Opinion
F084771
03-27-2023
In re RICHARD B. et al., Persons Coming Under the Juvenile Court Law. v. JULIA B., Defendant and Appellant. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent,
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Carlie Flaugher, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Fresno County Super. Ct. Nos. 19CEJ300270-5, 19CEJ300270-6, 19CEJ300270-7, 19CEJ300270-8 &19CEJ300270-9, Kim Nystrom-Geist, Judge.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel C. Cederborg, County Counsel, and Carlie Flaugher, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
DE SANTOS, J.
Dependency jurisdiction was taken over mother, Julia B.'s, nine minor children. They were removed from mother's custody, and she was ordered family reunification services. She was unable to reunify and subsequently filed a petition requesting the court to vacate its order terminating her reunification services and order the children be returned to her on family maintenance services (Welf. &Inst. Code, § 388). After hearing evidence on mother's petition and a contested section 366.26 hearing, the court denied the petition and terminated her parental rights as to the five youngest children- Richard B., Sabrina B., Ariel B., Nathan B., and Beatrice B.-the subjects of the present appeal. Mother appeals from the orders denying her section 388 petition and terminating her parental rights.
All further undesignated statutory references are to the Welfare and Institutions Code.
On appeal, mother contends: (1) the court erred by denying her section 388 petition; (2) the court erred by declining to apply the beneficial parent-child relationship exception to termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)); (3) the court erred by declining to apply the sibling relationship exception to termination of parental rights (§ 366.26, subd. (c)(1)(B)(v)); and (4) the court erred by finding the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) was inapplicable because the juvenile court and the Fresno County Department of Social Services (department) failed to comply with the initial inquiry provisions of ICWA and related California law.
The department concedes the ICWA findings were erroneous and that remand is appropriate to ensure ICWA inquiry compliance.
We conditionally reverse the juvenile court's findings that ICWA does not apply and remand for proceedings to ensure ICWA compliance. In all other respects, we affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
On July 29, 2019, law enforcement responded to mother's home due to a domestic violence incident between mother and another woman. Mother was reported to have been "knock[ed] out unconscious" by a member of the household for seven to eight hours. A few days later, on July 31, 2019, law enforcement responded to mother's home a second time and observed a fight occurring between two men, with two women between them attempting to stop the fight. Eight of mother's minor children were present, with five of them found crowded in a back room closet scared and huddled together. The children reported mother was never home. It was also reported that mother's boyfriend, Salvador Salazar, was a registered sex offender and was currently incarcerated because he had had impermissible contact with mother's children. Law enforcement placed a hold on the children and made a referral to the department.
During the social worker's investigation, mother agreed to drug test and tested positive for amphetamines; she reported to the social worker her drug of choice was methamphetamine but denied it caused any issues.
Following a Team Decision Making meeting, the department determined it would file a dependency petition.
The petition was filed on August 2, 2019. It alleged mother's nine minor children came within the court's jurisdiction under section 300, subdivisions (b)(1) [failure to protect] and (c) [serious emotional damage] based on mother's substance abuse and their exposure to domestic violence in her household. At the time the petition was filed, Richard was seven years old, Sabrina was five years old, Ariel was four years old, Nathan was three years old, and Beatrice was two years old. Richard, Sabrina, Ariel, Nathan, and Beatrice's presumed father was Michael B.
Mother's four older children are not subjects of this appeal. Michael B. is not a party to this appeal and participated minimally in the underlying case. We omit facts pertaining to the older children and father that are not relevant to mother's issues on appeal.
Mother executed a "PARENTAL NOTIFICATION OF INDIAN STATUS" (ICWA-020) form indicating she had no Indian ancestry as far as she knew. Father was not asked to complete an ICWA-020 form as his whereabouts were unknown at the time.
On the day set for the detention hearing, August 5, 2019, mother and father were personally present, but the matter was continued to the following day so father could be appointed counsel.
At the detention hearing on August 6, 2019, mother was personally present, but father was not. The court acknowledged receipt of mother's ICWA-020 form, and mother confirmed she was claiming no Native American ancestry. The court detained the children from mother and ordered weekly visits. Richard, Sabrina, and Nathan were placed together, and Ariel and Beatrice were placed together in foster homes.
The department's jurisdiction report dated September 16, 2019, indicated that no ICWA inquiry had been attempted as to father.
At the jurisdiction hearing on November 12, 2019, the court found the children were described by section 300, subdivisions (b)(1) and (c) as alleged in the petition. The matter was continued for disposition. The department was granted discretion to advance mother's visits with the children to unsupervised.
Mother began engaging in voluntary services. She completed outpatient substance abuse treatment and began participating in domestic violence classes. The department advanced her visits to unsupervised in December 2019.
At the disposition hearing on February 11, 2020, the court adjudged the children dependents of the court and ordered them removed from mother's custody. Mother was to remain on unsupervised visits, with the department having discretion to offer up to extended visits. The court ordered that mother be provided with family reunification services, including a parenting class, a substance abuse assessment and recommended treatment, a mental health evaluation and recommended treatment, a domestic violence index and recommended treatment, and random drug testing. Father was present in custody at the disposition hearing, but no ICWA inquiry was made as to him on the record. The court's written orders for the hearing indicated the court found ICWA did not apply.
