Filed 3/14/23 In re G.S. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 G

. S

. , A Person Coming Under the Ju venile Court Law. B 322367

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

B

. S

. ,
Defendant and Appellant. (Los Angeles County Super. Ct. No. 20CCJP02740A)

APPEAL from orders of the Superior Court of Los Angeles
Co u nty, Gabriela H. Shapiro

, Judge Pro Tempore

. Conditionally

a ffirmed and remanded

. David M. Yorton, Jr. , under appointment by the Court of Appeal, for Defendant and Appellant

. Dawyn R. Harrison

, Interim County Counsel, K im Nemoy

, Assis ta nt County Counse l, and Stephen D. Watson, Senior Deputy County Counsel

, for Plaintiff and Responde nt.2 The juvenile court assumed dependency jurisdiction over G.S. (Minor) after sustaining allegations that her parents, B.S. (Mother) and M.L. (Father)

, engaged in domesti c violence and
substance abuse

. Termination of the parents ’ reunification
services and , ultimately, parental rights ensued . Mother appeals from the parental rights termination order and we consider (1)
whether the juvenile court erred i n denying her chan ge of circumstances petition without holding an evidentiary hearing, (2) whether the juvenile court erred in finding inapplicable the parental benefit exception to law otherwise requiring termination of parental rights , and (3) whether re versal is required because

no sufficient inquiry was made into whether G.S. is an Indian
child under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and related California law. 1

I. BACKGROUND
A. The Department ’ s Initial Investigation
I n A pril 2020, the Dep artment received a referral alleging recurring domestic violence between Mother and Father. Department social workers investigated by interview ing Mother

, Father, and several other family members: maternal grandmother C.S. (Maternal Gran dmother); maternal uncle A.S. (Maternal Uncle); paternal grandmother M.C. (Paternal Grandmother); and paternal step

- grandfather M.S.
The Department learned Mother was seventeen years old when she gave birth to Minor, who was approximately 21 months
old at the time dependen cy proceedings commenced. According to

1 Father, whose parental rights were also terminated by the juvenile court, is not a party to this appeal.3

those interviewed, Mother and Father would frequently yell at each other, sometimes in Minor ’ s presence. Not long before the Department began investigating , the parents fought in Minor ’ s

presence a nd Father broke Mo ther ’ s cell phone. During a n earlier fight in Minor ’ s presence, Father broke Mother ’ s bedroom
window. In 2019, Mother hit Maternal Grandmother while she was holding Minor. Maternal Grandmother and Maternal Uncle told Department social workers that Mothe r and Father sometimes neglect to feed Minor, which forces other family
members to ensure she is fed

. Mother admitted she and Father had verbal arguments,
but she denied there had been any physical violence between her
and Father or Mate rnal Grandmother

. Father similarly admitted to arguing with Mother, but he stated they do not really argue in front of Minor. Father admitted he slammed Mother ’ s phone on the floor during an argument. He also admitted to breaking Mother ’ s window, but bo th he and Mother a sserted it was an accident. Mother and Father each denied failing to feed
Minor . Father admitted to smoking marijuana and drinking
alcohol , but he asserted he had never been drunk or high around
Minor. During her first interview with t he Department, Mot her agreed to complete a 52

- week domestic violence program, individual and family counseling, and a parenting program. Mother made arrangements to begin therapy in May 2020.
Minor was removed from Father ’ s custody that same month and

re leased to Mother ’ s care.4 B. The Dependency Petition and Early Hearings The Department filed a five

- count dependency petition alleging Minor was at risk based on Mother and Father ’ s domestic violence, Mother ’ s violence against Maternal Grandmother, and Fa ther ’ s marijuana a buse. Shortly thereafter,
Mother and Father both completed ICWA

