Filed 5/18/22 In re K.M. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE
In re K.M., A Person Coming Under B315212
the Juvenile Court Law.
___________________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No.
DEPARTMENT OF CHILDREN DK15577E)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
K.W.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Julie Fox Blackshaw, Judge. Affirmed.
Megan Turkat Schirn, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Veronica Randazzo, Deputy
County Counsel, for Plaintiff and Respondent.
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K.W. (Mother) appeals from an order terminating parental
rights over her daughter K.M. (Minor). We consider whether the
juvenile court erred in declining to rely on the parental benefit
exception to forego terminating Mother’s parental rights. In
addition, we consider whether the Los Angeles County
Department of Children and Family Services (the Department)
had a duty under the Indian Child Welfare Act (ICWA) (25
U.S.C. § 1901 et seq.) and related California law to determine
whether Minor’s alleged father (not presumed father) S.A. has
any Indian heritage.
I. BACKGROUND
In February 2016, one month before Minor was born, the
Department filed a petition alleging Minor’s four siblings were at
risk of harm due to physical abuse by S.A. (the father of one of
Minor’s siblings), Mother’s failure to protect her children from
S.A., and a history of domestic violence between Mother and S.A.
A month and a half after Minor’s birth, the Department filed
another petition, this one alleging Minor was at risk of physical
harm because of the abuse and neglect suffered by her siblings,
among other things. The juvenile court sustained the allegation
that Minor was at substantial risk because her siblings had been
abused, declared her a dependent of the court, and removed her
from Mother’s custody.
A. Mother’s Visitation and Relationship with Minor
During Reunification
From September 2016 to May 2018, Mother was provided
with reunification services. During this period, Mother was
consistent in her visitation with Minor, both when the visits were
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monitored and later after she was granted unmonitored
visitation. As reported by the foster family agency that initially
served as the monitor, Mother’s visits with Minor were
“pleasant,” with Mother playing music for Minor and reading to
her from the Bible.
The Department reported Minor is “very close and
affectionate towards her mother but she has also formed a bond
with her caregiver.” Notwithstanding the bond, the caregiver
told the Department that Minor would “shut down” and refuse to
interact with the caregiver for about an hour after visits with
Mother. The caregiver also reported she felt “intimidated” by
Mother when she (the caregiver) would come to pick up Minor at
the end of a visit, and the foster family agency revealed Mother
repeatedly violated the agency’s pick-up rules and harassed the
caregiver.
When the foster family agency declined to monitor any
further visits, Department personnel took over the monitoring
responsibility. According to the Department, Mother interacted
and engaged “beautifully” with Minor during visits; “[t]hey play,
they sing, they talk, they draw and communicate well in a loving
manner. . . . Mother is affectionate and loving toward
[Minor]. . . . Mother is very attentive to [Minor]. . . . [Minor] does
not want to leave her Mother at the end of the visit.”
During the reunification period from 2016 to 2018, Minor
was placed in three different homes before being placed in the
home of K.A. and O.A. (the foster parents) in August 2017; Minor
was almost a year and a half old at that point. The Department
reported Minor was a “happy toddler,” who was “thriving” in the
care of the foster parents, comfortable with them, and bonded to
them. After less than a year of caring for Minor, the foster
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parents informed the Department they would be willing to adopt
Minor if she did not reunite with Mother.
In May 2018, the juvenile court terminated Mother’s
reunification services after finding her participation in her case
plan had been “minimal.” The court at that time expressed
“serious and grave concern” about Mother’s ability to protect
Minor.
B. Mother’s Visitation and Relationship with Minor
Following the Termination of Reunification Services
In the period immediately following the loss of reunification
services, Mother remained consistent in her unmonitored
visitation with Minor. The foster parents reported Mother never
missed a visit and was never late. The foster parents also did not
observe any “acting out” by Minor after her visits with Mother,
though they did note Minor often returned home hungry. The
Department opined Minor “has affection for and comfort with”
both Mother and the foster parents.
