Opinion
A165307
02-03-2023
In re N.A.-O., a Person Coming Under the Juvenile Court Law. v. A.A., Defendant and Appellant. MARIN COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent,
NOT TO BE PUBLISHED
Marin County Super. Ct. No. JV27097A
Richman, J.
A.A. (mother) appeals from an order terminating her parental rights over her son N.A.-O. (N.). She contends the juvenile court erred in declining to apply the beneficial parent-child relationship exception to the preference for adoption. She also contends that inquiry into N.'s possible Indian heritage under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) and related California law (Welf. &Inst. Code, § 224 et seq.) was inadequate. We reject the first contention, but agree with the second, and so we will conditionally reverse the order and remand only for compliance with ICWA and related California law.
Undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
The Dependency Proceedings
Mother and D.O. (father) are the parents of N. In April 2021, the Marin County Department of Health and Human Services (Department) received an immediate referral after N. was born, due to mother and N. testing positive for amphetamines. During the Department's ensuing investigation, hospital staff raised concerns not only about substance abuse by both parents, but also domestic violence after observing an altercation they had at the hospital. The Department also learned that the parents were homeless and had been staying at a family shelter, where staff also suspected them of drug use and domestic violence. The parents denied drug use other than "vaping marijuana." Father denied any domestic violence in the relationship, but mother reported a recent incident of physical abuse between them.
Father is not a party to this appeal.
N. was taken into protective custody, and on May 4, 2021, the Department filed a dependency petition on behalf of N. pursuant to section 300, subdivision (b)(1). The petition alleged mother and father were unable to provide regular care for N. due to their substance abuse, and failed to protect N. from exposure to domestic violence, thereby placing N. at substantial risk of suffering physical harm.
On May 11, the court ordered N. detained, placed him in foster care, and granted supervised visitation. Pending the combined jurisdiction and disposition hearing, the Department offered the parents seven visits. The parents missed four of them.
On June 15, the allegations of the petition were sustained, N. was declared a dependent of the juvenile court, and reunification services were ordered for both parents. The court granted supervised visitation twice per week, for a total of two hours per week.
During the reunification period, the parents were offered 27 supervised visits. Eleven of those visits were canceled due to the parents either failing to confirm their attendance in advance or failing to show up even after they did confirm. Separately, mother missed two additional visits. She also left early on at least three visits without warning.
At the six-month review hearing held on December 14, the court found the parents were not actively involved in their case plan and made no progress toward alleviating or mitigating the causes necessitating placement. The court terminated reunification services to both parents. Pending the section 366.26 hearing, the court reduced supervised visitation to once per month, for a total of one-and-a-half hours per month.
On May 10, 2022, mother filed a section 388 petition, asking the court to reinstate reunification services. The court summarily denied the petition.
In advance of the section 366.26 hearing, the Department summarized in two reports that in the approximately one-year span of the dependency proceedings, it scheduled a total of 40 visits, 16 of which the parents missed, thus missing 40 percent of visits. In addition to visitation arranged by the Department, the foster family offered the parents 14 visits between February 13, 2022 and May 8, 2022. The parents attended 13 of those visits, either in person or over the phone or videoconference.
This number does not appear to include the two additional visits mother had missed on her own during the reunification period. By our calculation, mother missed 18 of the 40 visits (or forty-five percent) scheduled by the Department throughout the proceedings.
The Department reported that overall, the visits went "generally well." The parents "show[ed] love and affection towards [N.]," frequently telling him that they loved him. The parents also played with him, fed him, and changed his diapers. In addition, N. "appear[ed] happy to see his parents." The Department, however, observed that N. "equally disengage[d] easily from the visit[s] without emotional disruption." This was true for the visits arranged by both the Department and the foster family. The Department commented that "[a]lthough the visits [were] appropriate, one of the most vital aspects of forming a relationship with a newborn is consistency." According to the Department, the parents, in failing to consistently visit N., "missed the opportunity to grow a stronger relationship with [him]."
On May 18, 2022, the court held the contested section 366.26 hearing, where the social worker who monitored visitation and mother testified as witnesses. The social worker's testimony mainly recounted the Department's reports concerning visitation. Mother testified about her visits with N. that were organized by the foster family. She expressed gratitude towards the foster family for allowing her to spend time with N., pointing to, for example, the opportunity to go to the grocery store or park with N., celebrate his birthday at the zoo, and virtually participate in his bedtime routine. Mother also testified that N. appeared excited and grabbed the phone during the virtual visits.
Following that testimony and the parties' arguments, the court found that N. was likely to be adopted and then turned to the question of whether the beneficial parental relationship exception to adoption (§ 366.26, subd. (c)(1)(B)(i)) applied. The court first and primarily focused on the parents' level of visitation, which it found had been inconsistent throughout the case. It also commented that the visits were "affectionate" and "loving," but that N. did not experience any distress whenever he left the parents to go back to the care of the foster family. Additionally, the court stated that the parents never occupied a "parental role," that N.'s "primary attachment" was to his foster family, and that it was in N.'s best interests to be placed in an adoptive home. Accordingly, the court ruled that the beneficial relationship exception did not apply to either parent, and terminated parental rights.
Mother timely appealed.
The ICWA Inquiry
Along with the dependency petition, the Department submitted the Indian Child Inquiry Attachment form (ICWA-010 form), checking the box indicating it had "completed inquiry by asking the . . . parents . . . about [N.'s] Indian status." The Department also checked the box next to the paragraph stating, "This inquiry . . . gave me reason to believe the child is or may be an Indian child. (If yes, continue to 4.)" And paragraph 4 says, "I contacted the tribes that the child may be affiliated with and worked with them to establish whether the child is a member or eligible for membership in the tribe(s)...." That box was not checked.
According to the detention report, the social worker asked both parents if they had Indian heritage. Father "stated that his paternal grandmother, [I.O.], his paternal great-grandmother, and his paternal great-grandmother's husband had Indian heritage." He also stated that he did not know if he himself had Indian heritage, that he did not receive ICWA benefits, and that neither he nor his family lived on tribal land. Mother denied having Indian heritage. The report then states, "At this time, the Department does not believe there is reason to know either child is an Indian child based on criteria set forth in . . . [s]ection 224.2(d)(1)-(6)."
