In re O.T. CA2/6

Filed 7/21/21 In re O.T. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re O.T. et al., Persons 2d Juv. No. B309706
Coming Under the Juvenile (Super. Ct. Nos. J072178,
Court Law. J072179)
(Ventura County)

VENTURA COUNTY HUMAN
SERVICES AGENCY,

Plaintiff and Respondent,

v.

DANIEL T., et al.,

Objectors and Appellants.

Daniel T. (father) and B.R. (mother) appeal from the
juvenile court’s orders terminating parental rights to their
children, O.T. and D.T. (the children), and selecting adoption as
the permanent plan. (Welf. & Inst. Code, § 366.26.)1 Appellants
contend, only, that the juvenile court erroneously ruled that they
had failed to establish the third element of the beneficial parental
relationship exception (parental-benefit exception) to the
termination of parental rights. The third element is that
termination would be detrimental to the children. We uphold the
trial court’s ruling on this issue.
Appellants also claim that respondent Ventura County
Human Services Agency (HSA) failed to adequately investigate
father’s claim of Indian ancestry under the Indian Child Welfare
Act (ICWA) (25 U.S.C. § 1901 et seq.) and related California law
(§ 224 et seq.). We accept HSA’s concession that its investigation
was inadequate and therefore the orders terminating parental
rights must be conditionally reversed. We remand with
directions that the juvenile court order HSA to conduct an
adequate investigation of the children’s Indian ancestry in
compliance with the ICWA and California law. In all other
respects, we affirm.
Parental-Benefit Exception
To avoid the termination of parental rights under the
parental-benefit exception, a parent “must show, by a
preponderance of the evidence, three things. [First,] [t]he parent
must show regular visitation and contact with the child . . . .
[Second,] 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 [third,] the parent must show that
terminating that attachment would be detrimental to the child

1 Unless otherwise stated, all statutory references are to
the Welfare and Institutions Code.

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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.” (In re
Caden C. (2021) 11 Cal.5th 614, 636 (Caden C.).)
Facts Relevant to Whether Termination of
Parental Rights Would be Detrimental to Children
O.T. was born in October 2017. D.T. was born in January
2019. In September 2019 the children were detained and
removed from appellants’ custody. Regular visitation was
arranged for appellants.
In February 2020 appellants “engaged in a verbal and
possibly physical altercation during the visit with the children.
Bystanders called Law Enforcement . . . . According to the
[paternal grandmother,] who was supervising the visit, the
mother and father started yelling at each other. . . . [B]ystanders
surmised the father hit the mother.” But mother “denied the
father hit her.” Mother claimed “she fell to the ground . . . during
a panic attack.” “The children were present . . . .”
After a visit with father in June 2020, O.T. “woke up crying
several times in the night yelling, ‘no, no, no.’” At the end of a
subsequent visit that same month, O.T. “began to cry and reach
for the father. The father soothed the child . . . .”
During a visit with mother in June 2020, O.T. displayed
aggression toward her: “[M]other read a book and [O.T.] hit her
arm, . . . mother pretended to cry and [O.T.] said ‘no’
aggressively.” O.T. was also aggressive toward mother during a
visit in October 2020. He threw crayons at her. When mother

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pretended to cry and asked why he had taken this action, O.T.
“preceded [sic] to pick up the crayons and throw them again
at . . . mother.”
During a visit in September 2020, O.T. displayed
aggression toward father. O.T. “almost hit his newborn brother”
and D.T. with a stick. When father removed the stick from O.T.
and mother told him to be careful, O.T. “yelled at” mother and
“then hit . . . father in the face.” But afterward O.T. “told . . .
father that he loves him.” During an earlier visit that same
month, the children were affectionate toward father: “When . . .
father arrived the children were happy to see him and hugged the
father.”
During a visit by both parents in October 2020, the children
“had a difficult time . . . with listening, fighting, and biting each
other. [O.T.] would run away from the mother and not listen. . . .
The children fought over crayons multiple times and it was
difficult to get the children to not aggravate one another . . . .”
At the end of a visit in June 2020, mother “gave the
children kisses goodbye and [D.T.] cried.” But during a visit in
November 2020, D.T. was aggressive toward mother. D.T. “ran
away. . . . [M]other attempted to redirect the child, but the child
would not comply. . . . [M]other followed the child and [D.T.]
began to hit . . . mother when she was being carried back.”
A social worker testified that, at the beginning of parental
visits, “the children are excited to see [appellants].” “[T]hey [the
children and appellants] hug, and say hi, and they go off to play
[together].”
Father testified: The children call him “Dad” or “Daddy.”
At the end of the visits, “[G]ood-byes are always hard for [O.T.].

