In re C.G. CA4/2

• Court: California Court of Appeal
• Decided: March 16, 2023
• Docket: E079737
• Status: Unpublished

Opinion

Filed 3/16/23 In re C.G. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.G. et al., Persons Coming Under the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E079737

Plaintiff and Respondent, (Super.Ct.No. SWJ001249)

v. OPINION

G.G. et al.,

Defendants and Appellants.

APPEAL from the Superior Court of Riverside County. Dorothy McLaughlin,

Judge. Conditionally reversed and remanded with directions.

Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and

Appellant G.G.

Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and

Appellant A.R.

1 Minh C. Tran, County Counsel, Teresa K.B. Beecham and Prabhath Shettigar,

Deputy County Counsel, for Plaintiff and Respondent.

Appellants A.R. (mother) and G.G. (father), the parents of C.G. and Ga.G., appeal

from the juvenile court’s order terminating parental rights and freeing the children for

adoption. (Welf. & Inst. Code, § 366.26.) They contend the court erred in failing to find

the beneficial parent-child relationship exception to adoption applies. (Id. at

subd. (c)(1)(B)(i).) They also contend the court and the Riverside County Department

of Public Social Services (the department) failed in their duties of initial and further

inquiry under the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.)1

and Welfare and Institutions Code section 224.22 as to the children’s possible Indian

heritage. We reject the parents’ first contention but agree with their second. Thus, we

conditionally reverse the order terminating parental rights and remand the matter to the

juvenile court.

I. PROCEDURAL BACKGROUND AND FACTS

The family has a lengthy child welfare history beginning in 2002 due to the

parents’ substance abuse and general neglect. In 2018, when mother gave birth to C.G.,

both tested positive for methamphetamine and opiates. Both parents have an extensive

1 Because ICWA uses the term “Indian,” we will do the same for consistency, even though we recognize that “other terms, such as ‘Native American’ or ‘indigenous,’ are preferred by many.” (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.)

2 All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

2 history of using heroin and methamphetamine, and mother admitted to using throughout

her pregnancy.

On June 3, 2020, the department initiated this dependency proceeding pursuant to

section 300, subdivisions (b)(1) (failure to protect) and (f) (death of a sibling), based on

the death of parents’ five-month-old son,3 their abuse of controlled substances, their

criminal histories, and the “deplorable” and unsafe conditions in the home.4 According

to the detention report, the parents denied any Indian ancestry. At the June 4, 2020

detention hearing, the juvenile court found father to be the presumed father of C.G., and

the parents were ordered to complete the ICWA-020 parental notification of Indian status

form. After finding a prima facie case had been made, the court detained C.G., placed

her with the paternal grandparents, and ordered supervised visitation for the parents.

On June 10, 2020, mother reported Indian ancestry on the maternal grandfather’s

side but could not recall the name of the tribe. She provided contact information for the

maternal uncle because the maternal grandfather did not have a phone. On June 19, the

social worker left a message on the maternal uncle’s phone requesting a return call. On

July 2, the ICWA noticing clerk contacted mother to gather more information; mother

reported that she spoke with her father who informed her the family has no Indian

ancestry. Despite his prior denial of Indian ancestry, on June 19, father reported he may

3 A subsequent autopsy report revealed the cause of death to be sudden infant death syndrome.

4 Mother’s two older children were also named in the petition; however, they are not parties to this appeal. The petition was later amended twice, on August 12 and 19, 2020.

3 have such affiliation, but he did not know the tribe and could not identify any relative that

may know.

At the contested jurisdiction hearing on August 19, 2020, the juvenile court found

the allegations in the second amended petition true, adjudged C.G. a dependent of the

court, stated that the department had conducted a sufficient inquiry regarding the child’s

Indian ancestry, and found that ICWA does not apply. C.G. was removed from the

physical custody of the parents and family reunification services were ordered.

According to the six-month status report filed January 29, 2021, mother was

unemployed and on formal probation for a prior conviction, father was employed, and

both were irregularly participating in reunification services. Both parents consistently

visited C.G.—progressing to four-hour unsupervised visits, three times a week. C.G. was

developmentally on target and bonded to the paternal grandmother. On March 15, 2021,

at the contested six-month status review hearing, the juvenile court found that ICWA

does not apply and that a sufficient inquiry had been made. The court extended

reunification services and authorized the department to liberalize visitation to include

unsupervised overnight/weekend visits.