The report names I.O. as "his paternal grandmother." I.O. is father's mother, and thus N.'s, not father's, paternal grandmother. Given this, it is unclear whether "his" in the sentence "his paternal grandmother, [I.O.], his paternal great-grandmother, and his paternal great-grandmother's husband had Indian heritage" refers to N. or father.
At the detention hearing, the following exchange occurred:
"THE COURT: Do you have any reason to believe, sir, that . . . either you or your parents are registered . . . with the tribes? [¶] . . . [¶]
"[Father]: I just - I really don't know.
"THE COURT: Has anybody ever told you you have Indian ancestry?
"[Father]: Yeah, they said growing up: You have Indian in you, saying things like that, but
"THE COURT: Do you have any contact with your biological family, extended family on your father's side, anybody, grandmothers, aunts, uncles?
"[Father]: No, I don't have contact with them.
"THE COURT: So who's told you that you have Indian ancestry?
"[Father]: On my mom's side, my aunts and my uncles and cousins on my mother's side.
"THE COURT: But your mother is not registered with a tribe?
"[Father]: No.
"THE COURT: And you're not registered with a tribe?
"[Father]: She knows my father though and
"THE COURT: I think on this record I'm going to make a finding that ICWA does not apply, subject to, of course, any further information. I'm not making a determination one way or the other, sir, I just have to make that inquiry to figure it out. If you get some different information, we'll deal with it?
"[Father]: Okay."
In the minute order entered for the detention hearing, the court states "that ICWA does not apply, subject to further inquiry."
There is no indication in the record that the Department or the court revisited the issue of father's, and thus N.'s, possible Indian heritage.
DISCUSSION
The Juvenile Court Properly Declined to Apply the Beneficial Relationship Exception
Mother challenges the termination of her parental rights over N., contending the juvenile court erred in finding the beneficial relationship exception did not apply. We disagree.
The Law
Last year, in In re Eli B. (2022) 73 Cal.App.5th 1061 (Eli B.), we summarized the applicable law:
"The beneficial relationship test is an exception to the presumptive rule of terminating parental rights after reunification efforts have failed, in order to free a child for adoption. (In re J.D. (2021) 70 Cal.App.5th 833, 852 (J.D.).) . . . [T]he Supreme Court [in In re Caden C. (2021) 11 Cal.5th 614 (Caden C.)] has recently explained its scope and proper application. [Citation.]
"As clarified by the Supreme Court,' "the parent asserting the parental benefit exception must show, by a preponderance of the evidence, three things. The parent must show regular visitation and contact with the child, taking into account the extent of visitation permitted. Moreover, the parent must show that 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 the parent must show that terminating that attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home. When the parent has met that burden, the parental-benefit exception applies such that 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."' (J.D., supra, 70 Cal.App.5th at p. 852, quoting Caden C., supra, 11 Cal.5th at pp. 636-637.)
"We review the juvenile court's ruling on the first two elements for substantial evidence. (J.D., supra, 70 Cal.App.5th at p. 853.) We review its ruling on the third element under a hybrid standard, reviewing its factual determinations concerning the detriment analysis for substantial evidence but its ultimate weighing of the relative harms and benefits of terminating parental rights for an abuse of discretion. (Ibid.)" (Eli B., supra, 73 Cal.App.5th at pp. 1067-1068.)
Under the substantial evidence standard, we" 'must review the whole record in the light most favorable to the [order] below to determine whether it discloses . . . evidence which is reasonable, credible, and of solid value ....'" (In re Angelia P. (1981) 28 Cal.3d 908, 924, superseded by statute on other grounds as stated in In re Cody W. (1994) 31 Cal.App.4th 221, 229-230.) "[A] reviewing court should 'not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts.'" (Caden C., supra, 11 Cal.5th at p. 640.) "Rather, we draw all reasonable inferences in support of the findings, view the record most favorably to the juvenile court's order, and affirm the order even if other evidence supports a contrary conclusion." (In re Megan S. (2002) 104 Cal.App.4th 247, 251; accord, Caden C., at p. 641.)
Analysis
Mother first argues that the juvenile court's finding that she failed to maintain regular visitation was "based on a misunderstanding of the law." She complains that the court at the section 366.26 hearing mentioned the visits scheduled by the Department, but not the visits arranged by the foster family, and on that basis, concludes that the court failed to consider the latter evidence.
Mother's argument assumes that the basis of the court's analysis of the first element was limited only to matters the court stated on the record. We do not read the record to reflect that the court's conclusion was so limited. A juvenile court is not required to recite specific findings of fact relative to its conclusions regarding each of the three elements of the beneficial relationship exception prior to finding the beneficial relationship exception does not apply. (In re A.L. (2022) 73 Cal.App.5th 1131, 1156.) Although a juvenile court's statement of its findings or an explanation of the reasons for its decision may be helpful in conducting appellate review, it is not a legal requirement. (Ibid.) Furthermore,"' "[w]e must indulge in every presumption to uphold a judgment" '" (id. at p. 1161), including that the court "considered all the pertinent matters presented to it and ruled in favor of the prevailing party." (Lydig Construction, Inc. v. Martinez Steel Corp. (2015) 234 Cal.App.4th 937, 945.) Applying these principles, we presume that the court considered all material evidence on the issue of visitation. Indeed, the record indicates the court had "read and considered" the Department's reports prepared for the section 366.26 hearing, which contained a log of all visits, both those arranged by the Department and the foster family. We also presume the court found such evidence insufficient to establish that the visitation element of the exception had been met.
