Filed 9/14/26 In re E.S. CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re E.S., a Person Coming Under the Juvenile
Court Law.
KINGS COUNTY HUMAN SERVICES F091538
AGENCY,
(Super. Ct. No. 25JD0059)
Plaintiff and Respondent,
v.
OPINION
J.H. et al.,
Defendants and Appellants.
APPEAL from orders of the Superior Court of Kings County. Risé Donlon,
Judge.
Janette Freeman Cochran, under appointment by the Court of Appeal, for
Defendant and Appellant J.H.
Brian Bitker, under appointment by the Court of Appeal, for Defendant and
Appellant S.R.
Lozano Smith and Laurie Avedisian-Favini, County Counsel, and Thomas Y Yin,
Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-
J.H. (mother) is the mother of E.S. (the child), the subject of this dependency
matter. R.S. (father) is the father of the child. Both parents challenge the juvenile court’s
orders issued at a contested Welfare and Institutions Code section 366.261 hearing that
resulted in their parental rights being terminated. Mother contends the juvenile court
failed to obtain input regarding tribal placement options, services, and programs from the
family’s non-federally recognized Native American tribe.
Mother also argues the juvenile court erred by failing to apply the beneficial
parent-child relationship exception to adoption. Father joins in this argument and
contends that, if the order terminating mother’s parental rights is reversed, the order
terminating his parental rights must be reversed as well. We reject both of mother’s
contentions and affirm the juvenile court’s orders.
FACTS
Initial Removal
In April 2025, the child was taken into protective custody shortly after her birth
due to mother’s substance abuse. The Kings County Human Services Agency (agency)
filed a petition alleging the child was described by section 300, subdivision (b). The
allegations in the petition involved mother’s substance abuse and father’s failure to
protect the child from mother. Mother informed the agency that she was a registered
member of a non-federally recognized tribe, Lipan Apache (the tribe), from Texas. The
agency noted the family would be provided with active efforts in the spirit of the Indian
Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.)2 based on the tribe’s status
as a non-federally recognize tribe.
1 Undesignated statutory references are to the Welfare and Institutions Code.
2 “[B]ecause ICWA uses the term ‘Indian,’ we do the same for consistency, even though
we recognize that other terms, such as ‘Native American’ or ‘indigenous,’ are preferred by
many.” (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.)
2.
At the detention hearing held on April 18, 2025, mother and father were both
present and appointed counsel. The juvenile court noted the child’s ancestry with the
non-federally recognized tribe and found ICWA was not applicable to the child. The
child was ordered detained from the parents’ custody, and a combined jurisdiction and
disposition hearing was set for May 9, 2025.
Jurisdiction and Disposition
The agency’s jurisdiction and disposition report, filed on May 7, 2025,
recommended that the juvenile court find the allegations in the petition true and order that
the child remain in out-of-home care with family reunification services provided to
mother and father. The child was placed in the home of a resource family. A high-risk
infant follow-up appointment was scheduled for the child. The agency sought a referral
to the Central Valley Regional Center due to the child’s prenatal drug exposure and
complicated medical concerns.
The agency was unable to clear any relatives for emergency placement of the
child. The parents consistently attended supervised visits at the agency without any
reported issues. Representatives from the tribe were present via telephone during
mother’s social study assessment with the agency. The tribe did not have a designated
social services division. The tribal representatives did not wish to be present for every
contact between the family and agency, but they requested to be included in meetings,
updates, and court recommendations.
At the initial jurisdiction and disposition hearing, mother and father were both
present and represented by counsel. An objection was entered on behalf of both parents
as to jurisdiction, and the parents submitted on the agency’s recommendation for
disposition. The juvenile court found the allegations in the petition true and ordered
reunification services be provided to mother and father. A six-month review hearing was
set for October 30, 2025.
3.
Family Reunification Period
The agency prepared a report for the six-month review hearing, which
recommended that mother and father’s reunification services be terminated and a
section 366.26 hearing be set for the child. The child’s care providers expressed a
willingness to provide permanency through legal guardianship or adoption should the
parents be unable to reunify. The high-risk infant follow-up appointment determined the
child was clear of any communicable diseases from birth. There were no longer concerns
with her eyes, but follow-up appointments were scheduled to monitor her condition. The
child was granted eligibility for early start services through Central Valley Regional
Center, and she met all of her developmental milestones.
