In re H.R. CA4/1

Filed 2/2/21 In re H.R. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re H.R., a Person Coming Under
the Juvenile Court Law.
D077991
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. J518295)

Plaintiff and Respondent,

v.

M.P.,

Defendant and Appellant.

APPEAL from orders of the Superior Court of San Diego County,
Michael Imhoff, Commissioner. Affirmed.
Megan Turkat Schirn, under appointment by the Court of Appeal, for
Defendant and Appellant.
Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy
County Counsel, and Tahra Broderson, Senior Deputy County Counsel, for
Plaintiff and Respondent.
 M.P. (Mother) appeals from the order terminating her parental rights
and selecting adoption as the permanent plan for her daughter, H.R. Mother
contends that the juvenile court erred by terminating parental rights after
finding that the beneficial parent-child relationship exception to adoption did

not apply. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i).)1 She also
challenges the juvenile court’s actions to satisfy its duty of inquiry under the
Federal Indian Child Welfare Act (ICWA). We conclude that the juvenile
court did not err in making these rulings and therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND2
In May 2019, the San Diego County Health and Human Services
Agency (the Agency) petitioned the juvenile court under section 300,
subdivision (b), on behalf of eight-year-old H.R. The Agency alleged that
Mother was arrested with H.R. in her car, where the police also found drug

paraphernalia.3
As discussed in the detention report, this proceeding was Mother’s fifth
dependency proceeding and the third proceeding involving H.R. This third
proceeding began only weeks after Mother reunified with H.R. following the
second proceeding. Mother and her boyfriend were stopped by law
enforcement after they were observed fighting inside a car with H.R. in the
back seat without a booster seat. A subsequent search revealed two pipes

1 Further statutory references are to the Welfare and Institutions Code
unless otherwise stated.

2 “In accord with the usual rules on appeal, we state the facts in the
manner most favorable to the dependency court’s order.” (In re Janee W.
(2006) 140 Cal.App.4th 1444, 1448, fn. 1.)

3 H.R.’s father was not involved in the proceedings below and did not
appeal the termination of his parental rights. Accordingly, he is not
discussed in this opinion.
2
with a usable quantity of methamphetamine, an empty pipe coated in white
residue, and a loaded “replica style BB gun” within the reach of H.R. The
report detailed Mother’s long history of drug abuse and criminal arrests and
convictions. Since being reunited with Mother, H.R. had missed many days
of school. A social worker interviewed Mother, who claimed she had been
sober since 2017 and that the information regarding the stop by law
enforcement was false.
Based on this information, the juvenile court found that the Agency
had made an adequate showing that H.R. was a person described by section
300, subdivision (b), and ordered her detained in out-of-home care.
In its initial jurisdiction report filed in June 2019, the Agency noted
that H.R. was detained at Polinsky Children’s Center. Since H.R.’s
detention, Mother had been arrested on suspicion of first degree murder, but
had been released as a “very important witness.” When interviewed, H.R.
told a social worker that she missed Mother, but stated that “I don’t even feel
like my mommy even loves me.” H.R. explained that Mother’s boyfriend was
violent with Mother and H.R. and that she was often left alone while her
Mother and boyfriend “smoke their drugs in the room.” In a separate
interview, Mother admitted to her drug use and opined that she could safely
care for H.R. if she received help to overcome her substance abuse and escape
the domestic violence.
In an addendum report, the Agency noted that Mother was not
cooperating and had been arrested in Orange County. Based on Mother’s
extensive case history, the Agency recommended that Mother not be provided
reunification services. In another addendum report, a social worker noted
that H.R. was complaining that Mother was not contacting her. When the
social worker explained to H.R. that the Agency was recommending that she