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He always wanted to go home. He tried to get in [father’s] truck
constantly.” Father “share[s] a bond with [the] children.”
Mother testified: When she visited O.T., “he would get
super excited.” She and O.T. “have a really strong bond. He
tends to come to me when he’s upset about something.” “[H]e’s
grown a big attachment to me . . . . [W]henever something is
wrong with him or he’s excited about something, he wants to
come tell me because I’ve been that . . . solid rock in his life.”
As to D.T., mother testified: When the visits begin, “[s]he’s
super excited. The first thing she does is she screams ‘hi’ at the
top of her lungs, and she’ll . . . yell, ‘Mommy and Daddy,’ and . . .
start blowing kisses at us until we can get her out of her car
seat.” When the visits end, “she’s a little bit distraught it seems
like. She doesn’t want to go. . . . [S]he has actually pointed to
[father’s] truck and said ‘home’ multiple times.” “She’s very
loving. She loves to cuddle with me at all of our visits. All she
wants to do is sit in my lap . . . when we’re eating . . . . And she
loves to have me go on the playground with her. . . . [S]he just
loves to be around me.”
The section 366.26 report includes an evaluation of the
prospective adoptive parents. They “have had a relationship with
[O.T.] since he was born.” D.T. was “placed in their care in
September of 2019” when the children were detained. “The
prospective adoptive family and the children had a daily
relationship in a parent-child rol[e] for approximately 4 months,”
after which the children were placed with “relative caregivers.”
O.T. “has shown signs of sadness by crying when he has had to
leave the visits with the prospective adoptive family.” “[T]he
children ask for the prospective adoptive parents when they are
not in their care.”

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 Juvenile Court’s Ruling
The court stated: “[T]he children enjoyed visits with their
parents” but “enjoyable visits – even when they’re loving and
appropriate – are simply not enough to overcome the benefit the
law recognizes the children will receive if they are . . . allowed to
make a strong bond with a new parental figure . . . . [¶] . . . [T]he
parents have never progressed from supervised visits. And I
don’t believe that there’s been sufficient evidence to show that
these children would be greatly harmed if parental rights were
terminated. [¶] So I don’t find that the [parental-benefit]
exception has been met, and I will order parental rights
terminated so the adoption can go forward.”
Standard of Review
The juvenile court found that appellants had failed to
establish “the third element” of the parental-benefit exception –
“[the] termination of parental rights would be detrimental to the
child.” (Caden C., supra, 11 Cal.5th at p. 640.) In determining
whether the third element has been met, the court “weigh[s] the
harm of losing the [parental] relationship against the benefits of
placement in a new adoptive home. And so, the ultimate
decision—whether termination of parental rights would be
detrimental to the child due to the child's relationship with his
parent—is discretionary and properly reviewed for abuse of
discretion.” (Ibid.) “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.)

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 No Abuse of Discretion in Ruling that Appellants Failed
to Establish Third Element of Parental-Benefit Exception
“When it weighs whether termination would be
detrimental, . . . the question is just whether losing the
relationship with the parent would harm the child to an extent
not outweighed, on balance, by the security of a new, adoptive
home.” (Caden C., supra, 11 Cal.5th at p. 634.) “‘If severing the
natural parent/child relationship would deprive the child of a
substantial, positive emotional attachment such that,’ even
considering the benefits of a new adoptive home, termination
would ‘harm[]’ the child, the court should not terminate parental
rights.” (Id. at 633.) “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.)
The juvenile court acted within its discretion in concluding
that appellants had failed to show that severance of the parental
relationship would “harm the [children] to an extent not
outweighed, on balance, by the security of a new, adoptive home.”
(Caden C., supra, 11 Cal.5th at p. 634.) The children were very
young. At the time of the section 366.26 hearing in December
2020, O.T. was three years old and D.T. was one month shy of her
second birthday. When children are this young, their “needs for a
competent, caring and stable parent are paramount.” (In re
Valerie A. (2007) 152 Cal.App.4th 987, 1014.) Before the children
were detained in September 2019, O.T. had lived with appellants

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for 23 months, and D.T. had lived with them for only nine
months. At the time of the section 366.26 hearing, the children
had been removed from appellants’ home for more than one year,
a significant part of their short lives.
The interaction between appellants and the children
appears to have had negative as well as positive effects. After a
visit with father in June 2020, O.T. had nightmares. During
appellants’ visits, the children sometimes exhibited aggression
toward appellants and fought with each other. During a visit in
February 2020, the parents “engaged in a verbal and possibly
physical altercation” in the children’s presence. Bystanders
called the police. It is reasonable to infer that the altercation
caused the children to suffer emotional harm.
A parent who seeks to invoke the parental-benefit
exception “must do more than demonstrate ‘frequent and loving
contact[,]’ an emotional bond with the child, or that parent and
child find their visits pleasant. Instead, the parent must show
that he or she occupies a ‘parental role’ in the child's life.” (In re
Derek W. (1999) 73 Cal.App.4th 823, 827, citations omitted.) At a
section 366.26 hearing, “[a] biological parent . . . 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[, especially a
two or three-year old child,] . . . should not be deprived of an
adoptive parent [where, as here,] the natural parent[s have]
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.)
Accordingly, the juvenile court reasonably concluded that
appellants’ “enjoyable visits,” even though “loving and

