Filed 8/14/20 In re C.V. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 C.V. et al., Persons Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E074625
Plaintiff and Respondent, (Super.Ct.No. SWJ1400309)
v. OPINION
R.V. et al.,
Defendants and Appellants.
APPEAL from the Superior Court of Riverside County. Michael J. Rushton,
Judge. Affirmed.
Marisa L. D. Conroy, under appointment by the Court of Appeal, for Defendant
and Appellant R.V.
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and
Appellant E.V.
1 Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand and
Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
On January 27, 2020, the juvenile court denied R.V.’s (father) and E.V.’s (mother)
modification petitions and terminated parental rights to their children, C. and R., under
Welfare and Institutions Code1 section 366.26. Both parents appeal contending the
Riverside County Department of Public Social Services (DPSS) and the court failed to
comply with the inquiry and notice requirements of the Indian Child Welfare Act of
1978. (25 U.S.C. § 1901 et seq.; ICWA). They further argue the court erred by denying
their Welfare and Institutions Code section 388 petitions to reinstate reunification
services and by finding the beneficial parent-child relationship exception to adoption did
not apply. We reject parents’ contentions and affirm.
I. PROCEDURAL BACKGROUND AND FACTS
A. The First Dependency Proceedings Involving C.
1. Detention.
In April 2014, DPSS filed a dependency petition under section 300,
subdivisions (b) (failure to protect) and (g) (no provision for support) on behalf of C.,
a newborn child, alleging mother’s incarceration and ongoing mental health issues, and
father’s ongoing mental health, anger, and substance abuse issues, impaired their ability
to care for the child. On April 14, 2014, the juvenile court found prima facie evidence to
remove C. from her parents’ care.
1 All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
2 2. Jurisdiction and disposition report and hearing.
According to the jurisdiction/disposition report filed May 9, 2014, mother was
adopted by the maternal grandfather and his first wife, who passed away when mother
was nine years old. The maternal stepgrandmother (MSG) informed the social worker
that mother “got bad into drugs” in 2008 (using methamphetamine, cocaine, PCP, and
uppers), refused to remain in each rehabilitation center she was enrolled in, became
physically abusive, and was diagnosed with schizophrenia and bipolar disorder.
Mother’s incarceration was for a domestic violence incident involving a knife and the
paternal grandfather.
At the May 14, 2014 jurisdiction/disposition hearing, the court sustained the
allegations in the first amended petition, declared C. a dependent, removed her from
parents’ custody, and ordered reunification services and visitation. Both parents filed
Judicial Council form ICWA-020 (parental notification of Indian status) indicating they
had no Indian ancestry as far as they knew.
3. Six-month status review report and addendum.
In the six-month status review report filed October 31, 2014, the social worker
reported father was unemployed but living with his parents. He was compliant with his
case plan and consistent with visitation. According to the addendum report filed
December 16, 2014, mother was compliant with her case plan while incarcerated and
after her release on October 31, 2014. Although she was eager “to get to know and care”
for her daughter, she refused to acknowledge “any history of substance use, misuse or
3 abuse.” On December 19, 2014, the court continued parents’ reunification services and
ordered mother to submit to a psychological evaluation if recommended by her therapist.
4. Twelve-month status review report and hearing.
In the 12-month status review report filed May 28, 2015, the social worker stated
that both parents remained compliant with their case plans, they continued to make
efforts to improve their lives free from drugs and alcohol, and there were no safety
concerns. On June 10, 2015, based on DPSS’s recommendation, the juvenile court
placed C. with her parents on a family maintenance plan and on the condition the paternal
grandparents provide support.
5. Section 387 petition.
Less than four months later, DPSS initiated supplemental proceedings (§ 387) to
remove C. from mother’s care based on her continued “abuse [of] controlled substances
and [her] noncomplian[ce with] her Court ordered case plan.” According to the section
387 detention report filed September 24, 2015, as of August 3, 2015, she was using
methamphetamine and living on the streets. On September 22, 2015, C. was removed
from mother’s care but remained in father’s custody.
In the jurisdiction/disposition report filed October 27, 2015, the social worker
stated mother was located at the maternal grandparents’ home, however, she was
“deteriorating behaviorally and cognitively.” A psychological evaluation revealed she
was “‘suffering from a severe neuro-cognitive disorder due to her extensive
methamphetamine abuse.’” Mother was described as being grossly impaired and unable
to take care of herself. On November 2, 2015, the court sustained the allegations in the
4 second amended section 387 petition and terminated mother’s reunification services. On
December 10, 2015, family maintenance services were continued as to father.
On May 6, 2016, father filed an ex parte request to terminate dependency
proceedings. The request was granted; father was given primary legal and physical
custody of C., and supervised visitation was authorized for mother.
B. The Second Dependency Proceedings Involving C. and R.
On September 21, 2018, DPSS received a referral alleging general neglect.
Mother, who was nine months pregnant, claimed father had punched her in the face. Two
prior referrals were received in 2017 concerning mother and father engaging in domestic
violence. A police officer informed the social worker that the “family is well known to
law enforcement and they have each been arrested multiple times for being the aggressor
in a domestic violence assault.” In October 2018, mother gave birth to a baby boy, R.