3
not be returned to Mother’s care, H.R. indicated that she would like to
remain with her current caregivers, but also cried when the social worker
couldn’t tell her that she would someday return to her Mother’s care. By the
time of the contested jurisdiction hearing in October 2019, Mother was still
incarcerated in Orange County.
At the jurisdiction and disposition hearing, the court sustained the
allegations of the petition under section 300, subdivision (b). The court found
by clear and convincing evidence that Mother has “an extensive abusive and
chronic use of drugs or alcohol” and had resisted prior treatment.
Accordingly, pursuant to section 361.5, subdivision (b)(13), the court found
that reunification would not be in the best interests of H.R. and denied
reunification services for Mother. The court set the matter for a selection and

implementation hearing pursuant to section 366.26.4
Thereafter, the Agency recommended that the court terminate parental
rights and find H.R. to be adoptable. In its initial assessment report filed in
February 2020, the Agency noted that Mother had only sporadic contact with
H.R. due in part to Mother’s incarceration. H.R.’s current caregivers had
expressed an interest in adopting H.R. H.R., however, told a social worker
that she did not want to be adopted and wanted to be able to see Mother.
A social worker opined that the relationship between Mother and H.R.
“does not rise to the level of a parent-child relationship.” The social worker
noted that Mother had not been able to maintain regular contact and had
continued to be unable to provide for H.R.’s safety. The social worker also
noted that H.R. had made “tremendous progress” and “appears to be thriving

4 Mother indicated that she intended to challenge the setting of the
section 366.26 hearing via a writ petition, but her appointed counsel informed
this court that there were no viable issues for writ review, leading to the
dismissal of Mother’s writ proceeding in this court.
4
in her current placement and the caregivers are eager to provide [H.R.] with
a permanent, safe and loving home.”
In a series of addendum reports, the Agency reported that Mother had
been released from incarceration in April 2020 and began to have supervised
visits with H.R. Although the social worker noted that H.R. enjoyed her
visits with Mother, she “no longer presents to be anxious about adoption” and
would like to stay with her current caregivers.
Shortly before the selection and implementation hearing, Mother filed a
petition pursuant to section 388 asserting that her recent progress since
being released warranted a change in H.R.’s placement to return to Mother’s
care. The court found that Mother failed to establish a change of

circumstances and denied the petition without a hearing.5
Turning to the selection and implementation hearing, Mother
submitted stipulated testimony from H.R. In that testimony, H.R. stated
that she would be sad if she could not see her Mother again and was
“nervous” about being adopted. H.R. indicated that seeing Mother was more
important than remaining in her current placement. Mother testified
regarding her contact and visits with H.R. Mother wanted H.R. to be
returned to her care and opined it would be in the best interest of H.R. to live
with Mother. Mother explained that the bond between her and H.R. “is very
strong.”
After considering the reports, evidence, and testimony and hearing
argument from counsel, the court found that H.R. was likely to be adopted.
The court also found that none of the exceptions to adoption under section
366.26, subdivision (c)(1) applied. The court found that H.R. had never lived

5 Mother does not challenge this ruling on appeal.
5
with her siblings and shared no common experiences such that the beneficial
sibling relationship exception to adoption did not apply.
Regarding Mother’s relationship with H.R., the court found that H.R.
was a “very intelligent young lady” who made her wishes known regarding
her desire to continue her relationship with Mother. The court, however,
noted that given her young age, H.R. had “an extraordinary skewing in her
mind towards the positive experiences without real[] regard to the negative
experiences and consequences. She is not cognitively or developmentally at a
place where she can do that kind of balancing.” The court found that Mother
maintained regular and consistent contact with H.R., but that given Mother’s
repeated pattern of substance abuse, H.R. “would benefit more from the
permanence of adoption than from preserving the existing relationship [with
Mother.]” Accordingly, the juvenile court found by clear and convincing
evidence that adoption was the best permanent plan and terminated
Mother’s parental rights.