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appropriate,” were “not enough to overcome the benefit . . . the
children will receive if they are . . . allowed to make a strong
bond” with their prospective adoptive parents.
Inquiry and Notice under ICWA
Father claimed that his paternal family has Blackfeet Tribe
ancestry. Notice was given to the Blackfeet Tribe and the Bureau
of Indian Affairs that the children “may be eligible for
membership” in the tribe. The notice gave some background
information about father, father’s father, and father’s
grandmother. The Blackfeet Tribe responded that neither child
qualified as an “‘Indian Child’” within the meaning of the ICWA.
The author of the response stated, “If you are able to gather more
information on the ancestry of the parents, please contact me
again and I will review the tribal rolls.”
Appellants contend that the inquiry into the children’s
Indian ancestry was deficient because HSA contacted only the
father. It “did not contact the [children’s] paternal grandfather –
the source of the Blackfeet heritage. [Record citation.] Nor did
[it] contact the [children’s] paternal great-grandmother, who was
also noted as having Blackfeet ancestry, and was presumably still
alive.” As a result, the “[n]otices served on the Blackfeet tribe
and the Bureau of Indian Affairs were missing crucial
biographical information about the paternal family
members . . . .” “[T]he . . . omissions . . . completely defeated the
purpose of consulting the tribe[] . . . about membership
eligibility.”
Under California law, “[t]he court [and] county welfare
department . . . have an affirmative and continuing duty to
inquire whether a child for whom a [dependency] petition under
Section 300 . . . has been filed, is or may be an Indian child.”

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(§ 224.2, subd. (a).) “Inquiry includes, but is not limited to,
asking the child, parents, . . . [and] extended family members . . .
whether the child is, or may be, an Indian child . . . .” (Id., subd.
(b), italics added; see also Cal. Rules of Court, rule 5.841(a)(1)
[party seeking termination of parental rights “must ask . . .
extended family members . . . whether the child is or may be an
Indian child”].)
HSA states: “The record . . . is silent on whether HSA
attempted . . . [to] contact[] paternal grandfather, whose name
and phone number father provided, or paternal great-
grandmother, whose name father provided. [Record citation.]
The record therefore does not support whether HSA’s . . . inquiry
was ‘proper and adequate’ (§ 224.2, subd. (i)(2)) and thus whether
the notice HSA then sent to the Blackfeet tribe . . . contained all
the information HSA could gather about the children’s potential
Indian ancestry.” “HSA agrees that the order terminating rights
should be vacated and parental rights reinstated. [¶] The
reversal, however, should be only for the limited determination of
the applicability of ICWA . . . .” We accept HSA’s concession.
HSA requests that our disposition be similar to the disposition in
In re Jonathan D. (2001) 92 Cal.App.4th 105, 111-112.
Disposition
“The orders of the juvenile court terminating parental
rights are [conditionally reversed] and the matter is remanded to
the juvenile court with directions to order compliance with the
[inquiry and] notice provisions of the [ICWA and California law.
The required inquiry includes, but is not limited to, inquiry of
father’s extended family members.] If, after proper inquiry and
notice, no response is received from a tribe indicating the
[children are] Indian child[ren], [the juvenile court shall reinstate

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all previous findings and orders]. If a tribe determines that the
[children are] Indian child[ren], . . . the juvenile court is ordered
to conduct a new section 366.26 hearing in conformity with all
provisions of the [ICWA and California law].” (In re Jonathan D.,
supra, 92 Cal.App.4th at pp. 111-112.) However, if after proper
inquiry HSA discovers no material information additional to that
previously provided to the Bureau of Indian Affairs and the
Blackfeet Tribe, HSA need not send a second notice to these
entities. Upon proof of proper inquiry, the juvenile court shall
forthwith reinstate all previous findings and orders. In all other
respects, the orders appealed from are affirmed.
NOT TO BE PUBLISHED.

YEGAN, Acting P. J.

We concur:

PERREN, J.

TANGEMAN, J.

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 Tari L. Cody, Judge

Superior Court County of Ventura

______________________________

Elizabeth Klippi, under appointment by the Court of
Appeal for Appellant Father.

Paul A. Swiller, under appointment by the Court of Appeal
for Appellant Mother.

Tiffany N. North, County Counsel, Joseph J. Randazzo,
Assistant County Counsel for Respondent.