- 020 Parental
Notification of Indian Status form s and informed a Department investigator they did not have any Indian ancestry. After the juvenile court held an initial dete ntion hearing,
the Department filed an ex parte application seeking to have
Minor removed from Mother ’ s care. The petition alleged Mother was in contact with Father, was allowing him to have
unmonitored visits with Minor in Maternal Grandmother ’ s home (in contravention of the orders made by the juvenile court at the detention hearing) , was otherwise spending time with Father, and had terminated her counseling sessions. The juvenile court held a hearing, detained Minor from Mother, and released her to
Mate rnal Grandmother. The court ordered monitored visitation for Mother of at least two times per week for two hours. As of June 2020, Mother was enrolled in a parenting class
and had restarted individual counseling. Maternal Grandmother reported Mother was visiting Minor tw ice a week for two hours. Father had not contacted Maternal Grandmother about any
visits. Mother also later enrolled in a domestic violence course.
At a jurisdiction and disposition hearing in August 2020

, the juvenile court sustained an amended count a

- 1 alleging Minor

was at substantial risk of suffering serious physical harm
inflicted non

- accidentally by a parent , a count b

- 2 alleging Minor was at substantial risk of suffering serious physical harm from
Mother ’ s physical altercation with Maternal Gran dmother, and a5

count b

- 3 alleging Minor was at substantial risk of suffering serious physical harm from Father ’ s marijuana abuse. The court ordered Mother to participate in a domestic violence support group for victims, conjoint counseli ng with Father, pa renting courses, and individual counseling to address anger management. Father was also ordered to participate in services , and Mother and Father were each granted monitored visitation with Minor

.

C. Termination of Reunification Service s In the first re view period following the court ’ s assumption of jurisdiction over Minor, Mother fell out of contact with the Department for several months. By January 2021, Mother had attended visits with Minor monitored by Maternal Grandmother,
but her attendance had be come increasingly sporadic. Mother
had also participated in a parenting program, but she had not received a completion certificate because her participation was
minimal. She had enrolled in a domestic violence course and
attended 14 vic tim support group sessions. She had not participated in conjoint counseling with Father because she did
not want contact with him. Additionally

, though Mother and Maternal Grandmother were referred to conjoint counseling

, Mother did not appear for the fi rst session. Moth er also did not act on the Department ’ s suggestion that she re

- enroll in parenting and domestic violence classes.
At the 6

- month review hearing, t he juvenile court
continued reunification services for Mother and set the matter for
a 12

- m onth review hearin g.6 In July 2021, the counselor conducting conjoint counseling reported Mother had only attended two or three sessions. 2 According to the counselor, Mother ’ s lack of participation was getting in the way of bonding with Minor and learning skills to
address Minor ’ s needs. The counselor also reported Minor routinely experienced an increase in anxiety during and after visits with Mother, which resulted in increased tantrums, biting, screaming, and crying. Mother ’ s apparent lack of respect f or Maternal Grandm other also had a negative effect on Minor and heightened her anxiety. As of September 2021, Mother ’ s visitation with Minor was inconsistent. Mother attended some visits, but she sometimes missed visits without advance notice, showed up late, or left
earl y. She was often on her phone during visits and would sometimes go the majority of a visit without engaging with Minor. A Department social worker observed Minor refer to Mother by her given name during a visit, and observed that
Minor sought out Materna l Grandmother when she needed
assistance or wanted attention.
Mother had also made minimal progress with her case plan. She reenrolled in a domestic violence support group in July
2021 but she delayed attending . Mother joined the waiti ng list
for anothe r parenting class, but she had not completed the intake process or attended classes. She was enrolled in individual

2 The sessions were held at Maternal Grandmoth er ’ s home, and wer e scheduled such that Mother could have the session at the beginning of her visit with Minor, and then continue to visit with Minor afterward.7

counseling, but she had not enrolled in conjoint counseling with Father, whose whereabouts were unknown.
At a review hea ring in October 20 21, the juvenile court found the parents ’ progress toward alleviating the conditions that necessitated placement was not substantial. It terminated reunification services and ordered the Department to provide permanent placement services to Minor.