In June 2021, mother gave birth to Ga.G.; both tested positive for amphetamines/

opiates despite mother denying any drug use. The department detained Ga.G. pursuant to

section 319. Visitation was returned to supervised, two hours a week. On June 15, the

department added Ga.G. to the dependency petition under section 300, subdivisions

(b)(1) and (j). The department alleged the mother suffers from chronic and unresolved

substance abuse issues, which continued throughout her pregnancy and resulted in Ga.G.

4 being hospitalized in the neonatal intensive care unit due to severe withdrawals.

According to the detention report, since March 25, the social worker had had no contact

with mother who had been removed from MFI for lack of attendance, both parents

missed several drug tests, and they denied being registered members of any Indian tribe.

On June 16, the juvenile court found that ICWA does not apply to these proceedings, and

father is the presumed father of Ga.G. The child was detained, the court ordered

visitation to be supervised. That same day, each parent filed an ICWA-020 parental

notification of Indian status form, denying any Indian ancestry.

In its 12-month status review report filed July 7, 2021, the department asked the

juvenile court to terminate the parents’ reunification services and set a section 366.26

hearing. During the review period, the parents were having unsupervised weekly visits

totaling 12 hours; however, following mother’s and Ga.G.’s positive drug tests, the

parents were put back on supervised visits. Except for visitation, the parents had made

minimal progress on their case plans. They requested a contested 12-month status review

hearing.

In its jurisdiction/disposition report for Ga.G., filed on July 14, 2021, the

department recommended the allegations in the petition be found true, Ga.G. be declared

a dependent of the court, and the parents be denied reunification services pursuant to

section 361.5, subdivision (b)(13). Likewise, it was noted that on July 7, both parents

denied any Indian ancestry. Although the parents visited Ga.G. on a daily basis, they

lacked “progress with their case plans after twelve months.” Subsequently, the parents

participated in reunification services and continued to be attentive to the children who

5 loved their parents; thus, the department changed its recommendation to extend services

regarding C.G. and offered services regarding Ga.G. On August 26, the juvenile court

found the allegations in Ga.G.’s petition true, adjudged her a dependent, removed

physical custody from the parents and ordered reunification services.

In its 18-month permanency review report, the department recommended C.G. be

placed in the parents’ care on family maintenance contingent upon compliance with case

plan requirements. On October 20, the parents again denied having any Indian ancestry.

The social worker opined that C.G. appears to be happy living with her grandmother, and

has a good bond with her parents who consistently engage in supervised visitation.

Beginning September 3, the visits were unsupervised, and on October 9, they increased to

eight hours. C.G. and Ga.G. visited the parents at their home on the weekend of October

24-25. In the addendum report, the department noted that the parents had an overnight

visit with C.G. with no concerns. On November 30, the juvenile court ordered C.G.

placed in the parents’ care under family maintenance.

On January 11, 2022, the department filed a section 387 petition for C.G., alleging

the parents had failed to benefit from services, their home was reported to be in

deplorable conditions, and father, who had admitted to recently using marijuana and

methamphetamine, was arrested for charges relating to weapons, possession of controlled

substances, and child endangerment. On January 7, C.G. was placed with her paternal

grandmother. According to the detention report, the department received an immediate

response referral from the drug endangered children team; the parents would likely be

arrested due to heroin and methamphetamine paraphernalia found throughout the home.

6 The condition of the home was described as “‘disgusting.’” Law enforcement found a

loaded firearm, methamphetamine, ammunition, two methamphetamine pipes, a box of

syringes, foil with burnt residue, and several baggies with methamphetamine residue.

When deputies arrived, there was “a large plume of smoke in the master bedroom and it

was believed [father] was getting his ‘last hits.’” A crib in the room had feces on its side,

and there was a bottle with rotten material in it. The bathroom by the children’s room

was dirty with feces on toilet paper in an overflowing trashcan. There was rotting food

and debris throughout the home. An older half sibling saw father smoking what she

described as methamphetamine; a local “‘tweaker’” was also in the home. Mother

admitted to using fentanyl, and there was Narcan5 in the home; however, she denied

seeing any drugs or paraphernalia in the house or seeing father use drugs. Mother blamed

law enforcement for her home’s condition. An older half sibling stated that C.G.’s father

is in the “‘cartel’” and is selling drugs, and there were drugs on mother’s bed. The

juvenile court removed C.G. from the parents’ custody and ordered supervised visitation.