On April 21, 2020, the department filed a section 388 petition requesting that mother be put back on supervised visits with the children. The department alleged that mother had been observed with black eyes and had other adults present while the children were on visits. Two of mother's older dependent children, Denise and Alyssa, reported mother had not changed. Denise further reported mother was still in a relationship with Salazar. During one visit, Beatrice was observed to be alone and unattended outside mother's residence.
The court ordered mother's visits were to be supervised pending the section 388 petition being heard, but the matter got continued several times in the meantime.
In the department's six-month status review report dated July 24, 2020, it was reported that at the beginning of the reporting period, mother had continued engaging in her services and visitation, but in April 2020, she ceased participation in both. The department was unable to reach mother to assist her in re-engaging in services despite making several attempts beginning in February 2020 when her mental health service referral was closed due to noncompliance. In April 2020, mother agreed to attend a staffing regarding re-engaging in her services but failed to attend. In late May 2020, mother reached out to the social worker and explained that both her mother and her close friend had recently died and she became depressed but she was ready to re-engage in services. In June 2020, she re-engaged in all of her previously unfinished services and began visiting the children again. Upon re-commencement of drug testing, in June 2020, she tested positive for methamphetamine. She was reported to take accountability for her relapse and was consistent with her services after re-engaging. Since visitation was recommenced, mother was reported as being consistent and appropriate though she "ha[d] not been able to progress due to safety concerns with the children while on visits, her inconsistency with participation in services and re-engagement that occurred in June 2020, and her recent relapse of Methamphetamine on June 5, 2020."
At the time the report was written, mother was living in a one-bedroom apartment by herself and had stable full-time employment as an accountant. The department had concerns, however, that mother had maintained a relationship with Salazar. Mother denied communication with Salazar but the department reported it "ha[d] received numerous tips that [mother] continues to be in a relationship with [Salazar] and visits him in prison."
The report further indicated father was released from custody in May 2020, and his whereabouts again became unknown.
At the six-month status review hearing on September 1, 2020, the department withdrew their section 388 petition regarding regressing mother's visitation to supervised. The court ordered that mother could recommence unsupervised visits the following week. The court continued the children as dependents of the court and continued mother's reunification services.
The department's 12-month status review report dated September 25, 2020, indicated mother continued to participate in services. On September 5, 2020, mother began unsupervised visits with the children. She was consistent with visits and reported they were going well. The children reported that she was appropriate and that they felt safe in her care.
At the 12-month status review hearing on September 29, 2020, the court ordered the children continue as dependents of the court and for mother's reunification services to continue.
On January 11, 2021, the department filed another section 388 petition. The department again sought to reduce mother's visits from unsupervised to supervised. It was alleged Salazar's parole officer reported that Salazar was released on parole in March 2020 and was currently residing with mother and had registered her address with parole. He reported that mother was aware Salazar was a registered sex offender and was not allowed to have access to children. Mother denied to the social worker being in a relationship with Salazar and that he was living with her.
In the 18-month status review report dated January 12, 2021, and an addendum report dated April 27, 2021, the department recommended mother's reunification services be terminated and a section 366.26 hearing be set. Mother continued to have stable housing and employment. As of April 2021, mother had completed all her classes, except her 52-week Child Abuse Intervention Program (CAIP), of which she had completed 30 sessions. Mother generally tested negative for illicit substances but had several drug testing no shows due to her employment. Mother's visits were reported to go well. Mother was reported to engage with the children age appropriately and initiate conversations about their interests but struggled with there being many children in the visits. The department concluded that mother "has not demonstrated any commitment or willingness to maintain consistency with her case plan components required in order to address the safety concerns, which led to the children's removal. Furthermore, the [department] continues to have concerns with [mother] not benefiting from services, as she continues to not make changes in her behavior. There are concerns that [mother] continues to expose her children to unsafe environments for further abuse, specifically sexual abuse as she allowed Mr. Salazar access to her children and maintained a relationship. Therefore, the prognosis for reunification between [mother] and the children ... is poor."
The 18-month status review report further stated that father's whereabouts were discovered in December 2020, as he was again in custody in county jail. No ICWA inquiry was documented.
A contested 18-month status review hearing was conducted, and at the conclusion of the hearing on August 2, 2021, the court granted the department's section 388 petition and ordered mother's visits to be supervised. The court terminated mother's reunification services and set a section 366.26 hearing.
The department's section 366.26 report dated November 12, 2021, recommended adoption as the most appropriate permanent plan for Richard, Sabrina, Ariel, Nathan, and Beatrice and that parental rights be terminated.
Richard, Sabrina, and Nathan had been placed together since the outset of the case and had been with their care providers since July 31, 2019. Ariel and Beatrice had been placed together since the outset of the case and had been with their care providers since September 9, 2020. All of the children's care providers wished to adopt them. The report indicated all five children were developmentally on target with no significant emotional, behavioral, developmental, or medical problems. It was reported they appeared happy and looked to their care providers for direction, attention and to meet their needs. They reported feeling happy and expressed that they want to continue living with their care providers.
It was reported that during visits, mother discussed with the children how their day went, how they have been doing, school, books, drawings, movies, and other interests. Richard, Sabrina, Nathan, Ariel, and Beatrice all expressed they like visiting with mother and had no concerns during visits.
