Filed 9/17/24 In re J.H. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 J.H., et al., Persons Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E083276
Plaintiff and Respondent, (Super.Ct.Nos. J296670, J296671 & J296672) v. OPINION J.S., et al.,
Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson,
Judge. Affirmed.
Marisa L. D. Conroy, under appointment by the Court of Appeal, for Defendant
and Appellant R.H.
Caitlin E. Howard, under appointment by the Court of Appeal, for Defendant and
Appellant J.S.
1 Tom Bunton, County Counsel, and Pamela J. Walls, Special Counsel, for Plaintiff
and Respondent.
A mother and father appeal from orders terminating parental rights over their
minor children. They argue the county welfare department’s inquiry (the department)
into their children’s possible Indian ancestry under the Indian Child Welfare Act (ICWA)
was inadequate, as the department was unable to contact one identified extended
relative.1 They also argue the trial court erred by failing to apply the beneficial parental
bond exception to adoption. We find the department’s ICWA inquiry was sufficient, and
there was sufficient evidence to support the trial court’s finding that the beneficial
parental bond exception did not apply. We therefore affirm the termination of parental
rights.
BACKGROUND
A. Dependency
Defendants and appellants R.H. and J.S. are the mother and father, respectively, of
the three children who are the subject of this dependency: G.S. (born 2014), M.S. (born
2020) and J.H. (born 2022).
The family initially came to the department’s attention in June 2022, after a
referral alleging physical abuse. The department interviewed G.S. privately, and he
expressed that he felt safe around mother but not father. He said father sometimes hits
1 Undesignated statutory references are to the Welfare and Institutions Code. “In addition, because ICWA uses the term ‘Indian,’ we 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 him, including punching him in the face and hitting him with a belt. Indeed, he said
father hit him with a belt a few days earlier, and the department found a bruise on his left
leg near his hip. G.S. also told the department father hit M.S. on the bottom. When
interviewed, father admitted hitting G.S. with a belt. In response, the department made a
safety plan with mother.
In April 2023 mother took J.H. to the hospital with injuries to his head, including
bruising along the side of his forehead and a laceration on his upper lip. Mother alleged
J.H. was sleeping with her on the bottom bunk of a bunk bed and she woke to him lying
face down on the floor next to the bed. Father said he was at work at the time. Hospital
staff reported that mother’s story was not consistent with the injuries and they suspected
abuse. Doctors eventually told the department J.H. suffered a subdural hematoma,
fracture to the occipital part of his head, and a torn frenulum. The last of these injuries
were consistent with forceful feeding, and the rest were consistent with abusive head
trauma. The doctors also discovered bruises consistent with blunt impact or squeezing,
and abrasions consistent with pinching. Finally, the doctors noted that J.H. had a severe
diaper rash and low weight, suggesting neglect. In general, the doctors reported that it
appeared J.H. suffered “multiple episodes of inflicted trauma and physical abuse.”
After going to the hospital, social workers went to mother and father’s home.
They saw G.S. had a Band-Aid on his left cheek which he said was because he had been
rubbing his face, and M.S. had scratches on her legs.
3 The department filed petitions under section 300 as to all three children. J.H.’s
petition contained an allegation of serious physical harm under section 300,
subdivision (a), and all three contained numerous allegations that mother and father failed
to protect the children under section 300, subdivision (b). The next day the court found
the petitions stated a prima facie case and ordered the children detained.
The department interviewed mother and father later that April. Mother told the
department she never hit her children but that father “hits the kids.” She also denied any
domestic violence in the home, but described one instance where father hit her, she hit
him back, and the police were called. Father admitted spanking G.S. once with an open
hand and hitting furniture with a belt to scare them, but denied ever hitting them with a
belt.
The department then visited G.S. and M.S. at their placement, where the foster
parents reported that both children had abnormal bruising when they arrived, that G.S.
had a lip injury, and that M.S. had severe diaper rash. They also reported that both
children exhibited concerning behaviors. When a baby in the home cried, M.S. would
shake her fists in the air while saying “ ‘[f]uck, stop, stop stop.’ ” She was also very
aggressive with the baby, at one point even taking a sippy cup and slamming it into the
baby’s face. In addition, she acted fearful after a small spill, wincing and repeating to
herself “ ‘everything is ok, everything is ok.’ ” G.S. initially exhibited violent behaviors
as well. Upon placement he became very angry, punched the table, kicked chairs, and
threw things. He also made concerning statements, such as “ ‘[m]y father is going to kill
4 me,’ ” and “ ‘he is going to beat me bad,’ ” and hid under the table afterward. He told the
caregivers that he was present when a family member shot someone and then shot
themselves, insisted that his younger brother was poisoned, and that mother and father
give him beer “but he is not allowed to tell or he will be arrested by police.”
