Filed 5/18/22 In re K .M. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re K .M., A Person Coming Under the Juvenile Court Law.

___________________________________ LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent

,

v.

K.W

. ,
Defendant and Appellant. B315212

(Los Angeles County Super. Ct. No. 

### DK15577E )

APPEAL from orders of the Superior Court of Los Angeles County, Julie Fox Blackshaw, Judge. A ffirmed

. Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant.2 Rodrigo A. Castro

- Silva, County Counsel, Kim Nemoy, Assistant County Cou nsel, and Veronica Randazzo, Deputy County Counsel, for Plaintiff and Respondent.3 K.W. (Mother) appeals from an order terminating parental rights over her daughter K.M. (Minor). We consider whether the juvenile court erred in declining to rely on the par ental benefit excepti on to forego terminating Mother’ s parental rights. In addition, we consider whether the Los Angeles County Department of Children and Family Services (the Department) had a duty under the Indian Child Welfare Act (ICWA) (25
U.S.C. § 1 901 et seq.) and related California law to det ermine whether Minor’s alleged father (not presumed father) S.A. has any Indian heritage.

I. BACKGROUND In February 2016, one month before Minor was born, the Department filed a petition alleging Minor’s fou r siblings were at
risk of harm due to physical abuse by S.A. (the father of one of Minor’s siblings), Mother’s failure to protect her children from S.A., and a history of domestic violence between Mother and S.A

. A month and a half after Minor’s birth, t he Department filed another petition, this one alleging Minor was at risk of physical
harm because of the abuse and neglect suffered by her siblings

, among other things . The juvenile court sustained the allegation
that Minor was at substantial risk becaus e her siblings had been
abused , declared her a dependent of the court, and removed her from Mother’s custody

.

A. Mother’s Visitation and Relationship with Minor
D uring Reunification From September 2016 to May 2018, Mother was provided
with reunification services. During this period, Mother was
consistent in her visitation with Minor , both when the visits were4

monitored and later after she was granted unmonitored
visitation

. As reported by the foster family agency that initially
served as the monitor, Mo ther’s visits with Minor were “pleasant,” with Mother playing music for Minor and reading to her from the Bible. The Department reported Minor is “very close and
affectionate towards her mother but she has also formed a bond with her caregiver. ” Notwiths tanding the bond, the caregiver told the Department that Minor would “shut down” and refuse to
interact with the caregiver for about an hour after visits with
Mother . Th e caregiver also reported she felt “intimidated” by
Mother when she (the caregiver) wo uld come to pick up Minor at
the end of a visit , and the foster family agency revealed Mother repeatedly violated the agency’s pick

- up rules and harassed the caregiver

. When the foster family agency declined to monitor an y further vis its, Department perso nnel took over the monitoring responsibility

. According to the Department, Mother interact ed and engaged “ beautifully ” with Minor during visits; “[t] hey play, they sing, they talk, they draw and communicate well in a loving

manner.

. . . Mother is affecti onate and loving toward [Minor ]

. . . . Mother is very attentive to [Minor].

. . . [Minor] does not want to leave her Mother at the end of the visit.” During th e reunification period from 2016 to 2018 , Minor was placed in three different homes before being placed in the
home of K.A. and O.A. (the foster parents) in August 2017 ; Minor

was almost a year and a half old at that point

. The Department reported Minor was a “happy toddler

, ” who was “thriving” in the care of the foster parents , comfortable with the m , and bonded to
them

. After less than a year of caring for Minor, the foster5

parents informed the Department they would be willing to adopt
Minor if she did not reunite with Mother. In May 2018, the juvenile court terminated Mother’s
reunification servi ces after finding her participation in her case plan had been “minimal

. ” The court at that time expressed “serious and grave concern” about Mother’s ability to protect
Minor.

