In re J.C. CA1/1

Filed 7/20/15 In re J.C. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIRST APPELLATE DISTRICT

DIVISION ONE

In re J.C., a Person Coming Under the
Juvenile Court Law.

CONTRA COSTA COUNTY CHILDREN
& FAMILY SERVICES BUREAU, A143169

Plaintiff and Respondent, (Contra Costa County
v. Super. Ct. No. J1300347)
S. W. et al.,
Defendants and Appellants.

INTRODUCTION
Stephanie W. (Mother) and Jack C. (Father), the parents of minor J.C., appeal
from the juvenile court’s order denying father’s petition for modification and terminating
their parental rights. (Welf. & Inst. Code, §§ 388, 366.26.)1 Both parents contend
Father’s modification petition alleged a prima facie case of changed circumstances, and
therefore the juvenile court abused its discretion by summarily denying it. Additionally,
Mother contends the ICWA2 notices were deficient, and Father argues the court erred by
terminating his parental rights because the “continuing beneficial relationship exception”
applies to him. (§ 366.26, subd. (c)(1)(B)(i).) We affirm the juvenile court’s orders.

1
Unless otherwise indicated, all further statutory references are to the Welfare and
Institutions Code.
2
Indian Child Welfare Act of 1978, title 25 United States Code section 1901 et. seq.
 PROCEDURAL AND FACTUAL BACKGROUND3
We set forth the facts in relation to Father as previously stated in our opinions
in In re G.C. supra, A138876 and J.C. v. Superior Court, supra, A142051, from
which we quote pertinent portions:
“G.C.4 was born March 17, 2013. G.C. is mother’s first child. G.C. was
detained following a hearing on March 22, 2013. Weekly supervised visitation of one
hour with both parents was ordered.
“On March 26, 2013, a petition was filed under section 300, subdivision (b)
alleging that ‘there is a substantial risk that the child will suffer serious physical harm or
illness because mother is unable to adequately supervise or protect the child due to the
mother’s untreated mental illness.’ The petition was amended to include the allegation
of a substantial risk of harm to G.C. as a result of father’s anger management and
substance abuse problems.
“On April 16, 2013, father waived his right to a jurisdictional hearing and
pleaded no contest to the allegation of the amended petition . . . .
“On March 19, medical social worker Dominguez went to mother’s hospital
room to ask father to meet privately with her. He was disheveled, angry, loud, and
smelled of alcohol. He yelled at her, ‘I’m tired of being woken up. I’m having to
meet with people every 15 minutes.’ When asked if he had been drinking, he yelled, ‘I
had a few drinks last night and it’s none of your business.’ He added: ‘I don’t need to
be woken up for this. . . . I’m not talking to you. You’re going to write things down
like a third grade teacher and then stuff a microscope up my ass.’ He stormed out of

3
On our own motion, we take judicial notice of our prior opinions in In re G.C.
(Apr. 2, 2014, A138876 [nonpub. opn.]) and J.C. v. Superior Court (Aug. 4, 2014,
A142051 [nonpub. opn.]). (See Evid. Code, § 451, subd. (a).)
4
In the first opinion, J.C. was referred to as G.C.

2
the social worker’s office; the social worker called security, but father left the hospital
before security arrived. Hospital staff was informed not to allow him back in.
“When interviewed by [Contra Costa County Children and Family Services
(Bureau)] social worker Julie Lutz, mother said father had a child from a previous
relationship he could not raise because he had accidentally given his ex-wife a black
eye while protecting himself, and he was arrested for that. She admitted she and father
engaged in pushing, shoving and grabbing, but he never bruised her. He gets angry
and rants and raves, and the police had been out to his home a few times, but no one
had been arrested. She was a little concerned about father being around the baby
because he gets angry and yells a lot.
“Social worker’s interview of mother on March 19 apparently ended when
father returned to the room in a highly agitated state. Informed by the social worker of
the upcoming detention hearing, he pointed at her face and said ‘this is all your fault’ in
a threatening manner. He said he would be back with some friends. He yelled and
stormed around the room until two sheriff’s deputies arrived and escorted him out of
the room.
“Father had a prior child welfare history from 2000 concerning the four-year-
old son of a prior girlfriend. There were substantiated allegations of physical abuse to
the child caused by father spanking the boy hard enough to leave bruises, and of
general neglect by the mother for failing to protect the child from physical abuse by
him. The child also witnessed incidents of domestic violence between his mother and
father.” (In re G.C., supra, A138876, slip. opn. pp. 2–3.)
Following a contested dispositional hearing, both parents appealed from the
court’s jurisdiction and disposition orders adjudging G.C. a dependent child of the
court and finding by clear and convincing evidence that return of the child to the
parents’ custody would be detrimental to her. We affirmed the court’s orders, but

