Filed 10/13/22 In re J.L. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re J.L., a Person Coming Under the
Juvenile Court Law. B317881
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN AND Super. Ct. No. DK24437A)
FAMILY SERVICES,
Plaintiff and Respondent,
v.
T.L.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. D. Brett Bianco, Judge. Conditionally reversed
in part and affirmed in part.
Liana Serobian, under appointment by the Court of Appeal,
for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Raquel Ramirez, Senior Deputy
County Counsel for Plaintiff and Respondent.
___________________________
T.L. (Mother) appeals from an order terminating her
parental rights to her son J.L. Mother argues that the order
terminating parental rights should be reversed because she was
deprived of a fair and meaningful opportunity to establish the
parental-benefit exception to adoption when she was denied in-
person visits with J.L. and a bonding study. In the alternative,
she argues that the juvenile court erred in concluding that the
parental-benefit exception did not apply. Mother further claims
that the Los Angeles County Department of Children and Family
Services (DCFS) and the juvenile court failed to comply with
Section 1903 of the Indian Child Welfare Act (25 U.S.C. Sec. 1901
et seq.) (ICWA) and section 224.2 of the Welfare and Institutions
Code as to J.L.’s father’s (Father or R.W.) reported Cherokee
Indian heritage.1
We conclude that Mother was not deprived of a fair and
meaningful right to assert the parental-benefit exception to
adoption in section 366.26, subdivision (c)(1)(B)(i) and the
juvenile court did not err in finding Mother had failed to
establish that the parental-benefit exception applied. We find
that reversal is warranted due to the failure of DCFS and the
juvenile court to comply with ICWA and related state law.
Accordingly, we conditionally reverse the order terminating
parental rights and remand with directions for the juvenile court
to order DCFS to comply with ICWA and related California law
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2
as to potential paternal Indian heritage.2 The order is otherwise
affirmed.
FACTUAL AND PROCEDURAL BACKGROUND3
A. Initial Petition Through Reunification Period
In May 2017, J.L. was approximately eight years old.
He came to the attention of a New Jersey juvenile court when
Mother was accused of physically abusing his half-sibling and
engaging in domestic violence with his half-siblings’ father while
she was residing in New Jersey.
In July 2017, Mother, J.L.’s two half siblings, and the half-
siblings’ father moved to California, where J.L. already lived with
his maternal grandmother (Grandmother). With Mother’s
permission, J.L. had already been in the care of and living with
Grandmother since he was six months old. A New Jersey court
had also granted Grandmother custody of J.L. when he was two
years old.
2 Father does not appeal, but Mother may raise ICWA errors
on appeal related to Father. (In re A.W. (2019) 38 Cal.App.5th
655, 663.)
Additionally, a reversal of the juvenile court’s order
terminating a father’s parental rights must also result in a
reversal of an order terminating a mother’s parental rights.
(Cal. Rules of Court, rule 5.725(a)(1) & (f) [“The purpose of
termination of parental rights is to free the [dependent] child for
adoption. Therefore, the court must not terminate the rights of
only one parent . . . ” except in certain circumstances not
applicable here]; see also Los Angeles County Dept. of Children
and Fam. Services v. Superior Court (Rebecca H.) (2000) 83
Cal.App.4th 947, 949.)
3 This appeal only concerns J.L., and not his siblings, so the
factual background focuses on J.L.
3
With the family now in California, DCFS received a
referral that Mother had physically abused J.L. and his half-
siblings and that the children had been exposed to domestic
violence.
In August 2017, DCFS filed a section 300 petition on behalf
of J.L. and his half-siblings alleging physical abuse of the
children by Mother and domestic violence between Mother and
the half-siblings’ father that placed the children at serious risk of
harm. That same month, the juvenile court ordered J.L. and his
half-siblings detained from Mother in the home of Grandmother,
and ordered Mother monitored visits three times a week for three
hours each, or a total of nine hours a week.
In December 2017, the juvenile court held an adjudication
hearing. Mother pled no contest. The court sustained allegations
relating to domestic violence and physical abuse by Mother. That
same month, a DCFS social worker monitored a visit between
J.L. and Mother that was ended early due to J.L.’s behavior,
although the details of that behavior are not in the record.
Mother told the social worker that she would not “push [J.L.] to
visit her at this time.”
In February 2018, the juvenile court held a disposition
hearing where it ordered J.L. removed from Mother and ordered
family reunification services for Mother. The court ordered
monitored visitation for Mother three times a week for three
hours.
