California Court of Appeal Nov 15, 2022 No. E079087Unpublished
Filed 11/15/22 In re L.O. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re L.O., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND E079087 FAMILY SERVICES, (Super.Ct.No. J280519) Plaintiff and Respondent, OPINION v.
W.R. et al.,
Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,
Judge. Reversed with directions.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and
Appellant W.R.
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Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and
Appellant K.O.
Tom Bunton, County Counsel, Dawn M. Martin, Deputy County Counsel for
Plaintiff and Respondent.
The juvenile court terminated the parental rights of defendants and appellants
K.O. (Mother) and W.R. (Father; collectively, Parents) to their son, L.O. (Minor).
Father contends the juvenile court erred by not applying the parent-child bond exception
to termination (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i)). 1 Parents contend the
juvenile court erred by finding that the Indian Child Welfare Act of 1978 (25 U.S.C. §
1901 et seq.) (ICWA) does not apply because the Department failed to ask Minor’s
available relatives about Minor’s possible Indian ancestry. We conditionally reverse the
judgment with directions.
FACTUAL AND PROCEDURAL HISTORY
A. BACKGROUND
Father was born in January 1998. Mother was born in August 2003. Father
began dating Mother in 2016, when Mother was 13 years old, and Father was 18 years
old. At that time, Mother was in the care of her mother (Maternal Grandmother). In
June 2017, Father kicked Mother and dragged her by the back of her neck to force her
into a vehicle. A person witnessed the altercation and contacted authorities. Father was
1All subsequent statutory references will be to the Welfare and Institutions Code unless otherwise indicated.
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arrested for domestic violence and the statutory rape of Mother. Father was granted
probation with the condition that he could only be in the company of minors to whom
he is related. Despite the probation condition, Father continued to date Mother. As a
result, Father was found to be in violation of his probation. Mother was removed from
the care of Maternal Grandmother in September 2017 and became a dependent of the
juvenile court.
B. DETENTION
Minor was born in late March 2019, when Mother was 15 years old, and Father
was 21 years old. Plaintiff and respondent San Bernardino County Children and Family
Services (the Department) took custody of Minor in April 2019 because Mother was
detained in juvenile hall and no other caretaker could be located. Minor was placed in
foster care.
Mother denied having Indian ancestry when speaking with the Department’s
social worker. On the Department’s ICWA form, Mother provided names and
telephone numbers for her grandmother (Great-Grandmother) and her stepfather, and
Mother again denied having Indian ancestry.
C. JURISDICTION AND DISPOSITION
Father was present at the jurisdiction and disposition hearing on April 30, 2019,
at which the court referred the matter to mediation. In court, on April 30th, Father
denied having Indian ancestry. On the Department’s ICWA form, Father denied having
Indian ancestry and provided the name, but no contact information, for his mother
(Paternal Grandmother). Maternal Grandmother also completed the Department’s
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ICWA form and denied having Indian ancestry. Maternal Grandmother provided
names, telephone numbers, and an address for Great-Grandmother, Minor’s great-aunt
(Great-Aunt), and Minor’s grandfather.
The Department spoke with Great-Grandmother, Great-Aunt, Step-Grandfather,
and a maternal uncle about whether they would want to care for Minor but did not ask
about Indian ancestry. Father resided with his family, but the Department did not ask
them about Indian ancestry. At the jurisdiction and disposition hearing, held on October
7, 2019, the juvenile court found ICWA did not apply.
D. SIX-MONTH TO 24-MONTH STATUS REVIEWS
During the six-month review period, Father had supervised visits with Minor
once a week for two hours. During the visits, “[F]ather was observed to be caring,
interactive, and affectionate to the child.” During the 18-month review period, Father
had unsupervised visits with Minor at the Department’s office once a week for two
hours. Minor was comfortable with Father and there were no issues during the visits.
During the 24-month review period, Father had unsupervised visits with Minor twice a
week for four hours. Father’s visits took place at a park and a friend’s apartment. The
Department had no concerns regarding Father’s interactions with Minor
Minor had been in the same foster home since May 2019, when he was seven
weeks old, and was bonded to his foster family. Minor identified his foster parents as
his parental figures and they were willing to adopt Minor.