Mother appealed.6
DISCUSSION
I.
Mother contends that the juvenile court and the Agency failed to
comply with their duty of inquiry before the court found ICWA does not apply
in this case. We disagree.
“Congress enacted ICWA in 1978 in response to ‘rising concern in the
mid–1970’s over the consequences to Indian children, Indian families, and
Indian tribes of abusive child welfare practices that resulted in the

6 Mother’s notice of appeal references both the order denying her section
388 petition and the order terminating her parental rights. In her opening
brief on appeal, Mother does not contest the denial of her section 388 petition
and has therefore abandoned the issue.
6
separation of large numbers of Indian children from their families and tribes
through adoption or foster care placement, usually in non-Indian homes.’ ”
(In re Isaiah W. (2016) 1 Cal.5th 1, 7 (Isaiah W.).) ICWA established
minimum standards that courts are required to follow in involuntary
proceedings to place a child in foster care or to terminate parental rights to
ensure Indian tribes receive notice “where the court knows or has reason to
know that an Indian child is involved.” (25 U.S.C. § 1912(a); Isaiah W., supra,
at p. 8.)
ICWA defines an “Indian child” as “any unmarried person who is under
age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for
membership in an Indian tribe and is the biological child of a member of an
Indian tribe[.]” (25 U.S.C. § 1903(4); see § 224.1, subd. (a).) The trial court
and the Agency have an affirmative and continuing duty in every dependency
proceeding to determine whether ICWA applies. (§ 224.2, subd. (a); Cal.
Rules of Court, rule 5.481(a); Isaiah W., supra, at pp. 10-11.) In cases “where
the court knows or has reason to know that an Indian child is involved,”
ICWA requires the Agency, or other party seeking adoption or foster care
placement, to notify “the Indian child’s tribe, by registered mail with return
receipt requested, of the pending proceedings and of their right of
intervention.” (25 U.S.C. § 1912, italics added; Isaiah W., supra, 1 Cal.5th at
p. 5.)
This court’s decision in In re D.S. (2020) 46 Cal.App.5th 1041 (D.S.)
discussed recent changes to the federal regulations concerning ICWA
compliance and subsequent conforming amendments to California’s statutory
scheme regarding ICWA. (Id. at p. 1048.) In D.S., we explained that the
resulting clarification of law, found in part in newly-amended section 224.2,
“creates three distinct duties regarding ICWA in dependency proceedings.

7
First, from the Agency’s initial contact with a minor and his family, the
statute imposes a duty of inquiry to ask all involved persons whether the
child may be an Indian child. (§ 224.2, subds. (a), (b).) Second, if that initial
inquiry creates a ‘reason to believe’ the child is an Indian child, then the
Agency ‘shall make further inquiry regarding the possible Indian status of
the child, and shall make that inquiry as soon as practicable.’ (Id., subd. (e),
italics added.) Third, if that further inquiry results in a reason to know the
child is an Indian child, then the formal notice requirements of section 224.3
apply. (See § 224.2, subd. (c) [court is obligated to inquire at the first
appearance whether anyone ‘knows or has reason to know that the child is an
Indian child’], id., subd. (d) [defining circumstances that establish a ‘reason to
know’ a child is an Indian child]; § 224.3 [ICWA notice is required if there is a
‘reason to know’ a child is an Indian child as defined under § 224.2, subd.
(d)].).” (D.S., supra, at p. 1052.)
At the first step, “[s]ection 224.2, subdivision (b) specifies that once a
child is placed into the temporary custody of a county welfare department,
such as the Agency, the duty to inquire ‘includes, but is not limited to, 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.’ ”
(D.S., supra, 46 Cal.App.5th at pp. 1048-1049.)
“On appeal, we review the juvenile court’s ICWA findings for
substantial evidence. [Citations.] But where the facts are undisputed, we
independently determine whether ICWA’s requirements have been satisfied.
[Citation.]” (D.S., supra, 46 Cal.App.5th at p. 1051.)
Here, the facts regarding the juvenile court’s ICWA findings are
undisputed. When viewed within the proper context, we conclude the