Around the same time, J.L. began receiving mental health
services. He qualified for special educational services and
became a Regional Center client due to diagnoses of Autism
Disorder and Disruptive Mood Disorder. He was hospitalized in
April and May 2018 for mental health reasons. He began
4
meeting with a therapist once a week, a child and family
specialist once a week, and with an entire “wraparound” team
once a week. The juvenile court also ordered joint counseling for
Mother and J.L., but J.L.’s wrapround team determined he was
not yet ready to meet with Mother and the therapist because he
had just started to open up to the therapist on his own. In July
2018, J.L.’s therapist reported that J.L. was still not ready for
joint therapy with Mother.
In spring and summer of 2018, J.L.’s in-person visits with
Mother were sporadic. DCFS monitors went to pick him up for
visits, but he often refused to attend. In September 2018,
another in-person visit with Mother and J.L. was terminated
early due to J.L.’s behavior, which required him to be restrained
by Mother, her partner, and his half-siblings.
DCFS then suggested that visits be set up only between
J.L. and Mother (i.e., no longer together with his half-siblings
and their father) to promote bonding. J.L. also refused to attend
these visits and told the monitor he did not want to visit Mother,
stating “she sucks” and “I hate her.”
In March 2019, the juvenile court held a contested review
hearing. The court found that Mother’s compliance with
reunification services was only partial, terminated her
reunification services, and set a section 366.26 permanency
planning hearing for July 2019.
B. Permanency Planning Period and Termination of
Parental Rights
During the permanency planning period, J.L.’s behavior at
home “improved” and he graduated from wraparound services.
He continued with therapy and also saw a psychiatrist for
medication needs. He was “consistent in his statements
5
regarding his desire to remain in the home of his prospective
legal guardians [his maternal grandparents] permanently.”
J.L. continued to generally refuse to attend in-person visits
with Mother and only wanted contact with her if it did not
disrupt his routine, again stating that she could visit him while
he engaged in his normal, everyday activities. J.L. usually did
not want to speak with Mother by phone and if he did, it was only
for a short time.
In July 2019, Mother filed a section 388 petition requesting
overnight and unmonitored visits with J.L., the reinstatement of
reunification services, and a finding that returning J.L. to her
care was the appropriate permanent plan. She attached a
document detailing her contact with J.L. from March 2019 to
June 2019, which included phone, video, and in-person visits.
J.L.’s behavior outside the home, such as at school,
continued to be an issue and was triggered when he was “asked
to do something that he simply does not want to do.” He attacked
several individuals, including a classmate and staff member at a
summer camp in July 2019 after being told he would have to
attend dependency court and possibly testify concerning Mother’s
recently filed section 388 petition.
In both June and August 2019, J.L. was hospitalized after
threatening to kill himself.
In September 2019, DCFS approved “1-on-1 services” due to
J.L.’s behavior and need for constant supervision.
Due to a concern with J.L.’s “escalating behaviors,” in
September 2019 there was a meeting with J.L.’s multiple
therapists and mental health team, Grandmother, and a DCFS
social worker about J.L. being “triggered” when he had contact
with Mother. This group developed a plan for remote visitation
6
between J.L. and Mother three times a week, because J.L.’s
contact with Mother “counter[acted] the work that J.L. w[as]
doing with his service providers.” In November 2019, Mother
agreed to this remote visitation plan due to J.L.’s continued
refusal to meet with her in person. The plan was for set for video
visits three times a week at specific times that worked for both
Mother and J.L.
In January 2020, DFCS reported that J.L.’s behavior at
school had improved, although his teacher reported that his
behavior quickly escalated and he sometimes had to be physically
restrained. J.L. responded well to the care of his “1-on-1 aide”
and continued to want to remain in the care of Grandmother.
J.L. still did not want to visit with Mother in person and
was unpredictable as to whether he would visit with her by
phone. Sometimes he would take Mother’s call but only listen to
her and not speak, and sometimes he would participate in the
call.
In summer of 2020, Grandmother organized visits in her
home that included J.L., Mother, and J.L.’s half siblings. J.L.
went upstairs during these visits and would not engage with
Mother. During this time, Mother did not attempt to arrange any
visits with J.L. by video or phone, nor did she arrange any
additional in-person visits. J.L. said he did not want to leave his
home to visit Mother, but he did not care if she visited his home.
In September 2020, the juvenile court appointed a guardian
ad litem for J.L.
In December 2020, the juvenile court denied Mother’s first
section 388 petition (the hearing for which had been continued
multiple times, mostly because of the COVID 19 pandemic),
7
finding adoption to be the appropriate permanent plan and no
reason to change the case plan.
In April 2021, Mother filed a second section 388 petition
requesting return of J.L. to her care, termination of the section
366.26 hearing, reinstatement of reunification services, and
unmonitored visits, including overnights and weekends. She
reported that between December 2020 and April 2021, she and
J.L. had 30 out of 41 scheduled video visits via Facebook
messenger or visits by phone, that their relationship had grown
over that time, and that J.L. had expressed wanting her to call on
days she was not scheduled to call and that he was open to
visiting Mother in her home. The juvenile court denied the
petition, finding a lack of a change in circumstances.