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E. 30-MONTH REVIEW HEARING
During the 30-month review period, the Department reported the following:
Minor “struggle[ed] with tantrums and significant aggression due to not wanting to visit
with [Parents]. [Minor] bites, kicks, and hits [Parents] as well as the foster mother when
she attempts to take the child out of the car for [F]ather’s visits. For [Mother’s] visits,
modifications have had to be made in order for [Minor] to transition out of the visit with
less aggression as he has shown significant aggression towards [Mother] during visits
that [Mother] handles inappropriately. For [F]ather, the meeting point [with the foster
parent] used to be a Starbucks and now when they pass by the Starbucks on non-visit
days, [Minor] gets upset because he thinks he is going to a visit.”
F. TERMINATION OF PARENTAL RIGHTS
After the 30-month review period, Father had supervised visits with Minor once
a month for two hours at the Department’s offices. In February 2022, the Department
social worker wrote, “At times, [Minor] has difficulties transitioning away from the
[foster parent] into [Parents’] visitations however, usually does fine once redirected. . . .
Since the visitations have been reduced to once per month, [Minor’s] aggression during
visitations has improved. Although [Minor] overall appears comfortable with [Parents]
during visitations, he is not significantly bonded to either parent. [Minor] has displayed
that he is bonded and identifies with his [foster parents] as his parents.”
In late March 2022, the Department social worker reported, “Since the visits
were reduced from once per week to once per month, [Minor] has fared significantly[]
better. [Minor’s] behaviors have improved and his willingness to visit with [Parents]
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has improved since the visits were reduced. The reduction of visits has allowed for
[Minor] to further bond with his prospective adoptive parents and family. [Minor]
appears to be very happy and is doing exceptionally well. [¶] [Parents] have been
consistent with their monthly visits and no concerns have been reported. . . . [Minor]
does well in the visits and is comfortable with [Parents] . . . however, he identifies with
the [foster parents] as his parents and is bonded to them as his parents and not [Parents].
[Minor] is affectionate with [Parents] . . . however, only if prompted . . . . [Minor] does
not run to [Parents] . . . upon seeing them, he only runs to the [foster parents] when he
sees them following visits. . . . [Minor] does not ask for [Parents] . . . in between visits.
In addition, although [Parents] . . . spend small parts of their visits playing with [Minor]
and reading him books, most of the visits are spent silently watching movies and not
interacting with [Minor]. [Minor] does not display much of an interest in interacting
with [Parents] . . . besides watching movies.”
On June 1, 2022, the juvenile court held the hearing regarding terminating
Parents’ parental rights. Father testified that Minor runs to him at visits and tries to
leave with Father when the visits end. Father’s attorney argued in favor of the parent-
child bond exception to terminating parental rights. Father’s attorney contended,
“There does appear to be a bond between [Minor] and [Father] in that he has constantly
expressed himself as being upset at the end of the visits. He looks forward to playing
the various games and watching Paw Patrol with [Father]. I think there is a bond there.”
Minor’s attorney argued, “The visits are fine. That’s not the same thing as
actually having a bond that would be detrimental to sever at this point.” Minor’s
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attorney argued that Minor would suffer detriment if the case persisted because Minor
“would always be in a position of somebody trying to take him away from the parents,
at this point, he knows.”
The juvenile court said, “I’m not going to deny that there is some sort of
relationship [Minor] may have with his parents, but it’s not to the extent that it would
cause great detriment if I were to terminate that relationship. And the benefits of
adoption here do outweigh the detriment the child would suffer by severing the parental
relationship. I will terminate parental rights.”
DISCUSSION
A. PARENT-CHILD BOND EXCEPTION
Father contends the juvenile court erred by not applying the parent-child bond
exception (§ 366.26, subd. (c)(1)(B)(i)).