In its section 387 jurisdiction/disposition report filed January 31, 2022, the

department recommended the juvenile court deny further reunification services because

the parents have exceeded statutory timeframes. Similarly, in its six-month status review

report for Ga.G., filed the same day, the department recommended the court terminate

reunification services for both parents and set a section 366.26 hearing to select a

permanent plan. The social worker opined that the parents did not appear to have

5A prescription medicine used for the treatment of a known or suspected opioid overdose.

7 benefited from services given the recent police report and living conditions of their home.

The parents had placed the children at substantial risk of harm and possible death. The

children returned to their paternal grandparents’ home where they were happy and well-

adjusted, the paternal grandmother was able to meet their needs, and she was willing to

provide a permanent home for them.

A contested hearing on both the section 387 petition and the six-month status review

report was held on February 24, 2022. The juvenile court sustained the allegations in the

section 387 petition concerning C.G., found there was no substantial probability that Ga.G.

would be returned to parents’ custody if given six more months of services, terminated

reunification services, and set a section 366.26 hearing.

According to the selection and implementation report filed June 13, 2022, the

department recommended adoption by the paternal grandmother, who was committed to

adopting the children. Both parents consistently visited the children—C.G. struggled

with separating from them after visits—and wanted to reunify with them; however, if

reunification is not an option, the parents preferred adoption by the paternal grandmother.

The section 366.26 hearing was set for September 1, and a postpermanency review

hearing was set for December 23.

According to the addendums to the selection and implementation report filed on

August 4 and August 18, 2022, the department continued to recommend termination of

parental rights with the permanent plan of adoption. C.G. had been placed with the

paternal grandparents on June 2, 2020, until November 30, 2021, and then again on

January 7, 2022; Ga.G. had been placed with them since June 16, 2021. C.G. was

8 described as a happy toddler, who was comfortable in the paternal grandparents’ home;

however, they reported that she was “displaying tantrum like behaviors after visits with

her biological parents.” Ga.G. was also a “happy and giggly toddler,” who enjoyed being

held by the paternal grandparents. The paternal grandparents were bonded to the

children, able to meet their needs, wanted to ensure they are in a safe and loving home,

and remained committed to adopting them. Although they were unwilling to enter into a

formal postadoption contract agreement, the paternal grandparents noted the value in

maintaining “the familial connection between the children and their biological parents

and maternal relatives when deemed appropriate.” They further “acknowledge[d] and

value[d] the sibling connections as evident by their willingness to continue consistent

bonding time between them.”

On September 1, 2022, the juvenile court summarily denied mother’s section 388

petition requesting reinstatement of reunification services on the grounds the request

failed to state new evidence or a change of circumstances and did not promote the best

interest of the children. The court proceeded with the section 366.26 hearing. The

department submitted on its reports. The children’s counsel requested termination of

parental rights. Both parents asked the court to apply the beneficial parent-child

relationship exception (§ 366.26, subd. (c)(1)(B)(i)) and select a plan of legal

guardianship. The department acknowledged the parental bond, but argued that it does

not override the statutory preference for adoption. The children’s counsel acknowledged

the parents’ consistent visitation, but described them as friendly visitors who have not

maintained the parent/child relationship and parent/child role. Counsel asserted that the

9 children have spent most of their lives in the care of the paternal grandparents such that

severance of the parental relationship bond would not cause them detriment.

After reviewing the evidence and considering the arguments of counsel, the

juvenile court adopted “the findings and orders recommended by the department and

terminate[d] parental rights.” The court found “a sufficient basis for termination of

parental rights exists, based upon findings made at the . . . section 387

jurisdiction/dispositional hearing February 24th, 2022” as to both parents. The court

further found that “termination of parental rights would not be detrimental to the

[children] in that none of the exceptions contained in . . . section 366.26(c)(1)(A) and/or

(B) are applicable.” After concluding it was likely the children would be adopted, and

that adoption was in their best interests, the court terminated parental rights and ordered

adoption as the permanent plan.