As more time passed, however, Minor’s relationship with
Mother deteriorated. Minor repeatedly stated she did not want
to visit Mother and wanted to stay with her “mommy,” i.e., the
foster mother. At times, Minor would physically resist leaving
the car to attend a visit with Mother—Minor would turn her head
away from the opened car door; yell, scream, and shake her head
when Mother approached the foster parents’ vehicle; and refuse
to leave her car seat. Minor’s protests would continue even when
Mother and others would try to induce her to go with Mother
through offers of gifts (clothes, toys, and money). The foster
parents also began reporting Minor engaged in inappropriate
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conduct, such as hitting and cursing, after returning from
overnight visits with Mother.
With the onset of the COVID-19 pandemic in the early part
of 2020, Mother’s visits with Minor were limited to voice and
video communications. Those became more sporadic over time.
On a regular basis, Mother would miss scheduled visits or would
call anywhere from 30 to 60 minutes late. When Mother did call
at the scheduled time, Minor routinely either refused to speak
with her or, if she accepted the call, she would ignore Mother or
abruptly terminate the call. Minor also hid and threw the foster
parents’ phone in attempts to avoid calls with Mother.1
During this same period, Minor’s relationship with the
foster parents grew stronger. The Department reported Minor
was “happy,” “thriving,” and “comfortable,” in the home of the
foster parents with all her needs being met and enjoying a
“trusting and loving” relationship with both foster parents.
Minor identified the foster parents as “mom” and “dad.” The
foster parents “incorporated [Minor] in all of their family events
and both their extended families have welcomed and accepted
[Minor] into their respective families.”
In advance of a permanency planning hearing in September
2021, the juvenile court asked the Department to report on
Mother’s visits with Minor in light of Mother’s anticipated
reliance on the parental benefit exception to law that otherwise
1
Minor explained that the foster mother was her “mommy”
and that she “d[idn’t] want to talk to [her] other mommy.” Minor
confided to her therapist, to whom she was referred due to
outbursts of anger arising from contact with Mother, that she
feared being taken away from the foster parents.
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requires termination of parental rights.2 The Department
reported “Mother continues to call any time she feels like calling
and ignores the arranged times for visits.” In addition, the
Department advised that out of six observed calls, Minor quickly
disconnected the call on five occasions, while on the sixth call
Minor spoke with Mother for 22 minutes. On a seventh occasion,
the social worker waited 20 minutes for Mother to call but “to no
avail.” The Department recommended the juvenile court
terminate parental rights and proceed with adoption.
C. The Juvenile Court Terminates Parental Rights
On September 7, 2021, the juvenile court held a contested
permanency planning hearing. The court admitted two dozen
reports submitted by the Department during the post-
reunification period and a series of call logs from Mother’s phone
from late 2020 and early 2021. Three percipient witnesses
testified at the hearing: Mother, a Department social worker, and
the foster mother.
Mother described having a healthy and happy relationship
with her daughter prior to the pandemic. During their in-person
visits, “[w]e would play toys. We sang. We had lunch, breakfast,
dinner. I would bathe her. I would hug her. I would kiss her,
tell her I love her.” Mother conceded, however, her relationship
2
The exception precludes termination of parental rights so
as to enable the statutorily preferred outcome of adoption where
the juvenile court “finds a compelling reason for determining that
termination would be detrimental to the child” because “[t]he
parents have maintained regular visitation and contact with the
child and the child would benefit from continuing the
relationship.” (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i).)
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with Minor since the onset of the pandemic was “not good.”
Mother had not had an in-person visit with Minor since May
2020, and her calls with Minor were “only for a few minutes”
each. Under questioning from Minor’s counsel, Mother admitted
she did not always call at the appointed time and that some of
her calls were terminated by Minor. During cross-examination
by the Department’s attorney, Mother admitted she played little
role in attending to Minor’s education or health after she was
removed from Mother’s custody.
The Department’s social worker, who had been involved in
Minor’s case for almost five years (from September 2016 to July
2021), testified Minor had a “negative” reaction to Mother during
all of the visits the social worker observed after Minor was no
longer an infant. The social worker described how Minor would
kick, scream, and contort herself inside a vehicle so as not to be
forced to go on an unmonitored visit with Mother. The social
worker characterized Mother’s relationship with Minor as “flat”
and lacking “any reciprocal bonding or reciprocal affection.”