Mother told the social worker she and father had gotten back together a few months after
the prior dependency had closed. Mother disclosed she began using methamphetamine at
the age of 19 but became sober in 2016, when she was 28 years old. She stated she was
diagnosed with anxiety and depression but had not taken any psychotropic medications in
11 months. Mother admitted to slapping father in the face but denied that he had
assaulted her. The social worker interviewed C., who stated she had witnessed physical
fights between her parents. When confronted with C.’s statements, mother called C. a
“compulsive liar.” The social worker also spoke with father; however, he “presented
with disjointed thoughts, delusional thinking, and some dichotomous reasoning.”
5 On November 2, 2018, DPSS filed a dependency petition under section 300,
subdivision (b)(1) (failure to protect) on behalf of C. and R., alleging both parents have
criminal histories and expose the children to ongoing acts of domestic violence, and
father has unresolved mental health and anger issues. Each parent filed parental
notification of Indian status forms indicating no Indian ancestry; however, upon hearing
that mother was adopted, the juvenile court asked the maternal grandfather if he had any
information “related to the mother having Indian ancestry.” He replied, “No.” On
November 5, 2018, the children were removed from their parents’ custody.
2. Jurisdiction and disposition report and hearing.
According to the jurisdiction/disposition report filed November 26, 2018, the
children were placed with the maternal grandparents. The social worker opined that
“[d]espite the parents participating in Court ordered services, they failed to benefit from
the services.” She identified the “substantial history of domestic disputes” as the primary
problem necessitating intervention. Other concerns included their “undiagnosed and/or
untreated mental health issues,” the “ongoing history of drug use, not limited to
marijuana and cocaine,” and mother’s “previous diagnosis of schizoaffective disorder due
to her history of drug use.” Mother informed the social worker that she was adopted by a
“social worker at McClaren Hall in El Monte” when she was two or three years old.
On November 29, 2018, the court sustained most of the allegations in the first
amended supplemental petition, declared the children dependents of the court, ordered
reunification services for both parents, and ordered father to participate in a medication
assessment and psychological evaluation.
6 3. Subsequent reports concerning domestic violence and visitation.
In the social worker’s report filed March 11, 2019, it was noted that father’s anger
management issues appeared to be escalating. On January 23, 2019, mother went to the
police station asking to obtain a temporary restraining order against father, but she left
without following through. On February 14, 2019, two calls were made to law
enforcement regarding domestic violence. The next day, father reportedly “punched his
pregnant wife in the stomach, slapped her, and threw her to the ground several times.”
Mother was hospitalized. The court issued an emergency protective order, but mother
returned home soon after the incident and recanted the allegations. Father was diagnosed
with “Bipolar and Related Disorder, Hypomanic Episode W/O Prior Major Depressive
Episode, Delusional Disorder Grandiose Type, and Narcissistic Personality Disorder.”
His therapist opined that father might require a higher level of care or medication
management.
On April 18, 2019, DPSS filed an addendum report to address liberalizing
mother’s visitation. The social worker recommended “no change in visitation orders.”
While mother had completed a parenting class and an outpatient substance abuse
program, and had been consistently testing negative for controlled substances, the social
worker expressed concerns about the continued domestic violence. In addition to the
previously reported domestic violence calls to law enforcement, calls were made on
March 7, March 20, and April 5, 2019. Father admitted he smoked marijuana on a daily
basis and prior to his visits with the children. The social worker “advised that he should
not be under the influence while visiting or caring for the children.” When mother visited
7 the children, she spent “much of the visit with [R.]” because “the baby requires more
attention” and C. “did not play” with mother.
4. Six-month status review report, addendum, and contested hearing.
According to the six-month status review report filed May 10, 2019, DPSS
recommended terminating reunification services as to both parents and setting a
section 366.26 hearing with a permanency goal of adoption. The social worker noted
both parents’ prior denial of any Native American ancestry but related that mother, on
May 7, 2019, stated a DNA ancestry test showed she was 58 percent Native American.
Mother had no information as to her ancestral tribe because her “‘bio mother is deceased
and bio father unknown.’” While both parents had made progress on their case plans,
they did not appear to be “benefitting from their participation in Domestic Violence
services.” Dr. Robert Suiter conducted a psychological assessment of father and opined
there were no “‘reassurance[s] at all that [father] would benefit from services.’” Both
parents regularly visited the children. On May 30, 2019, the court set a contested six-
month status review hearing.
In its addendum report filed June 18, 2019, DPSS continued to recommend
terminating services and setting a section 366.26 hearing. The social worker reported
another domestic violence incident in May 2019, when father yanked the ignition out of
their car, leaving mother stranded in the middle of the street outside DPSS’s office.
Father was angry and stated the social worker had a “personal vendetta against him and
[was] racist against Mexicans.” Based on father’s demeanor and erratic behavior, DPSS
determined it would not be safe for the children to visit with him that day. Father
8 continued to test positive for marijuana. Mother was diagnosed with “P-Intermittent
Explosive Disorder, Unspecified Depressive Disorder, and Schizophrenia.” She had not
reached her goal of “increasing insight and identifying effective coping and parenting
skills” as she exhibited “aggressive behavior, verbal and physical, three times per week.”
Her therapist expressed many concerns, including mother’s minimization of her domestic
violence and blaming others for her behavior, and recommended continuing therapy.
According to mother’s psychological evaluation, her prognosis was favorable only to the
degree she could remain separated from father and take her prescribed medications.
