In re Andre P. CA2/4

Filed 12/18/20 In re Andre P. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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 FOUR

In re ANDRE P. et al., Persons B304284
Coming Under Juvenile Court
Law. (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. CK95279A-B)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

ANDRE P.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Martha A. Matthews, Judge. Conditionally
reversed with directions.
 Elizabeth Klippi, under appointment by the Court of
Appeal, for Defendant and Appellant.
Office of the County Counsel, Mary C. Wickham,
County Counsel, Kim Nemoy, Assistant County Counsel,
and Jessica S. Mitchell, Deputy County Counsel, for Plaintiff
and Respondent.
__________________________________________________

INTRODUCTION
At the request of the Los Angeles County Department
of Children and Family Services (DCFS), minors Andre (born
August 2012) and Donte (born May 2014) were removed from
their parents Andre P. (Father) and Carmela M. (Mother) in
August 2017 and detained in foster care.1 In May 2019, at
the 18-month review hearing, the juvenile court terminated
family reunification services for Father, and in February
2020, at the permanency planning hearing, terminated both
Father’s and Mother’s parental rights and set a permanent
plan of adoption, finding inapplicable the beneficial parental
bond exception articulated in Welfare and Institutions Code
section 366.26, subdivision (c)(1)(B)(i).2 On appeal, Father
contends the court erred by: (1) terminating his family

1 Mother’s reunification services were terminated in
November 2018 at the 12-month review hearing. She is not a
party to this appeal.
2 All further statutory references are to the Welfare and
Institutions Code.

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reunification services in May 2019 despite DCFS’s failure to
expend reasonable efforts in providing him with services; (2)
finding that the beneficial parental bond exception did not
apply to his relationship with the children; and (3) impliedly
finding that the Indian Child Welfare Act (ICWA) did not
apply. DCFS concedes only that the inquiry it made
regarding Mother’s claimed Indian heritage was insufficient,
and that we should order a limited remand for it to conduct a
proper inquiry. We conclude the court did not err in finding
that DCFS made reasonable efforts to assist Father. Nor did
the court err in finding that the beneficial parental bond
exception did not apply. We agree that DCFS’s ICWA
inquiries were inadequate. We therefore effect a limited
remand for DCFS to address such defects.

STATEMENT OF RELEVANT FACTS

A. Prior Dependency Case
In 2012, DCFS filed a “non-detained” petition, alleging
that Mother’s history of mental and emotional problems,
coupled with her refusal to accept treatment and medication,
rendered her unable to care for Andre. Father was non-
offending. Mother filed an ICWA-020 form claiming
Cherokee Indian ancestry and Father filed an ICWA-020
form claiming both Cherokee Indian and Apache Indian
ancestry.
In the October 2012 jurisdiction/disposition report,
DCFS noted Mother was unable to state whether her family

3
had ever registered with a tribe, and could not explain why
she thought she had Cherokee heritage. DCFS asked
whether they could interview Mother’s mother, and was
informed she was intellectually disabled, and required more
care than Mother herself did. Mother stated there were no
other family members that could be contacted about her
Indian heritage. The record is silent as to whether DCFS
spoke with Mother’s mother. Father also stated he had
limited information about any Indian heritage; both his
parents were deceased, and no other family members would
have any information. Father denied being enrolled in a
tribe. DCFS mailed ICWA-030 notices to the Eastern Band
of Cherokee Indians, the Cherokee Nation of Oklahoma, the
United Keetoowah Band of Cherokee Indians, the
Department of the Interior, and the Bureau of Indian
Affairs. The Department of the Interior responded, directing
DCFS to notify the relevant tribe directly. The Cherokee
Nation of Oklahoma responded that it did not consider
Andre an Indian child based on the information provided.
The record discloses no responses from either the Eastern
Band of Cherokee Indians or the United Keetoowah Band of
Cherokee Indians.
In November 2012, the court found Andre to be a
dependent but released him to his parents under DCFS
supervision. The court terminated jurisdiction in November
2013. The record is silent as to whether the court ever made
any ICWA determinations.