8
juvenile court’s inquiry under ICWA was properly limited given the prior
dependency proceedings involving H.R. and Mother. In its initial report in
this proceeding, the Agency noted that in October 2011, during H.R.’s first
dependency proceeding, the juvenile court found ICWA did not apply. Mother
did not dispute this fact at any hearing. Instead, at a hearing in August
2019, Mother’s counsel indicated that “I’ve discussed with [Mother] the
Indian Child Welfare Act and she has no information.” The court noted the
prior finding in October 2011 that ICWA did not apply and indicated it would
“reiterate that finding subject to any further input from either parent.”
Mother did not provide additional input or otherwise challenge the court’s
reliance on the Agency’s representations in its reports that ICWA had
already been found to not apply to H.R.
At a subsequent hearing, the court noted that during a chambers
conference, the court and counsel reviewed information regarding prior court
findings that ICWA did not apply in August 2019, August 2016, and in
October 2011. Again, Mother did not dispute these facts or provide additional
information. Thereafter, the court found that reasonable inquiry had been
made and again found that ICWA did not apply.
In challenging the juvenile court’s finding, Mother in essence contends
that the juvenile court could not rely on its prior determinations that ICWA
did not apply. As she correctly notes, both the trial court and the Agency
have a continuing duty to determine whether ICWA applies and must revisit
a prior determination that ICWA does not apply “if it subsequently receives
information providing reason to believe that the child is an Indian child.”
(§ 224.2, subd. (a); Cal. Rules of Court, rule 5.481(a); Isaiah W., supra, 1
Cal.5th at pp. 10-11.)

9
 However, the record establishes that the juvenile court fulfilled its duty
by relying on its prior findings involving the same family and remaining open
to new information that was never submitted. At a hearing on August 8,
2019, the court noted that in a chambers conference, the parties discussed

the court’s prior findings that ICWA did not apply.7 The court, however, did
not simply rely on those prior findings. The court “reiterate[d]” a prior
finding but noted the finding was subject “to any further input from either
parent.” Mother’s counsel expressly stated that she discussed ICWA with
Mother, but that Mother “has no information.” The juvenile court could
reasonably rely on the representations by Mother to find that ICWA did not
apply. H.R.’s father never appeared in the action and the Agency was unable
to locate him before the court made its ICWA finding despite their due
diligence, and he thereafter did not cooperate, precluding the Agency from
soliciting additional information from H.R.’s father. The record does not
disclose any known relatives of father that could provide additional
information.
Nothing in either state or federal law suggests that a juvenile court
may not consider prior findings that ICWA does not apply made in earlier
proceedings involving the same child. Here, the juvenile court considered
those findings as indicated in the Agency’s reports, but also continued to
solicit and consider whether new information was available that was

7 In a motion to augment, the Agency asks us to add the juvenile court
orders from August 22 and 30, 2016 to the record on appeal. Those orders
indicate that in H.R.’s prior proceeding, both of her parents denied having
any Indian ancestry. This court may augment the record on appeal to include
any document “filed or lodged in the case in the superior court.” (Cal. Rules
of Court, rules 8.155(a)(1)(A), 8.410(b)(1).) The record does not establish that
either of these orders was filed or lodged in the superior court. Accordingly,
we deny the motion to augment the record on appeal.
10
sufficient to revisit those findings. Mother confirmed her prior
representations that she had no Indian heritage and, despite the best efforts
of the Agency, neither H.R.’s father or any relatives provided additional
information. Accordingly, we see no error by the juvenile court in fulfilling
its duty of inquiry or in finding that ICWA did not apply.