The question, then, is whether substantial evidence supports the court's adverse finding on the visitation element. We conclude there is. As explained in Caden C., "The first element-regular visitation and contact-is straightforward. The question is just whether 'parents visit consistently,' taking into account 'the extent permitted by court orders.' [Citation.] Visits and contact 'continue[ ] or develop[ ] a significant, positive, emotional attachment from child to parent.' [Citation.] Courts should consider in that light whether parents 'maintained regular visitation and contact with the child' (§ 366.26, subd. (c)(1)(B)(i)) but certainly not to punish parents or reward them for good behavior in visiting or maintaining contact-here as throughout, the focus is on the best interests of the child." (Caden C., supra, 11 Cal.5th at p. 632.)
The Department scheduled a total of 40 visits for the parents throughout the proceedings. Mother missed 18 of those visits. When she and father were asked why they missed visits, they usually explained that they were "probably running late, I don't know." In addition to missing visits, mother left early on three visits without warning. When asked her reasons for leaving, mother replied on one occasion, "[I]t's just too hard." On another visit, mother claimed she left early so she can "buy an avocado next door." When asked why she had not returned to the visit, mother stated, "[O]h I don't know, I thought it was over." It is true that in the three months before the section 366.26 hearing, the foster family offered the parents 14 visits with N., 13 of which they attended. However, even when adding those visits to the 40 visits arranged by the Department, mother missed 19 of 54-and thus over one third-of all visits available to her throughout the proceedings.
Viewing the record in the light most favorable to the juvenile court's order, we conclude substantial evidence supports its finding that mother failed to take advantage of visitation to" 'the extent permitted by court orders.'" (Caden C., supra, 11 Cal.5th at p. 632; see Eli B., supra, 73 Cal.App.5th at p. 1070 [substantial evidence supported finding father did not maintain "regular visitation and contact" where his visitation with his children "was sporadic and also entailed significant gaps"]; In re I.R. (2014) 226 Cal.App.4th 201, 212 [error to apply beneficial relationship exception because "[t]he undisputed evidence is that there was not regular visitation"; although precise number of visits was in conflict, testimony of both mother and social workers established there were "significant lapses in visits"].) This is true even if mother's visitation with the foster family was more consistent in the three months before the section 366.26 hearing. (See In re Breanna S. (2017) 8 Cal.App.5th 636, 647 [affirming order terminating parental rights where there was "ample" evidence parents visited "only sporadically during the first 18 months of the dependency proceedings" even though visits became more regular during final six months before section 366.26 hearing], disapproved on other grounds in Caden C., at pp. 637, fn. 6, 638, fn. 7.)
Mother nevertheless argues that "[a] review of all the visitation [she] has had with N. throughout the course of these proceedings leads to the conclusion that [she] did regularly and consistently visit with her child." This is based on her assertion that the court should have, but did not, evaluate the visitation element "from [N.'s] point of view." From N.'s point of view, mother argues, "he does not know which visits were arranged by the Department and which were arranged by the foster parents, he only knows that he has been getting to see his parents on a regular basis. Regularly enough that he gets excited and lunges for the phone during bed time." She also points to evidence that during her visits arranged by the foster family, she was able to celebrate N.'s birthday with him and participate in his bedtime routine. Mother criticizes the court for taking a "formulaic approach" by calculating the number of visits scheduled and missed and failing to consider "[N.'s] point of view." We reject these contentions.
For one, mother's criticism of the court's "formulaic" approach is not well taken. As noted, the Supreme Court explained that the first element of the beneficial relationship exception" 'is straightforward,'" only asking whether" 'parents visit consistently,' taking into account 'the extent permitted by court orders.'" (Caden C., supra, 11 Cal.5th at p. 632.) An assessment of this element based on a calculation of the number of visits permitted by court orders and number of visits attended by the parent is consistent with this "straightforward" approach.
Additionally, mother's argument, in essence, asks us to reweigh the evidence in her favor. In support of her argument, she relies only on evidence of the visits arranged by the foster family. She does not confront the evidence of the visits scheduled by the Department and her failure to attend a portion of them. Mother's failure to set forth all material evidence on the issue allows us to treat her argument as waived. (See In re S.C. (2006) 138 Cal.App.4th 396, 402, citing Foreman &Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) But even if not waived, her argument fails because it invites us to disregard evidence that supports the order and to draw inferences contrary to the order. Our task on substantial evidence review is not to reweigh the evidence, and we are required to draw inferences in support of the order and view the record most favorably to the order. (See Caden C., supra, 11 Cal.5th at p. 641; In re Angelia P., supra, 28 Cal.3d at p. 924; In re Megan S., supra, 104 Cal.App.4th at p. 251.) As discussed above, the record when viewed in accordance with these principles is sufficient to sustain the court's finding that mother failed to regularly visit with N.
Mother's failure to meet her burden of proving the first element alone is sufficient for us to affirm the court's determination that the beneficial relationship exception did not apply. (See In re I.R., supra, 226 Cal.App.4th at p. 212 [lack of regular visitation "fatally undermine[s] any attempt to find the beneficial parental relationship exception"]; accord, Eli B., supra, 73 Cal.App.5th at pp. 1068-1072.) Nevertheless, we will address mother's arguments pertaining to the second and third elements. According to mother, some statements by the court suggest its ruling may have been based in part on considerations that are inconsistent with Caden C., a circumstance that in mother's view requires a remand. In particular, she contends the court impermissibly considered her progress in her case plan and the extent to which she occupied a "parental role" in N.'s life. Ultimately, we conclude mother fails to establish that reversal is required.
Preliminary, mother's arguments presume that the court ruled against her on the second and third elements. We agree. The court did not expressly rule on either element. However, apparently in relation to the second element-whether she established N. had a substantial, positive, emotional attachment to mother-the court did comment that "the visits were affectionate, loving, and there is no negatives from [the parents]," but that there was "no distress at separation of leaving the parents to go back to the care of the resource parents." Taken in context, these statements do not appear to be a finding in mother's favor on the second element. And in the face of an ambiguous record, we are bound to construe the court's ruling on the second element "in a manner that supports its order terminating [the parent's] parental rights." (Eli B., supra, 73 Cal.App.5th at p. 1069.) Thus, we must presume the court found mother did not establish the second element. We reach the same conclusion as to the third element of whether terminating mother's relationship with N. would be detrimental to him. The court stated it was in his best interests for N. to be placed in an adoptive home, a statement that is unclear at best, and therefore must be construed as a finding against mother. (Ibid.)