3
remanded for compliance with ICWA notice requirements. (In re G.C., supra,
A138876, slip opn. p. 18.)
“Father’s April 2013 reunification plan required a 52-week anger management
program, parenting education, individual counseling, outpatient substance abuse
program, substance abuse testing, and attendance at [a] 12-step program one to two
times per week. In August 2013, Father’s attorney filed a motion to be relieved as
counsel after Father made a movie regarding a complaint about this attorney to the
State Bar in which he depicted pictures of a cat sharpening its claws while stating[,]
‘ “I’m going to do a little Bitch slapping.” ’ The court granted the motion.
“Father initially refused to engage in services, but then provided documents
indicating he began anger management classes in September 2013. Father then posted
two videos on social media sites in which ‘he made threatening and aggressive
statements against the Bureau, social workers and child’s attorney,’ stating ‘he is a
very angry man and if anyone comes between him and his child, he was going to go
after them.’ At a supervised visit with the minor on November 5, 2013, Father told a
social worker[,] ‘ “I know people, you know . . . my father and grandfather are tough
. . . military people . . . . I know people in the mob . . . you understand why I don’t
like anyone controlling me.” ’
“At the six-month status review hearing in January 2014, Father submitted
evidence he had attended 34 NA/AA meetings between October 31, [2013] and
January 6, 2014, completed 20 hours of anger management instruction, enrolled in, but
had not started, two parenting classes, completed 20 hours of instruction in parent
education seminars, and attended six individual counseling sessions and six anger
management classes. The court found that return of the minor would create a
substantial risk to her [well-being], and ordered that Father receive additional
reunification services and have supervised visitation.

4
 “The first unsupervised visitation between the minor and Father was scheduled
for March 25, 2014. While a friend of Father’s, Ben Laskari, was driving him to the
visit, Father began repeatedly punching the driver with a closed fist. Two motorists
called police to report the incident, and Father was arrested at the Bureau’s office.
Laskari denied being hit, and later went to one of Father’s anger management classes
and ‘start[ed] telling them that nothing happened[, they] . . . didn’t have any fight.’
When asked about the incident at the 12-month review hearing in May 2014, Father
refused to answer questions and stated he wanted to ‘plead the Fifth.’ Giving the
same reason, Father also refused to answer questions about threatening his previous
attorney. He did, however, acknowledge posting a message on Facebook stating he
was going to bulldoze down the ‘department of social services.’
“A social worker testified she performed [an] Internet research regarding
Laskari, because he ‘would always be present during the visit [with the minor] in the
lobby, and he requested several times to attend the visits to visit the child.’ On four
occasions, Laskari ‘became aggressive in his conversations’ with the social worker. She
discovered Laskari had posted ‘hundreds and hundreds’ of videos of soft-core
pornography on the Internet, linked to his Facebook page which indicated he was a
screenwriter. Laskari told the police officer who responded to the March 25 incident
that he met Father at the county hospital, and thought he would ‘be a good actor in one
of [his] films.’ The social worker had a discussion with Father about ‘what is safe for
the child and who should be around [her].’ Father told her he was unaware of the
films and agreed to investigate, but the relationship between Father and Laskari
continued. The social worker learned Laskari had appeared at one of Father’s anger
management classes to deny that the punching incident occurred.
“At the conclusion of the 12-month review hearing, the court found there was a
substantial risk of detriment if the minor was returned home to Father’s custody. The
court stated[,] ‘The violent incident in the vehicle is a key factor in this case. Driving