In June 2021, J.L. was reported by his teacher to be doing
“very well.” He also developed a relationship with his
“Behavioral Technician” and looked forward to visits with him.
In October 2021, Grandmother reported that Mother had
not been consistent with visits as set by the visitation plan, but
had been more consistent since the April 2021 section 388
hearing. Meanwhile, J.L. continued to visit with Mother by
phone or video, but the visits were mostly brief due to J.L. ending
the call. J.L. continued to maintain he would not visit Mother in
person unless it did not disrupt his daily routine, but again
indicated that Mother could visit him in his home. J.L. told a
social worker that he wanted his Grandmother and maternal
grandfather to adopt him.
In January 2022, the court held the section 366.26 hearing.
Mother and J.L.’s court-appointed guardian both testified.
Mother testified that for the past six months, she had visited J.L.
on an average of twice a week for about 20 minutes, and the
8
visits occurred via Facebook video messenger. Mother’s counsel
asserted that the parental-benefit exception to adoption applied,
but the guardian and J.L.’s attorney argued against it, and the
juvenile court found that it did not apply. The court found J.L.
adoptable and terminated parental rights.
This appeal by Mother followed. Father did not appeal.
C. Paternity and ICWA Inquiry
During the initial stages of the investigation, DCFS
inquired of Mother as to J.L.’s possible Indian heritage, which
she denied. The social worker then filed an ICWA 010(A) form
stating that J.L. had no known Indian heritage, and wrote that
Mother was the sole person questioned. Mother also filed an
ICWA-020 form stating she had no Indian ancestry.
Based on these documents, at the September 2017
detention hearing the juvenile court found that ICWA did not
apply “as to Mother.” At that time, it was unknown who J.L.’s
biological father was, and the court deferred a paternity finding
for the appearance of J.L.’s biological father and/or the receipt of
J.L.’s birth certificate.
J.L.’s birth certificate did not list a father. Mother provided
DCFS with the full names and birthdays of two individuals who
could be J.L.’s biological father. Shortly afterwards, one of these
individuals denied paternity. Meanwhile, DCFS searched for the
other individual, R.W., while the court continued the section
366.26 hearing on multiple occasions so that R.W. could be
located.
In May 2021, DCFS received a phone call from an
individual who identified himself as R.W.’s brother. He said that
R.W. was in prison, but the brother did not know the location.
DCFS eventually located and spoke with R.W. who confirmed
9
prior involvement with Mother, and who also provided DCFS
contact information for his sister.
R.W. also told the DCFS social worker that he was half-
Cherokee through his mother, but that he was not a member of
the Cherokee tribe. There is no evidence that DCFS asked
anyone besides R.W. about potential Indian heritage, such as
R.W.’s brother or sister.
In May 2021, the juvenile court ordered paternity testing
for R.W. and J.L., which, in October 2021, confirmed that R.W.
was indeed J.L’s biological father. That same month, the juvenile
court continued the section 366.26 hearing in order to obtain
waiver of R.W.’s appearance or to facilitate a remote appearance.
At the final 366.26 hearing in January 2022, at which R.W.
appeared remotely, the juvenile court found that R.W. was J.L.’s
biological father. The court did not make any ICWA finding as to
R.W. at this hearing, nor at any other time.
DISCUSSION
I. Mother Was Not Deprived of a Fair and Meaningful
Opportunity to Establish the Parental-Benefit
Exception to Adoption.
Mother argues reversal is warranted under our decision in
In re Hunter S. (2006) 142 Cal.App.4th 1497 (Hunter S.)
because she was deprived of a “fair and meaningful opportunity”
to establish the parental-benefit exception to adoption.
We disagree.
A. In-Person Visits
Mother first claims that when her visitation changed from
in-person visits to video or phone visits, it prevented her from
establishing a bond with J.L. and thus from proving the parental-
10
benefit exception to adoption applied, in violation of our decision
in Hunter S., supra, 142 Cal.App.4th 1497.
In Hunter S. we acknowledged that “[c]ourts have long
recognized that, in the context of dependency proceedings, a lack
of visitation may ‘virtually assure[ ] the erosion (and termination)
of any meaningful relationship’ between mother and child.
[Citation.]” (Hunter S., supra, 142 Cal.App.4th at p. 1504.)
We thus held that a “juvenile court cannot impermissibly
delegate to the child’s therapist, DCFS or any third person,
unlimited discretion to determine whether visitation is to occur.
[Citation.] In no case may a child be allowed to control whether
visitation occurs. [Citations.]” (Id. at p. 1505.)
The facts here are materially different than those in Hunter
S. in two significant respects. First, Mother appears to have
forfeited her argument by not requesting enforcement of the in-
person visitation order from the juvenile court. “When a child
refuses visitation, it is the parent’s burden to request a specific
type of enforcement, or a specific change to the visitation order.