The department interviewed G.S. alone. He told them that “he missed his mother
and could hardly wait to see her.” He said when he is in trouble he gets hit with a belt or
with a hand on his back and butt. He said M.S. and J.H. also get hit, but the parents only
use their hand on J.H. He reported that mother normally uses her hand, and father uses a
belt. He said he gets hit because he is not a good kid, and that even though his parents
spank him he still loves them. He told the department that “since the social workers
came to the home that father was not going to hit him anymore.” When asked what he
would use three wishes for, he said “he wishes that he was a better kid, that he would
listen, try my best, and [to] play with [his] sister and brother.” He repeated the claim that
he drank beer twice and was told not to tell anyone because he would go to jail. He said
there was not any ongoing domestic violence, but recalled one time when “ ‘my dad hit
my mom real hard.’ ” He told the department “that he loves his parents and is looking
forward to visiting them.”
The department filed several amended petitions. In their final form, all the
children’s petitions had multiple allegations of serious physical harm under section 300,
subdivision (a), failure to protect under subdivision (b), and abuse of sibling under
5 subdivision (j). In addition, J.H.’s petition alleged severe physical abuse under
section 300, subdivision (e).
The court held a contested jurisdiction and disposition hearing in October 2023. It
sustained the allegations in the petitions. It also found by clear and convincing evidence
that reunification services need not be provided because of the sustained allegations
under section 300, subdivision (e). (§ 361.5, subd. (b)(5).) The court set a hearing under
section 366.26.
Between the jurisdiction and disposition hearing and the section 366.26 hearing,
the department reported the children did well in their placement. M.S. told the
department that she likes her caregivers. G.S. also referred to the caregivers as “ ‘mom’ ”
and “ ‘dad.’ ”
The parents were initially consistent with in-person visitation, but father had to
leave for a few months for a work obligation and was not able to attend visits in person
during that time. However, mother often called father via FaceTime for visits, and M.S.
would gather around the phone or walk around the room with the phone while father was
calling. The children were always happy to see him, and after he returned to in-person
visits, G.S. “ran to him and jumped in his arms and buried his face in his chest.” The
parents would bring lots of gifts and snacks to visits. J.H. did not appear to have as close
a relationship to father, crying and protesting when picked up. However, the children
were generally eager to leave visits, and did not cry or express discomfort. The children
6 also referred to the caregiver as “ ‘Mom’ ” during visits, and did so consistently enough
that mother stopped responding when they called for “ ‘Mom.’ ”
Though there were no issues with the children at visits, there were issues between
the parents. The first visit after father returned from being away ended early because he
and mother fought in front of the children. The caregivers eventually requested to have
visits at a foster family agency because they did not feel safe hosting the parents. At a
visit in January 2024, father brought a new girlfriend and the parents got into another
verbal fight in front of the children. After that the parents visited separately. Moreover,
a caregiver told the department that during visits father “does not engage,” and mother
mostly engages with the older two children. The caregiver did not see a close connection
between the children and father, but “can tell that they love their mother.”
Father testified at the section 366.26 hearing. He testified that he visited the
children as often as he could given his work obligations, that he visited via video call
when he could not be present, and that he had a close connection to them. He said the
children called him daddy, hugged him, kissed him, and told him they loved him. He
said they used to act pained when visits would end, and would cling to him and not want
the visits to end. Both parents argued the court should apply the beneficial parent-child
relationship exception to the termination of parental rights.
The court found the beneficial parent-child relationship exception did not apply. It
stated it had “no doubt in its mind these children love their mom . . . [b]ut the Court is
also cognizant of the emotional outbursts evidenced by these kids and, how under their
7 caregivers[’] care, these are being ameliorated.” Looking at the factors under In re
Caden C. (2021) 11 Cal.5th 614 (Caden C.), the court concluded father’s visitation was
not consistent because “[t]here were months that went by without him visiting.” The
court acknowledged this was “through no fault of his, but Caden C. is what Caden C. is.