5
down the street, hitting or striking a driver of a vehicle is not only a strong indicator
that the violence tendencies are still up front with [Father], that he does not have safety
plans or controls over his triggers. . . . [¶] I also find the risk to be real. This record is
replete with evidence from [Father’s] side that he’s gone to multiple classes. . . .
There’s an old saying, it’s easy to talk the talk, but it’s tough to walk the walk. And I
listened to [Father’s] testimony, and he clearly knows the rules and the things you’re
supposed to follow, but they have not been internalized yet. And his insight was very
lacking. If he had real safety plans, he would have used those instead of striking
Mr. Laskari. [¶] So I do find that there is a substantial risk—a definite risk to the child
if the child is returned home. There’s no way in my mind that it would be safe to
return that child home. [¶] The evidence also shows that [Father] is reluctant to break
off a relationship with Mr. Laskari that is either supportive of his domination over the
man or perhaps involving other issues that would not be healthy for the child to be
raised in [that] environment . . . .’
“The court terminated reunification services to Father and set a hearing under
section 366.26.” (J.C. v. Superior Court, supra, A142051, slip opn. pp.3–5.)
The court also reviewed the ICWA notices and took evidence from social
worker Munisha Vohra on the steps she had taken to comply with ICWA’s notice
requirements. Based on this evidence, the court found ICWA did not apply to
J.C.
Father filed a petition for extraordinary writ challenging the court’s orders
terminating reunification services and setting a hearing under section 366.26, but not
the trial court’s ICWA finding. Mother did not file a writ petition. In an opinion filed
August 4, 2014, this court denied Father’s writ petition. (J.C. v. Superior Court,
supra, A142051.)
The hearing on termination of parental rights was set for September 5, 2014.
On that date, Father filed a section 388 request for modification of the court’s orders

6
terminating reunification services and setting the permanency planning hearing. As a
changed circumstance, the request stated Father “has continued to . . . improve on his
anger management skills and, importantly, his ability to show insight into his actions.
(Please see attached letter from Mike Carolla.) He has also maintained regular,
consistent, and positive contact with the minor.”
The letter from therapist Mike Carolla stated Father began psychotherapy with
him in November 2013; since then Father had attended 10 individual sessions and
“over 16” group anger management sessions. “He has been consistent in his
attendance, open and willing to participate and examine his own behavior, and has
shown ability to demonstrate insight into past behaviors.” In his opinion, Father “has
made significant improvement in his self management skills as well as his ability to
manage himself with others.” He had shown “remarkable improvement in managing
the challenges of dealing with the mentally ill mother of his child” and also
“demonstrated the insight necessary to take full responsibility for his behavior
regardless of the behavior of others.” Mr. Carolla saw Father’s past struggles with
anger management as largely due to a traumatic brain injury he suffered in a car
accident.5 Mr. Carolla had been “impressed” with Father’s “most recent progress”
and opined that Father was capable of safely parenting his young child at this time.
Finding the current letter by Mr. Carolla “remarkably similar” to what was
presented at the previous hearing, the court found no new evidence or evidence of

5
In a letter dated February 5, 2012, admitted into evidence at the May 22, 2014 review
hearing, Dr. Philipp Bannwart of the Concord Health Center wrote: “I find it hard to
believe that [Father] suffered of [sic] permanent brain injury due to a closed head trauma
during the accident. Reason: His memory is overall too good and confusions are
fluctuating in him, pointing more to an emotional cause or block than permanent organic
brain damage.”

7
changed circumstances and denied the modification request without a hearing.6 The
court stated, in part, there was “absolutely no new evidence. It’s virtually the same
statement made by Mr. Carolla that I did not find credible at the last hearing. I find
no new evidence to change that opinion, no new bases for finding that credible.”
The section 366.26 hearing was held September 10, 2014. A group exhibit of
photos depicting Father and the minor at supervised visits was admitted into evidence.
Social worker Chau Nguyen testified that since the minor’s removal in March 2013,
both parents have had regular and consistent visits with the minor. For the most part,
these visits have gone well. As far as a bond between the minor and her parents,
Nguyen opined that it was more of a recognition of familiar adults which the minor