Absent a request, it is not the court’s burden to sua sponte come
up with a solution to the intractable problem of a child’s steadfast
refusal to visit a parent.” (In re Sofia M. (2018) 24 Cal.App.5th
1038, 1046.) Here, Mother never petitioned the court to enforce
in-person visits after J.L. refused to visit with her in person. Her
sole request to the court regarding visitation was in June 2019
(prior to her agreeing to video visits in November 2019) when she
asked for unmonitored, overnight, and weekend visits. In
contrast, in Hunter S., the mother “consistently raised the issue
of the juvenile court’s failure to enforce its visitation order for
over two years.” (Hunter S., supra, 142 Cal.App.4th at p. 1505.)
11
She also filed a section 388 motion explicitly raising the issue of
lack of visitation, which she then appealed. (Id. at p. 1500.)
Second, even if Mother had not forfeited her argument by
failing to raise it below, Mother was not deprived of visitation,
unlike in Hunter S. (Compare Hunter S., supra, 142 Cal.App.4th
at p. 1503 [child refused “all contact” except for one visit].) The
change to video visitation for the period between November 2019
and the summer of 2020 was not an abdication of the juvenile
court’s order mandating visitation; it simply changed the means
of visitation. (Compare, Hunter S., supra, 142 Cal.App.4th at
p. 1506 [“It was that failure to enforce the order that [mother]
brought to the court’s attention in her petition. She points out
that, by refusing to enforce its order, the court effectively denied
her visits, joint therapy, and virtually all contact with her
son. . . .”] (Italics added).)
There is ample evidence of visitation, and, by Mother’s own
testimony, the video visitation was “grow[ing]” her relationship
with her son. In April 2021, Mother reported that between late
December 2020 and early April 2021, she and Joshua had 30 out
of 41 scheduled video or phone visits. She stated that their
conversations had “grown” over time, J.L. had recently expressed
that he wanted her to call him on days that she was not
scheduled to call him, and he was now open to visiting her in her
new home. In January 2022, Mother testified that for the past
six months, on average she had contact with J.L. by video twice a
week for 20 minutes. She further testified that she “wanted to
give J.L. and my relationship a chance to grow organically.”
According to Mother, J.L. had become “more open” when they
originally started their “phone conversation[s].” Mother’s
testimony is thus essentially that the video and phone visits grew
12
her bond with J.L. Although the relationship may have grown
even more through in-person visits, the record suggests
otherwise. While the phone visits grew the mother-son
relationship, J.L. did not engage with Mother when she visited
his home.
Moreover, Grandmother and DCFS reported a gap in
visitation by any means and a lack of in-person visits that was
entirely attributed to Mother. A few times during the summer of
2020, Grandmother hosted in-person visits at her home between
J.L. and Mother, which also included J.L.’s half-siblings. During
those visits, J.L. did not engage with Mother and mostly
remained upstairs. While J.L. maintained he did not wish to
visit with Mother outside of his home, he “did not care if she
visited [his] home.” Yet, during the summer of 2020 and for
months afterwards, Mother did not attempt to contact J.L. by
telephone or video, nor did she ever request any additional in-
person visits in J.L.’s home.
In sum, unlike in Hunter S., supra, 142 Cal.App.4th 1497,
Mother visited with J.L. and this visitation—according to
Mother’s own testimony—grew their relationship. Mother agreed
to these remote visits and never asked the juvenile court to
enforce its in-person visitation order. Even once J.L. agreed to
resume in-person visits in his home, Mother did not attempt to
arrange any after the few that took place in the summer of 2020.
Mother was not prevented from visiting with J.L. and thus not
prevented from establishing the parental-benefit exception under
Hunter S.
13
B. Bonding Study
Mother also contends that the juvenile court violated her
due process rights by denying her a bonding study, again citing
Hunter S., supra, 142 Cal.App.4th 1497.
Evidence Code section 730 permits the juvenile court to
appoint an expert to study and report on the bond between a
parent and child. (In re Jennifer J. (1992) 8 Cal.App.4th 1080,
1084.) An expert’s bonding study can be relevant to the question
of whether the parental-benefit exception should prevent the
termination of parental rights. But a bonding study is not
mandated under any law. “There is no requirement in statutory
or case law that a court must secure a bonding study as a
condition precedent to” the termination of parental rights. (In re
Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339 (Lorenzo C.).)
Rather, the court’s decision to order a bonding study is an
exercise of discretion. (Ibid.)
It is not an abuse of discretion to deny a bonding study
when “it is unlikely that a bonding study would have been useful
to the juvenile court.” (Lorenzo C., supra, 54 Cal.App.4th at p.