As to ICWA, the report indicated for the first time in the proceedings that father had completed the department's ICWA "Interview form" on August 5, 2019, claiming that none of the children nor their family members had Native American ancestry, but to date had not completed an ICWA-020 form. The report further indicated that on October 6, 2021, the department mailed an ICWA-020 form to father and had not received a response. On November 9, 2021, the department made another inquiry of mother, and she denied having Native American ancestry.
The "Interview form" is not in the record on appeal. Mother moved to augment the record to include this document, and this court granted the augmentation. In response to this court's order, a senior judicial assistant of Fresno Superior Court filed a declaration indicating no such document was filed. The declaration further indicated the department "has confirmed that the requested documents are the ICWA-010 forms. ... [A]n ICWA-010 form for father Michael B. was not filed."
On November 17, 2021, mother filed a section 388 petition requesting the court to change the order terminating her reunification services and instead return the children to her under family maintenance services. As to changed circumstances, it was alleged "Mother has completed the 52 weeks CAIP and now lives in a safe home with maternal great[-]aunt and her adult daughter, both of whom have been assessed and approved by [the department]. Mother is still gainfully employed, has family support and pays child support. Mother attends AA/NA meeting." As to why the order would be in the best interest of the children, mother alleged, "The request will be in the best interest of the children given that there is a strong bond among all of mother's children, and they also have positive emotional bond with their mother. Moreso [sic], the children would benefit from the new skills mother has acquired from her CAIP, mother's changed behavior and new environment."
The court set a hearing on mother's section 388 petition and a contested section 366.26 hearing as to Richard, Sabrina, Ariel, Nathan, and Beatrice. The court selected permanent plans other than adoption for the older children.
On the first day of the section 366.26 hearing, May 27, 2022, the court asked the department if there had been any subsequent ICWA inquiry. The department responded there had been "and there were no new updates." The court placed mother under oath and asked if she had any new information about the children's possible Native American ancestry. Mother responded that she did not. The court found the department had met its duty to inquire and investigate.
The court heard evidence for both mother's section 388 petition and the section 366.26 hearing at the same time on May 27, 2022, and June 17, 2022. The court took judicial notice of all prior orders and reports in the case. The court admitted into evidence visitation logs proffered by mother documenting visits between her and the children from August 2021 through January 2022.
The visitation logs described generally positive interactions between mother and the children. Mother engaged with the children, and the family ate together, watched movies, and played. The children and mother generally exchanged goodbyes and hugs at the end of visits, and there was no documentation of distress or difficulty on the part of the children.
Mother's older children, Alyssa and Denise, testified as to how mother has changed over the course of the dependency case. Alyssa testified that mother was "a lot more open to conversations and opinions on a deeper level than before. She shows more and she speaks more her mind regarding our relationships and conversations." Denise testified mother is "a different person" now. She explained that mother is more hands-on and wants to know more about what is going on in Denise's and her siblings' lives. Mother was also attending church which Denise testifies "has really helped [mother] a lot."
Eleanor B., the paternal grandmother testified on behalf of mother. She testified she is part of mother's support system and that she has seen a change in mother in that she is more positive. She observed interactions with mother and the children and observed the relationship to be loving. The children asked many questions about when they were going to be able to go home. The children hug and hang on to mother.
Sabrina testified on behalf of mother with her foster parents present for support. She testified she and her siblings played games and sometimes danced at visits. When asked if she wanted to continue to visit with her siblings, she responded that she did not. She testified after a visit that took place early in the case, she did not want to leave her visit with mother and started screaming when it was time to leave. Sabrina further testified she would be sad if mother stopped being her mother and wanted to continue visiting her. She had spent four years with her current care providers and liked living with them and wanted to continue living with them.
Mother testified she understood her children were removed for domestic violence and substance abuse issues. She explained she was not consistent with participating in services because her mother passed away two months after her children were removed, and two months after that, her friend passed away. She stopped participating in services completely because her visits had been reduced from unsupervised to supervised and she did not feel it was fair so she "hit a wall ... and wanted to give up."
Mother testified she understood her children were not returned to her because of her association with Salazar. Mother explained she began associating with Salazar and his brother around the time of her divorce from father and that she thought they could protect her from father. Mother explained that "it worked," but her judgment was "misguided" due to her being on drugs and she now sees it "was the worst thing that I could have decided to do." She no longer speaks to Salazar or anyone who has any association with him. She explained she does not want to expose her children to potential sexual abuse.
Mother further testified that June 2020 was the last time she used drugs. From her domestic violence classes, she learned to control where her thoughts led and that she can choose between dwelling in negative thoughts or thinking positively. From therapy, she learned coping skills and how to center herself when she gets overwhelmed. She testified she was employed and regularly attended church. She was living with her aunt and was planning on moving out into her own house. She believes the changes she has made are attributed to the reunification services that have helped her be a better parent and to function better in life.
Mother further testified that before the children were taken, she provided structure for them. After school, they would make dinner together, and all the children had set chores. They would all eat together at the table. The children also participated in extracurricular activities, and mother was involved with their activities. Mother testified she loves her children and they love her. They all have bonds with one another and miss each other. At visits, they all play together. She believes the children would suffer detriment if they were not to have contact with her.
Social worker Ruby Jaime testified on behalf of the department. She observed three visits between mother and the children and had reviewed visitation narratives from throughout the case. She testified visits are "pretty chaotic just because there are a lot of individuals in one small room," and "[t]he children tend to do their own thing." She explained mother tried to provide structure and engage with the children but the children were more focused on playing. Jaime did not observe the children engaging mother in conversation; mother would initiate conversations and be the first to say, "I love you." Jaime never observed the children initiate saying they love or miss mother.