6
At the previous hearing, defendant presented a checklist-style progress report signed by
Mr. Carolla and dated May 21, 2014. Mr. Carolla indicated that Father had demonstrated
“satisfactory” progress in appearing to accept responsibility for his behavior; cooperating
and participating in the program; and appearing to understand skills of conflict resolution.
Father had attended 29 sessions to date. According to Carolla, Father “continues to show
growth + improvement.” There was no mention of the altercation with Mr. Laskari on
March 23, although Mr. Carolla admitted Father told him he had hit Mr. Laskari in a
May 5 telephone conversation with the social worker.
Also, in the April 9, 2014 status review report, the social worker summarized a
March 20, 2014 report from Mr. Carolla in which he stated that after 17 anger
management classes and 10 individual counseling sessions, “[Father] has been improving
emotional management skills, taking responsibility for current and past behaviors and
situations, and understanding the level of responsibility required to adequately provide
for a young child emotionally, financially, as well as physically. Mr. Corolla [sic] stated
that due to some symptomology from a previous head injury, he was previously
somewhat unsure of a positive prognosis for [Father’s] ability to adequately parent in the
near future. He further stated that his major concern was [Father’s] ability to manage his
behavior when stressed or challenged. Mr. Corolla [sic] stated that over the past few
months, [Father] has shown significant improvement in his ability to manage his
behavior, as well as demonstrate significant improvement in his ability to show insight
into his emotional and cognitive process. Mr. Corolla [sic] stated that [Father] is able to
take responsibility for everything he needs to do to be ready to assume parenting duties.
Mr. Corolla [sic] stated that in his opinion should [Father] continue to improve at the rate
he has over the past few months, he would be able to demonstrate that he is capable of
being an appropriate and healthy parent over the next six months.”

8
displayed toward the social worker and her foster parents as well as her biological
parents. Occasionally, the minor did not want to go to her father. Once, she arched
her back and said “no” when the social worker was handing the minor to Father.
During the reunification period of approximately one year, visits between
Father and the minor were supervised, one hour once a week. After services were
terminated in March 2014, supervised visits were reduced to one hour, twice a month.
Ms. Nguyen concluded in her report that the minor would benefit from being
adopted by her current caretakers, the prospective adoptive parents. They have been
caring for the minor since she was two days old. They have done everything the
Department asked them to do: brought the minor to visits, taken her to the doctor, and
met all her daily needs.
Father testified at the hearing. Except for one visit, a birthday party which the
minor’s mother attended, all visits have gone well. At the last visit, the minor started
to scream and cry when it was time for him to leave. She smiles at him, runs to him,
kisses him, and calls him Dada since she started babbling. He recalled the visit at
which the minor arched her back and said no when the social worker tried to hand her
to him. Ms. Nguyen had her cell phone and iPad out, was moving about and verbally
engaging her, which was distracting and entertaining to the minor.
At the conclusion of the hearing, the court found clear and convincing
evidence the minor was adoptable and would be adopted by her foster-adopt parents.
It also found beyond question the biological parents had maintained regular visitation
with the child. However, the court did not find the evidence sufficient to prove that
the “continuing relationship exception” to section 366.26 should apply. The court
viewed the relationship between the minor and her mother and father as “not to the
extent that it would benefit the child to the degree that terminating the parental rights
would be detrimental. . . . With parental rights being terminated, the child would not
suffer any detriment that would outweigh the benefit that the child would gain being

9
adopted into a permanent home. [¶] The child is roughly 18 months, a year old.
She’s spent virtually her whole life with her foster parents except for the visits which
were . . . an incident benefit to the child.” Accordingly, the court permanently
terminated the parental rights of mother and father.
DISCUSSION
Denial of Section 388 Petition for Modification.
Both parents challenge the court’s summary denial of Father’s section 388 petition
for modification of the prior orders terminating services and setting the section 366.26
hearing. Father contends the court should have held a hearing on the merits of his section
388 petition because the petition presented prima facie evidence of changed
circumstances. On March 20, 2014, Mr. Carolla reported he believed Father would be
able to safely parent the minor within six months; at the time of the petition, he believed
Father was currently able to safely parent her.
Mother joins in this contention. She argues Mr. Carolla’s letter demonstrated the
availability of admissible evidence to support Father’s claim that his anger management
problems, which led to the minor’s removal at birth, had been successfully resolved
through therapy. She also argues Father’s history of consistent visitation showed it
would promote the minor’s best interests to continue to build upon the established
relationship with Father.
We review a juvenile court’s summary denial of a section 388 petition for abuse of
discretion. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) Reversal is warranted only
when the juvenile court “has exceeded the bounds of reason by making an arbitrary,
capricious or patently absurd determination.” (In re Marcelo B. (2012) 209 Cal.App.4th
635, 642.)
“To prevail on a section 388 petition, the moving party must establish that new
evidence or changed circumstances exist so that the proposed change in the court’s order
would promote the best interests of the child.” (In re Marcelo B., supra, 209 Cal.App.4th

