Filed 9/15/22 In re J.W. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re J.W. et al., Persons Coming B317345
Under the Juvenile Court Law.
______________________________ Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 19CCJP02478A,B
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
S.W.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Marguerite D. Downing, Judge.
Conditionally reversed and remanded with directions.
Suzanne Davidson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Peter Ferrera, Deputy County
Counsel, for Plaintiff and Respondent.
____________________
A mother, S.W., appeals the juvenile court’s order
terminating her parental rights over her two sons. We
conditionally reverse and remand to allow the Los Angeles
County Department of Children and Family Services and juvenile
court fully to comply with the Indian Child Welfare Act (25
U.S.C. § 1901 et seq.) (the Act) and related California law.
Undesignated statutory citations are to the Welfare and
Institutions Code.
I
In April 2019, the Department removed five-year-old J.W.
and 16-month-old N.W. from the mother.
After one 2-month placement, the boys were placed in June
2019 with a couple who are now their prospective adoptive
parents.
When the boys were in their first placement, J.W. avoided
contact with the mother. Once, in April 2019, he refused to talk
to the mother on the phone. He put his face down and did not
speak. Two days later, J.W. refused to get out of bed and then
refused to get dressed for a visit with the mother.
There was also an incident of alleged inappropriate
behavior by the mother during a visit. During a May 2019 visit,
the foster mother saw the mother press her hand with force and
pressure on J.W.’s face. The mother then grabbed his ear with
pressure. When the mother saw that the foster mother was
watching, the mother pretended to caress J.W.’s face. The foster
mother told the mother to stop and the mother denied the
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incident. J.W. ran to the top of a playground and refused to come
down until the mother left. J.W. appeared angry and sad after
the visit. The foster mother reported he appeared tense before
and during other visits with the mother.
The mother denied Indian ancestry. At an April 22, 2019,
detention hearing, the court found there was no reason to know
the children were Indian children.
In June 2019, the juvenile court sustained allegations that
the mother’s female partner physically abused the children and
the mother failed to protect the children.
In spring 2020, the mother told the Department her half
sister “is Native American so she gets a check and she pays for”
the mother to stay at a motel. The Department had a meeting
with this maternal aunt, but there is no evidence it asked her
about Indian ancestry.
The Department communicated with the maternal
grandmother several times. There is no evidence it asked her
about Indian ancestry.
On December 15, 2020, the juvenile court terminated the
mother’s reunification services.
In a status review report filed May 27, 2021, the
Department said the children “seem to enjoy” visits with the
mother.
The court held a section 366.26 hearing on December 14,
2021.
By this time, the boys had spent about two years and eight
months out of the mother’s custody. J.W. was eight years old and
N.W. was nearly four years old.
The Department asked the court to admit three documents
for the hearing: an April 2021 section 366.26 report, a November
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2021 status review report, and a December 2021 last minute
information.
The April 2021 report said the mother was consistent with
visiting her children. She participated in monitored visits every
Saturday for two hours at locations such as parks, restaurants, or
playgrounds. She also had monitored calls and video calls during
the week.
According to this report, the mother said she did not want
the children to be adopted, “being that both kids want to be with
me and it would be in their best interests for us to have a
relationship.” She said she wanted kinship guardianship with
her mother.
The November 2021 report repeated that the mother
consistently attended weekly monitored visits every Saturday for
two hours at locations such as parks, restaurants, or
playgrounds. It also noted that the mother tried to coach J.W. to
say he wanted to live with his maternal grandmother.
J.W. and N.W. told a Department social worker they
enjoyed living with the foster parents. J.W. said he loved being
in their home and N.W. said he loved living with the prospective
adoptive parents, whom he called his “mama and papa.”
The mother and the prospective adoptive parents were
creating a mediated postadoption agreement that would allow
visitation between the mother and the children. The prospective
adoptive parents said they wanted a fair outcome and wanted the
mother to continue a relationship with the boys.
The December 2021 last minute information said the
mother and the prospective adoptive parents had drafted a
postadoption agreement, but they had not finalized it yet.
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At the section 366.26 hearing, the mother did not call
witnesses or introduce evidence. She said the parental-benefit
exception applied. Her counsel’s complete argument on this issue
was: “Mother has maintained regular and consistent visitation
throughout the case.” The mother also asked the court to
continue the matter until the mother and the prospective
adoptive parents finalized the postadoption agreement. If the
court did not continue the matter, “[W]e would object to the
termination of parental rights.”
At the Department’s request, and with no objection by the
mother, the court admitted the three documents and took judicial
notice of the case file. The Department and counsel for the boys
asked the court to terminate the mother’s parental rights and
asserted no exception to adoption applied.
The court found no exception to adoption and terminated
the mother’s parental rights.
II
A
The trial court’s finding that no exception to adoption
applied was proper.