Jaime further testified the children were thriving emotionally and physically in their current placements. She did not believe there was a detriment to the children for not being in mother's care based on how they had improved as individuals in out-of-home placement. Jaime testified that the children look to their care providers for their needs. They were all involved in extracurricular activities. Their grades and behavior had improved from the time they were removed to the time of the hearing. The children are happy to see mother and they share positive interactions with her. On cross-examination by mother's counsel, Jaime testified that mother loves and shows affection toward the children and shares a bond with them. It would not however impact them in being adopted as they have improved since being in placement and had expressed wanting to stay with their current care providers. Jaime explained adoption to the children, and they said they wanted to stay with their care providers and that they did not want to go back to living with mother. The children do not ask Jaime or their care providers for mother.
Jaime further testified that she had observed the children who live together play together. When the two sibling groups play together as one group, there is a lot of fighting and screaming necessitating redirection. The children never ask Jaime about their siblings and the children's care providers reported they only ask if it had been a while since seeing their siblings. The care providers had expressed interest in continuing visits between siblings.
On June 27, 2022, the court ruled on mother's section 388 petition. The court found mother had "barely" met her burden to show a change in circumstances in that she had completed her CAIP class; maintained employment, stable housing, and sobriety; and had cut off her association with Salazar, but that her request was not in the best interest of the children given that they were thriving in their prospective adoptive homes. Accordingly, the court denied mother's section 388 petition.
The court then heard argument on the section 366.26 issues. The department argued the children were adoptable and that no exception to termination of parental rights applied. Counsel for the minors argued the same. Mother argued that the beneficial parent-child relationship exception and sibling relationship exception applied. Counsel for father indicated he had no argument as he had no contact with father "in some time."
After hearing argument, the court made another finding that the children did not come within the provisions of ICWA.
In ruling on the section 366.26 issues, the court found there was not "any question" that the children were adoptable. As to whether the beneficial parent-child relationship exception to termination of parental rights applied, the court noted there was "no issue" as to the first element of regular visitation and contact and that mother maintained regular visitation and contact. The court, however, found mother had not met her burden to prove the second element-that the children would benefit from continuing the relationship with mother-nor the third element-that the children would suffer detriment if their relationship with mother was terminated-and accordingly, found the exception did not apply.
As to the sibling relationship exception, the court found mother had not demonstrated there would be a substantial interference with the children's sibling relationship such that it would be compelling to determine that the termination would be detrimental to any of the children and found the exception did not apply.
The court ordered adoption as the children's permanent plan and terminated parental rights.
DISCUSSION
I. Mother's November 17, 2021 Section 388 Petition
Mother argues the court erred by denying her section 388 petition. We disagree.
A juvenile court order in a dependency proceeding may be changed, modified, or set aside if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist, and (2) the proposed change would promote the best interests of the child. (§ 388; In re Stephanie M. (1994) 7 Cal.4th 295, 316-317.) The petitioner bears the burden of showing both a legitimate change of circumstances and that undoing the prior order would be in the best interest of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) In determining whether the petitioner has carried his or her burden, "the court may consider the entire factual and procedural history of the case." (In re Justice P. (2004) 123 Cal.App.4th 181, 189.)
Whether to grant a section 388 petition is within the sound discretion of the juvenile court, and its decision shall not be overturned on appeal absent a clear abuse of discretion. (In re Stephanie M., supra, 7 Cal.4th at p. 318.) A reviewing court will not disturb the juvenile court's decision unless it has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. (Ibid.)"' "When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." '" (Id. at p. 319.)
The department does not, on appeal, contest the court's finding or mother's assertion that she demonstrated a change in circumstances, so we focus on the court's conclusion mother had not demonstrated her request was in the children's best interest.
In ruling on mother's section 388 petition, the trial court stated it could not find by a preponderance of the evidence that mother's requested change was in the children's best interest, noting "quite the contrary appears true." The court noted the problems that led to the children's removal were "significant," as mother had a substance abuse problem and had been exposing the children to domestic violence, which scared them and put them at risk. The court noted that while mother was "not currently demonstrating those same behaviors," it could not find the problems had been fully ameliorated, again noting the "problem was very serious." The court noted that, at the time of the hearing, Beatrice was four, Nathan was six, Ariel was seven, Sabrina was eight, and Richard had just turned 10, and the children had been in out-of-home placement for almost three years.
The court further explained the children were thriving with their care providers and each lived with at least one of their siblings. The court stated it found mother sincere in her testimony but pointed out mother's actions delayed the case by her withdrawing from services during the reunification period. The court noted that circumstances in mother's life may have caused her to feel time had stood still, but "time didn't stand still for the children," and "every day that the mother paused in her services, every time there needed to be a new staffing to get her back into services, every time the Department tried to reconnect her, each of those ticked by time for the children where their bond increased with their caretaker and their lives and childhood went on." The court noted mother had not progressed beyond supervised contact with the children and mother's testimony was based on her perception that things were going well before the children were removed, but that could not have been true because the children would not have been removed.