10
at pp. 641–642.) However, to trigger a hearing on the merits, the petitioner need only
make a prima facie showing of both elements. A prima facie case is made on a showing
of “probable cause.” (In re Aljamie D. (2000) 84 Cal.App.4th 424, 432.) A probability
of prevailing on the petition is not required to trigger a hearing. (Ibid.)
In our view, the juvenile court did not abuse its discretion when it determined
that Mr. Carolla’s latest letter did not credibly point to a change of circumstances.
Mr. Carolla’s current letter, like his “progress report” admitted at the prior hearing,
failed to address the elephant in the room: Father’s attack on Mr. Laskari in the car as
Laskari drove Father to his first unsupervised visit with the minor. In light of
Mr. Carolla’s failure to acknowledge that incident in his letter, or address why it did
not show Father continued to have anger management problems, the juvenile court
remained understandably skeptical of Mr. Carolla’s opinion that Father “has made
significant improvement in his self management skills as well as his ability to manage
himself with others” and was currently “capable of safely parenting his young child.”
The soundness of Mr. Carolla’s opinions were undermined by his insistence, without
explanation, that Father’s past struggles with anger management are “largely due to a
traumatic brain injury received in an auto accident.” As noted, Father’s treating
physician had expressed disagreement with that premise in a report of which
Mr. Carolla should have been aware. At a minimum, to support his opinion, one
would have expected Mr. Carolla to explain why he disagreed with the treating
physician.
At most, Mr. Carolla’s letter demonstrated that Father continued to diligently
work on his anger management problem. But Father had been working on his anger
management problem since the disposition hearing. At the 12-month review hearing,
Father had declined to discuss his altercation with Mr. Laskari in his testimony, and
Mr. Carolla had similarly declined to discuss it in his progress report. Nothing had
changed. It is not an abuse of discretion to deny a section 388 petition that “alleges

11
merely changing circumstances and would mean delaying the selection of a
permanent home for a child to see if a parent . . . might be able to reunify at some
future point.” (In re Casey D., supra, 70 Cal.App.4th at p. 47.) Granting such a
petition “does not promote stability for the child or the child’s best interests.” (Ibid.)
“At the point of these proceedings—on the eve of the section 366.26 permanency
planning hearing—the child[]’s interest in stability was the court’s foremost concern
and outweighed any interest in reunification. [Citation.]” (In re Edward H. (1996)
43 Cal.App.4th 584, 594.) No abuse of discretion appears.
ICWA.
Mother contends the ICWA notices sent to the Cherokee Tribes were
insufficient because they did not specify the name of paternal ancestor Woodrow C.,
and contained misleading information about Father’s representations concerning his
potential Indian ancestry. Mother has no Indian ancestry. (In re G.C., supra,
A138876, slip opn., p. 9.) Father does not join in this argument.
“On March 19, 2013, an ICWA inquiry was made of mother, who stated she had
no American Indian ancestry. An ICWA inquiry was not made of father because ‘he was
not cooperative.’
“On April 30, 2013, father signed an ICWA-020 form (‘Parental Notification of
Indian Status’) averring that he is or may be a member of, or eligible for membership in,
the Cherokee tribe because his grandmother, Sophie Alford, is or was a member of that
tribe. The disposition report dated the same day noted that G.C. may be Cherokee and
ICWA eligible, and that notices had been given in court to the parties and the attorneys
on April 18, 2013. ICWA was not mentioned at the disposition hearing on May 30, and
no notice to the tribe is included in the clerk’s transcript.” (In re G.C., supra, A138876,
slip opn., pp. 9–10.)
In the appeal from the juvenile court’s disposition order, Mother joined Father
in challenging the Bureau’s lack of compliance with ICWA’s notice requirements.