II.
Mother contends that the court erred in selecting adoption as the
permanent plan for H.R. following the selection and implementation hearing
held pursuant to section 366.26. She does not contest H.R.’s adoptability, but
rather contends that the trial court erred in finding the beneficial parent-
child relationship exception to a finding of adoptability does not apply here.
We disagree.
“ ‘Once reunification services are ordered terminated, the focus shifts to
the needs of the child for permanency and stability.’ [Citation.] ‘A section
366.26 hearing . . . is a hearing specifically designed to select and implement
a permanent plan for the child.’ [Citation.] It is designed to protect
children’s ‘compelling rights . . . to have a placement that is stable,
permanent, and that allows the caretaker to make a full emotional
commitment to the child.’ [Citation.] ‘The Legislature has declared that
California has an interest in providing stable, permanent homes for children
who have been removed from parental custody and for whom reunification
efforts with their parents have been unsuccessful.’ ” (In re Celine R. (2003) 31
Cal.4th 45, 52-53 (Celine R.).)
“Whenever the court finds ‘that it is likely the child will be adopted, the
court shall terminate parental rights and order the child placed for adoption.’
[Citation.] The circumstance that the court has terminated reunification

11
services provides ‘a sufficient basis for termination of parental rights unless
the court finds a compelling reason for determining that, termination would
be detrimental to the child due to one or more’ of specified circumstances.
[Citation.] The Legislature has thus determined that, where possible,
adoption is the first choice. ‘Adoption is the Legislature’s first choice because
it gives the child the best chance at [a full] emotional commitment from a
responsible caretaker.’ ” (Celine R., supra, 31 Cal.4th at p. 53.)
“[I]f the child is adoptable . . . adoption is the norm. Indeed, the court
must order adoption and its necessary consequence, termination of parental
rights, unless one of the specified circumstances provides a compelling reason
for finding that termination of parental rights would be detrimental to the
child. The specified statutory circumstances—actually, exceptions to the
general rule that the court must choose adoption where possible—‘must be
considered in view of the legislative preference for adoption when
reunification efforts have failed.’ [Citation.] At this stage of the dependency
proceedings, ‘it becomes inimical to the interests of the minor to heavily
burden efforts to place the child in a permanent alternative home.’
[Citation.] The statutory exceptions merely permit the court, in exceptional
circumstances [citation], to choose an option other than the norm, which
remains adoption.” (Celine R., supra, 31 Cal.4th at p. 53.)
Mother contends the beneficial parent-child relationship exception
applies such that her parental rights should not have been terminated and
the court should have selected an alternative permanent plan. The beneficial
parent-child relationship exception applies where “[t]he court finds a
compelling reason for determining that termination would be detrimental to
the child” because “[t]he parents have maintained regular visitation and
contact with the child and the child would benefit from continuing the

12
relationship.” (§ 366.26, subd. (c)(1)(B)(i).) The parent bears the burden in
the juvenile court of showing the exception applies. (In re J.C. (2014) 226
Cal.App.4th 503, 529.)
“We apply the substantial evidence standard of review to the factual
issue of the existence of a beneficial parental relationship, and the abuse of
discretion standard to the determination of whether there is a compelling
reason for finding that termination would be detrimental to the child.” (In re
Anthony B. (2015) 239 Cal.App.4th 389, 395.)
The first element that must be established under the beneficial
relationship exception requires a showing that the parent maintained regular
visitation and contact with the child. (§ 366.26, subd. (c)(1)(B)(i).) The
juvenile court found Mother established this element and the Agency does not
contest the court’s finding on appeal.
However, the parties disagree regarding the second element: whether
H.R. would be harmed by terminating the relationship. “To overcome the
preference for adoption and avoid termination of the natural parent’s rights,
the parent must show that severing the natural parent-child relationship
would deprive the child of a substantial, positive emotional attachment such
that the child would be greatly harmed. [Citations.] A biological parent who
has failed to reunify with an adoptable child may not derail an adoption
merely by showing the child would derive some benefit from continuing a
relationship maintained during periods of visitation with the parent.
[Citation.] A child who has been adjudged a dependent of the juvenile court
should not be deprived of an adoptive parent when the natural parent has
maintained a relationship that may be beneficial to some degree, but that
does not meet the child’s need for a parent.” (In re Angel B. (2002) 97
Cal.App.4th 454, 466 (Angel B.).)