II. DISCUSSION

A. Beneficial Parent-child Relationship Exception

The parents contend the juvenile court erred in terminating parental rights because

the beneficial parent-child relationship exception applies. More specifically they assert

the order must be reversed because the court made no factual findings and it is unclear

whether its ruling complied with In re Caden C. (2021) 11 Cal.5th 614 (Caden C.) in

determining whether the beneficial parent-child relationship exception to adoption

applied. As we explain, we reject these contentions.

At a permanency planning hearing, once the juvenile court finds by clear and

convincing evidence that a child is likely to be adopted within a reasonable time, the

10 court is required to terminate parental rights and select adoption as the permanent plan,

unless the parent shows that terminating parental rights would be detrimental to the child

under one of several statutory exceptions. (In re Bailey J. (2010) 189 Cal.App.4th 1308,

1314.) One exception is the beneficial parent-child relationship exception. (§ 366.26,

subd. (c)(1)(B)(i).) In Caden C., our Supreme Court examined this exception and held

that a drug-addicted parent’s failure to succeed in drug rehabilitation programs and

continuing struggles with addiction did not, on its own, disqualify the parent from being

accorded the beneficial parent-child relationship exception. (Caden C., supra, 11 Cal.5th

at pp. 637-641.) In other words, unless the factors that led to the dependency in the first

place also bear on the question of whether a child would benefit from continuing the

relationship and be harmed, on balance, by losing it, they are irrelevant. (Id. at p. 638.)

Under the beneficial parent-child relationship exception, the parent bears the

burden of proving three elements by a preponderance of the evidence: “(1) regular

visitation and contact, and (2) a relationship, the continuation of which would benefit the

child such that (3) the termination of parental rights would be detrimental to the child.”

(Caden C., supra, 11 Cal.5th at pp. 631, italics omitted, see id., at p. 636; § 366.26,

subd. (c)(1)(B)(i).) If all three elements have been established, the exception applies, and

the court should select a permanent plan other than adoption. (Caden C., at pp. 636-637.)

“Because a section 366.26 hearing occurs only after the court has repeatedly found the

parent unable to meet the child’s needs, it is only in an extraordinary case that

preservation of the parent’s rights will prevail over the Legislature’s preference for

11 adoptive placement.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350, disapproved

on another ground in Caden C., at p. 636, fn. 5.)

We employ a “‘hybrid’” standard of review to the juvenile court’s findings on the

application of the beneficial parent-child relationship exception. (Caden C., supra,

11 Cal.5th at pp. 639-641.) The first two elements are primarily factual and reviewed for

substantial evidence. (Id. at pp. 639-640.) On the third element, the “court makes the

assessment by weighing the harm of losing the relationship against the benefits of

placement in a new, adoptive home.” (Id. at p. 640.) Thus, any factual determinations

underlying the juvenile court’s evaluation would also be reviewed for substantial

evidence, but the court’s ultimate balancing of the detriment of severing the parent-child

relationship against the benefits of adoption is reviewed for abuse of discretion. (Id. at

pp. 640-641.)

In the present case, the department concedes the parents established the first two

elements—regular visitation and a beneficial relationship. Thus, the issue before us is

whether they showed that the harm caused by terminating their parental rights

outweighed the benefits of providing the children with a permanent adoptive home. At

this stage of the proceedings, the court “must decide whether the harm from severing the

child’s relationship with the parent outweighs the benefit to the child of placement in a

new adoptive home.” (Caden C., supra, 11 Cal.5th at p. 632.) In other words, “[w]hen

the relationship with a parent is so important to the child that the security and stability of

a new home wouldn’t outweigh its loss, termination would be ‘detrimental to the child

due to’ the child’s beneficial relationship with a parent.” (Id. at pp. 633-634.)