12
On April 2, 2014, this court affirmed the trial court’s jurisdiction and disposition
orders, but agreed the Bureau was noncompliant and remanded the matter to the trial
court for compliance with ICWA. (In re G.C., supra, A138876, slip opn., p. 18.)
On January 9, 2014, while parents’ appeals from the disposition hearing were
pending, Father completed a second ICWA-020 form for the Bureau. He listed
Sophie Crowley or Crowly, Woodrow C., and Jack C., Sr., as possible members of the
Cherokee tribe, but he provided little or no contact or identifying information. That
same day, in court, Father provided a phone number for his mother in Florida. He
also stated his deceased grandmother, Sophie Crowley, informed him of his Indian
ancestry.
On January 15, Father’s counsel represented to the court that the information
Father provided at the last hearing was all that he had. On January 16, Father testified
about the information he had provided on the second ICWA-020 form. He clarified
that Sophie Crowley Alford was his grandmother on his father’s side; she was born in
1921 in Bennettsville, North Carolina. Woodrow C. was his father’s father; he was
from Dillon (not Dillion), South Carolina. Jack C., Sr., his father, was born October
8, 1942, and was also from Dillon, South Carolina, but he currently resided in
Laurinburg, North Carolina. Father did not have an address for him, but he did have a
phone number for him at home that he forgot to bring to court. Father was directed to
provide the phone number to the Bureau. County counsel indicated notices would be
sent based on this information.
At the 12-month review hearing, the court reviewed and admitted into evidence
the Bureau’s ICWA notices. Social worker Munisha Vohra testified about the steps
she had taken to comply with ICWA’s notice requirements. After the prior hearing,
Father provided phone numbers for his father and some other relatives. She called
these people and left messages, none of which were returned. She did speak with
Father’s mother, who informed her there was no maternal Native American ancestry,

13
and she was not aware of any on the paternal side of the family. After that,
Ms. Vohra sent notices to the various Cherokee tribes utilizing the information she
had. The Indian tribes responded the minor did not qualify as an Indian Child. Based
on this evidence, the court found ICWA did not apply to J.C. No objection to the
notices or the court’s ruling were made by either party at the hearing.
The record on appeal contains the notices and documents sent, as well as the
tribes’ acknowledgments of receipt. Although “Woodrow [C.]” was not listed as
Father’s grandfather on the ICWA-040 or ICWA-030 forms sent to the tribes,
Father’s second ICWA-020 notice, listing Woodrow [C.] as an ancestor, was included
in the packet of documents sent to the tribes. The tribes responded that based on the
information provided to them, J.C. was not eligible to be considered an Indian child.
Moreover, the letter of acknowledgement sent to the Bureau by the Cherokee Nation
specifically listed Woodrow C. as one of the names provided to them that did not
belong to an enrolled member of the tribe.
Father filed a petition for writ from the setting of the section 366.26 hearing,
but did not raise lack of compliance with ICWA’s notice requirements as an issue.
Mother did not file a writ petition.
Although Mother does not have Indian ancestry, she has standing to raise
ICWA compliance issues. (In re B.R. (2009) 176 Cal.App.4th 773, 779.) And, in
general, ICWA notice issues may be raised for the first time on appeal even though
they were not raised below. (Ibid; see In re J.T. (2007) 154 Cal.App.4th 986, 991; In
re Nikki R. (2003) 106 Cal.App.4th 844, 849.) However, some Courts of Appeal have
concluded that when a case is remanded to the juvenile court for the purpose of curing
ICWA notice defects, the parent is represented by counsel at the post-remand
compliance hearing, and counsel raises no objection to new ICWA notices, the parent
has forfeited related ICWA notice issues in a second appeal. (In re X.V. (2005)
132 Cal.App.4th 794, 804–805 (X.V.); In re Amber F. (2007) 150 Cal.App.4th 1152,