1341.) The juvenile court denied Mother a bonding study because
it determined that it would be inappropriate and irrelevant based
on the information it already had before it on J.L.’s relationship
with Mother. This information included a letter from Marcos
Aguilar, Jr., the Assistant Clinical Director of Special Needs
Network, Inc., where J.L. was receiving Applied Behavioral
Analysis (ABA) services. Aguilar’s letter, dated October 2021,
stated that J.L. had been receiving ABA services since March
2020 and J.L. “does not have the capacity to express himself
concerning personal life circumstances and solely makes
decisions for immediate impact on his personal gains. [J.L.]
14
continues to struggle with his ability to comprehend personal
questions and his ability to provide meaningful responses to
questions about his personal circumstances. Lastly, his capacity
to capture [sic] truth may be impacted by his motivation to
escape social interactions and may in turn evoke false responses
from [J.L.].” Although a bonding study may have provided
insightful information, we cannot conclude that it was an abuse
of the juvenile court’s discretion to conclude otherwise on the
basis of the evidence before it as to J.L.’s feelings towards
Mother, described post in parts II.B.-C., and J.L.’s reported
inability to provide meaningful or accurate responses to
questions.
A juvenile court is also within its discretion to deny a late
request for a bonding study. “ ‘[T]he denial of a belated request
for [a bonding] study is fully consistent with the scheme of the
dependency statutes, and with due process.’ [Citation.]” (In re
M.M. (2022) 81 Cal.App.5th 61, 69 (M.M.).) Mother requested a
bonding study in October 2021, and the original section 366.36
hearing was set for July 2019, although it was continued
numerous times due to the COVID-19 pandemic and efforts to
locate J.L.’s father. At the time Mother requested the bonding
study, the section 366.36 hearing was scheduled for the following
month and would thus have required a continuance.4
“[C]ontinuances in juvenile court are disfavored. [Citation.]”
(M.M., supra, 81 Cal.App.5th at p. 69.)
4 The section 366.36 hearing was continued again from
November 2021 and finally held on January 11, 2022, which is
less than three months after Mother requested the bonding
study, due to efforts to locate J.L.’s father.
15
Embedded in Mother’s arguments regarding the need for a
bonding study is the argument that because L.H. was over 12-
years old at the time of the section 366.26 hearing, and section
366.26, subdivision (c)(1)(B)(ii) permits an exception to adoption
when a child who is at least 12-years old specifically objects to
the termination of parental rights, a bonding study was needed to
uncover J.L.’s wishes as to termination of parental rights.
Mother does not cite any legal support for this claim, and
applicable case law does not support her contention. In
considering a child’s wishes under section 366.26, subdivision
(c)(1)(B)(ii), a juvenile court may properly consider the child’s
wishes without a “direct statement” by the child as to
termination of parental rights. (In re Leo M. (1993) 19
Cal.App.4th 1583, 1592 [“While a direct statement of a minor’s
feelings regarding termination is certainly the most dispositive of
the minor’s wishes, it will not always be possible or in the minor’s
best interest to obtain such a statement”]; In re Amanda D.
(1997) 55 Cal.App.4th 813, 820 [finding that the juvenile court
could “infer[]” the minor’s wishes from the evidence of his
statements about his caregivers and evidence of how he reacted
to visits from the parent]; In re Jesse B. (1992) 8 Cal.App.4th 845,
853 [noting that direct testimony may not be possible in cases
where the child has a disability].)
Here, when the social worker asked J.L. if he knew what
adoption was, he replied, “yes. . . . [A]doption is with the people
who are caring for you [sic] want [sic] to stay with them and have
you forever.” When asked if he wanted his current caregivers to
adopt him, he said yes, and he also stated that he wanted to
continue to live with his caregivers and have visits with Mother.
These statements, along with the record evidence, described post
16
in parts II.B.-C., of how J.L. felt about Mother, and the testimony
by L.H.’s court-appointed guardian on his behalf that termination
of parental rights was appropriate, were sufficient for the
juvenile court to find that L.H. did not object to the termination
of parental rights.
Mother’s citation to Hunter S., supra, 142 Cal.App.4th 1497
does not mandate a different result. Hunter S. concerned the
deprivation of mother’s right to visitation, which it found
prevented her from establishing a bond with her child. It does
not address bonding studies, which are discretionary.
(Lorenzo C., supra, 54 Cal.App.4th at p. 1339.)
For these reasons, we do not find that the juvenile court
abused its discretion in failing to order a bonding study.
II. Mother Failed to Establish the Parental-Benefit
Exception to Adoption.
In the alternative, Mother argues that the juvenile court
erred in concluding that the parental-benefit exception did not
apply. We disagree.