D. Dev elopments Following the Termination of Reunification Services and Termination of Parental Rights Following termination of reunification services, Maternal Grandmother petitioned to adopt Minor. Mother was visiting Minor approximately on ce per week. A De partment social worker
observed a visit between Mother and Minor in November 2021 during which Minor hugged Mother, and the two sat at a table and read books together. Mother appeared attentive to Minor and interacted with her appropriat ely. Maternal Gra ndmother reported that during other visits Mother would sometimes become impatient with Minor and yell when she did not listen. In July 2022, Mother filed a change of circumstances petition requesting reinstatement of reunification servi ces. Mother repre sented she had completed a domestic violence class, she had been visiting with Minor four to five times per week and the visits were going well, and she was pursing counseling. Mother sought an additional six months of reunification serv ices to complete m ore of the case plan and continue to build a bond with Minor. The court denied the petition without a hearing. That same day, the court held a Welfare and Institutions
Code section 366.26 permanency planning hearing. At the8

hearing, th e juvenile court i nquired as to the status of ICWA inquiry efforts in light of the record that reflected only a statement and inquiry in 2020, with no further update. The Department represented it did not have any new information, explaining the case had always been treate d as a non

- ICWA case. The court then inquired directly of Mother, asking whether she had any other information regarding any Native American heritage, or whether she had any family members who received
benefits or lived on a reservation. Mother responded

, “ No, not really. ” The court asked Mother to clarify what she meant, ultimately asking whether anyone ever told her they belonged to a tribe or lived on a reservation. Mother responded “ No, no. No

one. ” The court then asked whether M other had any info rmation
about her father ’ s ancestry, and Mother responded he had been deported to “ T.J. ” The court thereafter found this appeared to not be an ICWA case, and ICWA did not apply.
The court then addressed adoption readiness, stating
Mater nal Grandmother ha d been caring for Minor for approximately two years at that point. The court found there
was no evidence of sufficient contact between Father and Minor
such that the court could find it would be detrimental to Minor to
terminate Father ’ s parental rights. With respect to Mother, the juvenile court acknowledged that Mother had been visiting with Minor and contact between Minor and Mother did provide some sort of a bond and relationship. The court acknowledged that
Minor resided with Mothe r for the first ha lf of her life, but emphasized Mother had not been living with Minor more recently . The court recognized that under recent Supreme Court authority

, “ there is to be a delicate balancing ” that requires the9

court to look closely at Mother ’ s contact with Mino r within the
confines of the visitation order.
The juvenile court believed Mother ’ s more consistent
visitation of late was “ a new development ” and stated on the
record that there was “ no evidence before me that [Minor] won ’ t continue to have contact with her mother if the court were to terminate parental rights today, because the maternal grandmother is the prospective adoptive parent. ” Even assuming Mother was visiting consistently and there was a strong positive
emotional attachment be tween Minor and Mo ther, however, the
court still found terminating parental rights would not be
detrimental when balanced against the benefits of an adoptive home. In so finding, the court again stated that “ because the maternal grandmother is the prospec tive adoptive pare nt, I don ’ t see how that incidental relationship or that continuing conduct

won ’ t occur. The same way that I ’ m not seeing examples of the depth of that bond and the emotional attachment, I ’ m also not hearing that the maternal grandmother won ’ t allow conta ct and

won ’ t engage with the Mother to allow the Mother to see [Minor]. ” Having found the parental benefit exception inapplicable, the juvenile court found Minor adoptable and ordered Mother ’ s parental rights terminated.

II. DISCUSSION
We shall affirm the juvenile court ’ s orders. The court was not required to hold an evidentiary hearing on Mother ’ s change of circumstances petition under Welfare and Institutions Code
section 388 because there is no evidence that restarting10

reunificatio n services would b e in Minor ’ s best interests. 3 As to the parental benefit exception, Mother is correct that the juvenile
court should not have considered potential future visitation between Mother and Minor, but such consideration was harmless
because th e dearth of eviden ce that Minor would benefit from continuing the relationship with Mother means parental rights
would have been terminated even without such consideration

. Finally, no reversal on ICWA grounds is warranted because substantial evidence sup ports the juvenile court ’ s finding that adequate inquiry was made to determine Minor is not an Indian
child and, in any event, Minor’s placement with her grandmother means any assumed inquiry deficiency was harmless

.