On June 27, 2019, the court noted there was reason to believe the children may be
of Indian ancestry and that ICWA may apply. Nonetheless, the court terminated
reunification services and set a section 366.26 hearing with a permanent plan of adoption.
Both parents filed notices of intent to file a writ petition; however, the petitions were
dismissed.
5. ICWA notices.
On August 13, 2019, DPSS served and filed ICWA notices for each child. Notice
was provided to the Bureau of Indian Affairs (BIA) and the U.S. Department of the
Interior. The notices identified mother’s married and maiden names (not her birth name),
her date and place of birth, and the biological maternal grandmother’s name. Regarding
additional information, the notices provided: “Mother was interviewed on 5/15/19 by
Social Services Practioner [sic], Stacy Vasquez, and a CSD 4597 was emailed to ICWA
noticing on 5/15/2019. Mother indicated per her DNA test she discovered she was 58%
Native American. Tribe is unknown at this time. Mother was adopted around 2 to
9 3 years old and was unable to provide any identifying information on her biological
parents other than a first and last name of her biological mother. A search of C-IV and
Accurint was conducted on 7/22/2019 and a print out of all known family members and
associates was forwarded to the Social Services Practioner [sic] on 7/23/2019. On
6/27/2019, step maternal grandmother, [MSG], was interviewed by Noticing Office
Assistant, Christy Alcocer. She provided family information for the adoptive family.”
The U.S. Department of the Interior was unable to determine tribal affiliation because the
notice contained insufficient information.
6. Sections 366.26 and 366.3 status review report and addendum.
According to the sections 366.26 and 366.3 status review report filed October 11,
2019, parents’ visitation with the children became “sporadic” because mother was again
pregnant, and she asked to suspend visitation until after the baby was born, and father had
canceled several visits. In September 2019, mother gave birth to a baby girl, Re.2
2 On October 16, 2019, DPSS filed a dependency petition under section 300, subdivisions (b)(1) (failure to protect) and (j) (abuse of a sibling) on behalf of Re. based on both parents’ substantiated allegations of general neglect of their older children, who had been exposed to acts of domestic violence. According to the detention report, both parents denied “having tribal linkage pertaining to Native American and/or Alaskan heritage.” Each parent filed separate parental notification of Indian status forms indicating the same. Mother refuted her prior report of a domestic violence incident from February 2019, claiming that she “‘passed out and must have imagined something happened that did not happen,’” or attributed it to her being “‘pregnant and having hormonal issues.’” Father also denied the incident, asserting mother was making it up. Father stated that he and mother “know not to ‘tattle-tell’ on each other now.” Law enforcement had not received any calls from the home since May 2019. On October 17, 2019, the juvenile court detained Re. On November 7, 2019, the court found that the child came within section 300, subdivisions (b)(1) and (j), adjudged her a dependent of the court, and allowed her to remain in both parents’ care, with family maintenance services.
10 In its addendum report filed December 24, 2019, DPSS continued to recommend
termination of parental rights as to C. and R. and adoption by the maternal grandparents
with whom the children had been residing since November 5, 2018. According to the
maternal grandparents, the children saw “them as their parents” and “look to them when
they want to be ‘cuddled,’ play, or have their needs met.” The maternal grandparents
fully understood that adoption was a lifelong commitment, wanted to always be there for
the children, and believed they could provide the children with stability, love, and
attention. C. wanted the maternal grandparents’ home to be her “‘forever home.’”
7. Section 388 petitions.
Father filed a section 388 petition as to each child on December 31, 2019, and
mother filed the same on January 2, 2020. Both parents sought to reinstate family
reunification services. As for changed circumstances, father asserted he “is currently on
Family Maintenance as to the minor [Re.] and is progressing well in his services,” “has
been attending individual therapy, a substance abuse program through MFI Recovery
Center and has been testing clean,” “is completing a parenting program through Safe
Care, and he is also enrolled in a Domestic Violence program and group therapy through
Cox Romain.” As for mother’s changed circumstances, she asserted she “is on Family
Maintenance as to her youngest daughter [Re.] and is doing well in her services,” and “is
currently enrolled in domestic violence classes, has been attending individual therapy,
and parenting at home care.” Both parents claimed to have benefited from the services
received; father added that he has cooperated with DPSS and has participated in
“appropriate and positive” visits, while mother stated that she “loves her children very
11 much and believes that it is in their best interest for the Court to order Family
Reunification Services” so they can “reunify with their youngest sister who is on FM
with the parents.” A hearing on the section 388 petitions was set.
On January 17, 2020, the maternal grandparents requested de facto parent status.
DPSS opposed the section 388 petitions on the grounds (1) “the parents’
circumstances may be changing, [but] they have not changed,” and (2) “re-establishing
reunification services to them would be detrimental and not in the best interest of these
children.” Although both parents visited the children, R. did not “remember” them and
seemed “traumatized and crie[d] often during the visits,” and C. appeared “to play on her
own a lot.” The social worker opined the children did not “appear to see [mother and
father] as their parents. They do not look forward to the visits and [C.] often seems
indifferent, except when it comes to comforting her brother.” Even though they were
participating in therapy and domestic violence programs, their circumstances had not
changed.