We find no abuse of discretion. The court accurately represented evidence from the record and engaged in a balancing of relevant factors properly focused on the children's interest in stability and permanence rather than mother's interest in reunification. At the time of a section 366.26 hearing, the focus has shifted from family reunification to stability and permanence for the children. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) A court entertaining a section 388 petition at this stage in the proceedings "must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child." (In re Stephanie M., supra, 7 Cal.4th at p. 317.)
In arguing the court erred, mother asserts she "met her burden of best interests" and proceeds to list the best interest factors set forth in In re Kimberly F., supra, 56 Cal.App.4th 519 (the same factors used by the trial court), and points out the evidence that supports an argument that she met her burden as to each factor. In doing so, mother ignores the standard of review we must apply. Mother's argument amounts to no more than framing the evidence in support of her position and requesting we reweigh the evidence. She does not direct us to how the juvenile court abused its discretion in denying the petition. That is, she does not demonstrate how the court's order was arbitrary, capricious, or patently absurd. She does not for example assert the court relied on a mistake of fact or misapplied the law; we are not persuaded the evidence she points to compelled a finding that mother's request was in the children's best interest, particularly bearing in mind that the court must account for the shift in focus away from reunification to the stability and permanence for these children. Because the court's findings were supported by the evidence and its conclusion was not arbitrary, capricious, or patently absurd, the fact that mother can interpret the evidence to support contrary findings and conclusions does not demonstrate error.
The factors articulated by the Kimberly F. court are: "the gravity of the problem leading to the dependency, and the reason that problem was not overcome by the final review"; "the strength of the existing bond between the parent and child"; "the strength of a child's bond to his or her present caretakers, and the length of time a child has been in the dependency system in relationship to the parental bond"; and "the nature of the change, the ease by which the change could be brought about, and the reason the change was not made before." (Kimberly F., supra, 56 Cal.App.4th at p. 531.)
For the reasons set forth, we conclude the court did not err by denying mother's section 388 petition.
II. Beneficial Parent-Child Relationship Exception to Termination of Parental Rights
Mother contends the court erred by declining to apply the beneficial parent-child relationship exception to parental rights. We disagree.
At a section 366.26 hearing, when the juvenile court finds by clear and convincing evidence the child is adoptable, it is generally required to terminate parental rights and order the child be placed for adoption unless a statutory exception applies. (§ 366.26, subd. (c)(1).) One of the statutory exceptions is the beneficial parent-child relationship exception, which applies when "[t]he court finds a compelling reason for determining that termination would be detrimental to the child" where "[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)(i).)
The California Supreme Court has relatively recently clarified in In re Caden C. (2021) 11 Cal.5th 614 (Caden C.) that there are three elements a parent has the burden to prove by a preponderance of the evidence to justify the application of the beneficial parent-child relationship exception: (1) "regular visitation and contact with the child, taking into account the extent of visitation permitted"; (2) "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 (3) "that terminating that attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home." (Id. at pp. 632-633, 636-637.)
We review the first two elements-whether the parents regularly and consistently visited and whether a beneficial relationship exists-for substantial evidence and the third element-whether "terminating that attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home"-for abuse of discretion. (Caden C., supra, 11 Cal.5th at pp. 636, 639-641.) Under the substantial evidence standard of review, "a reviewing court should 'not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts.' [Citation.] The determinations should 'be upheld if ... supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence.'" (Id. at p. 640.) "Review for abuse of discretion is subtly different, focused not primarily on the evidence but the application of a legal standard. A court abuses its discretion only when '" 'the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.'" '" (Id. at p. 641.)
The Caden C. court explained" 'there likely will be no practical difference in application of the two standards,'" but "[a]t its core, the hybrid standard we now endorse simply embodies the principle that '[t]he statutory scheme does not authorize a reviewing court to substitute its own judgment as to what is in the child's best interests for the trial court's determination in that regard, reached pursuant to the statutory scheme's comprehensive and controlling provisions.'" (Caden C., supra, 11 Cal.5th at p. 641.)
There is no dispute that the court's finding the parents regularly and consistently visited was supported by substantial evidence. We therefore focus our discussion on the second and third elements, which the court found mother had not met her burden to prove. We conclude the court's findings were supported by substantial evidence and its ultimate determination was not an abuse of discretion.
In determining the second element-whether the children would benefit from continuing the relationship-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 children feel about, interact with, look to, or talk about their parents." (Caden C., supra, 11 Cal.5th at p. 632.)
Here, as to the second element, the court noted it was focusing on the children's perspective, not mother's. The court noted the children were very young at the time of removal and that it did not have any information as to whether Beatrice, Nathan, or Ariel remembered residing with mother though the circumstances leading to their removal "gives a picture of what they were experiencing while in mother's care." The court acknowledged there appeared to be a generally positive interaction during the visits, and the visitation logs indicate mother "tries really hard" and the court did not have "any reports that the children do particularly well after they see the mother or that seeing her has a negative impact." The court highlighted the lack of evidence "that the children look forward to seeing their mother," and the affirmative evidence "that they do not ask about their mother in between visits" and "are not demonstrating any missing of their mother in between visits."