I have to look at it literally.” (Italics added.) However, it added that even if father met
that requirement, neither parent met the second prong of the Caden C. analysis. The
court was concerned that “[i]f Mom and Dad cannot control their behavior in a setting
such as visitation, that gives the Court great concern with respect to these negative
behaviors coming back again.” The court also looked at whether there was “evidence
that there is distress . . . when the parents have to go,” and found that to the contrary,
“when the visit ends, the children are eager to leave. [M.S.] grabs the caregiver’s hand to
walk out the door. That says a lot to this Court.”
Accordingly, the court terminated the parents’ parental rights. Both mother and
father appealed.
B. ICWA
Both parents consistently did not know or denied any Indian ancestry throughout
the dependency. Mother and father both filed Family Find and ICWA Inquiry forms.
Mother identified and provided contact information for a godmother and two maternal
aunts, one of which was unrelated by blood. The department contacted both maternal
aunts and the godmother, all of whom denied any Indian heritage. Father identified and
provided contact information for the same godmother and a paternal aunt, whom the
8 department had spoken with regarding the safety plan it put in place before this
dependency. Sometime between October and November 2023 the department
unsuccessfully attempted to contact the paternal aunt, both by calling and sending a text
message.
At the 366.26 hearing, the parties stipulated the department attempted to call the
paternal aunt four times that morning, and received messages indicating the subscriber
was out of the area and the number could not be reached. The court then found ICWA
did not apply.
ANALYSIS
Mother and father argue the department failed to conduct a sufficient initial
inquiry as required by California law implementing ICWA because it failed to ask
identified extended family members whether any of their children may be Indian
children. They also argue the trial court erred when it did not apply the beneficial
parental bond exception. We disagree and affirm.
A. ICWA
ICWA establishes minimum national standards “for the removal of Indian children
from their families and the placement of such children in foster or adoptive homes which
will reflect the unique values of Indian culture.” (25 U.S.C. § 1902.) Under California
law, the trial court and county welfare department have “an affirmative and continuing
duty to inquire” whether a child subject to a section 300 petition may be an Indian child.
(§ 224.2, subd. (a); see In re D.F. (2020) 55 Cal.App.5th 558, 566 (D.F.).) “This
9 continuing duty can be divided into three phases: the initial duty to inquire, the duty of
further inquiry, and the duty to provide formal ICWA notice.” (D.F., at p. 566.) Only
the initial duty is at issue in this appeal.
The initial duty applies in every dependency. (In re J.S. (2021) 62 Cal.App.5th
678, 686; see § 224.2, subd. (b).) The initial duty expands under subdivision (b) of
section 224.2, when a child is removed from their home. Under that provision, “[i]f a
child is placed into the temporary custody of a county welfare department pursuant to
Section 306,” the department’s obligation includes asking the “extended family
members” about the child’s Indian status. (§ 224.2, subd. (b).) The Judicial Council
revised rule 5.481 of the California Rules of Court to implement section 224.2,
subdivision (b), by requiring inquiry of extended family in every case in which the
department seeks to place the child. (Cal. Rules of Court2, rule 5.481(a)(1).)3
Our Supreme Court has recently held “that error resulting in an inadequate initial
Cal-ICWA inquiry requires conditional reversal with directions for the child welfare
agency to comply with the inquiry requirement of section 224.2, document its inquiry in
2 Undesignated rule references are to the California Rules of Court.
3 Opinions from our division disagree on whether that rule of court correctly interprets the statute by requiring the department to inquire of extended family members in every case where a child is removed from home. (Compare In re Robert F. (2023) 90 Cal.App.5th 492, review granted July 26, 2023, S279743 [holding the duty does not apply where a child is removed via protective custody warrant] with In re Delila D. (2023) 93 Cal.App.5th 953 (Delila D.), review granted Sept. 27, 2023, S281447 [holding the duty applies in all cases where children are removed from home].) However, we need not address which interpretation we find persuasive, because we conclude that the department satisfied the more expansive duty of initial inquiry set out in Delila D. and its progeny.
10 compliance with rule 5.481(a)(5), and when necessary, comply with the notice provision
of section 224.3. When a Cal-ICWA inquiry is inadequate, it is impossible to ascertain
whether the agency’s error is prejudicial.” (In re Dezi C. (2024) 16 Cal.5th 1112, 1136
(Dezi C.).) While that court did not address how to assess whether an inquiry was
erroneous, it noted “[i]f a child welfare agency fails to obtain meaningful information or
pursue meaningful avenues of inquiry—by, for example, failing to discover that a parent
was adopted, or failing to inquire further after a parent identified an extended family
member with more information about the child’s potential Indian ancestry—those facts
would be relevant to whether the initial Cal-ICWA inquiry is adequate.” (Id. at p. 1151.)