8. Sections 388 and 366.26 hearing.
A contested section 366.26 hearing in combination with a hearing on the
section 388 petitions was held on January 27, 2020. The court also heard the maternal
grandparents’ request for de facto parent status. Father provided stipulated testimony that
(1) he had benefited from services, (2) he had completed a substance abuse program,
(3) he was not using marijuana, (4) he had attended five Narcotics Anonymous (NA)
meetings (but had forgotten to bring his signed cards to the hearing), (5) he had
participated in eight sessions of a domestic violence program, four to five sessions of
12 individual counseling, and some marriage counseling, and (6) Re. was safe in his care.
Mother also provided stipulated testimony that (1) she had attended four to five
individual counseling sessions, eight domestic violence classes, and some marital
counseling courses, (2) she had benefitted from the courses, (3) there was no additional
domestic violence in her relationship with father, and (4) her home was suitable for the
children. In response, the children’s counsel acknowledged both parents’ participation in
various programs; however, counsel argued there was no change in their circumstances,
and it was not in the best interest of the children to provide further reunification services
to mother and father. DPSS concurred.
The court denied the section 388 petitions. The court noted the history of the case
was replete with domestic violence, dating back to 2014, and that both parents had poor
mental health. The court opined that “as to the historical issues related to this couple, the
severity of those issues, how they relate to both of your mental health issues, and a
chronic history of substance abuse, a few months of either sobriety or not hurting each
other and not calling the police on each other does not mean that the underlying issues in
this case are resolved.” The court expressed concern that both parents were “basically
white-knuckling it.” Thus, the court stated, “the entire history of this particular case is so
extreme that the efforts made by the parents most recently are de minimis and result, at
most, in what the Court would view as changing circumstances.” Regarding the best
interests of the children, the court observed the children to be “very bonded to their
current caretakers. [R.] really knows no other parents. [C.] has very negative memories
of her parents and a very positive outlook on her current environment.”
13 The juvenile court granted the maternal grandparents’ request for de facto parent
status, found the beneficial exception to adoption did not apply, terminated parental
rights, and ordered adoption as the permanent placement plan. The court also found
ICWA did not apply. Both parents filed timely notices of appeal.
II. DISCUSSION
A. ICWA.
Both father and mother contend the juvenile court and DPSS failed to satisfy their
inquiry and notice obligations under ICWA, and they ask that we remand the matter with
directions for DPSS to “properly notify the tribe and BIA after fulfilling its duty to
inquire regarding the children’s ancestry.”
1. ICWA requirements and standard of review.
“ICWA established minimum standards for state courts to follow before removing
Indian children from their families and placing them in foster care or adoptive homes.
[Citations.] In 2006, California adopted various procedural and substantive provisions of
ICWA. [Citation.] In 2016, new federal regulations were adopted concerning ICWA
compliance. [Citation.] Following the enactment of the federal regulations, California
made conforming amendments to its statutes, including portions of the Welfare and
Institutions Code related to ICWA notice and inquiry requirements. [Citations.] Those
changes became effective January 1, 2019 . . . , and govern here.” (In re D.S. (2020)
46 Cal.App.5th 1041, 1048 (D.S.).) The new statute defines the actions necessary to
determine a child’s possible status as an Indian child.
14 ICWA defines an “Indian child” as “any unmarried person who is under age
eighteen and 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); accord, Welf. & Inst. Code, § 224.1, subd. (a) [adopting the federal standard].)
“Being an ‘Indian child’ is thus not necessarily determined by the child’s race, ancestry,
or ‘blood quantum,’ but depends rather ‘on the child’s political affiliation with a
federally recognized Indian Tribe.’” (In re Austin J. (2020) 47 Cal.App.5th 870, 882
(Austin J.), italics added.)
“ICWA itself does not impose a duty on courts or child welfare agencies to inquire
as to whether a child in a dependency proceeding is an Indian child. [Citation.] Federal
regulations implementing ICWA, however, require that state courts ‘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.’ [Citation.]
The court must also ‘instruct the parties to inform the court if they subsequently receive
information that provides reason to know the child is an Indian child.’” (Austin J., supra,
47 Cal.App.5th at pp. 882-883.)
Since states may provide “a higher standard of protection to the rights of the
parent or Indian custodian of an Indian child than the rights provided under” ICWA
(25 U.S.C. § 1921), under California law, the court and the county welfare department
have an “affirmative and continuing duty to inquire” whether a child in dependency
15 proceedings “is or may be an Indian child.” (Welf. & Inst. Code, § 224.2,3 subd. (a)
[“The duty to inquire [whether a child is or may be an Indian child] begins with the initial
contact.”]; Cal. Rules of Court, rule 5.481(a); see In re Isaiah W. (2016) 1 Cal.5th 1, 14.)
Initially, the county welfare department must 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.” (Welf. &
Inst. Code, § 224.2, subd. (b).) At the parties’ first appearance before the juvenile court,
the court must ask “each participant present in the hearing whether the participant knows
or has reason to know that the child is an Indian child” (§ 224.2, subd. (c), italics added),
and “[o]rder the parent . . . to complete Parental Notification of Indian Status ([Cal.
Judicial Council] form ICWA-020).” (Cal. Rules of Court, rule 5.481(a)(2)(C), italics
omitted.)
When there exists a reason to believe that an Indian child is involved, the social
worker must “make further inquiry regarding the possible Indian status of the child.”
