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Filed 10/26/15 In re L.E. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

In re L.E., a Person Coming Under the Juvenile 

Court Law.

SACRAMENTO COUNTY DEPARTMENT 

OF HEALTH AND HUMAN SERVICES,

Plaintiff and Respondent,

v.

A.W.,

Defendant and Appellant.

C078911

(Super. Ct. No. JD233617)

A.W., mother of the minor, appeals from orders terminating her parental rights. 

(Welf. & Inst. Code, §§ 366.26, 3951.) Mother contends the record shows there was no 

inquiry by the juvenile court or the Sacramento County Department of Health and Human 

Services (Department) into father’s possible Indian heritage. Mother also argues the 

 

1 Undesignated statutory references are to the Welfare and Institutions Code.
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court erred in failing to apply the beneficial parental relationship exception to avoid 

termination of her parental rights. We conclude (1) the Department satisfied its statutory 

duty of inquiry and (2) the juvenile court properly found the beneficial parental exception 

did not apply. Accordingly, we affirm the juvenile court’s orders.

FACTS

The eight-year-old minor was removed from parental custody in August 2013 

because of domestic violence and mother’s substance abuse. The court sent notice of the 

jurisdictional/dispositional hearing to the minor’s father, R.E., by certified mail. The 

mailing also included, inter alia, a Parental Notification of Indian Status, form ICWA020. The return receipt was signed by R.E. Mother filed her ICWA-020 form in August 

2013 disclaiming Indian ancestry. The court found that, as to mother, the Indian Child 

Welfare Act (25 U.S.C. § 1901, et seq.) (ICWA) did not apply but made no finding as 

to R.E. 

The jurisdiction report stated the social worker had spoken to mother who 

minimized the issues that led to removal but nonetheless began to participate in the 

services offered to her. The minor told the social worker she did not want to go home. 

During a telephone contact, mother began yelling at the minor and told the minor she was 

not going to try to get her back. The minor was very upset by the call. After receiving 

notification from the Department that the minor was in protective custody, R.E. called the 

Department and said he was unable to take custody of the minor at that time and wanted 

her placed with the paternal grandmother. In a phone interview a few days later, R.E. 

stated he is the biological father of the minor and holds her out to be his daughter. While 

he did not have suitable housing to accommodate her, he stated he would like the 

opportunity to reunify with the minor in the future. He reported that he always had 

concerns with the minor’s safety in the care of mother but was not in a position to 

intervene due to his own substance abuse and prior incarceration. An addendum stated 

R.E. had not demonstrated any commitment to establishing a relationship with the minor. 
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He had not visited or made efforts to arrange visitation and had not presented himself at 

any of the court proceedings. The Department opined it was not in the best interest of the 

minor to provide reunification services to father. In October 2013, the juvenile court 

sustained the petition and ordered reunification services for mother. 

The review report filed in March 2014 stated mother was not participating in 

services, had attended eight visits from mid-November through mid-February, cancelled 

three visits during that period and was frequently late to the visits she did attend. Mother 

attended no visits from mid-February to the writing of the report in mid-March. In 

January 2014, R.E. called the Department and left a message that he wanted to give up 

his parental rights. However, his phone number was disconnected when the social 

worker tried to call him. The report stated R.E.’s needs could not be addressed because 

he had not made contact with the Department since the inception of the case. The 

juvenile court ordered further reunification services for mother. 

The review report of September 2014 recommended termination of mother’s 

reunification services. The report stated the minor remained in foster care placement and 

appeared to have bonded to her caretakers. However, the minor was resistant to being 

adopted by her caretakers and expressed a wish to be placed with relatives. The minor 

was in therapy to address issues including neglect, trauma, and mother’s inconsistent 

visits. The inconsistent visits upset the minor and caused problems in her placement. 

Mother did not engage in services or make herself available to the social worker. In 

November 2014, the juvenile court adopted the Department’s recommendation, 

terminating mother’s services and setting a section 366.26 hearing. 

The assessment for the section 366.26 hearing stated mother attended six of eight 

possible visits in November and December of 2014 and visits went fairly well. When the 

case was transferred to adoptions, visits were reduced to twice a month. The assessment 

concluded the minor was generally adoptable and was now comfortable with the plan of 

adoption. The social worker reported the minor cared about her mother but understood 
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mother was unable to take care of her properly. The social worker concluded severance 

of the minor’s relationship with mother would not cause the minor significant emotional 

harm. 

At the section 366.26 hearing in March 2015, mother objected to termination of 

her parental rights and asked the court to find the beneficial parental relationship 

exception applied. The juvenile court declined to find the exception had been established 

both because there was a lack of consistent visitation and insufficient evidence that 

severing the parent-child bond would be detrimental to the minor. The court found the 

minor was likely to be adopted and terminated mother’s parental rights. 