As another preliminary matter, there are issues as to whether the alleged errors mother raises were forfeited. Not only did the section 366.26 hearing take place nearly one year after Caden C. was decided, but also the parties in closing arguments repeatedly referred to Caden C. and the three elements it set forth. As such, "it was incumbent upon mother to say so to avert the very problem she now says occurred. Had she done so, this appeal perhaps could have been avoided." (In re J.R. (2022) 82 Cal.App.5th 526, 531, fn. 3 (J.R.).)
In any event, mother's arguments are unpersuasive and provide no basis for reversal. Mother asserts that "as to the second and third elements," the court "inappropriately consider[ed] [her] progress in her case plan." Mother cites Caden C., which stated that "[p]arents need not show that they are 'actively involved in maintaining their sobriety or complying substantially with their case plan' [citation] to establish the exception." (Caden C., supra, 11 Cal.5th at p. 637.) The Supreme Court explained that a parent's progress with his or her case plan is relevant only "to the extent [it] inform[s] the specific questions before the court," namely whether the child would benefit from continuing the relationship and be harmed by losing it. (Id. at p. 638.) Although mother correctly recites the law on this issue, we disagree that the court committed the error she complains of.
Here, as the Department asserts, when the court mentioned mother's history of substance abuse and lack of progress in her case plan, it did so "in the context of articulating a summary of the case." Specifically, it was recounting the reasons why family reunification services had been terminated at the six-month mark and why "this is a case that's on for permanency and selection and implementation." The court then transitioned into the "initial question" of "whether [N.] is generally and specifically adoptable." And after answering those questions in the affirmative, it stated, "So then the issue shifts, and the burden shifts to the parents to prove by a preponderance of the evidence that terminating parental rights would be detrimental to [N.]. . ." In analyzing that issue, the court did not mention mother's progress in alleviating the issues that led to dependency or in following her case plan. Read in context, the court's statements do not reflect it based its ruling on mother's case plan progress.
Mother next argues the "court also erred by inappropriately considering the extent to which [she] had fulfilled a 'parental role.'" She cites cases, which, in focusing on the second element, have concluded that that a juvenile court's determination that a parent does not occupy a "parental role" may be error if it considers certain attributes relevant only to whether the parent can take custody of the child and ignores the pertinent question of whether the child has a "significant, positive, emotional attachment" to the parent. (See In re L.A.-O. (2021) 73 Cal.App.5th 197, 209, 210-212 (L.A.-O.); J.D., 70 Cal.App.5th at pp. 852, 864-865; In re B.D. (2021) 66 Cal.App.5th 1218, 1225, 1229-1231 (B.D.); In re D.M. (2021) 71 Cal.App.5th 261, 270-271 (D.M.).) In these cases, the records either were insufficient to discern whether the juvenile courts had considered factors Caden C. held were not pertinent to the second element (see L.A.-O., at pp. 211-212; J.D., at p. 865), or affirmatively demonstrated that the juvenile courts had done so, (see D.M., at pp. 270-271; B.D., at p. 1228).
We need not decide if the juvenile court erred in its analysis of the second element because any such error was harmless. (See J.R., supra, 82 Cal.App.5th at p. 533 ["[W]hen, as in this case, the proper legal standard is already established and a party has had a full and fair opportunity to present all of their evidence on a contested issue, and yet in the end there is simply no evidence that could support a favorable finding for them, then any legal error in the court's reasoning or basis for its decision quite obviously is harmless"].) Here, the proper legal standard was established by the time of the section 366.26 hearing and mother had a full and fair opportunity to present all evidence on the issue. Because her evidence, even if credited, would not support a finding in her favor, reversal is unwarranted. (See J.R., at pp. 533-534 [holding harmless any legal error in the juvenile court's consideration of the second element where the mother presented no evidence to support a finding on that element].)
As explained in B.D., "A positive attachment between parent and child is necessarily one that is not detrimental to the child but is nurturing and provides the child with a sense of security and stability," and "an emotional attachment is one where the child views the parent as more than a mere friend or playmate and [whose] interactions with the parent were not ambivalent, detached, or indifferent." (B.D., supra, 66 Cal.App.5th at p. 1230.) The court may consider factors such as" '[t]he age of the child, the portion of the child's life spent in the parent's custody, the "positive" or "negative" effect of interaction between parent and child, and the child's particular needs,'" as well as how the child "feel[s] about, interact[s] with, look[s] to, or talk about [his or her] parents." (Caden C., supra, 11 Cal.5th at p. 632.)
Mother, who had the burden of proving the applicability of the beneficial relationship exception, presented no evidence that N. had a substantial emotional attachment to her within the meaning of Caden C. Indeed, mother in her opening brief does not argue that she introduced evidence sufficient to prove this element. It is true, as the juvenile court found, and mother notes in passing, that N. was happy to see her, the visits were positive, and she was loving with N. But mother has not shown that such evidence would be sufficient to sustain a finding that N. had a substantial, emotional attachment to her. She does not explain how her relationship with N. rises to the level of "more than a mere friend or playmate." (B.D., supra, 66 Cal.App.5th at p. 1230.) Here, N. was removed from mother's custody shortly after he was born, and thus has spent virtually all of his life outside of mother's care. Additionally, mother missed over one third of visits available to her throughout the proceedings. While N. enjoyed visits with mother, he never put up any resistance or showed any distress when visits ended. There also was no evidence he appeared to miss mother when he was not with her. In addition, the record indicates that while N. was indeed happy to see mother at visits, his reaction was not unique to mother. He was described as generally "a very friendly and social child," who "loves to meet new friends" and "is quick to give anyone he meets a hug or kiss." As summed up by the Department, because "one of the most vital aspects of forming a relationship with a newborn is consistency," mother, by failing to take full advantage of opportunities to visit N., "missed the opportunity to grow a stronger relationship with [him]."