(Welf. & Inst. Code, § 224.2, subd. (e).) “The Legislature, which added the ‘reason to
believe’ threshold for making a further inquiry in 2018, did not define the phrase. When
that threshold is reached, the requisite ‘further inquiry’ ‘includes: (1) interviewing the
3 Former section 224.3 (Stats. 2006, ch. 838, § 32) was renumbered as section 224.2, effective January 1, 2019 (Stats. 2018, ch. 833, § 5).
16 parents and extended family members;[4] (2) contacting the Bureau of Indian Affairs and
State Department of Social Services; and (3) contacting tribes the child may be affiliated
with, and anyone else, that might have information regarding the child’s membership or
eligibility in a tribe.’” (Austin J., supra, 47 Cal.App.5th at p. 883, italics added; see
Welf. & Inst. Code, § 224.2, subd. (e)(1)-(3); Cal. Rules of Court, rule 5.481(a)(4)(A)-
(C).)
“In addition to the inquiry that is required in every dependency case from the
outset and the ‘further inquiry’ required under California law when there is a ‘reason to
believe’ an Indian child is involved, a third step—notice to Indian tribes—is required
under ICWA and California law if and when ‘the court knows or has reason to know that
an Indian child is involved . . . .’ [Citations.]
“The duty to provide notice is narrower than the duty of inquiry. Although the
duty of inquiry applies to every ‘child for whom a petition under Section 300, 601, or 602
may be or has been filed’ [citation], and the duty of further inquiry applies when there is
a ‘reason to believe that an Indian child is involved in a proceeding’ [citation], the duty to
provide notice to Indian tribes applies only when one knows or has a ‘reason to know . . .
an Indian child is involved,’ and only ‘for hearings that may culminate in an order for
foster care placement, termination of parental rights, preadoptive placement, or adoptive
placement.’” (Austin J., supra, 47 Cal.App.5th at pp. 883-884, italics added.)
4 The term “extended family member” is defined as “a person who has reached the age of eighteen and who is the Indian child’s grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent.” (25 U.S.C. § 1903(2); accord, Welf. & Inst. Code, § 224.1, subd. (c).)
17 Effective January 1, 2019, the Legislature redefined the “reason to know”
requirement that triggers the duty to give notice of the proceedings to Indian tribes. (In
re A.M. (2020) 47 Cal.App.5th 303, 316 (A.M.), italics added; see Welf. & Inst. Code,
§ 224.3; Stats. 2018, ch. 833, §§ 4-7.) Before January 1, 2019, a “reason to know” could
be based on “information suggesting the child is a member of a tribe or eligible for
membership in a tribe or one or more of the child’s biological parents, grandparents, or
great-grandparents are or were a member of a tribe.” (Welf. & Inst. Code, former §
224.3, subd. (b)(1), italics added; Stats. 2006, ch. 838, § 32.) As of January 1, 2019, the
mere suggestion of eligibility for membership as to the child—or the mere suggestion of
membership as to the parents, grandparents, or great-grandparents—no longer provides
a reason to know that the court is dealing with an Indian child. (Welf. & Inst. Code,
§ 224.2, subd. (d).) Now, the amended statute declares that there is reason to know an
Indian child is involved if, for instance, “[a] person having an interest in the child . . .
informs the court that the child is an Indian child.” (§ 224.2, subd. (d)(1).)5 The changes
5 Section 224.2, subdivision (d), describes six circumstances providing a reason to know an Indian child is involved: “(1) A person having an interest in the child, including the child, an officer of the court, a tribe, an Indian organization, a public or private agency, or a member of the child’s extended family informs the court that the child is an Indian child. [¶] (2) The residence or domicile of the child, the child’s parents, or Indian custodian is on a reservation or in an Alaska Native village. [¶] (3) Any participant in the proceeding, officer of the court, Indian tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child. [¶] (4) The child who is the subject of the proceeding gives the court reason to know he or she is an Indian child. [¶] (5) The court is informed that the child is or has been a ward of a tribal court. [¶] (6) The court is informed that either parent or the child possess an identification card indicating membership or citizenship in an Indian tribe.”
18 to the statute conform the definition of “reason to know” to the definition in federal
regulations promulgated in 2016. (25 C.F.R. § 23.107(c); see A.M., supra,
47 Cal.App.5th at p. 316.)
“In defining the ‘reason to know’ standard as a reason to know that a child ‘is an
Indian child,’ the BIA expressly denied requests for more inclusive language, such as,
‘“is or could be an Indian child”’ or ‘“may be an Indian child.”’ [Citation.] In rejecting
the broader phrases, the BIA pointed to concerns that such language would cause ‘undue
delay, especially when a parent has only a vague notion of a distant [t]ribal ancestor.’
[Citations.] Indeed, tribal ancestry is not among the criteria for having a reason to know
the child is an Indian child.” (Austin J., supra, 47 Cal.App.5th at p. 885.)
“On appeal, we review the juvenile court’s ICWA findings for substantial
evidence. [Citations.] But where the facts are undisputed, we independently determine
whether ICWA’s requirements have been satisfied.” (D.S., supra, 46 Cal.App.5th at
p. 1051.)
2. ICWA Compliance.
Both parents criticize DPSS for failing to conduct an adequate inquiry into
mother’s Indian ancestry. However, neither parent addresses the revised criteria for
evaluating whether DPSS had a reason to believe that Indian children were involved.6
(§ 224.2, subd. (e).) Nonetheless, the court ultimately found that ICWA does not apply.