4
 B. The Current Petition
In May 2014, Mother gave birth to Donte. Three years
later, DCFS received a referral for general neglect and
emotional abuse. Law enforcement had responded to the
family’s home after Mother struck Father, and threw a
“package of putty” at him, causing a laceration to the back of
his head. The children were asleep in their bedroom and not
involved in the incident, but there had been two prior
domestic violence incidents where both parents had been
arrested (neither sought to press charges). This incident
resulted in Mother’s arrest, but again Father did not want to
press charges. Both children reported they were not abused
and had not witnessed any domestic violence. Mother
claimed that the incident was an accident, and that Father
had been drunk when it occurred -- she asserted that Father
“drinks a lot.” DCFS initially suggested to Father that it
could file a non-detained petition, removing the children
from Mother and leaving them with him, but when both
parents’ drug tests came back positive for amphetamines
and methamphetamines, DCFS withdrew this offer, removed
the children, and filed a petition in August 2017 under
section 300, subdivisions (a), (b)(1), and (j), alleging six
counts.3 The children were placed in foster care.

3 Counts a-1 and b-4 alleged that Mother and Father had a
history of mutual “violent physical altercations” and in July 2017,
while the children were home, Mother hit Father in the head
with a “package of putty” causing a bleeding laceration, and
resulting in Mother’s arrest. Counts b-1 and b-2 alleged that
(Fn. is continued on the next page.)

5
 Contrary to the ICWA-020 form submitted in the
previous dependency case, this time Father submitted an
ICWA-020 form stating, “I have no Indian ancestry as far as
I know.” At the first day of the initial detention hearing, at
which Mother was not present, the court “assume[d] ICWA
is not applicable,” and Father’s counsel responded, “it is not,
based on the ICWA form.” The court then stated, “Father
submitted a declaration regarding Indian ancestry. Court
finds ICWA is not applicable based on the prior history of
the case.” The court ordered Father to undergo weekly drug
tests, and enroll in anger management and domestic violence
counseling.
On the second day of the initial detention hearing, at
which Mother appeared, the court noted Mother had
indicated her belief that she had “Cherokee background from
Oklahoma.” Mother stated she had Cherokee heritage on
“both sides,” and claimed her great-grandmother, who was
deceased, had been a member of the tribe.
DCFS’s October 2017 jurisdiction/detention report
stated it interviewed Mother regarding her Indian heritage,

both Mother and Father abused amphetamine,
methamphetamine, and cocaine, rendering each incapable of
providing regular care to their children. The count also alleged
that each parent knew or should have known of the other’s
substance abuse. Counts b-3 and j-1 alleged Andre was
previously a dependent of the juvenile court, and Mother’s history
of mental and emotional problems, including an intellectual
disability, previous hospitalizations for psychiatric issues, and
refusals to take prescribed medication, endangered both minors.

6
but the results of the interview are not in the record. Nor is
there any record of whether DCFS attempted to interview
Mother’s relatives. ICWA-030 notices were sent to the
Bureau of Indian Affairs, the Department of the Interior, the
Cherokee Nation of Oklahoma, the United Keetoowah Band
of Cherokee, and the Eastern Band of Cherokee Indians.
The Eastern Band of Cherokee Indians and the United
Keetoowah Band of Cherokee responded that based on the
information provided, neither Andre nor Donte were Indian
children. The record contains no response from the
Cherokee Nation of Oklahoma (though the Nation had
responded to a previous inquiry stating that Andre was not
an Indian child). It does not appear that the court ever
made an express finding regarding the applicability of ICWA
as to Mother.
In November 2017, the court sustained the petition,
removed the children from both parents, and kept them in
foster care, granting both parents monitored visitation twice
a week for a minimum of two hours per visit. Father was
ordered to attend a full drug and alcohol program with
aftercare, and submit to random drug testing. He was also
ordered to take parenting and anger management classes.
Father has not challenged either the jurisdictional or the
dispositional order.

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 C. The Six-Month Review Hearing on July 31,
2018
DCFS’s report for the six-month review hearing, and
all future reports, indicated ICWA did not apply. Father
was assessed as being “moderately compliant” with court
orders. He “immediately” enrolled in services once “provided
with resources,” and by March 2018, he had completed six
months of outpatient drug and alcohol treatment. He was
also attending educational groups five times a week, and
individual counseling once a week. The report noted,
however, that after the court’s orders in November 2017, he
had tested positive for alcohol four times; even after he was
reminded that he was to abstain from both drugs and
alcohol, he tested positive for alcohol in April 2018.
In the meantime, Andre and Donte had “thrived” in
foster care. Father visited them weekly for approximately
three hours. The foster father who monitored the visits
opined that Father had a supportive and close relationship
with the children, but would benefit from setting limits with
them. Both Father and the children thought the visits went
well, and the children were excited to see Father.
In two last minute informations, Father was reported
to have tested positive for alcohol once in mid-May 2018, and
three times in June 2018. DCFS noted Father’s efforts in
securing after-care services for his drug and alcohol
treatment, recognized his commitment to his children, and
believed that “with the appropriate support services it is
likely that [Father] will reunify with his children within the