The foster mother, who had been caring for Minor for the
last four years, explained Minor began physically resisting in-
person visitation with Mother beginning around age two
(approximately six months after she was placed in the foster
parents’ home) and that this resistance occurred almost “every
single time” thereafter. When visitation shifted to video calls
following the onset of the pandemic, Minor’s resistance did not
diminish (despite the foster mother’s encouragement to the
contrary) and took on a different form: terminating the call
despite Mother’s entreaties that she not hang up. The foster
mother also confirmed Mother often missed scheduled calls or
called well after the scheduled call time.
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When the presentation of evidence concluded, Mother
argued she had a bond with Minor and terminating Mother’s
parental rights would be detrimental to Minor. In particular,
Mother emphasized the Department liberalized her visitation
with Minor from monitored to unmonitored, and even allowed
overnight visits, prior to the pandemic. The attorney for Minor
disputed there was any significant bond between her client and
Mother, relying on her client’s adamant resistance to visits.
Minor’s counsel argued the parental benefit exception was
inapplicable because Mother did not play a parental role in
Minor’s life, as shown, for instance, by Mother’s failure to even
inquire about Minor’s education or health. The Department
argued the exception did not apply largely for the same reasons.
The juvenile court made extensive findings on the record
and ruled it would terminate Mother’s parental rights. The court
found the foster mother was “very credible” and the testimony by
the social worker was not “terribly probative.” The court found
Mother was “credible,” but the court believed her testimony did
not suffice to establish the parental benefit exception.
The court highlighted the visitation problems between
Mother and Minor, relying both on the deterioration of the
frequency in visitation and the pronounced shift in Minor’s
feelings from seeking “affection and comfort” from both Mother
and the foster parents to resisting any contact or communication
with Mother. The court believed the lack of consistent visitation
was a “threshold” finding that alone established Mother did not
meet her burden to invoke the parental benefit exception, but for
the “sake of thoroughness,” the court also addressed other
reasons why Mother did not satisfy the exception’s prerequisites.
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First, the court found Minor and Mother did not enjoy a
beneficial relationship because there was “no evidence in the
record that [Minor] enjoyed her visits with her mother or in any
other way received a benefit.” Second, the juvenile court believed
“the facts did not support a finding that [termination of parental
rights] would be a detriment to [Minor]” because Mother did not
play a “parental role” in Minor’s life and because there was an
insufficient showing that “the strength and quality of the parent-
child relationship outweighs the security and sense of belonging
in a stable family.”
II. DISCUSSION
Substantial evidence supports the juvenile court’s finding
that Mother did not maintain regular visitation and contact with
Minor. Mother’s pattern of visitation following the onset of the
pandemic was inconsistent: she frequently missed scheduled calls
or called well after the scheduled time, and there was no evidence
that the many missed and late virtual visits were due to technical
difficulties or other problems beyond Mother’s control. The lack
of regular visitation, especially when combined (though not
necessarily combined) with the evidence indicating Mother’s
infrequent contact with Minor did not result in a significant,
positive attachment between the two, establishes the juvenile
court was correct to find the parent-child relationship exception
inapplicable. (In re Caden C. (2021) 11 Cal.5th 614, 631 [“From
the statute, we readily discern three elements the parent must
prove to establish the exception: (1) regular visitation and
contact, and (2) a relationship, the continuation of which would
benefit the child such that (3) the termination of parental rights
would be detrimental to the child”] (Caden C.); see also In re I.R.
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(2014) 226 Cal.App.4th 201, 212 [regular visitation “did not occur
here and its lack would fatally undermine any attempt to find the
beneficial parental relationship exception”].)
There is also no ICWA error in this case. The Department
was not required to undertake an investigation into whether
alleged father S.A. had any Indian ancestry on the facts here.
A. Substantial Evidence Supports the Determination
that Mother Did Not Regularly Visit and Contact
Minor
As just explained, a “parent asserting the parental benefit
exception must show, by a preponderance of the evidence, three
things,” one of which is “regular visitation and contact with the
child, taking into account the extent of visitation permitted.”