When reunification efforts have failed, there is a statutory preference for
adoption. However, in exceptional circumstances, the juvenile court will not terminate
parental rights when doing so would be detrimental to the child. (In re A.L. (2022) 73
Cal.App.5th 1131, 1150; § 366.26, subd. (c)(1).) The parent-child bond exception
requires a parent to establish, by a preponderance of the evidence, that the parent
regularly visited 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, 629-630); § 366.26, subd. (c)(1)(B)(i).)
When deciding whether to terminate parental rights, the juvenile court is tasked
with weighing the potential harm to the child that would be caused by the loss of the
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relationship with the biological parent “against the [potential] benefits of placement in a
new, adoptive home.” (In re Caden C., supra, 11 Cal.5th at p. 640.) “[T]he ultimate
decision—whether termination of parental rights would be detrimental to the child due
to the child’s relationship with his parent—is discretionary and properly reviewed for
abuse of discretion.” (Ibid.)
The evidence reflects that when Minor visited Father on a weekly basis, Minor
was aggressive—biting, kicking, and hitting Father. Minor became upset at the sight of
the Starbucks where Father picked-up Minor because Minor thought he was going to
see Father. Minor’s behavior improved when his visits with Father were reduced to
once per month. This evidence reflects Minor is less aggressive and under less stress
the less he sees Father. Such evidence supports a finding that severing the relationship
between Father and Minor would not be detrimental to Minor. Accordingly, the
juvenile court did not abuse its discretion in not applying the parent-child bond
exception.
B. ICWA
Parents contend the juvenile court erred by concluding that ICWA does not apply
because the Department failed to ask Minor’s available relatives about Minor’s possible
Indian ancestry.
When a child welfare agency takes a child into its custody, the agency has an
initial “duty to inquire whether that child is an Indian child. Inquiry includes, but is not
limited to, asking the child, parents, . . . [and] extended family members . . . whether the
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child is, or may be, an Indian child.” (§ 224.2, subd. (b); see also In re Benjamin M.
(2021) 70 Cal.App.5th 735, 742 (Benjamin M.).)
The record reflects that the Department was in contact with and/or had contact
information for many of Minor’s maternal and paternal relatives. However, the
Department only gathered ancestry information from Mother, Father, and Maternal
Grandmother. The Department erred by failing to inquire of all the relatives with whom
it was in contact and for whom the Department had contact information. The juvenile
court erred by finding that ICWA did not apply when the Department’s inquiry was
incomplete.
The Department contends its ICWA inquiry was adequate because inquiring of
every available relative “ ‘is absurd at best and impossible at worst.’ ” (In re Ezequiel
G. (2022) 81 Cal.App.5th 984, 1006.) In Ezequiel G., the appellate court explained that
there are situations in which it is difficult or nearly impossible to contact extended
family members due to incomplete contact information, or situations in which a family
is so large that it is not useful to contact all the relatives. (Ibid.) Neither scenario is
present in this case. The Department was in contact with Minor’s extended family to
ask about possible placement. Asking the relatives, with whom the Department was
already in contact, an additional question about Indian ancestry would not have been
absurd or nearly impossible. Thus, the Department’s ICWA inquiry was inadequate.
The courts of appeal are divided on how to handle the issue of harmless error in
relation to an inadequate ICWA inquiry. Currently, the divided courts have created four
different approaches for deciding whether an initial inquiry error is prejudicial. (In re
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Dezi C. (2022) 79 Cal.App.5th 769, 777, 779 (Dezi C.).) The four different approaches
reflect the appellate courts’ struggle with how to handle the lack of information in the
record. (Id. at p. 778.)
We apply the approach known as the readily obtainable information rule because
that was the approach set forth by this court in Benjamin M., supra, 70 Cal.App.5th at
page 744. “If the Department’s initial inquiry is deficient, that defect is harmless unless
‘the record indicates that there was readily obtainable information that was likely to
bear meaningfully upon whether the child is an Indian child’ and that ‘the probability of
obtaining meaningful information is reasonable’ (‘the readily obtainable information
rule’).” (Dezi C., supra, 79 Cal.App.5th at p. 778.)
