Caden C., supra, 11 Cal.5th at pp. 639-640.) But where, as here, the trier of fact has "concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment [or order]. This follows because such a characterization is conceptually one that allows an attack on (1) the evidence supporting the party who had no burden of proof, and (2) the trier of fact's unassailable conclusion that the party with the burden did not prove one or more elements of the case [citations]." (In re I.W. (2009) 180 Cal.App.4th 1517, 1528, overruled on other grounds by Conservatorship of O.B. (2020) 9 Cal.5th 989.) Thus, to the extent Mother challenges the juvenile court's finding that she failed to prove regular sufficiently consistent visits, we determine whether the evidence "compels a finding in favor of [her] as a matter of law." (In re I.W., supra, at p. 1528.)
We conclude it does not. Mother acknowledges on appeal, and the record before us supports, that over the course of the four-year dependency proceedings, she had "periods [when] she visited consistently and periods [when] she did not." She nevertheless urges that the record reflects fairly consistent visits, and claims this is all that is needed to satisfy the first element of the parental-benefit exception, citing In re D.M. (2021) 71 Cal.App.5th 261. (See id. at p. 270 [affirming finding of the father visiting" 'fairly consistently'" satisfied the first parental-benefit exception requirement where "[the] father's visitation was not perfect, [but] [the] father regularly visited the children over the course of the years-long dependency"].) But, unlike here, the Court of Appeal in In re D.M. was considering whether substantial evidence supported the juvenile court's finding that the father had visited the child with sufficient consistency to satisfy this element of the parental-benefit exception, meaning the appellate court was obligated to affirm the finding if"' "any substantial evidence, whether or not contradicted, . . . will support the conclusion of the trier of fact." '" (In re Alvin R. (2003) 108 Cal.App.4th 962, 971.) In the instant appeal, by contrast, we must consider whether the evidence "compels . . . as a matter of law" the conclusion that Mother visited consistently with Hadley, and "whether [that] evidence . . . leave[s] no room for a judicial determination that it was insufficient to support a finding." (In re I.W., supra, 180 Cal.App.4th at p. 1528.) This is a high bar, and the record does not contain such evidence. To the contrary, the evidence reflects numerous periods during which Mother was not even "fairly consistent" with visits. Other evidence that these periods were interspersed with times when she did visit regularly hardly compels the conclusion that her overall record of visits is consistent.
Finally, Mother argues that the caregivers' inappropriate behavior in connection with visits after the termination of reunification services prevented her from regularly visiting. This is of little assistance to her on appeal. First, we cannot say the record "leaves no room" for the court's finding of insufficient visitation based on reasons out of Mother's control, because the record plainly contains evidence that, on plentiful other occasions, Mother failed to confirm, show up for, or timely show up for visits. Second, this issue arose after the termination of reunification services, which is not the relevant period for assessing the regularity of a parent's visits for the purposes of the parental-benefit exception. (See In re Richard C. (1998) 68 Cal.App.4th 1191, 1196 ["under the dependency scheme described by the [California] Supreme Court . . . [a parent] [is] required to muster her evidence [of the parental-benefit exception] before the termination of reunification services"]; accord, In re Autumn H. (1994) 27 Cal.App.4th 567, 575 ["[a]t the time the court [terminates reunification services], the parent and child have been in the dependency process for 12 months or longer, during which time the nature and extent of the particular relationship should be apparent"].) This is consistent with the general shift in focus after the termination of reunification services away from "the preservation of a [child's] family ties" and toward "the child's interest in permanency and stability." (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339-1340.) The record does not compel the conclusion that the court erred in finding Mother had failed to prove the first element of the parental-benefit exception, and thus did not reversibly err in concluding the exception did not apply.
B. ICWA
When DCFS files a petition under section 300 concerning a child, it has "an affirmative and continuing duty to inquire whether [the] child . . . is or may be an Indian child" within the meaning of ICWA. (§ 224.2, subd. (a); In re Isaiah W. (2016) 1 Cal.5th 1, 9.) "This duty to inquire consists of two phases-the duty of initial inquiry and the duty of further inquiry." (In re Dominick D. (2022) 82 Cal.App.5th 560, 566.)
Mother contends-and DCFS agrees-that DCFS failed to comply with state law implementing the initial duty of inquiry under ICWA by neglecting to ask various extended family members about Hadley's possible Indian ancestry and/or about the ancestry of or contact information for Mother's biological parents. (See § 224.2, subd. (b) ["If a child is placed into the temporary custody of a county welfare department pursuant to Section 306 or county probation department pursuant to Section 307, the county welfare department or county probation department has a duty to inquire whether that child is an Indian child. Inquiry includes, but is not limited to, asking . . . extended family members . . . whether the child is, or may be, an Indian child"]; Cal. Rules of Court, rule 5.481(a)(1) [initial inquiry duty includes a duty to ask "extended family members . . . whether the child is or may be an Indian child"].)
Mother was adopted as an infant and has no knowledge of her biological parents.
The Courts of Appeal are not in agreement, however, as to whether California law requires DCFS to always inquire of extended family members as part of the initial inquiry duty. Some courts have concluded that, with limited case-specific exceptions, DCFS's initial inquiry duty requires DCFS to interview extended family members only if a child was taken into temporary custody without a warrant. (See, e.g., In re Andres R. (2023) 94 Cal.App.5th 828, 853, review granted Nov. 15, 2023, S282054.) Other courts have implicitly or explicitly held that" 'there is only one duty of initial inquiry, and that duty encompasses available extended family members no matter how the child is initially removed from [the] home.'" (In re C.L. (2023) 96 Cal.App.5th 377, 386.) Because Hadley was initially taken into protective custody without a warrant, however, under either interpretation of the initial duty of inquiry, DCFS failed to fulfill its duty. This error was also prejudicial, because" 'the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child.'" (In re S.S. (2022) 75 Cal.App.5th 575, 582.) For example, DCFS could have asked the maternal extended relatives with whom DCFS was already in contact, such as the maternal grandfather, about Mother's possible Indian heritage, either through her adoptive family or biological family. (See, e.g., In re Y.W. (2021) 70 Cal.App.5th 542, 552-553 [mother's biological parents constitute extended family members for the purposes of initial ICWA inquiry].)
Neither party has explicitly represented that Hadley's initial detention was without a warrant, but our review of the appellate record and the register of actions before the juvenile court has yielded no warrant associated with Hadley's initial removal from Mother prior to the detention hearing.
DISPOSITION
The orders made at the section 366.26 hearing are conditionally affirmed. Upon remand, the juvenile court shall appoint counsel for Mother and Hadley, and direct DCFS to comply with its duties of inquiry under section 224.2 and to make the report to the court required by rule 5.481(a)(5) of the California Rules of Court as soon as practicable. If, after a hearing, the court determines that DCFS has fulfilled its duty of inquiry and finds that Hadley is not an Indian child, the order terminating parental rights shall remain in effect and become final. If the juvenile court finds that notice is required under section 224.3, it shall vacate its section 366.26 orders and proceed in accordance with ICWA and related California law.
We concur: CHANEY, J., WEINGART, J.