B. Mother’s Visitation and Relationship with Minor Following the Termination of Reunification Services
In the period immediate ly following the loss of reunification services, Mother remained consistent in her unmonitored
visitation with Minor. T he foster parents reported Mother never
missed a vi sit and was never late. T he foster pa rents also did not
observe any “ acting out ” by Minor after her visits with Mother, though they did note Minor often returned home hungry. The Department opined Minor “has affection for and comfort with” both Mother and the foster parents.
A s more time pa ssed, however, Minor’s relationship with
Mother deteriorated

. Minor repeatedly stated she did not want
to visit Mother and wanted to stay with her “mommy,” i.e., the
foster mother

. A t times

, Minor would physically resist leaving
the car to attend a visit with Mother

— Minor would turn her hea d away from the opened car door ; yell, scream, and shake her head when Mother approached the foster parents’ vehicle ; and refuse
to leave her car seat . Mi nor’s protests would continue even when
Mother and others would try to induce her to go with Mother through offers of gifts (clothes

, toys , and money ). The foster parents also began reporting Minor engaged in inappropriate6

conduct, such as hitting and cursing, after returning from overnight visits with Mother.
With t he onset of the COVID

- 19 pandemic in the early part
of 2020 , Mother’s visits with Minor were limited to voice and
video communications. Those became more sporadic over time. On a regular basis, Mother would miss scheduled visits or would
call anywhere fr om 30 to 60 minutes late. When Mother did call at the scheduled time, Minor routinely either refused to speak
with her or, if she accepted the call, she would ignore Mother or abruptly terminate the call. Minor also hid and threw the foster parents’ phon e in attempts to avoid calls with Mother

. 1 During this same period, Minor’s relationship with the foster parents grew stronger . T he Department reported Minor was “happy,” “thriving, ” and “comfortable,” in the home of the foster parents with all her needs being met and enjoying a “trusting and loving” relationship with both foster parents.
Minor identified the f

oster parents as “mom” and “dad

. ” T he foster parents “incorporated [Minor] in all of the i r family events
and both their extended families have we lcomed and accepted [Minor] into their respective families.”
In advance of a permanency planning hearing in September 2021, the juvenile court asked the Department to report on Mother’s visit s with Minor in light of Mother’s anticipated
reliance on the pa rental benefit excepti on to law that otherwise

1 Minor explained that the foster mother was her “mommy” and that she “d[idn’t] want to talk to [her] other mommy

. ” Minor confided to her therapist, to whom she was referred due to outbursts of anger arising from contact with Mother, that she feared being taken away from the foster parents.7

requires termination of parental rights

. 2 The Department reported “Mother continues to call any time she feels like calling and ignores the arranged times for visits.” In addition, the Department advised tha t out of six observed calls, Minor quickly
disconnected the call on f ive occasions, while on the six th call Minor spoke with Mother for 22 minutes. On a seventh occasion, the social worker waited 20 minutes for Mother to call but “to no
avail.” T he Depar tment recommended the juvenile court
terminat e parental rights and proceed with adoption

.

C. The Juvenile Court Terminates Parental Rights On September 7, 2021, the juvenile court held a contested permanency planning hearing. T he court admitted two doz en

rep orts submitted by the Department during the post

reunification period and a series of call logs from Mother’s phone from late 2020 and early 2021

. T hree percipient witne sses testified at the hearing: Mother, a Department social worker, and
the foste r mother.
Mother described having a healthy and happy relationship with her daughter prior to the pandemic. During their in

- person visits, “[w]e would play toys. We sang. We had lunch, breakfast, dinner. I would bathe her. I would hug her. I would k iss her, tell her I love her.” Mother conceded , however, her relationship

2 The exception precludes termination of parental rights so as to enable the statutorily preferred outcome of adoption wher e the juvenile court “ finds a compelling reason for determining that termination would be detrimental to the child ” because “[t] he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relatio nship. ” (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i ).)8

with Minor since the onset of the pandemic w as “not good

. ”
Mother had not had an in

- person visit with Minor since May
2020
, and her calls with Minor were “only for a few minutes”

e ach. Under questioning from Minor’s counsel, Mother admitted she did not always call at the appointed time and that some of her calls were terminated by Minor. During cross

- examination by the Department’s attorney , Mother admitted she played little
role in attending to Minor’s education or health after she was removed from Mother’s custody