DISCUSSION

I

ICWA Inquiry as to R.E.

Mother contends the court failed to make any finding whether or not the ICWA 

applied as to R.E. and further contends the record reflects a complete failure to inquire 

into father’s Indian heritage.

Section 224.3, subdivision (a), provides: “The court, county welfare department 

and the probation department have an affirmative and continuing duty to inquire whether 

a child for whom a petition under Section 300 . . . is to be, or has been, filed is or may be 

an Indian child in all dependency proceedings . . . if the child is at risk of entering foster 

care or is in foster care.” 

The record shows an ICWA-020 form was mailed to R.E. at the outset of the 

dependency case and that he received the form. The purpose of the form is to make 

initial inquiry of parents regarding their Indian ancestry for further inquiry to be made in 

order to give notice of the proceedings to any indicated tribe. The court satisfied the 

statutory duty of inquiry in section 224.3, subdivision (a).

The record does not contain an ICWA-020 form completed by R.E. We conclude, 

based on the record, he did not complete the form and return it to the Department or the 
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juvenile court. Following that first contact and initial interview, R.E. did not make 

himself available to the social worker who was, therefore, unable to make any further 

inquiry.2 He also did not attend any court proceedings. 

Lacking any information about R.E.’s Indian heritage, if any, the juvenile court 

could not, and did not, make any finding regarding the application of ICWA as to him. 

II

Beneficial Parent-Child Relationship Exception

Mother asserts the court erred in failing to apply the beneficial parent-child 

relationship exception to avoid termination of her parental rights. We disagree.

At the selection and implementation hearing held pursuant to section 366.26, a 

juvenile court must choose one of the several “ ‘possible alternative permanent plans for 

a minor child. . . . The permanent plan preferred by the Legislature is adoption. 

[Citation]’ [Citation] If the court finds the child is adoptable, it must terminate parental 

rights absent circumstances under which it would be detrimental to the child.” (In re 

Ronell A. (1996) 44 Cal.App.4th 1352, 1368.) There are only limited circumstances that

permit the court to find a “compelling reason for determining that termination [of 

parental rights] would be detrimental to the child.” (§ 366.26, subd. (c)(1)(B).) The 

party claiming the exception has the burden of establishing the existence of any 

circumstances that constitute an exception to termination of parental rights. (In re 

Cristella C. (1992) 6 Cal.App.4th 1363, 1373; In re Melvin A. (2000) 82 Cal.App.4th 

1243, 1252; Cal. Rules of Court, rule 5.725(d)(4); Evid. Code, § 500.)

 

2 Mother asserts the Department had access to and could have contacted the paternal 

grandparents about Indian heritage. However, the duty to further inquire of relatives 

exists only if there is reason to know the minor is an Indian child. (§ 224.3, subd. (c).) 

Here, the social worker had no duty to inquire of the paternal grandparents because there 

was no reason to know an Indian child may be involved. 
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Termination of parental rights may be detrimental to the minor when: “The 

parents . . . 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).) 

However, the benefit to the child must promote “the well-being of the child to such a 

degree as to outweigh the well-being the child would gain in a permanent home with 

new, adoptive parents. In other words, the court balances the strength and quality of the 

natural parent/child relationship in a tenuous placement against the security and the sense 

of belonging a new family would confer. If severing the natural parent/child relationship 

would deprive the child of a substantial positive emotional attachment such that the child 

would be greatly harmed, the preference for adoption is overcome and the natural 

parent’s rights are not terminated.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575; 

In re C.F. (2011) 193 Cal.App.4th 549, 555.) Even frequent and loving contact is not 

sufficient to establish this benefit absent a significant positive emotional attachment 

between parent and child. (In re I.R. (2014) 226 Cal.App.4th 201, 213.)

Based on the record, mother could not meet her burden to establish regular 

visitation. In 2013 and early 2014, mother cancelled three visits and was late to the visits 

she did attend. Subsequently, she attended no visits in March 2014 and visited 

inconsistently thereafter. 

Even were we to assume regular visitation, mother did not show that severing the 

parent-child relationship would deprive the minor of a substantial positive emotional 

attachment. The record shows that, while some visits went well, there were also contacts 

that did not, including the telephone call in which mother yelled at the minor and told the 

minor she was not going to try to get her back. The minor’s therapy sessions addressed, 

in part, the minor’s reaction to mother’s inconsistent visits. The minor cared for her 

mother but there was no evidence she would be greatly harmed by termination of 

mother’s parental rights. The juvenile court properly found the exception to termination 

of parental rights did not apply. 
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DISPOSITION

The orders of the juvenile court are affirmed.

 /s/

HOCH, J.

We concur:

 /s/

NICHOLSON, Acting P. J.

 /s/

DUARTE, J.