Mother completed a mental health assessment and parenting program, but she
struggled attending her substance abuse program and maintaining sobriety. She tested
positive for methamphetamine on several occasions and was discharged from her
substance abuse program. Both parents regularly attended their weekly supervised visits
with the child. Visitation was not progressed due to the parents’ continued substance use.
The parents needed guidance and redirection to provide for the child’s needs during
visits. Mother eventually found ways to soothe the child while she was fussing.
A contested six-month review hearing was set for November 19, 2025, at the
parents’ request. The child’s care providers filed a request for de facto parent status on
November 3, 2025.
In an addendum report filed November 18, 2025, the agency provided an update
on their search for relatives that were available for placement. The parents had not
identified any relatives that were willing to take placement of the child until
October 2025. Father provided contact information for his aunt, who was reportedly
interested in adopting the child. The paternal great-aunt informed the agency that she
was an approved resource parent and recently adopted a child in Tulare County.
4.
The agency completed a suitability assessment of the paternal great-aunt over the
phone. Visits were scheduled between the child and paternal great-aunt. The social
worker acknowledged the child had been placed with her care providers since her release
from the hospital in April 2025. The report concluded that the agency was continuing to
assess the best placement for the child.
On November 19, 2025, the care providers’ de facto parent request was granted.
The contested six-month review hearing was continued at the parents’ request.
The agency filed a second addendum report on December 2, 2025. The report
recommended the child remain in her placement due to the child’s primary relationship
with the care providers. Both parents objected to the recommendation to terminate
reunification services and maintain the child’s placement at the contested six-month
review hearing held on December 3, 2025. After hearing argument from counsel, the
juvenile court terminated reunification services for mother and father and set a
section 366.26 hearing for March 26, 2026. The child was ordered to remain placed in
the home of the care providers.
Section 366.26 Hearing
The agency’s section 366.26 report, filed on March 16, 2026, recommended that
the juvenile court terminate the parental rights of mother and father and order a
permanent plan of adoption for the child. The child remained placed in the home of the
care providers, who were committed to a plan of adoption. No significant developmental
or medical concerns were noted for the child. The social worker observed the child to be
a content 11-month-old who smiled around her care providers and parents. The report
detailed the agency’s efforts to inquire of several additional paternal and maternal family
members about relative placement consideration, but none of the available relatives were
able to take placement of the child.
Supervised visits between the parents and child continued on a weekly basis for
two hours at a time. There were no concerns noted during the parents’ visits. The child
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started to speak in short words. During visits, she was observed smiling at her parents
and saying “mama.” The child transitioned well at the conclusion of visits, and she had
not been observed crying afterwards.
A contested section 366.26 hearing was held on April 22, 2026, after a brief
continuance. Mother and father were present and represented by counsel.
Representatives from the tribe appeared via videoconference. The juvenile court began
the hearing by receiving input from the representatives of the tribe. The tribal chairman
acknowledged that the tribe was not federally recognized, and he agreed that ICWA was
not applicable to the case. The juvenile court confirmed that the child had been recently
enrolled in the tribe, and it advised the chairman that the tribe would be included to foster
the child’s connection to the tribe “in the spirit of ICWA.”
The chairman was asked to state the tribe’s position for the court’s consideration.
The chairman identified the tribe’s interest in maintaining the child in the custody of
family members or tribe members. The juvenile court clarified that there were no
pending requests to move the child from her placement, and any requests to change
placement would be “quite the uphill battle” considering the child’s long-term placement.
After the juvenile court expressed the importance of maintaining the child’s tribal
connections, the chairman acknowledged the agency’s willingness to involve the tribe in
the child’s life.
Mother’s counsel objected to the agency’s recommendation and requested the
court decide whether the beneficial parent-child relationship exception was applicable.
After hearing argument from all counsel, the juvenile court proceeded to its ruling by
accepting that both parents had met the first prong of the exception by demonstrating
regular visitation with the child. The juvenile court then reasoned that “the relationship
does not rise to the level of the type of relationship that could cause the Court to not
choose adoption when adoption is available as a permanent plan.”
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The juvenile court concluded by adopting the agency’s recommendation,
terminating the parental rights of mother and father, and selecting a plan of adoption for
the child. The court also found that ICWA was not applicable. At the conclusion of the
hearing, the juvenile court confirmed that members of the tribe would remain enrolled in
the event the tribe’s petition to become federally recognized was granted.