Where, as here, “a court proceeds to select a permanent
placement for a child who cannot be returned to a parent’s care,
the parent may avoid termination of parental rights in certain
circumstances defined by statute. One of these is the parental-
benefit exception. What it requires a parent to establish, by a
preponderance of the evidence, is that the parent has regularly
visited with the child, that the child would benefit from
continuing the relationship, and that terminating the
relationship would be detrimental to the child.” (In re Caden C.
(2021) 11 Cal.5th 614, 629 (Caden C.); see also § 366.26, subd.
(c)(1)(B).) If the parent demonstrates these three things, then the
parental-benefit exception to adoption applies and the juvenile
17
court should not terminate parental rights but “should select a
permanent plan other than adoption.” (Caden C., supra, 11
Cal.5th at pp. 636–637.)
When reviewing the juvenile court’s findings regarding the
parental-benefit exception, we apply two different standards of
review. (Caden C., supra, 11 Cal.5th at pp. 639–641.) We review
the first two elements (parental visitation and the child’s
emotional attachment), which require factual findings, for
substantial evidence. This requires us to determine if there is
reasonable, credible evidence of social value to support the court’s
order, and we resolve all conflicts in favor of affirmance. (In re
M.G. (2022) 80 Cal.App.5th 836, 848 (M.G.).) For the third
element, a legal question, we apply the abuse of discretion
standard. (Ibid., citing Caden C., supra, 11 Cal.5th at p. 640.)
A court abuses its discretion when it makes an arbitrary,
capricious, or patently absurd determination or its decision rests
on an error of law. (M.G., supra, 80 Cal.App.5th at pp. 848–849.)
A. Element One: Visitation
Mother contends that the court found she demonstrated the
first element of visitation, citing the minute order from the
section 366.26 hearing that reads, “The court finds that the
parent has maintained visitation with the child . . . .”, so she does
not challenge this element on appeal. DCFS points out that this
statement in the court transcript is in conflict with the reporter’s
transcript, which states, “[t]he court finds that . . . [t]here has
been some visitation but certainly not what we would expect and
that does not even take into account the extent of visitation that’s
allowed under the circumstances with the pandemic and the
distance.”
18
In general, conflicts between a reporter’s transcript and a
clerk’s transcript are resolved in favor of the reporter’s transcript.
(In re Merrick V. (2004) 122 Cal.App.4th 235, 249.) Regardless,
we do not need to determine what the court found as to this
element and whether its determination was correct because we
uphold the court’s conclusions that Mother failed to establish the
second and third elements of the parental-benefit exception, as
discussed below.
B. Element Two: J.L.’s Emotional Attachment to
Mother
Mother argues that the juvenile court’s conclusion that she
failed to establish the second prong of the parental-benefit
exception is not supported by substantial evidence.
“As to the second element, courts assess whether ‘the child
would benefit from continuing the relationship.’ (§ 366.26, subd.
(c)(1)(B)(i).) . . . [T]he focus is the child. And the relationship may
be shaped by a slew of 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.’ [Citation.] . . . [C]ourts
often consider how children feel about, interact with, look to, or
talk about their parents.” (Caden C., supra, 11 Cal.5th at p. 632.)
We find substantial evidence to support the juvenile court’s
determination that Mother did not meet her burden of showing
that J.L. would benefit from a continued relationship with
Mother. In particular, as the juvenile court found, Mother’s
testimony that she wanted to “grow” her relationship with J.L.
“organically sort of belies the notion that there is this substantial
positive emotional attachment to the parent that the child has
right now . . . .”
19
The court also noted that J.L. had lived with Grandmother
“essentially his entire life,” because J.L. had lived with her since
he was six months old and was 13 years old at the time of the
section 366.26 hearing, and thus had spent very little of his life in
Mother’s custody.
Moreover, there was evidence that J.L. had little to no
positive effects from his interactions with Mother. He refused to
visit her alone, a visit with her had to be cut short due to his
acting out, he sometimes did not speak to her during visits at all
or spoke very little, he did not interact with her when she visited
his home, he appeared “triggered” by any discussion of Mother in
therapy and refused to speak about or attend joint therapy with
her, and he frequently refused to visit with her outside of his
home even if accompanied by a DCFS social worker or his one-on-
one aide, with whom he had a good relationship. J.L. was mostly
concerned about how his contact with Mother might disrupt his
daily routine and only wanted to visit with her in person if she
came to his home. Grandmother also reported that Mother would
yell and scream at J.L. during visits.