12 According to the parents, in reaching its detriment conclusion the juvenile court

failed to make factual findings. We disagree. The court’s findings were not so limited

given its adoption of “the findings and orders recommended by the department” and its

reference to the “findings made at the . . . section 387 jurisdiction/dispositional hearing

February 24th, 2022.” Moreover, “we are aware of no requirement—and [the parents

cite] no authority supporting the proposition—that the juvenile court, in finding the

parental-benefit exception inapplicable, must recite specific findings relative to its

conclusions regarding any or all of the three elements of the exception. To the contrary,

we infer from section 366.26, subdivision (c)(1)(D)—under which the juvenile court is

required to ‘state its reasons in writing or on the record’ when it makes a finding that

termination of parental rights would be detrimental to the child—that the court is not

required to make findings when it concludes that parental rights termination would not be

detrimental.” (In re A.L. (2022) 73 Cal.App.5th 1131, 1156; see In re Andrea R. (1999)

75 Cal.App.4th 1093, 1109 [appellate record supported implied finding by juvenile court

that parents had failed to establish the beneficial parent-child relationship exception].)

Although stated factual findings (reasons) aid our review of a detriment conclusion, it is

not a legal requirement.

Considering the evidence presented in support of the findings made at the

February 24, 2022 hearing, we cannot say the juvenile court abused its discretion in later

concluding that the benefit of adoption outweighed the children’s loss of any positive

emotional attachment to their parents. (Caden C., supra, 11 Cal.5th at p. 640.) At the

time of the section 366.26 hearing, C.G. had only lived with the parents less than half her

13 life; Ga.G. had never lived with the parents, having spent her entire young life with the

paternal grandparents. Both children were described as happy toddlers, and Ga.G. was

meeting her developmental milestones despite her in utero exposure to drugs. While both

children were too young to comment on their adoption, they were bonded to the paternal

grandparents, who provided a safe living environment.

Nonetheless, in support of their claim that termination of parental rights would be

detrimental to the children, the parents rely on the evidence of C.G.’s “tantrums”

following visitation. However, the social worker explained that C.G.’s “tantrum like

behaviors after visits with her biological parents” stem from her inability to “comprehend

the family dynamics, the case process, and the reasoning behind not living or being raised

by her biological parents.” Moreover, there is no evidence the parents’ absence between

visits negatively affected her (she had no problem eating, sleeping, or going about her

daily life), or that she complained about missing them between visits. Rather, C.G. felt

safe and comfortable in the care of the paternal grandparents. In contrast, the parents

ignore or downplay the fact that they continued possessing and using marijuana and

methamphetamine in their home after C.G. resumed living with them and Ga.G. was

present for unsupervised visitation. The condition of their home was described as

disgusting, with feces on the side of the crib and in the bathroom and rotting food and

debris throughout the home. Also, methamphetamine paraphernalia, a loaded firearm,

and ammunition were present.

After considering this evidence and oral argument, the juvenile court weighed the

benefit of maintaining a relationship with the parents against the benefit of a permanent

14 and stable home. It found insufficient evidence of detriment to the children to warrant

the application of the beneficial parent-child relationship exception. We find no abuse of

discretion here.

In short, the juvenile court did not err in finding the beneficial parent-child

relationship exception to adoption did not apply.

B. Failure to Comply with ICWA.

This case involves reversible error because the parties agree, and we concur, there

was noncompliance with the inquiry requirements of ICWA and related California

provisions. (In re H.V. (2022) 75 Cal.App.5th 433, 438; In re Benjamin M., supra,

70 Cal.App.5th at p. 744.) Here, the department only inquired of the parents and the

maternal uncle regarding Indian ancestry. The department failed to ask the paternal

grandparents or any extended known maternal and paternal family members about Indian

heritage. Pursuant to section 224.2, subdivision (b), both social services agencies had a

duty to ask the children’s “extended family members” and “others who have an interest in

the child[ren]” whether they are Indian children.

III. DISPOSITION

The juvenile court’s September 1, 2022 order terminating parental rights to C.G.

and Ga.G. is conditionally reversed, and the matter is remanded for proceedings

consistent with this opinion. The juvenile court shall order the department to make

reasonable efforts to interview available maternal and paternal family members about the

children’s Indian ancestry and to report to the court the results of the investigation.

Based on the information reported, if the court determines that no additional inquiry or

15 notice to tribes is necessary, the order terminating parental rights is to be reinstated.

However, if additional inquiry or notice is warranted, the court shall make all necessary

orders to ensure compliance with ICWA and related California law.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER Acting P. J. We concur:

MILLER J.

RAPHAEL J.