A. The Juvenile Court Did Not Err in S ummarily Denying M

other ’ s Section 388 Change of
Circumstances Petition

“ Section 388 accords a parent the right to petition the juvenile court for modification of any of its orders based upon changed circumstances or new evidence. [Citations.] To obtain the requested modi fication, the parent must demonstrate both a change of circumstances or new evidence, and that the proposed change is in the best interests of the child. [Citations.] [¶]

. . . [¶] To obtain an evidentiary hearing on a section 388 pet ition, a parent mu st make a prima facie showing that circumstances have changed since the prior court order, and that the proposed change will be in the best interests of the child. [Citations.] To make a prima facie showing

. . . the allegations of

3 Undesignated statutory references that follow are to the Welfare and Institutions Code.11

the petition must be s pecific regarding the evidence to be presented and must not be conclusory. [Citation.] ” ( In re Alayah
J. (2017) 9 Cal.App.5th 469, 478, fn. omitted ( Alayah J. ) .)

“ In determining whether a parent has made a prima facie showing under sec tion 388, we may c onsider the entire factual and procedural history of the case. ” ( In re Daniel F. (2021) 64 Cal.App.5th 701, 711.) We review the grant or denial of a section 388 petition for an abuse of discretio n

. ( Alayah J.

, supra , 9 Cal.App.5th at 47 8 ; In re C.J.W. (2 007) 157 Cal.App.4th 1075,
1079 .)
Mother ’ s section 388 petition alleged she had completed a domestic violence class, had been visiting with Minor four to five times per week with no issues , and was pursuing counseling.
Mother ’ s petition was silent as to another incomplete portion of her prior case plan

— namely the requirement that she complete a parenting course. Assuming for the sake of argument that this evidence was sufficient to demonstrate changed circumstances, Mother ’ s petition wa s still insufficie nt to warrant a hearing because Mother provided no evidence that restarting reunification
services would be in Minor ’ s best interests. Incremental compliance with her prior case plan and assertions that renewed services would provide her more time to buil d a bond with Minor
did not constitute evidence that a revival of reunification services
would have been in Minor ’ s best interests. (See, e.g., In re Angel
B. (2002) 97 Cal.App.4th 454, 463 [ “ simple completion ” of a
course is not evidenc e that a changed o rder would be in the
child ’ s best interests].) Particularly when Minor had been in
Maternal Grandmother ’ s sole care for approximately two years
and was happy and bonded to Maternal Grandmother, the12

juvenile court did not abuse its discre tion in summarily denying
mother ’ s section 388 petition.

B. The Juvenile Court Should Not Have Remarked on Future Visitation, but the Error Was Harmless
A juvenile court holds a hearing under Welfare and
Institutions Code section 366.26 to determine “ whe ther to
terminate parental rights, making way for adoption, or to maintain parental rights and select another permanent plan. ” ( In re Caden C. (2021) 11 Cal.5th 614, 625 ( Caden C. ).) “ To ease
the court ’ s difficult task in making this important decision, the statute provid es a carefully calibrated process. Even if a court finds by clear and convincing evidence that the child is likely to be adopted, the parent may avoid termination of parental rights by establishing at least one of a series of enumerated exceptions. ” ( Ibi d .)
One of these exceptions is the parental benefit exception. (§ 366.26, subdivision (c)(1)(B)(i) .) The exception is “ limited in

scope ” and applies where “‘ [t]he court finds a compelling reason for determining that termination would b e detrimental to t he child due to one or more of the following circumstances: [¶] (i) 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). ) From th[is] sta tute, [our Supreme Court] readily discern[ed] 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

pa rental rights would be detrimental to the child. ” ( Caden C

.,13

supra , 11 Cal.5th at 631, third, fourth, and fifth alterations added.)
The second element

— whether the child would benefit from continuing the relationship

— depends on “ a slew of factors, such

a s ‘ [t]he age of the child, 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. ’” ( Caden C

., supra , 11 Cal

. 5th at 63 2, citing In re Au tumn H. (1994) 27 Cal.App.4th 567, 576 ( Autumn H .).) As emphasized in
Autumn H.