In addition, J.L. had particular needs that Mother was not
able to meet, according to the evidence. J.L. has autism spectrum
disorder, unspecified attention-deficit/hyperactivity disorder,
adjustment disorders, and disruptive mood dysregulation
disorder. He has been hospitalized at least twice for mental
health issues and requires ongoing mental health services and a
special educational plan. There is evidence that Grandmother
was meeting these extensive needs by facilitating his meetings
with mental health professionals, arranging special educational
services, and through their lengthy, strong relationship. In
contrast, an evaluator hired by the juvenile court to assess
20
Mother’s own mental health and psychological diagnoses, which
had resulted in her own hospitalization on several occasions,
stated that Mother had little insight into her own mental health
issues and how they were negatively influencing her
interpersonal interactions. J.L.’s court-appointed guardian also
testified that Mother was “unable or did not even discuss [J.L.’s]
severe and significant issues and needs and how she even played
a role in that.”
Substantial evidence therefore supports the juvenile court’s
conclusion that Mother did not establish element two of the
parental-benefit exception.
C. Element Three: Balancing Termination with the
Benefit of Adoption
Mother also argues that the court erred in finding that she
failed to establish the third element of the parental-benefit
exception, a determination we review for an abuse of discretion.
(Caden C., supra, 11 Cal.5th at p. 640.)
In analyzing “the third element — whether ‘termination
would be detrimental to the child due to’ the relationship [with
the parent] — the court must decide whether it would be harmful
to the child to sever the relationship and choose adoption.
[Citations.]” (Caden C., supra, 11 Cal.5th at p. 633.) In making
this decision, the court must weigh the benefits and
disadvantages of the child’s potential life in an adoptive
placement against the benefits and disadvantages of continuing
the parental bond and a less secure placement. (Ibid.) This
evaluation necessarily involves a “delicate balancing” in
“assessing the likely course of a future situation that’s inherently
uncertain.” (Caden C., supra, 11 Cal.5th at p. 640.)
21
The juvenile court found that the benefits of adoption by
Grandmother outweighed the harm of J.L. losing a relationship
with Mother. This determination was not an abuse of discretion.
J.L. has a significant bond with Grandmother, with whom he has
lived since he was six months old. Grandmother reportedly has
provided him with a stable home and, as noted above, has helped
to address his significant mental health and special education
needs. The juvenile court appropriately found that Grandmother
was his mother for all “practical purposes,” given the length of
time he had lived with her and that their relationship was
“durable and stable.” J.L. also expressed that he wanted to
continue to live with Grandmother and wanted her to adopt him.
In contrast, J.L.’s relationship with Mother was not so
helpful or positive as to outweigh the benefits of his permanent
placement with Grandmother. As detailed above, J.L. had little
to no positive effects from his interactions with Mother and she
did not recognize J.L.’s severe and significant medical diagnoses
and special needs. (See In re J.C. (2014) 226 Cal.App.4th 503,
530 [“ ‘a parent may [not] establish the parent-child beneficial
relationship exception by merely showing the child derives some
measure of benefit from maintaining parental contact’ ”].)
In sum, the juvenile court’s decision as to the third element
of the parental-benefit exception was not arbitrary, capricious, or
absurd. (Caden C., supra, 11 Cal.5th at p. 641.) The court had
handled J.L.’s case from August 2017 to January 2022, and was
well informed of J.L.’s relationships with both Grandmother and
Mother such that it could engage in the “delicate balancing” it
was required to undertake. (Id. at p. 640.) Its decision was well
within its discretion.
22
III. The Court Erred in Finding That ICWA Did Not
Apply.
Lastly, Mother argues that the juvenile court and DCFS
failed to satisfy their duties under ICWA and related California
law after R.W. reported Cherokee heritage. DCFS concedes that
it failed in its duty of further inquiry, but asserts that its initial
inquiry was sufficient. We agree with Mother that DCFS failed
in its duties of both initial and further inquiry, and the juvenile
court also failed to inquire after J.L.’s father was identified, such
that there is reversable error.
We review the juvenile court’s ICWA findings under the
substantial evidence test. (In re Josiah T. (2021) 71 Cal.App.5th
388, 401 (Josiah T.).) “ICWA reflects a congressional
determination to protect American Indian children and to
promote the stability and security of Indian tribes and families.”
(Josiah T., supra, 71 Cal.App.5th at p. 401.) In ICWA, Congress
established procedural rules applicable in dependency cases to
ensure that if an Indian child is involved, they are properly
identified. (Ibid.; 25 C.F.R § 23.107(a).)
Federal regulations implementing ICWA provide that
“[s]tate courts must ask each participant in an emergency or
voluntary or involuntary child-custody proceeding whether the
participant knows or has reason to know that the child is an
Indian child[]” and that “[s]tate courts must instruct the parties
to inform the court if they subsequently receive information that
provides reason to know the child is an Indian child.” (25 C.F.R
§ 23.107(a).)
Under state law, the juvenile court and DCFS both
additionally have a “ ‘continuing duty to inquire’ ” whether the
child is an Indian child. (In re D.F. (2020) 55 Cal.App.5th 558,
23
566 (D.F.), citing § 224.2, subd. (a).) This duty has three phases:
the initial duty to inquire, the duty of further inquiry, and the
duty to provide formal ICWA notice. (Ibid.)