. The Department ’s social worker, who had been involved in Minor’s case for almost five years (fr om September 2016 to July 2021), testified Minor had a “negative” react ion to Mother during
all of the visits the social worker observed after Minor was no longer an infant . The social worker described how Minor would kick, scream, and contort herself inside a vehicle so as not to be
forced to go on an unmonitored visit with Mother. T he social
worker characterized Mother’s relationship with Minor as “flat ”
and lacking “any reciprocal bonding or reciprocal affection.”
Th e foster mother, who had been caring for Minor for the
last f our years , explained Minor began physically r esisting in

person visitation with Mother beginning around age two (a pproximately six months after she was placed in the foster parents’ home) and that this resistance occurred almost “every single time” thereafter. When visitation shifted to video calls following the onset of the pandemic , Mino r’s resistance did not
diminish (despite the foster mother’s encouragement to the contrary) and took on a different form: terminating the call despite Mother’s entreaties that she not hang up. The foster
mother als o confirmed Mother often missed scheduled calls or
called well after the schedule d call time.9 When the presentation of evidence concluded, Mother argued she had a bond with Minor and terminating Mother’s parental rights would be detrimental to Minor. In particular,
Mother emphasized the Department liberalized her visitation
with Minor from monitored to unmonitored

, and even allowed overnight visits , prior to the pandemic

. The attorney for Minor disputed there was any significant bond between her client a nd Mother, relying on her client’s adamant resistance to visits. Minor’s counsel argued the parental benefit excepti on was inapplicable because Mother did not play a parental role in Minor’s life, as shown, for instance, by Mother ’s failure to even inquir e about Minor’s education or health. The Department argued the exception did not apply largely for the same reasons. The juvenile court made extensive findings on the record and ruled it would terminate Mother’s parental rights. The court
found the fost er mother was “very credible” and the testimony by
the social worker was not “terribly probative.” T he court found
Mother was “credible,” but the court believed her testimony did
not suffice to establish the parental benefit excepti on

. T he court highligh ted the visitation problems between Mother and Minor, relying both on the deterioration of the frequency in visitation and the pronounced shift in Minor’s feelings from seeking “affection and comfort” from both Mother and the foster parents to resisting an y contact or communication
with Mother. The court believed the lack of consistent vis i tation

was a “threshold” finding that alone established Mother did not
meet her burden to invoke the parental benefit excepti on , but f or the “sake of thoroughness,” the court also addressed other

reasons why Mother did not satisfy the exception’s prerequisites.10 First, t he court found Minor and Mother did not enjoy a beneficial relationship because there was “ n o evidence in the record that [M inor] enjoyed her visits with her mother or in any other way received a benefit.” Second, the juvenile court believed “the facts did not support a finding that [termination of parental rights] would be a detriment to [Minor] ” because Mother did not play a “parental role” in Minor’s li fe and because there was an insufficient showing that “ the strength and quality of the parent

child relationship outweighs the security and sense of belonging in a stable family.”

II. DISCUSSION
S ubstantial evidence support s the juvenile court’s finding
that Mother did not maintain regular visitation and contact with
Minor

. Mother’s pattern of visitation following the onset of the pandemic was inconsistent : she frequently missed scheduled calls
or called well after the scheduled time , and there was no e vidence that the many missed and late virtual visits w ere due to technical
difficulties or other problems beyond Mother’s control

. The lack
of regular visitation, especially when combined (though not necessarily combined) with the evidence indicating Moth er’s infrequent contact with Minor did not result in a significant, positive attachment between the two

, establishes the juvenile
court was correct to find the parent

- child relationship exception inapplicable. ( In re Caden C. (2021) 11 Cal.5 th 614, 631 [“ From the statute, we readily discern three elements the parent must prove to establish the exception: (1) regular visitation and

contact , and (2) a relationship , the continuation of which would benefit the child such that (3) the termination of parental ri ghts

wo uld be detrimental to the child”] ( Caden C. ) ; see also In re I.R

.11

(2014) 226 Cal.App.4th 201, 212 [regular visitation “ did not occur here and its lack would fatally undermine any attempt to find the beneficial parental relationship exception ”] .)
Th ere is also no ICWA error in this case . The Department was not required to undertake an investigation into whether alleged father S.A. had any Indian ancestry on the facts here

.