The court further noted the children did not have any special needs and "[t]here is no evidence of any unique bond that any of the individual children have with their mom compared to their care provider." The court observed it did not appear the children talked about mother when they were not with her, and that they enjoy the visits but do not look to mother as a parental figure. The court acknowledged its responsibility "is not to weigh the quality of the relationship between the care provider and the mother," but recognized "that the mother's role in the children's lives has become attenuated and stretched as a result of the very long time that this case has taken," which the court attributed to mother taking "pauses along the way" in completing services and prolonging the children's time in out-of-home placement where they were "developing their bond with others and it appears that their bond with their mother has become attenuated during that period."
On appeal, mother argues the court inappropriately focused on whether she occupied a "parental role" in its analysis. To support her argument, she cites In re L.A.-O. (2021) 73 Cal.App.5th 197 (L.A.-O.). L.A.-O. does not assist mother. The court in L.A.-O. considered the appellant parents' argument that Caden C. "overruled lower appellate court decisions holding that a parent asserting the parental-benefit exception must show that he or she occupies a 'parental role.'" (L.A.-O., at pp. 201-202.) The appellate court declined to make such a sweeping holding but did conclude under the facts of that case, remand was necessary. In arriving at its conclusion, the appellate court discussed thoroughly how the term "parental role" was ambiguous and that it thought it was "better not to use the words 'parental role' at all." (Id. at p. 211.) The L.A.-O. court noted the juvenile court's ruling in the case before it was "terse" and that it only stated the parents had" 'not acted in a parental role in a long time'" whereas the prospective adoptive parents had. (Ibid.) The appellate court acknowledged the juvenile court "may have meant that the children had a substantial, positive, emotional attachment to the prospective adoptive parents but not to the parents" and "[t]hat would be legally correct." (Ibid.) The court went on, "However, from its reference to a long time, it seems to have meant that they were not capable of taking custody, or had not been good parents, or had not been providing necessary parental care," which "would be erroneous." (Id. at p. 212.) The court remanded the matter for reconsideration in light of Caden C.
We do not find similar reasons for remand in the present case. Here, in contrast to L.A.-O., the court thoroughly analyzed the relationship between mother and the children, expressly focusing on the relationship from the children's perspective, considering relevant factors such as the children's ages, time they spent with mother in her home, the quality of interactions with her, whether they had special needs only she could meet, and evidence they did not talk about her in her absence. We view the court's comment that there was no evidence the children looked to mother as a "parental figure" in context as a comment on the quality of the children's relationship with mother and how it had become "attenuated" over the course of the proceedings due to delays caused by mother. The court expressly stated it was not comparing mother and the care providers' qualities as parents and made no comment indicating it was evaluating mother's ability to take custody of the children. We conclude the court did not rely on improper factors.
We further conclude the court's factual finding that the children would not benefit from continuing the relationship with mother was supported by substantial evidence. As the court stated, while the children enjoyed visiting mother, the evidence did not compel a finding that they had a substantial, positive, emotional attachment to her; they- particularly Ariel, Nathan, and Beatrice-were young when removed, did not initiate conversations with her at visits, did not suffer distress when leaving visits, and did not talk about her or ask about her while they were not with her.
In determining the third element, courts look at "whether it would be harmful to the child to sever the relationship and choose adoption." (Caden C., supra, 11 Cal.5th at p. 633.) Courts must "determine ... how the child would be affected by losing the parental relationship-in effect, what life would be like for the child in an adoptive home without the parent in the child's life.... [¶] ... That subtle, case-specific inquiry is what the statute asks courts to perform: does the benefit of placement in a new, adoptive home outweigh 'the harm [the child] would experience from the loss of [a] significant, positive, emotional relationship with [the parent?]'" (Ibid.) Courts may consider whether the child will experience effects such as "emotional instability and preoccupation leading to acting out, difficulties in school, insomnia, anxiety, or depression," as well as how a "new, stable home may alleviate the emotional instability and preoccupation leading to such problems, providing a new source of stability that could make the loss of a parent not, at least on balance, detrimental." (Ibid.)
Here, as to the third element, the court noted it was evaluating how each child would be affected by losing the parental relationship. The court stated it knew Sabrina would be sad, but that "Sad is not quantifiable." The court further pointed out the evidence showed that none of the children, including Sabrina, asked for mother between visits. The court noted that while the children were happy to see mother, they did not cry or display distress at the end of visits; they did not regress, display bad behaviors, suffer from bed wetting or demonstrate "anything that would indicate ... stress" from leaving mother. The court concluded, "I think the answer to how the children's lives would be affected by losing the parental relationship, in effect what life would be like in an adoptive home without the parent, life would be exactly the same as it is now except without the visits that do include the mother trying to interact with each of the kids, the mother trying to provide structure and direction in an atmosphere at the visits that is chaotic with yelling and fighting and a lack of structure."
We find no abuse of discretion. The court acknowledged the children were happy to see mother and that Sabrina testified she would be sad to stop seeing mother and balanced the clear evidence the children were doing well in out-of-home placement against the lack of demonstrable, quantifiable evidence that they would suffer detriment if the relationship were to end.
On appeal, mother lists evidence of positive interactions between her and the children at visits but fails to identify any arbitrary, capricious, or patently absurd action by the court or otherwise explain how the court abused its discretion. Mother also fails to identify evidence of what detriment the children would suffer in the event of the termination of their relationship with mother.
For the reasons set forth, we conclude the court did not err by declining to apply the beneficial parent-child relationship exception to termination of parental rights.
III. Sibling Relationship Exception to Termination of Parental Rights
Mother contends the court erred by declining to apply the sibling relationship to termination of parental rights. We disagree.