6 They maintain that “the duty of inquiry was triggered by the juvenile court’s finding” of a “reason to believe” an Indian child was involved. However, there is insufficient evidence to support this finding. (See Austin J., supra, 47 Cal.App.5th at pp. 888-889.)
19 This finding implies that a duty of inquiry under California law had been satisfied.
Sufficient evidence supports the court’s implied finding.
According to the initial dependency petition filed in April 2014, both parents
denied Indian ancestry. Also, they separately filed parental notification of Indian status
declarations stating the same. When a second dependency case was initiated in 2018,
both parents again denied any Indian ancestry when interviewed and at the first court
appearance in response to the court’s inquiry. Upon discovering that the mother was
adopted, the court asked the maternal grandfather whether he had any knowledge of
mother’s Indian ancestry. He replied that he did not. Both parents again filed separate
parental notification of Indian status forms indicating they had no Indian ancestry. For
the first time on May 7, 2019, mother claimed Native American ancestry based on a
DNA ancestry test. On May 30 and June 27, the social worker interviewed MSG in an
attempt to obtain further information about mother’s possible Indian ancestry.
Subsequently, when dependency jurisdiction was initiated as to the third child, Re., both
parents reiterated their denial of any Indian ancestry.
Based on mother’s statements to DPSS and the court, along with her parental
notification of Indian status declarations indicating she and her children have no Indian
ancestry and are neither members nor eligible for membership in an Indian tribe, there is
no “reason to believe” that any of her children are Indian children based on her parentage.
(§ 224.2, subd. (e).) Likewise, mother’s claim of Native American ancestry based on a
20 DNA ancestry test is insufficient to support a “reason to believe” the children are Indian
children as defined in ICWA. At most, it suggests a mere possibility of Indian ancestry.
But, as stated in Austin J., “Indian ancestry, heritage, or blood quantum, however, is not
the test; being an Indian child requires that the child be either a member of a tribe or a
biological child of a member. [Citations.] Being a member of a tribe depends ‘on the
child’s political affiliation with a federally recognized Indian Tribe,’ not the child’s
ancestry. [Citations.] Consequently, ‘many racially Indian children’ do not fall within
ICWA’s definition of an Indian child, while others may be Indian children even though
they are ‘without Indian blood.’ [Citation.] Indian ancestry, without more, does not
provide a reason to believe that a child is a member of a tribe or is the biological child of
a member.” (Austin J., supra, 47 Cal.App.5th at pp. 888-889; see In re Jeremiah G.
(2009) 172 Cal.App.4th 1514, 1520 [“if the child is not a tribe member, and the mother
and the biological father are not tribe members, the child simply is not an Indian child”];
Brackeen v. Bernhardt (5th Cir. 2019) 937 F.3d 406, 428 [“ICWA’s definition of Indian
child is a political classification”], rehg. en banc granted (5th Cir. 2019) 942 F.3d 287,
289.) Here, there is nothing more.
Because there was insufficient evidence to provide a reason to believe that the
children (or their mother) are members of, or eligible for membership in, an Indian tribe,
21 the statute imposed no duty to make further inquiry. We reject both parents’ claims to
the contrary, as well as their reproach of DPSS’s actions.7
B. Denial of Section 388 Petitions.
Both parents argue the juvenile court abused its discretion by denying their
section 388 petitions. We disagree.
Section 388 is a general provision permitting the juvenile court, “upon grounds of
change of circumstance or new evidence, . . . to change, modify, or set aside any order of
court previously made or to terminate the jurisdiction of the court.” (§ 388, subd. (a).)
The statute allows the modification of a prior order only when the petitioner establishes
7 Regarding mother and father’s charge that DPSS and the juvenile court were not diligent in their duty of inquiry, this court recently observed, “ICWA does not obligate the court or DPSS ‘to cast about’ for investigative leads. [Citation.] There is no need for further inquiry if no one has offered information that would give the court or DPSS reason to believe that a child might be an Indian child. This includes circumstances where parents ‘fail[] to provide any information requiring followup’ [citations], or if the persons who might have additional information are deceased [citation] . . . .” (A.M., supra, 47 Cal.App.5th at p. 323.) Although the duty to conduct a further inquiry was not triggered in this case, DPSS obtained the biological maternal grandmother’s name and included it in the notices provided to BIA and the U.S. Department of Interior. Regarding both parents’ criticism of the social worker’s documentation of conversations and failure to obtain mother’s adoption file, we find their reliance on In re N.G. (2018) 27 Cal.App.5th 474, 484 (N.G.), and other pre-2019 cases, to be misplaced. In N.G., the social worker was informed about the dependent child’s possible Indian ancestry when the father stated there were “‘paternal cousins’” who were “registered members of ‘the Cherokee tribe.’” (Id. at p. 478.) This information was found to “plainly suggest[] [the child] may be eligible for membership in a federally recognized Cherokee tribe, . . . requir[ing] the social worker to ‘make further inquiry.’” (Id. at p. 482.) “The information that relatives of the dependent child were members of a tribe, and not merely tribal ancestors, distinguishes N.G. from the instant case . . . . Moreover, the court in N.G. based its holding on the prior definition of a reason to know, which included ‘information to suggest [the child is] . . . eligible for membership in a . . . tribe.’ [Citations.] As discussed above, the Legislature has removed that definition from the statutory scheme.” (Austin J., supra, 47 Cal.App.5th at p. 890.)
