Filed 1/25/24 In re K.F. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
----
In re K.F., a Person Coming Under the Juvenile Court C098527
Law.
SAN JOAQUIN COUNTY HUMAN SERVICES (Super. Ct. No. STK-JD-DP-
AGENCY, 2021-0000073)
Plaintiff and Respondent,
v.
J.T.,
Defendant and Appellant.
J.T., mother of the minor (mother), appeals from the juvenile court’s orders
terminating parental rights and freeing the minor for adoption. (Welf. & Inst. Code,
§§ 366.26, 395.)1 She contends the juvenile court erred in failing to find the beneficial
parental relationship exception to adoption applied and that we must remand for further
1 Undesignated statutory references are to the Welfare and Institutions Code.
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compliance with the Indian Child Welfare Act of 1978 (ICWA). (25 U.S.C. § 1901 et
seq.; § 224.2.)
We will conditionally affirm subject to full compliance with the ICWA on remand,
as described in this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
On February 24, 2021, the San Joaquin County Human Services Agency (the
Agency) filed a section 300 petition on behalf of the newborn minor K.F., who was still
in the hospital after being born prematurely and experiencing feeding issues. The minor
was born in January 2021. The petition alleged mother’s developmental delays and
mental health issues affected her ability to properly care for and supervise the minor, and
the possible biological father, M.F. was not cooperative with the Agency’s investigation
and was unable to demonstrate a plan to address the minor’s safety if placed in his care.2
Mother’s two older children were dependents of the court due to mother’s inability to
properly care for them. A social worker made an unannounced visit to mother’s home
two and a half weeks after the minor’s birth. The minor’s nurse reported that mother was
not visiting and bonding with the minor. However, the minor’s hospital social worker
reported mother had visited when she was able to feed the newborn. The juvenile court
appointed a guardian ad litem for mother and ordered the minor detained with supervised
visitation for mother.
The parents submitted on jurisdiction on April 13, 2021, but the juvenile court did
not hold the contested disposition hearing until March 23, 2022. The Agency
recommended the parents be bypassed for reunification services. Mother was to be
bypassed under section 361.5, subdivision (b)(2), due to her mental disability. The
recommendation was supported by two psychological evaluations that concluded mother
2 The father is not a party to this appeal.
2
was not likely to be capable of caring for the minor with 12 months of services. The
biological father was to be bypassed under section 361.5, subdivision (a), based on the
finding that such services would not benefit the minor. The juvenile court followed the
Agency’s recommendations, bypassed the parents for reunification services, and set the
section 366.26 hearing.
Mother began her twice weekly supervised visits on April 6, 2021. She visited
regularly, and visits were appropriate. The minor was placed in the same foster home as
his half siblings on August 12, 2021. He was reported to be doing well and emotionally
bonded to his foster parents and half siblings. The foster parents were committed to
providing permanency through adoption and had been approved for adoption. An
adoption assessment concluded the minor was adoptable. Noting the minor’s tender age
and need for a suitable and stable environment, the Agency recommended termination of
parental rights.
The section 366.26 hearing took place on April 25, 2023. The minor was then
over two years old. The social worker testified that mother visited regularly for an hour,
once a week. Her visits were supervised. The minor often cried at the beginning of visits
when the foster mother would leave. The minor referred to the foster parents as “mom”
and “dad” but, to the social worker’s knowledge, did not refer to mother as “mom.”
Mother testified she believed the minor recognized her as his mother because he was
always looking at her and smiling. She felt she had a bond with the minor because she
holds him, talks to him, and loves him and, in return, he smiles and hugs her back. She
testified she believes it is in the minor’s best interest to continue visits because he is her
son.
The juvenile court noted mother had provided very little evidence with regard to
the extent of the minor’s bond with her and found mother did not meet her burden to
show any of the exceptions to adoption applied. The juvenile court found the minor was
likely to be adopted and terminated parental rights.
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Mother appealed. This matter was fully briefed on December 4, 2023.
Additional facts related to the ICWA issue are contained in our discussion post.
DISCUSSION
I
Beneficial Parental Relationship Exception to Adoption
Mother contends the juvenile court erred by failing to find the beneficial parental
relationship exception to adoption applied. She claims she established the minor would
benefit from continuing their relationship and, therefore, the juvenile court should have
selected guardianship as the minor’s permanent plan. We find no error.
At the section 366.26 selection and implementation hearing, a juvenile court must
choose one of the several “ ‘possible alternative permanent plans for a minor child. . . .