A

. Substantial Evidence Supports the Determination
that Mother Did Not Regul arly Visit and Contact
Minor
As just explained

, a “ parent asserting the parental benefit exception must show, by a preponderance of the e vidence, three things,” one of which is “ regular visitation and contact with the child, taking into account the extent of visitation permitted. ” ( Cade n C

., supra , 11 Cal.5th at 636 .) Visits and contact are important in this context be cause they can “ ‘ continue[ ] or develop[ ] a significant, positive, emotional attachment from child to parent.’ [Citation.] Courts shoul d consider in that light whether parents ‘ maintained regular visitation and contact with
the child ’ [citation] but certainly not to punish parents or reward them for good behavior in visiting or maintaining contact

— here as throughout, the focus is on the b est interests of the child. ” ( I d. at 632; In re Autumn H . ( 1994 ) 27 Cal.App.4th 567 , 575 [“ The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive,
emotional attachment from child to parent ”] .) The juvenile court found this element was not met and we review that finding for
substantial evidence. ( Caden C

., supra , at 639.) It was undisputed that over the course of the year and a
half preceding the permanency planning hearing

, Mother’ s record12

of visitation was marred by a large number of missed and/or significantly late virtual visits. T he juvenile court was entitled to infer from the lengthy list of missed and tardy calls that technological issues were not the cause of Mother’s incon sistent
visitation

— indeed, there was no evidence to the contrary

. Moreover , even after Mother was on notice that the Department was observing her virtual visits at the juvenile court’s direction for the purpose of determining the applicability of the exce ption,
she continued to miss scheduled times for virtual visits.
There was also evidence that Mother’s inconstant visitation
did not continue or develop a significant, positive, emotional
attachment between Mother and Minor. Even before the onset of
the pandemic, Mino r resisted visitation with Mother once she (Minor) was no longer an infant

. Then, after visits changed to telephonic and video calls , Minor continued to resist visits with Mother by hiding and throwing the foster parents’ phone, ignoring Mot her while on a call or abruptly terminating the call,
and wondering aloud why Mother was calling her

. Mother’s argument that her visitation should nevertheless be deemed sufficient for purposes of the parental benefit exception because she was consistent in her visitation during the first two years of the dependency proceeding misses the mark for

two reasons

. First, we assess the regularity of the visitation throughout the entire course of the dependency proceedings, and
where visitation has declined to t he point of sustained irregularity by the time of a parental rights termination hearing,
that will preclude successful invocation of the parental benefit exception. Second, even if it were true that a period of earlier regular visitation could overcome a period of later irregular visitation (though the converse seems a far more persuasive13

proposition), we still operate under the constraints of substantial
evidence review. Under that standard, we affirm even when
there is “‘ evidence to the contrary [that] also exists and the trial court might have reached a different result h ad it believed other evidence.’ ” ( Caden C

., supra , 11 Cal.5th at 640.) That would be
the case here.

B

. T he Department Was Not Obligated to Investigate S.A.’s Family History for ICWA Purposes When the Department instituted dependency proceedings on behalf of Minor, Mother identified S.A. as the child’s father. S.A., however, was not listed as the father on Minor’s birth
certificate

, he was not present for Minor’s birth, and he told
M other not to claim him as Minor ’s f ather. At the initial detention hearing, the juvenile court found S.A. to be Minor’s alleged father only

. That finding remained unchanged throughout the course of the dependency proceedings. In 2016, a fter initial inqu iries into Mother’s possible Indian heritage , and again in 2021, after more extensive inquiries, the juvenile court found ICWA inapplicable. Mother c ontends the
ICWA findings are infirm because the Department did not inquire into S.A. ’s possible Indian an cestry. The trial court’s ICWA findings are not erroneous

. ICWA
excludes “any unwed father where paternity has not been acknowledged or established ” from its de finition of a “parent

. ” (25 USC § 1903(9 ) ; see also In re Daniel M . (2003) 110 Cal.App.4th 70 3, 707

- 70 9 [affirming termination of parental rights because alleged father lacked standing to appeal under ICWA’s definition of “parent”] .) S.A. has not acknowledged Minor as his daughter , nor has his biological paternity been established

.14

Under the cir cumstances here

, reversal is not warranted

. ( See,

e.g., In re E.G . (2009) 170 Cal.App.4th 1530 , 1533 [ICWA’s notice procedures were not triggered when the alleged father’s paternity test revealed he was not the biological father of minor] ; compare In re G abriel G . (2012) 206 Cal.App.4th 1160, 1166 & fn. 5 [ICWA inquiry and notice requirements triggered because the minor’s birth certificate designated father as the biological father] .)

DISPOSITION
The order terminating parental rights is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, Acting P. J.

We concur:

MOOR, J.

KIM, J.