14
1156; In re N.M. (2008) 161 Cal.App.4th 253, 268–270; In re Z.W. (2011)
194 Cal.App.4th 54, 64.) Other Courts of Appeal disagree. (In re Alice M. (2008)
161 Cal.App.4th 1189, 1197; In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267.)
The question whether the rule of forfeiture forecloses a second appellate challenge to
the adequacy of the ICWA notices given, on an appeal from the termination of
parental rights, when no objection was made to the adequacy of the notices at the
post-remand hearing to review compliance with ICWA notice requirements, is under
review by our Supreme Court. (In re Isaiah W. (2014) 228 Cal.App.4th 981, review
granted Oct. 9, 2014, S221263.)
In our view, under the circumstances present here, Mother has forfeited her
challenge to the ICWA notices. At the 12-month review hearing, all counsel were
given the opportunity to review the notices sent by the social worker and cross-
examine her about what she had done to comply with ICWA, prior to the court’s
ruling. A question or an objection about the omission of Woodrow C.’s name from
the ICWA-030 form sent by the social worker, or her inclusion of information about
Father’s early representation of non-Indian ancestry, would have permitted the social
worker to resend new notices correcting the errors alleged here, if necessary, or
permitted a finding that new notices were not required, which would have been
reviewable for error. Yet no objection was made to the notices, or to the court’s
ruling, at the hearing.
Mother or Father also could have challenged the adequacy of the ICWA
notices by writ after the court terminated reunification services, but they did not.
For the reasons stated in the X.V. opinion, we agree that deciding whether to
apply the forfeiture doctrine in this situation requires us to balance the interests of
Indian children and tribes under the ICWA against the interests of dependent children
to permanency and stability. (X.V., supra, 132 Cal.App.4th at p. 804.) In this case,
the minor has been in foster care since she was two days old. After 12 months of

15
reunification services, Father was unable to reunify with her. The minor is fortunate
in that she has lived in the same stable foster home the entire time, and the foster
family is willing to adopt her. But those fortuitous circumstances should not blind us
to the fact that her permanent plan remains in limbo, and circumstances can change
for unexpected reasons. In this case, for the reasons articulated in X.V., we think the
minor’s interest in permanency and stability is paramount (§ 366.26), and militates in
favor of forfeiture.
In any event, Mother’s claim is not meritorious. Woodrow C.’s name as a
possible ancestor was brought to the attention of the tribes by way of Father’s second
ICWA-020 form, which was apparently included in the packet of information sent to the
tribes. The record demonstrates the Cherokee Nation must have been in receipt of this
information when it determined J.C. was not an Indian child, because it listed Woodrow
C. as one of the possible ancestors it had investigated. Moreover, Mother does not
explain how the tribes could have been misled by the inclusion of the information that in
2013 Father reported he did not have Indian heritage. Presumably, this information
explained the long delay in sending ICWA notices to the tribes. The facts that ICWA
notices identifying potential Indian ancestors were sent to the tribes, and that the tribes
reported searching their records for tribal enrollment of the persons identified, belie
Mother’s claim the information “could have misled the Cherokee tribes during the
decision making process.” The notices were not perfect, but they were adequate to
inform the Cherokee tribes that Father’s father, grandmother and grandfather were
potential Indian ancestors. We find no error.
Continuing Beneficial Relationship Exception.
Section 366.26 provides in relevant part: “If the court determines . . . by a clear
and convincing standard, that it is likely the child will be adopted, the court shall
terminate parental rights and order the child placed for adoption . . . [¶] [unless] [t]he
court finds a compelling reason for determining that termination would be detrimental to