The permanent plan preferred by the Legislature is adoption. [Citation.]’ [Citation.] If
the court finds the child is adoptable, it must terminate parental rights absent
circumstances under which it would be detrimental to the child.” (In re Ronell A. (1996)
44 Cal.App.4th 1352, 1368.) There are only limited circumstances that permit the court
to find a “compelling reason for determining that termination [of parental rights] would
be detrimental to the child.” (§ 366.26, subd. (c)(1)(B).) One such circumstance is the
so-called beneficial parental relationship exception. (§ 366.26, subd. (c)(1)(B)(i)
[beneficial parental relationship exception]; In re Caden C. (2021) 11 Cal.5th 614, 629
(Caden C.).)
The party claiming the exception has the burden of establishing the existence of
any circumstances that constitute an exception to the termination of parental rights.
(Caden C., supra, 11 Cal.5th at pp. 636-637; In re Melvin A. (2000) 82 Cal.App.4th 1243,
1252; Cal. Rules of Court, rule 5.725(d)(2).) The parent “must show regular visitation
and contact with the child, taking into account the extent of visitation permitted.
Moreover, 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
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from continuing the relationship. And the parent must show that terminating that
attachment would be detrimental to the child even when balanced against the
countervailing benefit of a new, adoptive home.” (Caden C., at p. 636.)
The beneficial parental relationship exception to adoption “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, 576.) The factual predicates of the
exception must be supported by substantial evidence, but the juvenile court exercises its
discretion in weighing that evidence and determining detriment. (Caden C., supra,
11 Cal.5th at pp. 639-640.) We do not substitute our judgment for that of the juvenile
court as to what is in the child’s best interests. (Id. at pp. 640-641.)
Here, the fact that mother maintained consistent visitation with the minor was
undisputed. Mother focuses her argument on her contention that she established the
minor would benefit from continuing their relationship because she was a consistent
person in his life, her visits with the minor were appropriate, and her love and affection
was reciprocated by the minor. However, it is not enough for a parent to show frequent
and loving contact during pleasant visits. (In re C.F. (2011) 193 Cal.App.4th 549, 555.)
It is not enough to show, as testified to by mother, that the minor smiles when hugged or
hugs mother in return. And it is not enough to claim continuing the relationship or visits
is important, as testified to by mother, because the minor “is her son.” (In re Autumn H.,
supra, 27 Cal.App.4th at p. 575 [interaction between natural parent and child will almost
always confer some incidental benefit to the child].) A parent must establish that a minor
has such a significant, positive emotional attachment to the parent that the benefit of
maintaining it outweighed the benefits a minor would obtain from adoption. (Ibid.;
Caden C., supra, 11 Cal.5th at pp. 633-634.) Mother did not meet her burden.
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Even assuming mother had established her relationship with the minor was
sufficiently significant and positive and that continued contact would benefit the minor,
she failed to meet her burden to establish a detriment in terminating parental rights or that
the detriment of termination outweighed the benefits of adoption. Mother identified little
evidence, if any, that termination of the parental relationship would be detrimental to the
minor at all, let alone when balanced against the countervailing benefit of a new, adoptive
home. (Cf. Caden C., supra, 11 Cal.5th at pp. 627-628, 636 [relying on a bonding study
concluding severing the parental relationship would be detrimental to the child].) The
minor was removed from mother as a newborn. At age two, he has spent the entirety of
his life living with and being cared for by foster caretakers and has been placed with his
current foster caregivers, who also care for the minor’s half siblings, since August 2021
and whom he refers to as “mom” and “dad.” By all accounts, he is thriving in their care
and has bonded with his caretakers and half siblings. He often cried at the beginning of
visits when separating from the foster mother but showed no distress at separating from
mother at the end of visits. Even if the minor generally enjoyed most of the visitation
time, there was insufficient evidence that the minor would suffer detriment from
termination of parental rights or that the detriment of termination outweighed the benefits
of adoption. The juvenile court did not err in determining the beneficial parental
relationship exception to adoption does not apply.
Finally, to the extent mother claims the juvenile court failed to state, on the record,
its reasonings and findings in denying application of the beneficial parental relationship
exception, the court is not required to make those findings on the record. (In re A.L.
(2022) 73 Cal.App.5th 1131, 1156, 1161 [no requirement that juvenile court make
specific findings when it finds beneficial parental relationship exception does not apply].)
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II
The ICWA Compliance
Mother contends we must remand for further ICWA compliance because the
Agency did not establish that it interviewed available relatives in gathering familial
information about the minor’s possible Indian ancestry. She also assigns error to the
juvenile court’s failure to make a finding on the applicability of the ICWA. We agree
that remand is necessary.