At the section 366.26 hearing, the focus is on the best
interests of the child, and the default option is adoption. (In re
Caden C. (2021) 11 Cal.5th 614, 631–632 (Caden C.).) The
mother invoked a statutory exception to this rule: the parental-
benefit exception. (§ 366.26, subd. (c)(1)(B)(i).) This limited
exception recognizes that, despite children being outside parents’
custody, the harm to children of severing a strong bond with their
parents may outweigh the benefits of adoption. (See Caden C.,
supra, at pp. 631, 633–634.)
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To prove the parental-benefit exception, parents must
establish: (1) they visited the children regularly; (2) there is a
“substantial, positive, emotional attachment” between them and
the children; and (3) terminating this attachment would be
detrimental to the children. (Caden C., supra, 11 Cal.5th at p.
636; see also id. at p. 631.)
We review the first two elements for substantial evidence
and the third element for abuse of discretion. (Caden C., supra,
11 Cal.5th at pp. 639–640.)
The mother says the court abused its discretion by
proceeding with the section 366.26 hearing because the adoption
assessment report was inadequate and did not include the
amount and nature of contact between her and her sons. This
contention lacks merit.
The mother said nothing about the adequacy of the report
in the juvenile court and therefore waived this contention. (See
In re M.M. (2022) 81 Cal.App.5th 61, 67–68 (M.M.).)
The mother is also incorrect because the report included
information about the amount and nature of her contact with her
sons. The Department reported that the mother had monitored
two-hour visits once a week at various locations in the
community, as well as monitored calls and video calls during the
week. The Department’s reporting was not exhaustive, but it did
provide information about the mother’s contact with the boys.
Though the mother’s appellate argument centers on the
report’s adequacy, because she generally attacks the court’s
finding that the exception does not apply, we review the three
elements of the finding.
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The mother proved the first element: she visited her sons
regularly. She did not prove the second and third elements. She
made no argument about them at the section 366.26 hearing.
As to the second element, there is not substantial evidence
that there was a “substantial, positive, emotional attachment”
between the mother and her sons. The mother offered no
testimony or evidence about this. There was evidence against the
existence of this bond. At the time of the hearing, N.W. was
nearly four years old and had spent most of his life away from the
mother. J.W. was eight years old and had spent a substantial
portion of his life away from her. (See Caden C., supra, 11
Cal.5th at p. 632 [second element factors include age of child and
portion of child’s life spent in parent’s custody].) There was also
evidence the mother tried to manipulate J.W. Although the sons
said they loved living with the prospective adoptive parents, the
mother used her visits to try to coach J.W. to say he wanted to
live elsewhere. This, together with earlier evidence that J.W.
had avoided visits with the mother and the mother pressed his
face and grabbed his ear during a visit, tended to show the
relationship did not have a positive effect on the boys.
The juvenile court did not abuse its discretion in balancing
the harms and benefits of adoption. Both J.W. and N.W. spent
significant portions of their lives outside the mother’s custody.
And the record demonstrates some negative aspects of the
mother’s interactions with J.W. On the other hand, the boys
reported enjoying living with the prospective adoptive parents,
who provided them with stability. The court’s decision was not
arbitrary, capricious, or absurd. (See Caden C., supra, 11 Cal.5th
at p. 641.)
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In her reply brief, the mother says the trial court did not,
and impliedly we should not, consider earlier evidence, like the
evidence J.W. avoided the mother and the mother grabbed his ear
during a visit. Her reasoning is based on this evidence being
outside the three records the juvenile court admitted for the
section 366.26 hearing. The juvenile court judicially noticed its
own file in the case. We have no reason to think the court did not
consider the context the file offered. The records at issue are part
of our appellate record and we may consider them on review.
The mother cites Board of Pilot Commissioners v. Superior
Court (2013) 218 Cal.App.4th 577, but the issue there was about
taking judicial notice of records from another court and those
records were “unquestionably hearsay, their content was
disputed, and [the opposing party] repeatedly objected to their
consideration.” (Id. at p. 596.) The records in this case were from
the same court, involved the same case, and the mother did not
object to the court taking judicial notice of the file.
Our reasoning is consistent with In re L.A.-O. (2021) 73
Cal.App.5th 197, in which the court refused to reverse a
termination order based on facts from an earlier report that the
parent never asked the juvenile court to consider. (Id. at pp.
207–208.) The Court of Appeal in In re L.A.-O. did not say the
juvenile court took judicial notice of the case file. Furthermore,
the reasoning in that case relied on the impropriety of a party
citing earlier reports for reversal if the party did not identify
those reports in the juvenile court. This is dissimilar from using
earlier reports to determine if substantial evidence supports the
juvenile court’s decision.