Thus, despite mother's evident love for N., the evidence that N. enjoyed his visits with her is simply not enough for a parent to prove the kind of attachment that the beneficial relationship exception requires. (See, e.g., In re Helen W. (2007) 150 Cal.App.4th 71, 81 [affirming order terminating parental rights despite evidence mother fed and changed children during visits, was called "Mom," when children were young and spent most of their lives out of mother's custody]; In re Jason J. (2009) 175 Cal.App.4th 922, 938 [affirming order terminating parental rights despite evidence that father was "affectionate and appropriate" with son, son was comfortable with father and called him "Daddy," because there was "no evidence" that boy "has the type of emotional attachment to [father] that would cause him to be greatly harmed if parental rights were terminated"]; In re Autumn H. (1994) 27 Cal.App.4th 567, 571, 572-573, 575-576 [affirming order terminating parental rights concerning child detained at age one who spent three-quarters of her life in foster care, despite evidence of friendly visits between parent and child].) Consequently, because the record does not permit a finding that N. had a substantial, emotional attachment to mother, any error in evaluating the second element of the exception was harmless.
In sum, mother provides no basis for us to reverse the court's ruling that the beneficial relationship exception did not apply.
The Juvenile Court's ICWA Finding Was Error and Requires Remand
Mother next argues that the Department and the juvenile court failed to fulfill their duties to adequately inquire into N.'s possible Indian ancestry pursuant to California law implementing ICWA, and thus there is insufficient evidence to support the court's finding that ICWA did not apply. We agree.
The Law
" 'ICWA is a federal law giving Indian tribes concurrent jurisdiction over state court child custody proceedings that involve Indian children living off of a reservation. [Citations.]'" (In re Benjamin M. (2021) 70 Cal.App.5th 735, 740 (Benjamin M.).) Congress enacted ICWA" 'to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.'" (In re Isaiah W. (2016) 1 Cal.5th 1, 8.)
" '" 'ICWA itself does not impose a duty on courts or child welfare agencies to inquire as to whether a child in a dependency proceeding is an Indian child. [Citation.] Federal regulations implementing ICWA, however, require that state courts "ask each participant in an emergency or voluntary or involuntary child-custody proceeding whether the participant knows or has reason to know that the child is an Indian child." [Citation.] The court must also "instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child." '"' [Citations.]" (In re J.C. (2022) 77 Cal.App.5th 70, 77 (J.C.).) California has adopted statutes and rules that "implement, interpret, and enlarge upon" ICWA. (In re S.B. (2005) 130 Cal.App.4th 1148, 1157.)
Under state law, "At the first appearance in court of each party, the court shall ask each participant present in the hearing whether the participant knows or has reason to know that the child is an Indian child. The court shall instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child." (§ 224.2, subd. (c); Cal. Rules of Court, rule 5.481(a)(2)(A).) The court must also order each parent to complete an ICWA-020 form. (Rule 5.481(a)(2)(C).)
Undesignated rule references are to the California Rules of Court.
Additionally, under state law, the juvenile court and the county welfare department "have an affirmative and continuing duty to inquire whether a child for whom a [dependency] petition . . . has been filed, is or may be an Indian child." (§ 224.2, subd. (a).) "Section 224.2 '" 'creates three distinct duties regarding ICWA in dependency proceedings.'" '" (J.C., supra, 77 Cal.App.5th at p. 77.)
First, section 224.2, subdivision (b) requires the county welfare department to ask "the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an
Indian child and where the child, the parents, or Indian custodian is domiciled." "Although commonly referred to as the 'initial duty of inquiry,' it 'begins with the initial contact' (§ 224.2, subd. (a)) and continues throughout the dependency proceedings." (J.C., supra, 77 Cal.App.5th at p. 77.)
Extended family members include adults who are the 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); § 224.1, subd. (c) [adopting federal definition].)
Second, if that inquiry provides "reason to believe that an Indian child is involved in a proceeding," the court and county welfare department must conduct a "further inquiry" regarding the possible Indian status of the child "as soon as practicable." (§ 224.2, subd. (e).) The required further inquiry includes (1) interviewing the parents and extended family members to gather relevant information, specified by statute (§ 224.3, subd. (a)(5)), regarding the details of the child's birth, family members, and possible tribal affiliation; (2) "[c]ontacting the Bureau of Indian Affairs and the State Department of Social Services for assistance in identifying the names and contact information of the tribes in which the child may be a member, or eligible for membership in"; and (3) contacting tribes the child may be affiliated with and anyone else "that may reasonably be expected to have information regarding the child's membership status . . . or eligibility." (§ 224.2, subd. (e)(2)(A)-(C); In re D.S. (2020) 46 Cal.App.5th 1041, 1049.)
Third, if those inquires result in a "reason to know" that an Indian child is involved, notice must he provided to the pertinent tribes. (§ 224.3, subds. (a), (b).)
Furthermore, the California Rules of Court impose a documentation requirement on the Department. Rule 5.481(a)(5) provides: "The petitioner must on an ongoing basis include in its filings a detailed description of all inquiries, and further inquiries it has undertaken, and all information received pertaining to the child's Indian status, as well as evidence of how and when this information was provided to the relevant tribes. Whenever new information is received, that information must be expeditiously provided to the tribes."
"' "The juvenile court must determine whether proper notice was given under ICWA and whether ICWA applies to the proceedings."' [Citation.]" (In re Y.W. (2021) 70 Cal.App.5th 542, 552.)" 'The juvenile court may find ICWA does not apply following "proper and adequate further inquiry and due diligence" by [the Department] because "there is no reason to know whether the child is an Indian child" or because "the court does not have sufficient evidence to determine that the child is or is not an Indian child"' [citation], but the court may not find that ICWA does not apply when the absence of evidence that a child is an Indian child results from a [Department] inquiry that is not proper, adequate, or demonstrative of due diligence." (In re Josiah T. (2021) 71 Cal.App.5th 388, 408, citing In re D.F. (2020) 55 Cal.App.5th 558, 570-571 [in turn citing § 224.2, subds. (i)(2) and (g)].)