“[T]he juvenile court’s fact-specific determination that an inquiry is adequate,
proper, and duly diligent is ‘a quintessentially discretionary function’ [citation] subject to
a deferential standard of review.” (Dezi C., supra, 16 Cal.5th at p. 1141.) Therefore, if
“a juvenile court’s findings that an inquiry was adequate and proper and ICWA does not
apply are found to be supported by sufficient evidence and record documentation as
required by California law [citation], there is no error and conditional reversal would not
be warranted even if the agency did not inquire of everyone who has an interest in the
child.” (Ibid.) However this rule only applies when there is a well-developed record,
and “ ‘ “the less developed the record, the more limited that discretion necessarily
becomes.” ’ ” (Ibid.) “In reviewing factual determinations for substantial evidence, a
reviewing court should ‘not reweigh the evidence, evaluate the credibility of witnesses, or
resolve evidentiary conflicts.’ [Citation.]” (Caden C., supra, 11 Cal.5th 614 at p. 640.)
11 Here, we are not reviewing a fact that comes through a trial court’s resolution of
an evidentiary conflict, but the trial court’s implied finding that the department’s “inquiry
and due diligence were ‘proper and adequate.’ ” (Dezi C., supra, 16 Cal.5th at p. 1134.)
We thus are “not concerned with the outcome” as to the likelihood of whether the child is
an Indian child. (Id. at p. 1144.) We are thus not to limit our review to “[e]nforcing the
requirement of an adequate inquiry only in cases in which the record affirmatively
demonstrates a reason to believe the child is an Indian child.” (Id. at p. 1147.) Instead,
we are “ensuring that tribal heritage is acknowledged and inquired about in dependency
cases.” (Id. at p. 1148.) This mission surely requires that we engage in a searching
review to protect the tribal interests that Dezi C. explained are compelling and legally
protected. (Id. at p. 1148.) Yet the deferential standard requires that we not find error
just because the inquiry was not flawless.
We conclude the trial court’s finding that ICWA did not apply, and therefore the
implied finding that the inquiry was adequate, to be supported by substantial evidence.
The department spoke to everyone mother and father were able to identify save for one
notable exception. Though this was not a large number of people in all—the department
was ultimately only able to talk to two maternal aunts—it was nevertheless duly diligent
given the constraints. Indeed, we cannot ask for much more from the department when
faced with such little information about the parents’ extended families and no indication
that unidentified family members may be reachable.
12 Nevertheless, father alleges the department erred by failing to inquire with the
identified paternal aunt, and mother also argues the department erred by failing to
independently identify extended relatives by referencing her own history with child
welfare. Neither of these alleged failures are enough to reject the trial court’s finding.
First, the department did attempt to contact the paternal aunt, once in the fall of 2023 and
four times the morning of the section 366.26 hearing. The first attempt at contact was via
phone call and text message, and the paternal aunt never responded. The latter four
attempts revealed that the phone number the department had for the paternal aunt could
not be reached, suggesting that further attempts to contact her would be fruitless. In
short, any information paternal aunt may have had was not readily obtainable, and
therefore substantial evidence supports a finding that the department’s failure to obtain
that information did not render its inquiry inadequate. Nor is the department required to
conduct an independent fishing expedition into a parent’s child welfare history to identify
extended relatives. The department’s “obligation is only one of inquiry and not an
absolute duty to ascertain or refute Native American ancestry.” (In re Antoinette S.
(2002) 104 Cal.App.4th 1401, 1413.) Mother did not identify or provide contact
information for any maternal relatives besides the maternal aunt because she was not in
contact with them. Therefore, there was substantial evidence to conclude the department
had fulfilled its duty of inquiry by speaking to the relatives mother did identify.
13 B. Beneficial Parental Bond Exception
“By the time of a section 366.26 hearing, the parent’s interest in reunification is no
longer an issue and the child’s interest in a stable and permanent placement is
paramount.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348 (Jasmine D.).)
Adoption is the Legislature’s preferred permanent plan. (In re Autumn H. (1994)
27 Cal.App.4th 567, 573.) “[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.”
(Jasmine D., at p. 1350.)
To avoid this outcome, the parent must show that termination of parental rights
“ ‘would be detrimental to the minor’ due to any of certain specified circumstances.”
(Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249.) One circumstance, the
parental bond exception, applies where the parent can show they “have maintained
regular visitation and contact with the child and the child would benefit from continuing
the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) There are three elements to this
exception: “(1) regular visitation and contact, and (2) a relationship, the continuation of
which would benefit the child[ren] such that (3) the termination of parental rights would
be detrimental to the child.” (Caden C., supra, 11 Cal.5th at p. 631, italics omitted.)
“The first element—regular visitation and contact—is straightforward. The
question is just whether ‘parents visit consistently,’ taking into account ‘the extent
permitted by court orders.’ ” (Caden C., supra, 11 Cal.5th at p. 632.) For the second
element, courts may take into account “a slew of factors, such as ‘[t]he age of the child,
14 the portion of the child’s life spent in the parent’s custody, the “positive” or “negative”
effect of interaction between parent and child, and the child’s particular needs.’ ” (Ibid.)
As for the third element “in assessing whether termination would be detrimental, the trial
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.” (Id. at p. 632,
italics omitted.)
On review, we apply the substantial evidence standard to the findings on the first
two elements and a hybrid standard for the third. (Caden C., supra, 11 Cal.5th at p. 639.)
Specifically, we review whether termination of parental rights would be detrimental to
the child because of the beneficial parental relationship for abuse of discretion. (Id. at
p. 640.) But we review any factual findings underlying that decision for substantial
evidence. (Ibid.) In doing so, we look only at the evidence admitted at the
366.26 hearing. (In re L.A.-O. (2021) 73 Cal.App.5th 197, 207-208.) This hybrid
standard embodies the principle that as the reviewing court, we may not “substitute [our]
own judgment as to what is in the child’s best interests for the trial court’s determination
in that regard.” (Caden C., at p. 641.)
The trial court found that father failed to demonstrate either of the first two
prongs, while mother failed under the second prong. We conclude there was substantial
15 evidence to support the trial court’s findings as to the second prong for both parents, and
therefore need not address whether father’s visitation was consistent enough.4
G.S. was clear and consistent in reporting father physically abused all three
children and mother at minimum failed to protect them from this abuse. Indeed, all three
children showed the scars of that treatment. G.S. told the department he believed he was
hit because he was not a good kid, and would use a magic wish to make himself a better
kid. He was happy that since the social worker intervened his dad would no longer hit
him. When first removed he exhibited violent, angry behavior that calmed the longer he
was away from his parents, and said he was afraid father would kill him and “ ‘beat [him]
bad.’ ”
Though his much younger siblings did not articulate the same concerns, they too
expressed signs that their relationship to their parents was not beneficial. M.S. appeared
extremely distressed whenever a baby cried in her placement home, shaking her fists and
repeating “ ‘[f]uck, stop, stop stop’ ” in apparent imitation of behavior she saw at home.
She was aggressive towards younger children in the home, and winced and attempted to
self-soothe after a small spill. These behaviors indicate a fearful, anxious environment at
4 While we need not address the trial court’s findings regarding the first prong, we disagree with the trial court’s implicit conclusion that only in-person visitation counts under Caden C. As the recent COVID-19 pandemic demonstrated, virtual visits may be the only feasible option for visitation in some circumstances, and there may be, for example, financial or work constraints that sometimes make that visitation appropriate. Crediting those virtual may at times be appropriate when considering the consistency of visitation, and Caden C. does not forbid considering virtual visits.
16 home, as does the fact that these behaviors subsided while the children remained out of
the home.
Finally, the children’s behavior during visits suggests that they did not have a
strong, beneficial bond with their parents. They were often eager to leave visitation, did
not exhibit any negative behaviors as they were leaving or after they left, and referred to
the caregivers as mom and dad. Indeed, they called their female caregiver mom so
consistently that mother learned to stop responding. J.H. even appeared somewhat
fearful of father and did not like being picked up or held by father.
All of this is sufficient evidence for a court to conclude that the bond between the
children and the parents was far from beneficial. Indeed, there is sufficient evidence to
suggest that the relationship was actively harmful. While we join the trial court in saying
that we do not doubt that the children love their mother, this does not mean their
relationship with either mother or father was to their benefit, and there was substantial
evidence to support the conclusion it was not.
Accordingly, we affirm the trial court’s order terminating both parents’ parental
17 DISPOSITION
We affirm.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAPHAEL J.
We concur:
RAMIREZ P. J.
MILLER J.