The mother points to other cases that are inapposite. Her
case is unlike In re D.M. (2021) 71 Cal.App.5th 261. The father
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in that case testified at his hearing. He said his children did not
want to leave at the end of his twice-weekly visits, one child
would cry when visits ended, and the children told him they
wanted to live with him. (Id. at pp. 267–268.) The appellate
court also found the juvenile court relied on factors Caden C.
found inappropriate. (Id. at p. 271.) In this case, the mother
offered no testimony or evidence and there is no indication the
juvenile court relied on inappropriate factors.
The same is true of In re B.D. (2021) 66 Cal.App.5th 1218,
where the Court of Appeal found the juvenile court considered
improper factors. (Id. at p. 1230.)
The mother also cites In re J.D. (2021) 70 Cal.App.5th 833,
which explained that though it is not the agency’s burden to
disprove the parental-benefit exception, by the time the juvenile
court schedules a section 366.26 hearing, the agency’s earlier
reports should have provided objective, disinterested information
about the quality of children’s attachment to their parents. (Id.
at p. 861.) Here, earlier reports did provide information about
this attachment. For example, reports described J.W.’s avoidance
of the mother, related the incident in which the mother grabbed
J.W.’s ear, and acknowledged the children seemed to enjoy visits.
In sum, the mother waived her challenges about the
Department’s reporting and the juvenile court correctly found the
mother did not prove the parental-benefit exception.
B
As the Department concedes, it erred by not asking the
mother’s extended family members about the boys’ potential
Indian ancestry. (See § 224.2, subds. (a) [Department and court
have an affirmative and continuing duty to inquire] & (b) [initial
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inquiry duty includes asking extended family members whether
child may be an Indian child].)
The deficient inquiry was prejudicial. Appellate courts
have split on the proper standard to assess prejudice. (See M.M.,
supra, 81 Cal.App.5th at p. 71 [describing standards].) The
mother’s half sibling was Native American and there was no
evidence about the source of this ancestry. The Department had
contact with the maternal grandmother and the half sibling, but
never inquired of either family member. Following most
prejudice standards, this was prejudicial. There was readily
obtainable information likely to bear meaningfully on whether
J.W. and N.W. were Indian children (see In re Benjamin M.
(2021) 70 Cal.App.5th 735, 744) and the record of the proceedings
suggested a reason to believe they were Indian children (see In re
Dezi C. (2022) 79 Cal.App.5th 769, 779). A majority of this
division has rejected the reversible per se approach (M.M., supra,
81 Cal.App.5th at p. 71), but this approach would also find
prejudice here. The defective inquiry was prejudicial.
To support its argument that the error was harmless, the
Department says “it appears” the juvenile court inquired of at
least one extended family member, the potential adoptive father.
This is erroneous.
The potential adoptive parents are not extended family
members. Department records called the placement a non-
relative placement. In its appellate brief, the Department says,
“It was later clarified” that the prospective adoptive parents were
extended family members. The Department cites a page of the
Clerk’s Transcript that reports that, according to a social worker,
the prospective adoptive mother said she was an extended family
member. Although the Department’s briefing does not explain
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the nature of this relationship, the record reveals this
information. Two pages after the page the Department cites is a
letter in which the prospective adoptive parents explain they are
not biologically related to the boys. They are the aunt and uncle
of the mother’s female partner from the beginning of the case.
The partner was not a party to the case and was not designated
as a parent to the boys. The potential adoptive parents were not
extended family members within the meaning of the Act (see 25
U.S.C. § 1903(9)), so the Department’s inquiry of one of them
does not prove the deficient inquiry was harmless.
The Department says it “seems apparent” the mother’s half
sister’s ancestry flowed from the half sister’s father, but there is
no evidence to support this aside from the mother’s earlier denial
of ancestry.
We find prejudice from the lack of inquiry of the mother’s
half sister and the maternal grandmother.
DISPOSITION
The order terminating the mother’s parental rights of J.W.
and N.W. is conditionally reversed. The matter is remanded to
the juvenile court with directions to comply with the inquiry
provisions of Welfare and Institutions Code section 224.2. The
juvenile court shall order that within 30 days of the remittitur,
the Department perform its initial inquiry of J.W. and N.W.’s
potential Indian ancestry consistent with this opinion. If, after
completing the initial inquiry, there is no reason to believe the
children are Indian children, the court shall reinstate its order
terminating parental rights.
If the inquiry produces any additional information
substantiating Indian ancestry, the Department and the Court
shall proceed accordingly under the Act and related California
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law, including complying with the Act’s notice provisions. In the
event new notice is given and no tribe responds indicating J.W.
and N.W. are Indian children within the meaning of the Act, or
no tribe seeks to intervene, the court shall reinstate the order
terminating parental rights.
WILEY, J.
We concur:
STRATTON, P. J.
GRIMES, J.
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