Pursuant to the sibling relationship exception to termination of parental rights, the juvenile court may decide not to terminate parental rights when it finds "a compelling reason for determining that termination would be detrimental to the child" where "[t]here would be substantial interference with a child's sibling relationship." (§ 366.26, subd. (c)(1)(B)(v).) The court must "tak[e] into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption." (Ibid.)
The "purpose of [the sibling relationship] exception is to preserve long-standing sibling relationships that serve as 'anchors for dependent children whose lives are in turmoil.'" (In re Isaiah S. (2016) 5 Cal.App.5th 428, 437.) The" 'strong language'" used by the Legislature to describe the sibling relationship exception creates a" 'heavy burden for the party opposing adoption.'" (In re Celine R. (2003) 31 Cal.4th 45, 61.) The bill's author wrote that use of the sibling relationship exception" 'will likely be rare,'" which has been interpreted to mean that "the child's relationship with his or her siblings would rarely be sufficiently strong to outweigh the benefits of adoption." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 950.)
We review the court's factual findings for substantial evidence and its" 'weighing of competing interests'" for abuse of discretion. (In re Isaiah S., supra, 5 Cal.App.5th at p. 438.)
Here, in ruling on whether the sibling relationship exception applied, the court noted that Richard, Nathan, and Sabrina shared strong bonds with each other and Beatrice and Ariel shared a strong bond to one another, and the court would not be making an order that would disrupt the two discrete sibling groups. The court stated that it had to consider for the purpose of the exception that the children were part of a sibling group of "at least nine" minor siblings. The court pointed out that the children were removed as part of a larger group but that their cases have taken different tracks. The court found that the group of Richard, Nathan, and Sabrina did not have strong bonds with the group of Beatrice and Ariel and that "these are children who have limited contact with each other outside of their placement siblings." The court explained it was "aware at the young age of these children, their long-term emotional interest and the benefit of legal permanence through adoption, they have the ability to continue to heal from the trauma, have the safety and security that comes about from an adoption [f]rom sharing a name and a life with a family that they have come to identify with, and the family that meets all of their ongoing needs." The court explained it "would have to compare visitation with a sibling to that very real and significant benefit of an adoptive family home." The court concluded mother had not demonstrated a compelling reason that the children should not be adopted.
On appeal, mother states "the court focused only on the legal permanence of adoption but not on the children's best interest, including their long-term emotional interest." Mother fails to acknowledge the court properly framed and analyzed the issue as whether the relationship between the siblings outweighed the benefits of adoption. Mother points to positive interactions between the siblings in the visitation logs but fails to address the evidence in the record supporting the court's factual findings and discretionary conclusions. The department presented evidence that the two sibling groups had trouble playing together peacefully at visits and rarely asked for one another between visits. Sabrina expressly testified she did not want to continue visiting with her siblings. Further, all children were in stable homes where they were thriving and were to be adopted. Based on this record, the court's conclusion that the siblings' relationships with one another did not outweigh the stability and permanence the children would receive from being adopted was supported by the evidence and not an abuse of discretion.
For the reasons set forth, we conclude the court did not err by declining to apply the sibling relationship exception.
IV. ICWA
Mother contends the court erred by finding ICWA did not apply to the proceedings. The department concedes error and that remand is appropriate. We agree with the parties.
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 that a state court, except in emergencies, must follow before removing an Indian child from his or her family. (25 U.S.C. § 1902; see In re Isaiah W. (2016) 1 Cal.5th 1, 7-8.) In any "proceeding for the foster care placement of, or termination of parental rights to, an Indian child," the Indian custodian and the Indian child's tribe have the right to intervene (25 U.S.C. § 1911(c)), and may petition the court to invalidate any foster care placement of an Indian child made in violation of ICWA (id., § 1914; see § 224, subd. (e)).
An "Indian child" is defined in ICWA as an unmarried individual under 18 years of age who is either (1) a member of a federally recognized Indian tribe, or (2) is eligible for membership in a federally recognized tribe and is the biological child of a member of a federally recognized tribe. (25 U.S.C. § 1903(4) &(8); see § 224.1, subd. (a) [adopting federal definitions].)
In California, the court and county child welfare department "have an affirmative and continuing duty to inquire whether a child," who is the subject of a juvenile dependency petition, "is or may be an Indian child." (§ 224.2, subd. (a); Cal. Rules of Court, rule 5.481(a).) The child welfare department's initial duty of inquiry includes "asking the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child and where the child, the parents, or Indian custodian is domiciled." (§ 224.2, subd. (b).) "Under both ICWA and California law,' "extended family member[s]"' include 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.'" (In re D.S. (2020) 46 Cal.App.5th 1041, 1053; 25 U.S.C. § 1903(2); § 224.1, subd. (c).) Upon each party's first appearance in a dependency proceeding, the juvenile court must ask each participant "whether the participant knows or has reason to know that the child is an Indian child" (§ 224.2, subd. (c)), and "[o]rder the parent ... to complete [an ICWA-020 form]" (Cal. Rules of Court, rule 5.481(a)(2)(C), italics omitted).
Before finding ICWA inapplicable, the juvenile court must make a finding that the agency conducted "proper and adequate further inquiry" and exercised "due diligence" in doing so and that there is no reason to know whether the child is an Indian child. (§ 224.2, subd. (i)(2).)