As this court recently explained: “ ‘The ICWA protects the interests of Indian
children and promotes the stability and security of Indian tribes by establishing minimum
standards for removal of Indian children from their families, and by permitting tribal
participation in dependency proceedings. [Citations.] A major purpose of the ICWA is
to protect “Indian children who are members of or are eligible for membership in an
Indian tribe.” [Citation.]’ (In re A.W. (2019) 38 Cal.App.5th 655, 662.) The ICWA
defines an ‘ “Indian child” ’ as a child who ‘is either (a) a member of an Indian tribe or
(b) is eligible for membership in an Indian tribe and is the biological child of a member
of an Indian tribe.’ (25 U.S.C. § 1903(4).) The juvenile court and the social services
department have an affirmative and continuing duty, beginning at initial contact, to
inquire whether a child who is subject to the proceedings is, or may be, an Indian child.
(Cal. Rules of Court, rule 5.481(a); § 224.2, subd. (a).)” (In re G.A. (2022)
81 Cal.App.5th 355, 360, review granted Oct. 12, 2022, S276056.)
“[S]ection 224.2 creates three distinct duties regarding [the] ICWA in dependency
proceedings. First, from the Agency’s initial contact with a minor and his [or her] family,
the statute imposes a duty of inquiry to ask all involved persons whether the child may be
an Indian child. (§ 224.2, subds. (a), (b).) Second, if that initial inquiry creates a ‘reason
to believe’ the child is an Indian child, then the Agency ‘shall make further inquiry
regarding the possible Indian status of the child, and shall make that inquiry as soon as
practicable.’ (Id., subd. (e), italics added.) Third, if that further inquiry results in a
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reason to know the child is an Indian child, then the formal notice requirements of section
224.3 apply. (See § 224.2, subd. (c) [court is obligated to inquire at the first appearance
whether anyone ‘knows or has reason to know that the child is an Indian child’]; id.,
subd. (d) [defining circumstances that establish a ‘reason to know’ a child is an Indian
child]; § 224.3 [ICWA notice is required if there is a ‘reason to know’ a child is an Indian
child as defined under § 224.2, subd. (d)].)” (In re D.S. (2020) 46 Cal.App.5th 1041,
1052.)
Here, the father reported he did not have any Native American ancestry. Mother
reported possible Cherokee ancestry and the Agency sent notice to the three Cherokee
tribes. The notice included identifying information for the maternal and paternal families
(including the minor’s maternal grandparents, maternal great-grandparents, paternal
grandparents and paternal great-grandmother). None of the tribes expressed the need for
additional information or that the minor was eligible for membership.
The record does not include documentation indicating the origin of the ancestral
information, or which family members were questioned, in putting together the ICWA
notice to the tribes. Mother now contends that the Agency’s failure to provide such
documentation has resulted in a failure to establish compliance with the ICWA. She
argues both parents had good relationships with their extended family, yet the Agency did
not report or establish it made inquiry of these relatives. And she assigns error to the
juvenile court’s failure to make findings about the adequacy of the Agency’s efforts or
whether the ICWA applies to the proceedings.
Mother raised a similar concern in her writ petition, filed in this court on May 4,
2022.3 In her petition, she complained the Agency had failed to comply with the ICWA
3 On our own motion, we take judicial notice of mother’s writ petition filed on
May 4, 2022, and the Agency’s response filed on May 19, 2022, contained in this court’s
file in J.T. v. Superior Court (C095963, petn. den. by order June 8, 2022) (case
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inquiry requirements because it had access to several of the father’s relatives and had not
inquired of them whether the minor had Indian ancestry. She did not, however, raise any
concerns about the Agency’s inquiry or notice with respect to her ancestry, or the lack of
documentation, although the bases for all the alleged ICWA deficiencies she raises now
were contained in the record at that time.
Yet, despite being aware of at least some of the alleged deficiencies in ICWA
compliance (and, at least arguably, constructively aware of the remaining alleged
deficiencies), mother did not, over the course of the following nine months, ask the
juvenile court to order the Agency to make further inquiries or provide further
documentation or evidence. While the juvenile court and the Agency are charged with
making the appropriate inquiry under the ICWA, it is equally the obligation of the
parents’ and minors’ counsel to promptly bring such matters to the attention of the
juvenile court. Counsel must not remain idle, aware of alleged deficiencies in ICWA
inquiry and notice, and then complain about omissions in ICWA inquiry or notice on
appeal.
The parties agree that the juvenile court made no express findings as to whether
the ICWA applied in this case. The juvenile court’s failure to make such findings is
troubling. The juvenile court, the Agency, and counsel involved in this case were all
aware that the juvenile court had yet to make final findings on the applicability of the
No. C095963). (Evid. Code, §§ 452, 459.) We note that a reviewing court may give the
parties to an appeal an opportunity to comment on the propriety of judicial notice taken
on the reviewing court’s own motion, if the matter is of substantial consequence to the
appellate opinion. (Evid. Code, §§ 452, subd. (d) [judicial notice of court records], 459,
subd. (c) [reviewing court may take judicial notice but must give parties the opportunity
to comment under Evid. Code, § 455 if the matter is of substantial consequence].) The
validity of taking judicial notice of the matters in case No. C095963 is clear. However, if
the parties are aggrieved by this judicial notice, we will entertain a motion for rehearing
to give them an opportunity to address the matter before the decision becomes final.