The initial inquiry phase requires DCFS to ask “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).) At each participant’s
first appearance at dependency proceedings, the court must ask
whether the participant knows or has reason to know the child is
an Indian child. (Id., subd. (c).)
Both the court and DCFS must make “further inquiry”
if they have “reason to believe” an Indian child is involved.
(§ 224.2, subd. (e).) The Legislature has defined “reason to
believe” as “information suggesting that either the parent of the
child or the child is a member or may be eligible for membership
in an Indian tribe. Information suggesting membership or
eligibility for membership includes, but is not limited to,
information that indicates, but does not establish, the existence
of one or more of the grounds for reason to know [the child is an
Indian child].” (Id., subd. (e)(1).)
If “further inquiry” is required, the next steps DCFS must
take, include, but are not limited to, interviewing parents and
extended family members, and notifying the Bureau of Indian
Affairs and any tribes that “may reasonably be expected to have
information regarding the child’s membership, status or
eligibility.” (§ 224.2, subd. (e)(2)(B); see also Cal. Rules of Court,
rule 5.481(a)(4).)
24
The final phase, the duty to provide formal notice, is
triggered only if there is “reason to know” a child is an Indian
child. (§ 224.3, subd.(a).)
Mother argues that DCFS failed in its duties of initial and
further inquiry. We agree. The juvenile court found that ICWA
did not apply to J.L. on the basis of Mother’s ICWA 020 form
only.5 It is undisputed that J.L.’s biological father, R.W., told
DCFS he was “half Cherokee.” It is also undisputed that DCFS
had contact with R.W.’s brother, but did not question him as to
potential Indian ancestry, and contact information for R.W.’s
sister. (Josiah T., supra, 71 Cal.App.5th at pp. 403–404 [finding
error in the initial inquiry stage where the social worker failed to
ask extended family member with whom social worker had
contact about Indian ancestry].) There is no evidence that DCFS
questioned any other paternal family members as to potential
Indian heritage, or asked R.W. whether any were available to be
questioned.
The juvenile court also did not question R.W. as to Indian
heritage when he appeared before the court in January 2022, nor
did it state that it received an ICWA-020 form for R.W., and the
parties do not point to any such form in the record.
Accordingly, both DCFS and the juvenile court erred in
their duties of initial inquiry.
5 At the time it made this finding, it was unknown who J.L.’s
biological father was, and the finding was made solely on the
basis of Mother’s ICWA form denying her own Indian ancestry.
Despite its continuing duty of inquiry, once the juvenile court
determined who J.L.’s biological father was, it did not revisit this
finding.
25
We reverse error in the initial inquiry only if this error is
prejudicial. (In re Benjamin M. (2021) 70 Cal.App.5th 735, 742
[citing Cal. Const., art. VI, § 13].) We need not make this
determination here, however, because both parties contend that
reversal is warranted due to DCFS’s failure to comply with its
duty of further inquiry, and we agree with them. R.W.’s
statement that he was “half Cherokee” is a “reason to believe”
an Indian child is involved sufficient to trigger the duty of further
inquiry. (see § 224.2, subd. (e); D.F., supra, 55 Cal.App.5th at
p. 569.) DCFS was required to further interview R.W., to
interview extended family members, and give notice to the
Bureau of Indian Affairs and Cherokee tribe, but did not do so.
(See § 224.2, subd. (e)(2)(B); see also Cal. Rules of Court, rule
5.481(a)(4).) At this stage of further inquiry, DCFS was required
to contact all relevant Cherokee tribes and the Bureau of Indian
Affairs. (D.F., supra, 55 Cal.App.5th at pp. 569–571.)
Accordingly, we reverse and remand for compliance with
ICWA and related California law.
DISPOSITION
The juvenile court’s order terminating parental rights is
conditionally reversed. The matter is remanded for further
proceedings to satisfy requirements under ICWA and related
California law as to possible paternal Indian heritage.
The juvenile court is required to order that DCFS comply with its
duty of further inquiry under 224.2, subdivision (e)(2)(B).
The juvenile court shall order that within 45 days of the
remittitur, DCFS report to the court its investigation of J.L.’s
potential Indian ancestry through R.W.
If a tribe responds to the required notice and indicates that
J.L. is an Indian child, and seeks intervention, then the juvenile
26
court’s orders shall be vacated and proceedings consistent with
ICWA conducted. If no tribe responds that J.L. is an Indian
child, or if no tribe seeks to intervene, the court should then
reinstate its section 366.26 order.
In all other respects, the order terminating parental rights
is affirmed.
*
HARUTUNIAN, J.
We concur:
GRIMES, Acting P. J.
WILEY, J.
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
27