22 by a preponderance of the evidence that (1) changed circumstances or new evidence
exists, and (2) the proposed modification would promote the best interests of the child.
(In re L.S. (2014) 230 Cal.App.4th 1183, 1193; In re Y.M. (2012) 207 Cal.App.4th 892,
919-920.) A parent seeking relief under section 388 “must show changed, not changing,
circumstances. [Citation.] The change of circumstances or new evidence ‘must be of
such significant nature that it requires a setting aside or modification of the challenged
prior order.’” (In re Mickel O. (2011) 197 Cal.App.4th 586, 615.)
Moreover, “‘[i]t is not enough for a parent to show just a genuine change of
circumstances under the statute. The parent must show that the undoing of the prior order
would be in the best interests of the child.’” (In re S.J. (2008) 167 Cal.App.4th 953,
960.) A parent requesting an order for reunification services after they have been
terminated has the burden of proving that the benefit to the child of reinstating services
outweighs the benefit the child would derive from the stability of a permanent placement.
(In re Angel B. (2002) 97 Cal.App.4th 454, 464.) We review the ruling on a section 388
petition for an abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
Here, both parents testified that their circumstances had changed since the court’s
termination of reunification services in June 2019. Both claimed to have benefitted from
the programs they had completed, or were in the process of completing, pointing out that
DPSS and the court had allowed their newborn (Re.) to remain in their care, albeit under
family maintenance services. Both parents argued there was “no evidence of any current
substance abuse whatsoever, [and] no evidence of any ongoing domestic violence.” They
claimed that “they [were] learning from their services by not having any more domestic
23 violence and by appropriately parenting their young child, [Re.]” And they argued that
because they are the parents of C. and R. and have a new baby, they “want[] to be a
family all together.”
We commend both parents for participating in substance abuse, parenting, and
domestic violence programs after reunification services regarding C. and R. were
terminated; however, at most, they have shown that their circumstances were changing
but had not changed. We note that their participation in these programs was mandated
under the family maintenance plan implemented upon the birth of their third child, Re.
Although father claimed to have attended five NA meetings, he had failed to provide
signed cards to support his claim. Regarding his participation in the domestic violence
perpetrator’s program, father’s progress report mentioned that he “needs improvement in
the following areas: open to changing previous behaviors, appearing to be motivated to
improve himself, and ability to apply learned techniques and skills in his daily life.”
Mother’s prognosis was favorable but only to the degree she could remain separated from
father and would take her prescribed psychotropic medications. In a recent interview
with a social worker, both parents “den[ied] documented domestic violence and the father
made a statement that he and the mother know not to ‘tattle-tell’ on each other now.” As
the juvenile court remarked, this case has “a history of domestic violence involving this
couple which goes back to a petition first filed on April 11, 2014.” Because of the
severity of both parents’ mental health and substance abuse issues, we agree with the
court’s opinion that “a few months of either sobriety or not hurting each other and not
24 calling the police on each other does not mean that the underlying issues in this case are
resolved.”
Furthermore, neither parent has been able to demonstrate that a changed order was
in the best interests of the children. While father claimed that he had benefitted from
therapy and that the visits with his children had been “appropriate and positive,” he has
failed to show how it would be in the children’s best interests to reinstate his reunification
services. Mother asserts that it was in the children’s best interest to reunify with their
younger sister, who was currently on family maintenance. However, if this allegation
were enough to satisfy the best interest prong, no parent seeking modification of a court
order under section 388 would need to show the proposed modification actually benefited
the dependent children. Moreover, “[a]fter the termination of reunification services, the
parents’ interest in the care, custody and companionship of the child [is] no longer
paramount. Rather, at this point ‘the focus shifts to the needs of the child for permanency
and stability.’” (In re Stephanie M., supra, 7 Cal.4th at p. 317.) The court here
recognized this shift of focus in determining the ultimate question—what is in the best
interests of the children?
In view of the circumstances, it is difficult to see how reinstating services, with the
ultimate goal of returning the children to their parents’ custody, would be in their best
interests. C. and R. were bonded to their maternal grandparents, who had been granted
de facto parent status and wanted to solidify their relationship with the children through
adoption. Given both parents’ short-term sobriety and continuing need to address their
domestic violence and substance abuse issues, they failed to show the benefit of
25 reinstating reunification services outweighed the benefit the children would derive from
the stability and security of a permanent home. Under these circumstances, the juvenile
court did not abuse its discretion in denying the section 388 petitions.
C. Termination of Parental Rights.
Both parents argue the juvenile court erred by terminating parental rights because
the parental bond exception applied. We disagree.
When the court finds that “it is likely the child will be adopted, the court shall
terminate parental rights and order the child placed for adoption” unless at least one of
several statutory exceptions applies. (§ 366.26, subd. (c)(1); see, e.g., In re Celine R.