We review the juvenile court's ICWA findings under the substantial evidence test, but "where the facts are undisputed, we independently determine whether ICWA's requirements have been satisfied." (In re D.S., supra, 46 Cal.App.5th at p. 1051.)
Analysis
Mother contends, and we agree, that the Department failed to satisfy its duty of "initial inquiry" under section 224.2, subdivision (b), which required it to ask the child, parents, extended family members, and others who have an interest in the child whether the child is or may be an Indian child. The record reflects that the Department was in contact with the paternal grandmother. Although the Department asked the parents about N.'s possible Indian heritage, there is no indication in the record that it also inquired of extended family members, including N.'s paternal grandmother.
"But this is not simply a case involving what is . . . referred to as the Department's initial duty of inquiry." (In re Rylei S. (2022) 81 Cal.App.5th 309, 319 (Rylei S.).) The duty of further inquiry is also at issue. Here, in the ICWA-010 form attached to the section 300 petition, the Department checked the box stating that its inquiry of the parents concerning N.'s Indian status gave it "reason to believe the child is or may be an Indian child." "Because it had reason to believe an Indian child may be involved, the Department was obligated under section 224.2, subdivision (e), and rule 5.481(a)(4), to 'make further inquiry regarding the possible Indian status of the child' and 'to make that inquiry as soon as practicable.' [Citations.]" (Rylei S., supra, 81 Cal.App.5th at p. 319, fn. omitted.) That duty of further inquiry required the Department to interview, "as soon as practicable," extended family members to develop specific biographical information, contacting the Bureau of Indian Affairs, and "[c]ontacting the tribe or tribes and any other person that may reasonably be expected to have information regarding the child's membership, citizenship status, or eligibility." (§ 224.2, subd. (e)(2)(A)-C).)
The Department did not satisfy these duties. Here, there was no contact with extended family members to gather relevant biographical information. There also is no indication the Department attempted to contact the Bureau of Indian Affairs or anyone that may reasonably be expected to have information regarding N.'s membership in any Indian tribe, such as father's paternal relatives whom he identified as having Indian heritage, as well as his maternal aunts, uncles, and cousins who told him he had "Indian in [him]."
Responsibility for these errors and omissions does not rest solely with the Department. The juvenile court also did not satisfy its duties under ICWA and California law. As mother notes, the record does not show the court asked the parents to complete a Parental Notification of Indian Status (form ICWA-020), as required under rule 5.481(a)(2)(C). And the record contains no such forms.
In addition, the court failed to ensure the Department had satisfied its duties of inquiry before finding ICWA did not apply. "[T]he court may not find that ICWA does not apply when the absence of evidence that a child is an Indian child results from a [Department] inquiry that is not proper, adequate, or demonstrative of due diligence." (In re Josiah T., supra, 71 Cal.App.5th at p. 408; § 224.2, subds. (i)(2) and (g).) Here, the record fails to show the court inquired into what efforts the Department made to contact N.'s extended family members, including the paternal grandmother with whom it had been in contact, as well as other paternal relatives whom father had identified as having Indian heritage. Moreover, even though the court ruled the ICWA did not apply "subject to further inquiry," it never revisited the issue at any subsequent hearing. This was error. (See Rylei S., supra, 81 Cal.App.5th at p. 320 [juvenile court had a duty to ensure the child protective agency made the relevant inquiries and its failure to do so was error]; J.C., supra, 77 Cal.App.5th at pp. 79-80 [same, noting "[t]here is no indication in the record that, after the detention hearing, the juvenile court gave ICWA another thought in the almost three years of this dependency case"]; see also In re Antonio R. (2022) 76 Cal.App.5th 421, 431 (Antonio R.) ["Although section 224.2, subdivision (b), places on the Department the duty to inquire, including of extended family members, section 224.2, subdivision (a), makes clear that the 'affirmative and continuing duty to inquire' whether a child is or may be an Indian child rests with both the Department and the court"].)
Despite these omissions, the Department argues there was no error here, apparently on the grounds that it had no duty to inquire of anyone beyond mother and father. It raises three arguments, with the first asserting "there was no reason to believe or reason to know that [N.] was an Indian child, therefore the trial court properly declined to order further reason to believe or reason to know inquiry and notice." The Department bases this argument on father's statements at the detention hearing that neither he nor his mother is a member of an Indian tribe; that his mother has Spanish ancestry; that his maternal relatives had told him he had Indian ancestry; that he did not know whether his biological father was a member of an Indian tribe; and that he did not have any contact with his paternal relatives. This argument is unavailing.
The "reason to believe" and "reason to know" language relied on by the Department pertains to its duties of further inquiry (§ 224.2, subd. (e)) and notice (§ 224.3, subds. (a), (b)), respectively. The Department's argument, however, overlooks its duty of initial inquiry (§ 224.2, subd. (b)), which "applies from the outset of the proceedings." (In re S.R. (2021) 64 Cal.App.5th 303, 314; Antonio R., supra, 76 Cal.App.5th at p. 429.) As explained in Rylei S., "Regardless of a parent's response concerning his or her possible Indian ancestry . . . when questioned by the court at the initial appearance, if, as here, a child has been detained and placed in the temporary custody of a child protective agency, section 224.2, subdivision (b), requires the agency to ask the child, the parents, extended family members and others who have an interest in the child whether the child is, or may be, an Indian child." (Rylei S., supra, 81 Cal.App.5th at p. 318, fn. omitted.) Thus, the Department had a duty to interview extended family members regarding N.'s Indian status, regardless of father's statements at the detention hearing.
Further, to the extent the Department argues no duty of further inquiry existed in this case, we disagree. The Department's argument that there was no "reason to believe" N. was an Indian child to trigger further inquiry conflicts with its representation on the ICWA-010 form that its inquiry of the parents gave it "reason to believe" N. may an Indian child. The Department fails to reconcile this inconsistency.