13
 “A parent must show more than frequent and loving contact or pleasant
visits. [Citation.] ‘Interaction between natural parent and child will always
confer some incidental benefit to the child . . . . The relationship arises from
day-to-day interaction, companionship and shared experiences.’ [Citation.]
The parent must show he or she occupies a parental role in the child’s life,
resulting in a significant, positive, emotional attachment between child and
parent.” (In re C.F. (2011) 193 Cal.App.4th 549, 555.) “A friendly
relationship . . . ‘is simply not enough to outweigh the sense of security and
belonging an adoptive home would provide.’ ” (In re Jason J. (2009) 175
Cal.App.4th 922, 938.) “While the exact nature of the kind of parent/child
relationship which must exist to trigger the application of the statutory
exception to terminating parental rights is not defined in the statute, the
relationship must be such that the child would suffer detriment from its
termination.” (Angel B., supra, 97 Cal.App.4th at p. 467, fn. omitted.) “The
exception must be examined on a case-by-case basis, taking into account the
many variables which affect a parent/child bond. The 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 are some of the variables which logically affect a
parent/child bond.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575-576.)
Mother faults the juvenile court with relying on the potential adoptive
parents’ willingness to continue contact between H.R. and Mother after
adoption to find that H.R. would not be harmed by adoption because she
could continue her relationship with Mother. Relying on In re C.B. (2010)
190 Cal.App.4th 102 (C.B.), Mother contends the court erred in relying on the
caregivers’ unenforceable promise to allow contact to find that there would be
no substantial interference with the parent-child relationship. (Id. at p. 128.)

14
However, the court’s reasoning in C.B. is distinguishable from the situation
present in this case. In C.B., the juvenile court placed heavy emphasis on the
expectation that visits with the parent would continue to find the parent-
child relationship exception did not apply. (Id. at p. 127.) Here, on the other
hand, the juvenile court alluded to the possibility of continued visits, but also
recognized that the caregivers could “curtail” any visits and did not appear to
rely on the possibility of future contact in reaching its ultimate conclusion.
Instead, the juvenile court appears to have accepted the positive
relationship between H.R. and Mother, but concluded that the benefits of
adoption outweigh the benefits of maintaining the existing relationship. This
balancing of benefits is the necessary third step of the court’s application of
the beneficial parent-child relationship exception to adoption. (In re Logan B.
(2016) 3 Cal.App.5th 1000, 1010-1013.)
On appeal, Mother fails to show that even if we accept the existence of
a generally positive relationship between Mother and H.R., the juvenile court
abused its discretion by finding that the termination of parental rights would
not be sufficiently detrimental to H.R. because the benefits of that
relationship outweighed the benefits of adoption. As the court explained,
despite the positive aspects of the relationship, H.R.’s relationship with
Mother was punctuated with extended periods of “confusion, upheaval, and
uncertainty.” Over the course of three dependency proceedings, H.R. spent
approximately a third of her life outside the care of Mother. Although H.R.
enjoyed her visits with Mother, she was thriving in her placement and
referred to her caregivers as “Mom/Mommy” and “Dad/Daddy.” Although the
caregivers earlier suggested they were open to guardianship, by February
2020 they indicated they were only interested in adoption. Thus, depriving

15
H.R. of the benefits of adoption to maintain her relationship with Mother
would also potentially deprive H.R. of the benefits of her current placement.
Although H.R.’s desire to maintain her relationship with Mother made
the juvenile court’s balancing of interests more difficult, we conclude the
court carefully considered the competing interests and did not abuse its
discretion in finding the benefits of adoption outweighed the benefits of
maintaining the parent-child relationship such that there was no compelling
reason for finding that termination would be detrimental to the child.

DISPOSITION

The orders are affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

DO, J.

16