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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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

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 Counsel, 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 parental benefit 

exception 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. § 1901 et seq.) and related California law to determine 

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 four 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, the 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 because 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 

During 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 were 
4

monitored and later after she was granted unmonitored 

visitation. As reported by the foster family agency that initially 

served as the monitor, Mother’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.” Notwithstanding 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. The caregiver also reported she felt “intimidated” by 

Mother when she (the caregiver) would 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 any 

further visits, Department personnel took over the monitoring 

responsibility. According to the Department, Mother interacted 

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 affectionate 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 the 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 them, and bonded to 

them. After less than a year of caring for Minor, the foster 
5

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 services 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 immediately following the loss of reunification 

services, Mother remained consistent in her unmonitored 

visitation with Minor. The foster parents reported Mother never 

missed a visit and was never late. The foster parents 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.

As more time passed, 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. At times, Minor would physically resist leaving 

the car to attend a visit with Mother—Minor would turn her head 

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. Minor’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 inappropriate 
6

conduct, such as hitting and cursing, after returning from 

overnight visits with Mother.

With the 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 from 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’ phone in attempts to avoid calls with Mother.

1

During this same period, Minor’s relationship with the 

foster parents grew stronger. The 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 foster parents as “mom” and “dad.” The 

foster parents “incorporated [Minor] in all of their family events 

and both their extended families have welcomed 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 visits with Minor in light of Mother’s anticipated 

reliance on the parental benefit exception 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 that out of six observed calls, Minor quickly 

disconnected the call on five occasions, while on the sixth 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.” The Department recommended the juvenile court 

terminate 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. The court admitted two dozen 

reports submitted by the Department during the postreunification period and a series of call logs from Mother’s phone

from late 2020 and early 2021. Three percipient witnesses 

testified at the hearing: Mother, a Department social worker, and 

the foster 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 kiss 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 where 

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 

relationship.” (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i).)
8

with Minor since the onset of the pandemic was “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”

each. 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 (from September 2016 to July 

2021), testified Minor had a “negative” reaction 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. The social 

worker characterized Mother’s relationship with Minor as “flat” 

and lacking “any reciprocal bonding or reciprocal affection.”

The foster mother, who had been caring for Minor for the 

last four years, explained Minor began physically resisting inperson visitation with Mother beginning around age two

(approximately 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, Minor’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 also confirmed Mother often missed scheduled calls or 

called well after the scheduled 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 and 

Mother, relying on her client’s adamant resistance to visits. 

Minor’s counsel argued the parental benefit exception was 

inapplicable because Mother did not play a parental role in 

Minor’s life, as shown, for instance, by Mother’s failure to even 

inquire 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 foster mother was “very credible” and the testimony by 

the social worker was not “terribly probative.” The court found 

Mother was “credible,” but the court believed her testimony did 

not suffice to establish the parental benefit exception.

The court highlighted 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 any contact or communication 

with Mother. The court believed the lack of consistent visitation

was a “threshold” finding that alone established Mother did not 

meet her burden to invoke the parental benefit exception, but for 

the “sake of thoroughness,” the court also addressed other 

reasons why Mother did not satisfy the exception’s prerequisites.
10

First, the court found Minor and Mother did not enjoy a 

beneficial relationship because there was “no evidence in the 

record that [Minor] 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 life and because there was an 

insufficient showing that “the strength and quality of the parentchild relationship outweighs the security and sense of belonging 

in a stable family.”

II. DISCUSSION

Substantial evidence supports 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 evidence 

that the many missed and late virtual visits were 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 Mother’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.5th 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 rights 

would 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”].)

There 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 Regularly Visit and Contact 

Minor

As just explained, a “parent asserting the parental benefit 

exception must show, by a preponderance of the evidence, three 

things,” one of which is “regular visitation and contact with the 

child, taking into account the extent of visitation permitted.” 

(Caden C., supra, 11 Cal.5th at 636.) Visits and contact are 

important in this context because they can “‘continue[ ] or 

develop[ ] a significant, positive, emotional attachment from child 

to parent.’ [Citation.] Courts should 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 best interests of the child.” (Id.

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 record 
12

of visitation was marred by a large number of missed and/or 

significantly late virtual visits. The 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 inconsistent 

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 exception, 

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, Minor 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 Mother 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 the 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 persuasive 
13

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 had it believed other 

evidence.’” (Caden C., supra, 11 Cal.5th at 640.) That would be

the case here.

B. The 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 

Mother not to claim him as Minor’s father.

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, after initial inquiries into Mother’s possible Indian 

heritage, and again in 2021, after more extensive inquiries, the 

juvenile court found ICWA inapplicable. Mother contends the 

ICWA findings are infirm because the Department did not

inquire into S.A.’s possible Indian ancestry.

The trial court’s ICWA findings are not erroneous. ICWA 

excludes “any unwed father where paternity has not been 

acknowledged or established” from its definition of a “parent.” 

(25 USC § 1903(9); see also In re Daniel M. (2003) 110 

Cal.App.4th 703, 707-709 [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 circumstances 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 Gabriel 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.