(Caden C., supra, 11 Cal.5th at 636.) Visits and contact are
important in this context because they can “‘continue[ ] or
develop[ ] a significant, positive, emotional attachment from child
to parent.’ [Citation.] Courts should consider in that light
whether parents ‘maintained regular visitation and contact with
the child’ [citation] but certainly not to punish parents or reward
them for good behavior in visiting or maintaining contact—here
as throughout, the focus is on the best interests of the child.” (Id.
at 632; In re Autumn H. (1994) 27 Cal.App.4th 567, 575 [“The
exception applies only where the court finds regular visits and
contact have continued or developed a significant, positive,
emotional attachment from child to parent”].) The juvenile court
found this element was not met and we review that finding for
substantial evidence. (Caden C., supra, at 639.)
It was undisputed that over the course of the year and a
half preceding the permanency planning hearing, Mother’s record
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of visitation was marred by a large number of missed and/or
significantly late virtual visits. The juvenile court was entitled to
infer from the lengthy list of missed and tardy calls that
technological issues were not the cause of Mother’s inconsistent
visitation—indeed, there was no evidence to the contrary.
Moreover, even after Mother was on notice that the Department
was observing her virtual visits at the juvenile court’s direction
for the purpose of determining the applicability of the exception,
she continued to miss scheduled times for virtual visits.
There was also evidence that Mother’s inconstant visitation
did not continue or develop a significant, positive, emotional
attachment between Mother and Minor. Even before the onset of
the pandemic, Minor resisted visitation with Mother once she
(Minor) was no longer an infant. Then, after visits changed to
telephonic and video calls, Minor continued to resist visits with
Mother by hiding and throwing the foster parents’ phone,
ignoring Mother while on a call or abruptly terminating the call,
and wondering aloud why Mother was calling her.
Mother’s argument that her visitation should nevertheless
be deemed sufficient for purposes of the parental benefit
exception because she was consistent in her visitation during the
first two years of the dependency proceeding misses the mark for
two reasons. First, we assess the regularity of the visitation
throughout the entire course of the dependency proceedings, and
where visitation has declined to the point of sustained
irregularity by the time of a parental rights termination hearing,
that will preclude successful invocation of the parental benefit
exception. Second, even if it were true that a period of earlier
regular visitation could overcome a period of later irregular
visitation (though the converse seems a far more persuasive
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proposition), we still operate under the constraints of substantial
evidence review. Under that standard, we affirm even when
there is “‘evidence to the contrary [that] also exists and the trial
court might have reached a different result had it believed other
evidence.’” (Caden C., supra, 11 Cal.5th at 640.) That would be
the case here.
B. The Department Was Not Obligated to Investigate
S.A.’s Family History for ICWA Purposes
When the Department instituted dependency proceedings
on behalf of Minor, Mother identified S.A. as the child’s father.
S.A., however, was not listed as the father on Minor’s birth
certificate, he was not present for Minor’s birth, and he told
Mother not to claim him as Minor’s father.
At the initial detention hearing, the juvenile court found
S.A. to be Minor’s alleged father only. That finding remained
unchanged throughout the course of the dependency proceedings.
In 2016, after initial inquiries into Mother’s possible Indian
heritage, and again in 2021, after more extensive inquiries, the
juvenile court found ICWA inapplicable. Mother contends the
ICWA findings are infirm because the Department did not
inquire into S.A.’s possible Indian ancestry.
The trial court’s ICWA findings are not erroneous. ICWA
excludes “any unwed father where paternity has not been
acknowledged or established” from its definition of a “parent.”
(25 USC § 1903(9); see also In re Daniel M. (2003) 110
Cal.App.4th 703, 707-709 [affirming termination of parental
rights because alleged father lacked standing to appeal under
ICWA’s definition of “parent”].) S.A. has not acknowledged Minor
as his daughter, nor has his biological paternity been established.
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Under the circumstances here, reversal is not warranted. (See,
e.g., In re E.G. (2009) 170 Cal.App.4th 1530, 1533 [ICWA’s notice
procedures were not triggered when the alleged father’s paternity
test revealed he was not the biological father of minor]; compare
In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1166 & fn. 5 [ICWA
inquiry and notice requirements triggered because the minor’s
birth certificate designated father as the biological father].)
DISPOSITION
The order terminating parental rights is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, Acting P. J.
We concur:
MOOR, J.
KIM, J.
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