DISCUSSION
I. Section 306.6
Mother contends the juvenile court should have selected a plan of guardianship to
allow the child’s non-federally recognized tribe to provide information about placement
options, services, and programs.
A. Legal Principles
“Section 306.6 was enacted as a part of a comprehensive reorganization of statutes
relating to application of the [ICWA] [citation]. [Citations.] The requirements of the
ICWA apply only to federally recognized tribes. (25 U.S.C. § 1903(8).) Section 306.6
permits the court in a dependency action to allow a tribe which is not federally
recognized to appear in the proceeding and present information to the court.” (In re A.C.
(2007) 155 Cal.App.4th 282, 286.) Under the statute, a tribe “may” participate in a
juvenile dependency proceeding “upon request of the tribe.” (§ 306.6, subd. (a).)
If the juvenile court decides to allow an unrecognized tribe to participate in a
dependency proceeding, section 306.6 limits such participation to receiving notice of
hearings upon request, being present at hearings and addressing the court, examining
court documents, providing information to the court, including the submission of reports
and recommendations, and performing such duties and responsibilities as requested by
the court. (§ 306.6, subd. (b).)
B. Standard of Review
We review a juvenile court’s ruling on an unrecognized tribe’s request to
participate in a dependency proceeding under section 306.6 for abuse of discretion. (In re
7.
Ezequiel G. (2022) 81 Cal.App.5th 984, 1005, cited with approval but disapproved on
other grounds in In re Dezi C. (2024) 16 Cal.5th 1112, 1141, 1152, fn. 18.) “ ‘ “The
appropriate test for abuse of discretion is whether the trial court exceeded the bounds of
reason. When two or more inferences can reasonably be deduced from the facts, the
reviewing court has no authority to substitute its decision for that of the trial court.” ’ ”
(In re Stephanie M. (1994) 7 Cal.4th 295, 318–319.)
C. Analysis
Mother contends the juvenile court erred when it “terminated parental rights
without exploring the support available to her through her Tribe.” She insists that the
juvenile court was required to obtain information about the tribe’s placement options,
services, and programs that were available to the child before terminating parental rights.
First, her argument fails to the extent that she suggests section 306.6 authorizes the
court to select a plan other than adoption for purposes of maintaining a child’s connection
to a non-federally recognized tribe. Adoption, the only plan that requires the termination
of parental rights, is strongly preferred by the Legislature. (In re Anthony B. (2015)
239 Cal.App.4th 389, 395.)
Section 366.26 directs, if the court finds that the child is adoptable—a finding
neither parent challenges—“the court shall terminate parental rights” unless it “finds a
compelling reason for determining that termination would be detrimental to the child due
to” one of the six statutory exceptions. (§ 366.26, subd. (c)(1)(B), italics added.)
Accordingly, if the child is adoptable, only “ ‘in exceptional circumstances,’ ” may the
court “ ‘choose an option other than the norm, which remains adoption.’ ” (In re
Anthony B., supra, 239 Cal.App.4th at p. 395.)
Except for her separate arguments related to the beneficial parent-child
relationship exception that will be addressed below, mother provides no authority for her
assertion that the juvenile court should have ordered a plan of legal guardianship. The
Indian child exception in section 366.26, subdivision (c)(1)(B)(vi), specifies two
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exceptions to the termination of parental rights that apply to an Indian child as follows:
“The child is an Indian child, and there is a compelling reason for determining that
termination of parental rights would not be in the best interest of the child, including, but
not limited to: [¶] (I) Termination of parental rights would substantially interfere with
the child’s connection to their tribal community or the child’s tribal membership rights.
[¶] (II) The child’s tribe has identified guardianship, foster care with a fit and willing
relative, tribal customary adoption, or another planned permanent living arrangement for
the child.” (§ 366.26, subd. (c)(1)(B)(vi).)
Most importantly, the Indian child exception only applies to Indian children. For
purposes of ICWA, an “Indian child” is an unmarried individual under age 18 who is
either a member of a federally recognized Indian tribe or is eligible for membership in a
federally recognized tribe and is the biological child of a member of a federally
recognized tribe. (See 25 U.S.C. § 1903(4) [definition of “ ‘Indian child’ ”],
(8) [definition of “ ‘Indian tribe’ ”]; see also Welf. & Inst. Code, § 224.1, subd. (a)
[adopting federal definitions].) Mother acknowledges that ICWA is not applicable to the
child due to the tribe’s status as a non-federally recognized tribe. Absent evidence that
the child was part of a federally recognized tribe, the juvenile court was not authorized to
choose a plan other than adoption for the child.