The Department had the name, telephone number, and address for Great-
Grandmother, and a Department social worker spoke with Great-Grandmother about
whether she would be willing to care for Minor. Given that the social worker
communicated with Great-Grandmother, information from Great-Grandmother is
readily obtainable. The Department social worker spoke with Minor’s maternal aunt
and uncle about taking custody of Minor, so information is readily obtainable from
them. The Department also has names, telephone numbers, and addresses for Great-
Aunt and Minor’s grandfather, which means information from them is readily
obtainable.
Additionally, the Department had an address for Father’s home where he resided
with his relatives. The Department communicated with the relatives through a San
Diego County sheriff’s deputy. They communicated about Mother, and Father’s
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relatives provided helpful information to the Department, such as a description of
Father’s vehicle. Thus, information from those paternal relatives is readily obtainable.
When Father moved out of his relatives’ home, he moved into a home with his brother.
The Department was in contact with Father’s brother because the Department gave him
Live Scan paperwork. Thus, information from Father’s brother is readily obtainable.
Further, Father reported to the Department that he took a trip to visit his father in Texas,
which means information from Father’s father should be readily obtainable. Moreover,
Paternal Grandmother participated in visits with Minor and spoke with a Department
social worker about taking custody of Minor. Given that the Department was in contact
with Paternal Grandmother, information from her is readily obtainable.
If Minor’s relatives have knowledge about Minor having or not having Indian
ancestry, then that would be meaningful information in an ICWA inquiry. Therefore, it
is possible that there is meaningful information which is readily obtainable. As a result,
the error is prejudicial, and we will conditionally reverse the order terminating parental
rights so a proper ICWA inquiry may be conducted.
DISPOSITION
The order terminating parental rights under section 366.26 is conditionally
reversed. The juvenile court shall order, pursuant to ICWA and California Rules of
Court rules 5.481 and 5.482, that within 30 days of the remittitur being issued that the
Department perform a diligent inquiry into Minor’s possible Indian ancestry by
contacting or attempting to contact the relatives discussed in this opinion and any other
relatives for whom it may have contact information. If adequate additional
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investigation is performed but yields no further information that could assist the Bureau
of Indian Affairs or a specific tribe or tribes in determining whether Minor is an Indian
child, then the juvenile court shall reinstate its section 366.26 order. If, as a result of
that inquiry, new information is obtained that may assist the Bureau of Indian Affairs or
a tribe in determining whether Minor is an Indian child, then the juvenile court shall
order the Department to provide the relevant tribe(s) and the Bureau of Indian Affairs
with proper notice of the pending proceedings.
In the event no tribe responds indicating Minor is an Indian child, or if no tribe
seeks to intervene, then the juvenile court shall reinstate its section 366.26 orders. If a
tribe determines that Minor is an Indian child and seeks to intervene in the proceedings,
then the juvenile court shall vacate its prior orders and conduct all proceedings in
accordance with ICWA and related California laws. (In re Josiah T. (2021) 71
Cal.App.5th 388, 409.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER Acting P. J.
We concur:
SLOUGH J.
RAPHAEL J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the juvenile court did not abuse its discretion in declining to apply the parent-child bond exception, but it erred by failing to conduct an adequate inquiry into the minor's Indian ancestry as required by ICWA. Consequently, the judgment was conditionally reversed to allow for a proper inquiry of available relatives.
Issues
Did the juvenile court abuse its discretion by failing to apply the parent-child bond exception to the termination of parental rights?
Did the Department of Children and Family Services fail to satisfy its duty of initial inquiry under the Indian Child Welfare Act (ICWA)?
Disposition. reversed with directions
Quotations verified verbatim against the opinion
“The juvenile court did not abuse its discretion in not applying the parent-child bond exception.”
“The Department erred by failing to inquire of all the relatives with whom it was in contact and for whom the Department had contact information.”
“The juvenile court erred by finding that ICWA did not apply when the Department’s inquiry was incomplete.”