, cited in Caden C . as “ the seminal decision interpreting the exception ” ( Caden C

., supra , at 631), the parental benefit exception is not concerned with the “ incidental
benefit ” that “ [i]nteraction between natural parent and child will always confer. ” (

Autumn H.

, supra , at 575

- 576 [holding that a relationship comparable to that of a “‘ friendly visitor ’” or “‘ family
friend ’” is insufficient to trigger the excep tion].) Nonethele ss, juvenile courts “ must remain mindful that rarely do ‘ [p]arent

child relationships ’ conform to an entirely consistent pattern. [Citations.] ” ( Caden C

., supra , at 632, second alteration added.)
We review the juvenile court ’ s determin ation of the
exist ence of a beneficial relationship for substantial evidence

. ( Caden C

., supra , 11 Cal.5th at 639.) “ [T]he ultimate decision

— whether termination of parental rights would be detrimental to
the child due to the child ’ s relationship with his parent

— is
discret ionary and properly reviewed for abuse of discretion. ” ( Id. at 640.) The Department argues Mother forfeited the ability to complain about the juvenile court ’ s consideration of the likelihood of post

- adoption contact between her and Mino r because she did not object to that consideration below. The Department may well14

be right about that, but we would exercise our discretion to explain why Mother is not entitled to reversal regardless

. The juvenile court here expressly considered the lik elihood
that Mothe r would continue to have contact with Minor when making its ruling on the parental benefit exception. That should not have happened. “ Considering a potential future relationship between the parents and the minors, for any reason, is imp ermissible at a se ction 366.26 hearing. ” ( In re D.P. (2022) 76 Cal.App.5th 153, 169 ; see also Caden C

., supra , 11 Cal.5th at 633 [ “ courts must assume that terminating parental rights terminates the relationship ” ].) The error, however, was harmless. (See generally In re
C eline R. (2003) 31 Cal.4th 45, 59

- 60; In re J.R. (2022) 82 Cal.App.5th 526, 533 [where “ the proper legal standard is already established and a party has had a full and fair opportunity to present all of their evidence on a contested issue , and yet in the

e nd there is simply no evidence that could support a favorable finding for them, then any legal error in the court ’ s reasoning or basis for its decision quite obviously is harmless ” ].) It was
Mother ’ s burden to prove the elements of the p arental

- benefit

ex ception, including that Minor would benefit from a continuing relationship with her. (§ 366.26, subd. (c)(1)(B)(i); Caden C

., supra , 11 Cal.5th at 635) . Mother could have done so by adducing evidence Minor had a substantial, positive, a nd
emotional attac hment to her (see, e.g., In re D.M. (2021) 71 Cal.App.5th 261, 271 [father testified his children wanted to return to him and that the youngest child cried when visits
ended ]; In re J.D. (2021) 70 Cal.App.5th 833, 856 [mother
introduced l ogs of virtual vis its with her son detailing their bond]) or pointing to evidence otherwise in the record (e.g., In re15

B.D. (2021) 66 Cal.App.5th 1218, 1229, fn. 4 [evidence that children greeted parents with hugs and expressed sadness at end of visits sug gested the y had a “ beneficial relationship ” ].) Mother did neither, and our own review of the record confirms that there
is no substantial evidence of the requisite beneficial relationship

. Rather, the evidence in the record suggests that while the
visits between Mother an d Minor were generally positive, Mother barely engaged with Minor during some visits, Minor at least sometimes referred to Mother by her given name, and Minor often sought out Maternal Grandmother, not Mother, for
assistance or attention during visits. Th ere is no indication in the record that the visits conferred upon Minor anything more
than the “ incidental benefit ” that “ [i]nteraction between natural parent and child will always confer. ” ( Autumn H