Putting that aside, we reject any suggestion that father's statements at the detention hearing effectively negated a reason to believe N. is an Indian child. Although father stated that neither he nor his mother were members of an Indian tribe and his maternal relatives had Spanish ancestry, that he did not have contacts with his own father or paternal relatives, and that he was unsure if his father was registered with a tribe, he did not retract his earlier statements to the social worker that he believed his paternal relatives had Indian heritage.
The Department's second argument is that "there is no evidence the Department was able to make contact with any relatives, including the paternal grandmother, by the time of the section 366.26 hearing," and "therefore [mother] has not met her burden of proof to show violation of the ongoing duty to inquire." This argument is also unconvincing. The Department "has the obligation to make a meaningful effort to locate and interview extended family members to obtain whatever information they may have as to the child's possible Indian status." (In re K.R. (2018) 20 Cal.App.5th 701, 709.) Also, as noted, rule 5.481(a)(5) requires the Department to document its inquiries. Thus, the dearth of information pertaining to its efforts to locate and contact extended family members is chargeable to the Department. The Department "cannot omit from its reports any discussion of its efforts to locate and interview family members who might have pertinent information and then claim that the sufficiency of its efforts cannot be challenged on appeal because the record is silent." (In re K.R., supra, 20 Cal.App.5th at p. 709.)
We also note that in connection with its second argument, the Department mentions in passing that the parents failed to bring support persons, such as family members, to the Child and Family Team meeting, despite being asked to do so. If the Department is suggesting that the parents bear some fault for its failure to contact extended relatives, it is mistaken. "The duty to develop information concerning whether a child is an Indian child rests with the court and the Department, not the parents or members of the parents' families." (Antonio R., supra, 76 Cal.App.5th at p. 430; accord, Benjamin M., supra, 70 Cal.App.5th at p. 742 ["the agency has a duty to gather information by conducting an initial inquiry, where the other party-here [the] parent . . . has no similar obligation"].)
Perhaps recognizing its failure to adequately investigate into N.'s Indian status, the Department, in its third argument, states that it "has since made contact with the paternal grandmother, who reports there [are] no . . . tribal affiliations whatsoever [in] the family." While this appeal was pending, the Department filed a motion to consider post judgment evidence, along with its respondent's brief. Specifically, the Department requested that we consider the declaration of a social worker, stating that a subsequent ICWA inquiry had been conducted with the paternal grandmother, who disclaimed any knowledge of Native American ancestry. Mother opposed the motion on various grounds, including that the evidence contained unsworn hearsay statements. We subsequently denied the motion. Suffice to say, the unreliable nature of the evidence alone justified our refusal to consider it. Thus, the Department's third argument fails.
Even if were to consider the evidence as requested, it would not be dispositive because it would at best create an evidentiary conflict between the information obtained from the paternal grandmother and father's statements that his paternal relatives have Indian heritage, a conflict that must be resolved by the juvenile court in the first instance. (See Philippine Exp. & Foreign Loan Guar. Corp. v. Chuidian (1990) 218 Cal.App.3d 1058, 1090 ["The power to take evidence in the Court of Appeal is never used where there is conflicting evidence in the record . . ."].) Also, the evidence relates only to the paternal grandmother, and does not cure the Department's failure to satisfy its further inquiry duty to contact the Bureau of Indian Affairs or State Department of Social Services and anyone else, such as the paternal relatives father stated have Indian heritage or the maternal relatives who told him he himself had Indian heritage, who might have information regarding N.'s membership or eligibility in a tribe. (§ 224.2, subd. (e)(2)(A)-(C).)
Having found the court erred in making its ICWA finding, we turn to the issue of prejudice. The appellate courts are divided on what showing of prejudice warrants reversal for ICWA inquiry errors, and the issue is currently pending before our Supreme Court. (In re Dezi C. (2022) 79 Cal.App.5th 769 (Dezi C.), rev. granted Sept. 21, 2022, S275578.)
At one end of the spectrum is the" 'clear rule that requires reversal in all cases where the ICWA inquiry rules were not followed.'" (In re G.H. (2022) 84 Cal.App.5th 15, 32; accord, In re A.R. (2022) 77 Cal.App.5th 197, 207; J.C., supra, 77 Cal.App.5th at p. 80.) This rule has been referred to as the "automatic reversal" rule. (See Dezi C., supra, 79 Cal.App.5th at p. 777; but see In re K.H. (2022) 84 Cal.App.5th 566, 618-619 (K.H.) [cautioning against labeling it as a reversible per se rule and instead interpreting the relevant cases as "involv[ing] records so undeveloped that the inadequacy of the inquiry is readily apparent and there simply is no basis on which to find substantial evidence would support a contrary conclusion"].)
At the other end of the spectrum is the presumptive affirmance approach, which provides that in order to show prejudice, "a parent asserting failure to inquire must show-at a minimum-that, if asked, he or she would, in good faith, have claimed some kind of Indian ancestry." (In re A.C. (2021) 65 Cal.App.5th 1060, 1069 (A.C.).)" 'Where the record below fails to demonstrate and the parents have made no offer of proof or other affirmative assertion of Indian heritage on appeal, a miscarriage of justice has not been established and reversal is not required.'" (Ibid., accord, In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430-1431 (Rebecca R.) [asserted failure to ask father whether he had Indian ancestry was harmless where father did not "make an affirmative representation of Indian heritage" on appeal].)
Other courts have developed a middle ground approach. In Benjamin M., the court held that a defect in the agency's initial inquiry requires reversal where "the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child" and the "probability of obtaining meaningful information is reasonable." (Benjamin M., supra, 70 Cal.App.5th at p. 744.) Another middle ground approach was taken in Dezi C. There, the court held that a deficient inquiry under ICWA is harmless unless the record contains information suggesting a "reason to believe" the child is an Indian child. (Dezi C., supra, 79 Cal.App.5th at p. 779; accord, In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1014.)