Finally, mother fails to recognize that obtaining information from a non-federally
recognized tribe is a discretionary decision. (In re Abbigail A. (2016) 1 Cal.5th 83, 94.)
The decision to allow tribal participation is made upon a case-by-case basis. (§ 306.6,
subd. (e).) In the present case, the juvenile court recognized the family’s membership in
the tribe at the detention hearing. The tribe was allowed to participate in the
section 366.26 hearing and express its desire for the child to be placed with family or
other tribe members. The juvenile court recognized the tribe’s wishes but explained that
a placement change was unlikely given the child’s long-term successful placement.
9.
Neither the tribe nor mother requested that the section 366.26 hearing be
continued for the agency to identify any tribal resources. There is also no evidence that
the tribe had information on an approved placement or necessary services that would
have served the child’s best interest. Under these circumstances, the juvenile court could
have reasonably concluded that the best interest of the child supported an order
maintaining the child’s placement without additional input from the tribe. Therefore, the
juvenile court did not abuse its discretion by terminating parental rights on the
information provided by the tribe.
II. Beneficial Parent-child Relationship Exception
Mother contends the juvenile court erred when it did not apply the beneficial
parent-child relationship exception to adoption. Mother argues that she established a
positive relationship with the child through consistent and loving visits.
A. Legal Principles
At a section 366.26 hearing, when the juvenile court finds by clear and convincing
evidence that the child is adoptable, it is generally required to terminate parental rights
and order the child be placed for adoption unless a statutory exception applies. (§ 366.26,
subd. (c)(1).) One of the statutory exceptions is the beneficial parent-child relationship
exception, which applies when “[t]he court finds a compelling reason for determining
that termination would be detrimental to the child” where “[t]he parents have maintained
regular visitation and contact with the child and the child would benefit from continuing
the relationship.” (Id., subd. (c)(1)(B)(i).)
A parent claiming an exception to adoption has the burden of proof to establish by
a preponderance of evidence that the exception applies. (In re Melvin A. (2000)
82 Cal.App.4th 1243, 1252.) Thus, the parent must prove three elements in order to
prevail under the beneficial parent-child relationship exception: “(1) regular visitation
and contact, and (2) a relationship, the continuation of which would benefit the child
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such that (3) the termination of parental rights would be detrimental to the child.” (In re
Caden C. (2021) 11 Cal.5th 614, 631 (Caden C.).)
The first element of the beneficial parent-child relationship determination asks the
“straightforward” question of whether the parent visited consistently, considering the
extent permitted by court orders. (Caden C., supra, 11 Cal.5th at p. 632.) The focus is
on the best interest of the child as opposed to punishing or rewarding parents for good
behavior in maintaining contact. (Ibid.)
The second element of the exception asks whether the child would benefit from
continuing the relationship. (Caden C., supra, 11 Cal.5th at p. 632.) The parent-child
relationship “may be shaped by a slew of factors, such as ‘[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.’ ” (Ibid.,
quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) The juvenile court’s focus
should again be on the child, and it “must remain mindful that rarely do ‘[p]arent-child
relationships’ conform to an entirely consistent pattern.” (Caden C., at p. 632.)
When considering the third element, courts must determine “how the child would
be affected by losing the parental relationship—in effect, what life would be like for the
child in an adoptive home without the parent in the child’s life.” (Caden C., supra,
11 Cal.5th at p. 633.) Potential negative effects from severance of the relationship might
include “emotional instability and preoccupation leading to acting out, difficulties in
school, insomnia, anxiety, or depression.” (Ibid.) While an adoptive home might provide
a new source of stability that alleviates emotional instability and preoccupation leading to
those problems, making the loss “not, at least on balance, detrimental.” (Ibid.) Under
this element, the court is again guided by the child’s best interest, but in a “specific way:
it decides whether the harm of severing the relationship outweighs ‘the security and the
sense of belonging a new family would confer.’ ” (Ibid.)