There is a split of authority among the Courts of Appeal regarding how to evaluate claims of ICWA inquiry error. (See In re K.H. (2022) 84 Cal.App.5th 566, 611-618 (K.H.) [summarizing the varied approaches].) The California Supreme Court has granted review on the issue in In re Dezi C. (2022) 79 Cal.App.5th 769, review granted September 21, 2022, S275578. Recently, this court decided K.H., which articulates the standards we will apply until the Supreme Court provides additional guidance in In re Dezi C.
In K.H., this court adopted the hybrid standard of review set forth by In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1004-1005 (Ezequiel G.). (K.H., supra, 84 Cal.App.5th at pp. 600-601.) Under this standard, "[t]he first element [of a court's ICWA finding under section 224.2, subdivision (i)(2)]-whether there is reason to know whether the child is an Indian child-requires the juvenile court to determine, based on the evidence before it, whether any one of six statutory criteria [set forth in section 224.2, subdivision (d)] is met" and is a factual determination best reviewed for substantial evidence. (Ezequiel G., at p. 1004.) "The second element-whether a 'proper and adequate further inquiry and due diligence as required in [section 224.2] have been conducted'" requires the court to" 'engage in a delicate balancing'" and should be reviewed for abuse of discretion. (Ezequiel G., at pp. 1004-1005.)
The department concedes ICWA error. We accept the department's concession. The record indicates that only mother was asked about the children's potential status as Indian children. Though the department represented that father completed an "Interview form," no such document was filed, and its September 2019 jurisdiction report contained contradictory information that no ICWA inquiry had been made as to father. While father's participation in the proceedings was low, he was present at multiple hearings, and neither the court nor the department conducted any initial inquiry with him on the record. It was not until before the section 366.26 hearing that the department attempted to have father complete an ICWA-020 form by mail.
Further, the department documented no effort to inquire of any extended family members as required by statute though the record demonstrates they had contact with several extended family members. The department's detention report referenced maternal aunts and uncles that were to be considered for placement, and they were present at the Team Decision Making meeting. A paternal aunt, paternal grandmother, and a maternal aunt and uncle were present at the detention hearing. The 12-month status review report indicated that at one point Ariel and Beatrice had been placed with a maternal cousin. Paternal grandmother was present in court at another hearing and testified at the section 366.26 hearing.
Given these deficiencies and the poorly developed record as to efforts made by the department to obtain relevant information, we conclude the court's finding that the department exercised due diligence was an abuse of discretion.
Finding error, we turn to the issue of prejudice and whether remand is warranted. In K.H., this court explained that the standard of prejudice should be one informed by the California Supreme Court in In re A.R. (2021) 11 Cal.5th 234 (A.R.), which focuses on injury rather than outcome. Our high court explained in A.R that a Watson likelihood-of-success test is not always appropriate in determining harmlessness because it cannot always adequately measure the relevant harm. (A.R., at pp. 252-253.) This court recognized that" 'ICWA compliance presents a unique situation'" (K.H., supra, 84 Cal.App.5th at p. 608), as it "is not directed at reaching, or protecting, a specific outcome on the merits" but aids the court in determining whether any tribes need to be called upon to make a determination as to whether the child is an Indian child and given the opportunity to intervene in the proceedings if they wish (id. at p. 609). Thus, "for the purpose of assessing prejudice, the focus is on the missed opportunity to uncover relevant information necessary to make a reliable, informed determination concerning whether the child is or may be an Indian child." (Ibid.)
In A.R., the California Supreme Court held that in cases where an attorney has incompetently failed to file an appeal in termination of parental rights cases, "[t]o ascertain prejudice, we focus on whether the parent would have taken a timely appeal, without requiring the parent to shoulder the further burden of demonstrating the appeal was likely to be successful." (A.R., supra, 11 Cal.5th at pp. 252-253.)
People v. Watson (1956) 46 Cal.2d 818.
The department also concedes the error was not harmless, and we accept their concession. While the department had a representation from mother that the children were not Indian children to her knowledge, inquiry of extended family members on mother's side would have provided a more complete picture of whether the children were Indian children. As it has been observed by other courts, the reason section 224.2 requires inquiry of more than just the parents is "to obtain information the parent may not have." (In re Y.W. (2021) 70 Cal.App.5th 542, 556.) More concerning, however, is that the department appeared to obtain no information as to father's side and clearly had access to paternal relatives. By failing to conduct inquiry of father and these family members, the department missed an opportunity to uncover relevant information as to the children's potential status as Indian children. Remand is necessary.
DISPOSITION
The juvenile court's finding that ICWA does not apply is conditionally reversed, and the matter is remanded to the juvenile court with directions to order the agency to comply with the inquiry and documentation provisions set forth in section 224.2, subdivision (b), and California Rules of Court, rule 5.481(a)(5). If, after determining that an adequate inquiry was made consistent with the reasoning in this opinion, the court finds that ICWA applies, the court shall vacate its existing order and proceed in compliance with ICWA and related California law. If the court instead finds that ICWA does not apply, its ICWA finding shall be reinstated. In all other respects, the court's June 27, 2022 order denying mother's November 17, 2021 section 388 petition and its June 27, 2022 order terminating parental rights are affirmed.
WE CONCUR: MEEHAN, Acting P. J., SNAUFFER, J.