(Evid. Code, § 459, subd. (d).)
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ICWA because this fact was noted in the Agency’s response to mother’s writ petition,
and in our order denying the petition, in which we expressly found that the ICWA claim
was premature, “because it does not appear the juvenile court made an ICWA ruling at or
before the challenged dispositional hearing as to whether ICWA applied to the
proceedings.” We further included in our order the remark that we “encourage[d] the
juvenile court and the child welfare agency to ensure full compliance with all applicable
ICWA statutes as early in the remainder of the proceedings as possible.” Nonetheless,
the juvenile court did not make, nor did counsel request it make, final ICWA findings.
“ ‘The notice requirements serve the interests of the Indian tribes “irrespective of
the position of the parents” and cannot be [forfeit]ed by the parent.’ ” (In re Justin S.
(2007) 150 Cal.App.4th 1426, 1435; but see In re X.V. (2005) 132 Cal.App.4th 794, 798
[“The purposes of the ICWA are indeed commendable, but we do not believe Congress
envisioned or intended successive or serial appeals on ICWA notice issues when, given a
proper objection, they could easily be resolved during proceedings on remand for the
specific purpose of determining whether proper notice was given”]; In re Z.W. (2011)
194 Cal.App.4th 54, 63-68 [“A line has to be drawn. At some point, there must be
finality to the ICWA noticing process. Balancing the minor’s interest in permanency and
stability against the tribes’ rights under the ICWA, we draw the line in this case”].)4 But
“ ‘[c]ounsel should not forget that they are officers of the court, and while it is their duty
to protect and defend the interests of their clients, the obligation is equally imperative to
aid the court in avoiding error and in determining the cause in accordance with justice
and the established rules of practice.’ ” (Williams v. Superior Court (1996)
46 Cal.App.4th 320, 330.) The juvenile court did not receive such aid here, resulting in
4 Because we must remand for the juvenile court to enter ICWA findings and
orders, we will not consider here whether mother has forfeited her claim of error by
failing to raise it in the juvenile court after our denial of the writ petition.
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an unreasonable delay in achieving permanence for this young minor. (See, e.g., In re
Sade C. (1996) 13 Cal.4th 952, 993 [noting “the pointed and concrete harm that the child
may suffer” from prolonged proceedings]; In re A.R. (2021) 11 Cal.5th 234, 249
[“dependent children have a critical interest in avoiding unnecessary delays to their long-
term placement”]; In re Marilyn H. (1993) 5 Cal.4th 295, 306 [children have a
“compelling right[] . . . to have a placement that is stable, permanent, and that allows the
caretaker to make a full emotional commitment to the child”].)
The juvenile court was required to make findings as to the applicability of the
ICWA and its failure to do so here was an error. (In re Jennifer A. (2002)
103 Cal.App.4th 692, 704-705, 709.) Contrary to the Agency’s suggestion, an implied
finding cannot be found here. While findings may be express or implied, when they are
implied, the record must “reflect that the court considered the issue and decided whether
ICWA applies.” (In re Asia L. (2003) 107 Cal.App.4th 498, 506.)
In light of our order denying mother’s writ petition, with the notation that the
ICWA issues were premature because the juvenile court had not made an ICWA finding,
we cannot conclude, based on complete silence on the subject thereafter, that the juvenile
court considered and decided that the Agency fulfilled its inquiry and notice obligations
and the ICWA does not apply. Because the juvenile court did not make an express or
implied finding on the subject, we have no ICWA findings and orders to review and any
remarks we would make on the adequacy of the Agency’s inquiry and notice would be
advisory. (See People v. Buza (2018) 4 Cal.5th 658, 693 [“We . . . abide by . . . a
‘ “cardinal principle of judicial restraint—if it is not necessary to decide more, it is
necessary not to decide more” ’ ”].) Accordingly, we remand the matter for further
ICWA compliance and for the juvenile court to enter an ICWA finding based on the
Agency’s demonstration of inquiry and notice.
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DISPOSITION
The orders terminating parental rights are conditionally affirmed subject only to
full compliance with the ICWA as described in this opinion. If, on remand, the juvenile
court determines the ICWA applies, the court shall vacate its previous orders terminating
parental rights and conduct further proceedings consistent with the ICWA, including a
new section 366.26 hearing. (25 U.S.C. § 1914; § 224, subd. (e).)
/s/
EARL, P. J.
We concur:
/s/
ROBIE, J.
/s/
BOULWARE EURIE, J.
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