81 Cal.App.5th 61
Cal. Ct. App.2022Background
- Juvenile court sustained section 300 and later section 342/387 petitions after concerns about mother D.S.’s methamphetamine use and domestic violence; children were removed in November 2019 and mother was given reunification services that were later terminated.
- M.M. was placed with a paternal aunt; mother’s visitation was inconsistent — frequent cancellations, lateness, missed phone and in-person visits — and Department reports documented these problems.
- The Department prepared an adoption assessment that noted limited recent visits but did not extensively analyze the quality of mother–child bonding; the section 366.26 report described visitation frequency and M.M.’s upset when visits were canceled.
- At the section 366.26 hearing mother requested a bonding study; the court denied the belated request, found the parental-benefit exception inapplicable because visits were not regular/sufficient, and terminated parental rights.
- Mother appealed, arguing (1) the adoption assessment was inadequate, (2) the court abused its discretion by denying a bonding study, and (3) the Department failed to satisfy its initial ICWA inquiry of extended family; the Court of Appeal affirmed.
Issues
| Issue | Plaintiff's Argument (D.S.) | Defendant's Argument (Department/Respondent) | Held |
|---|---|---|---|
| Adequacy of adoption assessment | Assessment omitted sufficient review of amount/nature/quality of contact and bond between mother and M.M. | Any deficiency was waived (no timely objection); report substantially complied and other records showed visits were few and brief. | Affirmed: mother waived specific adequacy objection; totality of evidence showed inconsistent visitation so assessment was not prejudicial. |
| Denial of bonding study | Court abused discretion in denying a Section 730 bonding study and continuance requested at hearing. | Request was belated; no requirement to obtain a bonding study; continuances disfavored; parental-benefit exception was unlikely because visitation was irregular. | Affirmed: denial not an abuse of discretion because request was belated and mother had not maintained regular visitation. |
| ICWA initial inquiry of extended family | Department failed its statutory duty to ask extended family (paternal aunt, maternal grandmother) about Indian ancestry. | Parents affirmatively denied Indian ancestry; further inquiry unlikely to change result; error (if any) was harmless. | Affirmed: court erred in failing to ask extended family, but the error was harmless on this record because parents unequivocally denied ancestry and no evidence suggested otherwise. |
| Waiver of challenge to assessment | N/A (substantive challenge on appeal) | Mother did not object below that the adoption assessment failed statutory requirements, so issue is waived. | Affirmed: appellate challenge to assessment adequacy is waived for lack of timely objection; merits alternative ruling also rejected. |
Key Cases Cited
- In re Caden C., 11 Cal.5th 614 (discusses parental-benefit exception standard and burdens)
- In re Crystal J., 12 Cal.App.4th 407 (deficiencies in adoption assessments affect weight of evidence)
- In re John F., 27 Cal.App.4th 1365 (adoption assessment sufficient if substantial compliance; court considers totality of evidence)
- In re Lorenzo C., 54 Cal.App.4th 1330 (no per se requirement to order a bonding study before terminating parental rights)
- In re Richard C., 68 Cal.App.4th 1191 (denial of a belated bonding-study request consistent with dependency scheme)
- In re Darian R., 75 Cal.App.5th 502 (ICWA error where agency failed to ask extended family can be reversible)
- In re Benjamin M., 70 Cal.App.5th 735 (initial-inquiry error reversible when readily obtainable information likely to bear meaningfully on ICWA status)
- In re Dezi C., 79 Cal.App.5th 769 (initial-inquiry errors require reversal only when record or proffer suggests reason to believe child may be Indian)
- In re Isaiah W., 1 Cal.5th 1 (ICWA purpose and state duty to inquire about Indian ancestry)
- Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (historical context for ICWA and Congressional intent)