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the child due to one or more of the following circumstances: [¶] . . . 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).)
Father contends this exception to adoption as the statutorily preferred permanent
plan applies here because he maintained regular, positive, affectionate visitation with the
minor and as a result they share such a strong bond that J.C. would benefit from
continuing their relationship, despite the fact she did not have a primary attachment to
him.
Our review of the juvenile court’s order, whether for substantial evidence (In re
Autumn H. (1994) 27 Cal.App.4th 567, 576) or for abuse of discretion (In re Jasmine D.
(2000) 78 Cal.App.4th 1339, 1351), or a combination of both (In re K.P. (2012)
203 Cal.App.4th 614, 621–622), is unquestionably deferential. Here, the fundamental
facts are not in dispute. The minor is likely to be adopted. The minor has never been in
Father’s custody. She was placed in the preadoptive foster family’s home when she was
two days old, and she has remained there ever since. The minor is under three years old.
Father has consistently visited the minor throughout the dependency, for one hour once a
week before reunification services were terminated, and for one hour twice a month
afterwards, but because of his volatile temper and anger management issues, he has never
had unsupervised visitation. The minor generally enjoys her father’s visits. The minor’s
adoptive parents have taken care of her daily needs virtually for her entire life.
The beneficial parent/child relationship exception means “the relationship
promotes 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,

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the preference for adoption is overcome and the natural parent’s rights are not terminated.
[¶] Interaction between natural parent and child will always confer some incidental
benefit to the child. The significant attachment from child to parent results from the
adult’s attention to the child’s needs for physical care, nourishment, comfort, affection
and stimulation. [Citation.] The relationship arises from day-to-day interaction,
companionship and shared experiences. [Citation] 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.” (In re Autumn H., supra, 27 Cal.App.4th at
p. 575.)
As Father acknowledges, “[t]he [§ 366.26, subd. (c)(1)(B)(i)] exception must be
examined on a case-by-case basis, taking into account the many variables which affect a
parent/child bond. The 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 are some of the variables which logically affect a
parent/child bond.” (In re Autumn H., supra, 27 Cal.App.4th at pp. 575–576.)
In re S.B. (2008) 164 Cal.App.4th 289, on which father relies, is distinguishable.
There, the minor’s father was her primary caregiver for the first three years of her life.
(Id. at pp. 293, 298.) He had complied with every aspect of his case plan but was unable
to reunify with S.B. and assume full time care for her because of poor physical health and
combat-related posttraumatic stress disorder. He visited with S.B. three times a week.
(Id. at p. 294.) Her primary caretakers during the dependency were her maternal
grandparents. (Id. at p. 293–294.) The minor expressed the wish to live with her parents
and grandmother. (Id. at p. 295.) The doctor who conducted a bonding study concluded
the bond between S.B. and her father was strong enough that there was a potential for
harm to S.B. from severing the relationship with him. (Id. at p. 296.) The trial court
recognized S.B. had “ ‘an emotionally significant relationship’ ” with her father (id. at
p. 298), and based its decision to terminate parental rights in part on its understanding the

18
grandparents were willing to continue to allow the father to visit, an unenforceable
promise. (Id. at p. 300.) In reversing the trial court’s order terminating parental rights,
the Court of Appeal observed: “The record here fully supports the conclusion [the father]
continued the significant parent-child relationship despite the lack of day-to-day contact
with S.B. after she was removed from his care.” (In re S.B., at p. 299.)
Here, by contrast, the minor, then 17 months old, had never spent a single day in
Father’s custody, but had spent all but the first two days of her young life with her
prospective adoptive parents. Although Father visited the minor regularly, for one hour
once a week during reunification, and twice a month after services were terminated, he
had never had an unsupervised visit with her, due to his unresolved anger management
issues, which precluded reunification. Although the visits were positive in that the minor
evidently enjoyed them, the social worker opined the bond between father and daughter
was ultimately no stronger than one of recognition. Whether we apply a substantial
evidence or abuse of discretion standard of review, the result here is the same. Viewing
the evidence and inferences therefrom in the light most favorable to the prevailing party,
and resolving all conflicts in support of the order (Autumn H., supra, 27 Cal.App.4th at
p. 576), we find substantial evidence supports the court’s finding that Father’s regular
visits provided an incidental benefit to the minor, but severing the relationship would not
deprive the minor of such a substantial, positive emotional attachment that the minor
would be greatly harmed. (Id. at p. 575.) On these facts, the court’s decision was not
unreasonable. No abuse of discretion appears. (In re Jasmine D., supra, 78 Cal.App.4th
at p. 1351.)
DISPOSITION
The juvenile court’s orders are affirmed.

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 _________________________
DONDERO, J.

We concur:

_________________________
HUMES, P.J.

_________________________
MARGULIES, J.

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