The court in K.H. looked at the issue through a slightly different lens. It explained that the relevant rights under ICWA belong to Indian tribes, which have a statutory right to receive notice when an Indian child may be involved so they can determine whether the child is an Indian child, and "prejudice to those rights lies in the failure to gather and record the very information the juvenile court needs to ensure accuracy in determining whether further inquiry or notice is required." (K.H., supra, 84 Cal.App.5th at p. 591.) The question for the reviewing court is whether the trial court's discretionary determination of whether the agency conducted an adequate and diligent ICWA inquiry is supported by substantial evidence, or whether the agency's efforts "fall so short of the mark that the evidence is patently insufficient to support the court's determination, and [the court] abuses its discretion in finding the agency's inquiry was proper, adequate, and discharged with due diligence." (Id. at p. 604.) Considering the appropriate standard for reversal, the K.H. court concluded that "where the opportunity to gather the relevant information critical to determining whether the child is or may be an Indian child is lost because there has not been adequate inquiry and due diligence, reversal for correction is generally the only effective safeguard." (Id. at p. 610.)
Mother argues that the "automatic reversal" rule is the proper test for harmless error. Alternatively, she argues in her reply brief that we should apply any of the standards other than those requiring her to come forward with new evidence on appeal-which we understand her to be referring to the presumptive affirmance rule. The Department acknowledges the existence of the competing standards for prejudice, but takes no position as to which line of authority should be followed. In fact, it offers no substantive response to mother's arguments, asserting we need not reach the issue of prejudice.
Here, reversal is required under each of the harmless error rules except the presumptive affirmance rule from cases such as A.C., which we decline to follow for reasons we explain.
As noted, mother appears to object to the presumptive affirmance rule to the extent it requires her to affirmatively demonstrate prejudice through submission of evidence on appeal. Numerous courts, including a different panel of the same court that decided A.C., have shared that and other criticisms of the approach. (See K.H., supra, 84 Cal.App.5th at pp. 612-614; citing In re Y.M. (2022) 82 Cal.App.5th 901, 913-915; Dezi C., supra, 79 Cal.App.5th at pp. 777-778; Benjamin M., supra, 70 Cal.App.5th at pp. 743-744; A.C., supra, 65 Cal.App.5th at pp. 1074-1078 (dis. opn. of Menetrez, J.).) As explained in K.H., courts have found the approach "suffers from three main shortcomings": it would routinize consideration of new evidence on appeal, which is generally disfavored; it shifts the burden of investigation onto parents in dependency proceedings; and it does not sufficiently serve the interests of the Native American tribes because prejudicially deficient inquiries will go uncorrected if an appealing parent is unwilling or unable to make a meaningful proffer on appeal. (See K.H., at pp. 612-614 [and cited cases].) These criticisms are well taken.
Moreover, essential to the prejudice inquiry in Rebecca R., a case followed by A.C. and cases cited therein, was the fact that the father was complaining on appeal that he was not asked about his Indian ancestry. Thus, the court found it incumbent upon the father to demonstrate prejudice on appeal by stating what he obviously knew. (Rebecca R., supra, 143 Cal.App.4th at p. 1431.) Here, in contrast, mother is the appealing parent, and the issue is the ancestry of the other parent. As such, unlike the situation in Rebecca R., we cannot say that "the knowledge of any Indian connection is a matter wholly within the appealing parent's knowledge...." (Ibid.) Indeed, there is nothing in the record to indicate that mother has any knowledge of father's ancestry. As explained in Benjamin M., if the presumptive affirmance rule is "read as saying a parent must claim she herself has Indian ancestry, the rule would apply to deny Mother relief because she has disclaimed such ancestry. If read somewhat more broadly as saying a parent must claim the child has Indian ancestry, then Mother could make that claim based only on knowledge of Fathe r's ancestry, which she has no legal duty or necessary logical reason to know." (Benjamin M., supra, 70 Cal.App.5th at p. 745.) Thus, "the facts of this case show why [the presumptive affirmance approach] is contrary to the framework of ICWA and to the flexible, case-by-case approach that a harmless error analysis usually entails." (Ibid.)
For these reasons, we will move on to analyze the error here under the other prejudice standards. Ultimately, we need not choose among the remaining standards because, under any of them, the error here was not harmless.
Under the "automatic reversal" approach, reversal would clearly be required. Under Benjamin M., the Department's deficient inquiry was not harmless. The paternal grandmother was available, and the record indicates that there was readily obtainable information that was likely to bear meaningfully on whether N. is an Indian child, regardless of the outcome of the inquiry. (Benjamin M., supra, 70 Cal.App.5th at pp. 744-745.) The error also would not be harmless under Dezi C., which stated that "a reviewing court would have 'reason to believe' further inquiry might lead to a different result if the record indicates that someone reported possible American Indian heritage and the agency never followed up on that information." (Dezi C., supra, 79 Cal.App.5th at p. 779.) Unlike in Dezi C., which found the deficient inquiry harmless where both parents signed ICWA-020 forms attesting they had no Indian ancestry (id. at p. 776), the record here contains no such forms from either parent. Additionally, as noted, father informed the Department that his paternal relatives had Indian heritage, although he did not know the tribal affiliation. Mother thus has shown a "reason to believe" that a further inquiry might lead to a different result. (Id. at p. 779.)
Finally, as mother asserts in her reply brief, "where the opportunity to gather the relevant information critical to determining whether the child is or may be an Indian child is lost because there has not been adequate inquiry and due diligence, reversal for correction is generally the only effective safeguard." (K.H., supra, 84 Cal.App.5th at p. 610.) Here, the Department's inquiry, limited only to the parents, "fell well short of that required to gather the information needed to meaningfully safeguard the rights of the tribes ...." (Id. at p. 620.) Under this standard, too, the error here cannot be said to be harmless.
DISPOSITION
The order terminating parental rights is conditionally reversed. The matter is remanded with directions for the juvenile court and the Department to comply with the inquiry and, if appropriate, notice provisions of ICWA and related state law. If, after compliance with the law, the juvenile court concludes ICWA does not apply, the order terminating parental rights shall immediately be reinstated. If, after proper inquiry and notice to applicable tribes, the court finds that ICWA does apply, the court shall proceed in conformity with ICWA and related state law.
We concur: Stewart, P.J., Miller, J.