., supra , 27 Cal.App.4th at 575.) Bec ause there was no evidence that could support a favorable finding for Mother, the juvenile court ’ s error was harmless, and reversal is un warranted. 4

C

. Substantial Evidence Supports the Juvenile Court ’ s ICWA Findings and, Regardless, Any Assumed Error
Was Harmless
ICWA re flects a congressional determination to protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards a state court must follow before removing an Indian

4 I n light of our hol ding on this score, we need not address M other ’ s contention that the juvenile court also utilized improper factors to analyze whether termination of parental rights would be detrimental to Minor.16

child fr om his or her fami ly. (25 U.S.C. § 1902; In re Isaiah W. (2016) 1 Cal.5th 1, 7

- 8; In re Elizabeth M. (2018) 19 Cal.App.5th 768, 784.) U nder ICWA, the Department and the juvenile court
have “ an affirmative and continuing duty to inquire whether a
child

. . . is or may be a n Indian child. ” (§ 224.2, subd. (a); see also Cal. Rules of Court, rule 5.481(a).) We review the juvenile

court ’ s ICWA findings for substantial evidence. ( In re Hunter W

. (2011) 200 Cal.App.4th 1454, 1467; In re Barbara R. (2006) 137 Cal.App.4th 941, 9 5 0 .) Here, both Mother and Father signed ICWA

- 020 forms indicating they had no Indian ancestry and made similar assertions to Department employees. The juvenile court also questioned Mother at the termination hearing, inquiring as to
wh ether any family m embers had ever said anything like “ I belong to a tribe ” or “ I live on a reservation. ” Mother responded
no one had , and there is no contrary evidence in the record. The juvenile court ’ s ICWA finding was thus supported by substantial
evi dence. ( In re Eze quiel G. (2022) 81 Cal.App.5th 984, 1014 .) Furthermore, in readily conceding error, the Department neglects to discuss the significance of Minor’s placement with Maternal Grandmother (and her status as the prospective adoptive parent). As another court h as held, and as holds true here, placement of a minor with a family member who necessarily shares any assumed maternal Indian ancestry that Minor has 5

means any posited deficiency in conducting ICWA

- related inquiry
would be harmless. ( In re J.W. (2022) 81 Cal.App.5th 384, 390 [“ Assuming for the sake of argument that an inquiry would have

5 When asked on the record, Mother said F ather’s parents

we re Mexican

.17

discovered that J.W.’s maternal family held Indian roots, the purpose of ICWA

— to prevent the removal of Indian children from
their Indian families

— is not implicated by the juvenile court ’ s final disposition. When J.W. was found adoptable, her prospective adoptive parent was her maternal grandmother, who had already adopted J.W.’s half

- brother. J.W. was not facing alienation or separation from any assumed Indian ancestry ”] .)

BAKER, Acting P. J.In re G.S.

B322367

Separate Opinion of Kim, J.

I join all but Section II.C. of Justice Baker’s opinion. As to
the Indian Child Welfare Act of 1978 (ICWA ; 25 U.S.C. § 1901 et seq.) issue raised and discussed in that section, I conclude the Los Angeles County Department of Children and Family Services (Department) did not comply with the requirements of ICWA and related California law because the Department did not interview maternal grandmother and maternal u ncle about Indian ancestry. ( In re H.V. (2022) 75 Cal.App.5th 433, 438.) Further, the Department’s placement of the child with the maternal grandmother does not render the failure to comply harmless. ( In
re J.W. (2022) 81 Cal.App.5th 384, 392

– 393 (dis. opn. of Wiley, J.) .)2 The disposition of the appeal is accordingly this: the juvenile court’s orders are conditionally affirmed and the cause is
remanded for additional ICWA

- related inquiry of available maternal relatives, including maternal grandmother and
maternal uncle

.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

I concur:

MOOR, J.