(2003) 31 Cal.4th 45, 53.) As relevant here, the parental bond exception provides that a
court can forego terminating parental rights if it “finds a compelling reason for
determining that termination would be detrimental to the child” because (1) “[t]he parents
have maintained regular visitation and contact with the child,” and (2) “the child would
benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) This exception
“to the general rule that the court must choose adoption where possible—‘must be
considered in view of the legislative preference for adoption when reunification efforts
have failed.’” (Celine R., at p. 53.) “[I]t is only in an extraordinary case that preservation
of the parent’s rights will prevail over the Legislature’s preference for adoptive
placement.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350 (Jasmine D.).)
We review the juvenile court’s findings on the existence of the beneficial parental
relationship for substantial evidence. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314
(Bailey J.).) Whether “the relationship is a ‘compelling reason’ for finding detriment to
26 the child” is a “‘quintessentially’ discretionary decision” that we review for abuse of
discretion. (Id. at p. 1315; see In re J.S. (2017) 10 Cal.App.5th 1071, 1080 [applying
hybrid standard of review to sibling bond exception].)8
The parent bears the burden of showing that the parental bond exception applies.
(Bailey J., supra, 189 Cal.App.4th at p. 1314.) “A showing the child derives some
benefit from the relationship is not a sufficient ground to depart from the statutory
preference for adoption. [Citation.] No matter how loving and frequent the contact, and
notwithstanding the existence of an ‘“emotional bond”’ with the child, ‘“the parents must
show that they occupy ‘a parental role’ in the child’s life.”’” (In re Breanna S. (2017)
8 Cal.App.5th 636, 646.) In determining whether the exception applies, “the court
balances the strength and quality of the natural parent/child relationship in a tenuous
placement against the security and the sense of belonging a new family would confer. If
severing the natural parent/child relationship would deprive the child of a substantial,
positive emotional attachment such that the child would be greatly harmed, the
preference for adoption is overcome and the natural parent’s rights are not terminated.”
(In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).)
8 “Appellate courts are divided over the appropriate standard of review for an order concerning the applicability” of the parental bond exception. (In re Caden C. (2019) 34 Cal.App.5th 87, 106, review granted July 24, 2019, S255839.) Some have reviewed the decision for abuse of discretion, others have reviewed it for substantial evidence, and still others have combined the two and taken a hybrid approach, as we do. (Ibid.) Our Supreme Court granted review of the issue and will therefore resolve “what standard governs appellate review of the [parental bond] exception to adoption.” (In re Caden C. (July 24, 2019, S255839) ___ Cal.5th ___ [2019 Cal. Lexis 5373].)
27 Here, the juvenile court found that while both parents had “maintained regular
visitation with the children,” the “nature of that relationship is well documented in the
most recent report in terms of the quality and nature of the visits.” After analyzing this
case through the authority of Autumn H., the court determined the exception did not
apply.
Assuming both parents engaged in regular visitation, they have not demonstrated
that their relationship with the children outweighed the benefits of adoption. There is
simply no evidence that severing the relationship between both parents and the children
would be detrimental to the children. C. and R. were removed from their parents’
custody on November 5, 2018, when C. was four years old and R. was one month old.
During the next 15 months, both parents regularly visited the children (except during the
period surrounding the birth of Re.), as permitted, prompting them to contend there was
evidence of a significant parent-child relationship despite the lack of daily contact and the
children’s positive bond with the maternal grandparents. According to father, he
“interacted on multiple levels with [C. and R.], engaged in age-appropriate activities,”
and brought snacks and toys to his visits. He asserts he “assumed many different roles:
nurturer, playmate, and teacher.” Similarly, mother points out that she “played with [the
children], fed them, redirected them and showed them affection as a parent.” However,
neither child saw mother and father “as their parents. They [did] not look forward to the
visits and [C.] often seem[ed] indifferent, except when it [came] to comforting her
brother.” In contrast, the maternal grandparents occupied the parental role in the
children’s lives. By the time of the section 366.26 hearing, the children had been out of
28 their parents’ custody for almost 15 months, living with the maternal grandparents, who
had been tending to all their daily needs and providing them with a secure and stable
home.
Both parents ask us to employ what they consider to be a more liberal application
of the exception as provided in In re Casey D. (1999) 70 Cal.App.4th 38, 51 and Jasmine
D., supra, 78 Cal.App.4th 1339, 1350. However, these cases required the parents to
show a parental relationship, not merely a caretaker or friendly visitor relationship with
the children. (Ibid.) Neither father nor mother was able to show their relationship was
compelling enough to forego adoption. Indeed, neither parent presented any evidence
showing how severing their relationship would be detrimental to either C. or R.,
particularly when weighed against the benefit of a permanent home. While the record
arguably indicates both parents had loving contact or pleasant visits with the children,
this has repeatedly been found insufficient to support the application of the beneficial
parental relationship exception. (In re Marcelo B. (2012) 209 Cal.App.4th 635, 643;
In re C.F. (2011) 193 Cal.App.4th 549, 555.)
Simply put, there is no evidence the children would be “greatly harmed” by the
termination of their natural parent-child relationship with father and mother. (In re
Angel B. (2002) 97 Cal.App.4th 454, 466.) We, therefore, conclude mother and father
have not shown that the juvenile court’s findings lack the support of substantial evidence
or that its exercise of discretion rested on an unsupported factual basis. In short, the court
properly found the parent-child relationship exception to adoption did not apply.
29 III. DISPOSITION
The juvenile court’s orders denying the section 388 petitions, terminating parental
rights, and placing the children for adoption are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J. We concur:
MILLER J.
MENETREZ J.