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In Caden C., the court held “that because the parent continued to struggle with
substance abuse and mental health issues and because of the risks of foster care and
benefits of the potential adoptive home, no reasonable court could find the child’s
relationship with his parent outweighed the benefits of adoption.” (Caden C., supra,
11 Cal.5th at pp. 625–626.) Rejecting that conclusion, our Supreme Court found, “The
Court of Appeal did not explain how the parent’s struggles related to the specific
elements of the statutory exception: the importance of the child’s relationship with the
parent or the detriment of losing that relationship.” (Id. at p. 626.) A parent’s struggles
with issues that led to dependency were determined to be relevant only to the extent they
inform whether the child would “benefit from continuing the relationship and be harmed,
on balance, by losing it.” (Id. at p. 638.)
B. Standard of Review
Appellate courts review a juvenile court’s ruling on the application of the
beneficial parent-child relationship exception using a “hybrid” standard. (Caden C.,
supra, 11 Cal.5th at p. 641.) The substantial evidence standard applies to the first
two elements of regular visitation and existence of a beneficial relationship. (Id. at
pp. 639–640.) The juvenile court’s decision as to the third element—whether termination
of parental rights would be detrimental to the child—is reviewed for an abuse of
discretion. (Id. at p. 640.) “Review for abuse of discretion is subtly different, focused
not primarily on the evidence but the application of a legal standard. A court abuses its
discretion only when ‘ “ ‘the trial court has exceeded the limits of legal discretion by
making an arbitrary, capricious, or patently absurd determination.’ ” ’ ” (Id. at p. 641.)
The standard of review of a court’s determination that a parent did not meet his or
her burden to prove an exception to termination of parental rights, is “whether the
evidence compels a finding in favor of the appellant as a matter of law.” (In re I.W.
(2009) 180 Cal.App.4th 1517, 1528, disapproved on other grounds by Conservatorship of
O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.) Specifically, the question is “whether the
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appellant’s evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of such a
character and weight as to leave no room for a judicial determination that it was
insufficient to support a finding.’ ” (In re I.W., at p. 1528.)
C. Analysis
In the present case, the juvenile court determined that mother did not meet her
burden of proof as to the application of the beneficial parent-child relationship exception.
The parties acknowledge the juvenile court’s finding that mother visited regularly.
However, the juvenile court did not find that there was sufficient evidence that
maintaining the child’s relationship with mother outweighed the benefits of adoption to
establish the exception.
In support of her contention that the juvenile court erred in failing to apply the
exception, mother cites to evidence that she had positive and affectionate interactions
with the child during visits. While mother consistently visited the child, satisfying the
first prong of the exception, she failed to identify any evidence that would compel a
finding that termination of her parental rights would cause the child great harm. The
evidence before the court established that the child appeared to enjoy the supervised
visits that occurred with mother for the year following her removal. However, evidence
that the child had pleasant visits with their mother is not enough to preserve parental
rights. (See In re Derek W. (1999) 73 Cal.App.4th 823, 827 [“The parent must do more
than demonstrate ‘frequent and loving contact[,]’ [citation] an emotional bond with the
child, or that parent and child find their visits pleasant.” (second bracketed insertion
added)].)
Even if we were to assume mother met the second prong, we cannot say the
juvenile court abused its discretion by determining any benefit the child derived from her
relationship with mother was outweighed by the benefit the child would receive through
the permanency and stability of adoption. Viewed in its context, the juvenile court
considered the child’s need for stability based upon her long-term placement in the home
13.
of her prospective adoptive parents. The evidence shows that the child was adoptable, a
finding mother does not challenge, and adoption would provide the child with
permanency and stability. Given that the child’s relationship with mother was that of a
friendly, loving visitor, the court reasonably could find the benefit of adoption
outweighed any benefit the child may derive from continuing her relationship with
mother.
The evidence in the record weighed in favor of the preferred permanency option of
adoption. Given the fact that the child spent the first year of her life in the care
providers’ home and showed no distress when separating from the parents, we find the
juvenile court did not abuse its discretion. Under these circumstances, the juvenile
court’s ruling is entitled to a presumption of correctness, and remand is unwarranted.
(Caden C., supra, 11 Cal.5th at p. 641.) Therefore, the juvenile court did not err in
declining to apply the beneficial parent-child relationship exception, and its orders
terminating mother’s parental rights were proper.
DISPOSITION
The orders appealed from are affirmed.
HILL, P. J.
WE CONCUR:
DETJEN, J.
SANDHU, J.
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