8
next six months.” The last minute informations also
requested that the court order conjoint counseling, and
permit Father unmonitored visits in a therapeutic setting.
The court held the six-month review hearing on July
31, 2018. It found that Father had made substantial
progress toward addressing the causes requiring removal of
the children and continued reunification services. The court
also ordered DCFS to commence unmonitored therapeutic
visits. In August 2018, DCFS e-mailed Kandace Brown, a
therapist working for ChildNet Youth and Family Services,
who had been providing individual therapy to Andre,
inquiring about conjoint therapy for Father and the children.
Brown stated she would speak with her supervisor. DCFS
e-mailed Brown again in September as a follow-up, but
received no response.

D. The Twelve-Month Review Hearing on
October 30, 2018
DCFS’s October 2018 report for the twelve-month
review hearing reported that Father still had regular weekly
visits with the children, but now noted they were “of low
quality.” Father had limited interaction with the children,
and spent visits on his phone, or watching the children play.
The report also noted Father “has not complied with the
request for conjoint counseling.” He additionally tested
positive for alcohol twice in August 2018, and his drug and
alcohol counselor reported that he was “not forthcoming in
regard to his sobriety and triggers.” DCFS recommended

9
that reunification services continue, and that Father and the
children participate in conjoint counseling. The court
followed DCFS’s recommendation, ordering that Father
continue to be provided with reunification services, and also
ordering Father to participate in conjoint therapy, which
DCFS was to ensure was “set up immediately” as it “should
have been set up after the last hearing.” The court
admonished all parties that if something it ordered did not
occur, the parties needed to “call somebody.” The court also
expressed concern over Father’s positive alcohol tests, noting
that “alcohol leaves a person’s system quite rapidly. So the
fact that Father has actually tested positive for alcohol
suggests that he does have a somewhat untreated drinking
problem.” Nevertheless, the court still found a “substantial
probability” that Father would reunify with the children, but
warned him that the court could provide services only until
February 2019, and if he were unable to reunify with the
children before then, another permanent plan would be
found.4

4 The court noted that Mother was not visiting the children
and her current whereabouts were unknown. Therefore, it
terminated reunification services for Mother, finding no
substantial probability that the children would be returned to her
within 18 months of their removal.

10
 E. The 18-Month Review Hearing on May 23,
2019
The 18-month review hearing was continued several
times, finally occurring in May 2019. The following
information was derived from DCFS’s reports and filings, as
well as Father’s testimony and representations at the
hearings.

1. Conjoint Counseling
From October 2018 to January 2019, DCFS contacted
therapist Brown monthly but received no information
regarding conjoint counseling. On January 22, 2019, DCFS
discovered that Brown had left ChildNet’s employ. DCFS
then worked with Brown’s supervisor to identify another
therapist to provide conjoint counseling, finding one in early
March 2019.
While DCFS was communicating with ChildNet, it also
reminded Father in October 2018 that the court had ordered
conjoint counseling, and advised him to contact the foster
parents to coordinate dates for the sessions. Father later
testified that DCFS had told him the foster parents would
tell him where and when to go to conjoint counseling.
Father acknowledged, however, that he never asked the
foster parents for the information, despite seeing them
weekly when visiting his children. Nor did he follow up with
anyone else regarding conjoint counseling because he
“thought they already knew about it.” In January 2019,
DCFS asked Father “if he had discussed the conjoint

11
counseling with the [foster parents] to coordinate their
schedules” and Father responded he had not. DCFS also
asked whether Father had spoken with the therapist, and
Father responded he had not. DCFS “adamantly informed
father that this was a court order and necessary for
reunification” and “Father confirmed that he understood.”
On March 4, 2019, DCFS texted Father and asked him
to contact the new therapist. In mid-March, ChildNet told
DCFS therapy could begin “next week or the week after,” but
ChildNet needed to confirm a date and time for the session,
and to speak with Father. Despite DCFS’s request, Father
made no attempt to contact the therapist until March 29. It
then took seven days and three calls from ChildNet before
they finally spoke on April 5. Conjoint counseling began on
April 16, continuing weekly thereafter; Father and the
children had attended six sessions by the 18-month review
hearing.

2. Father’s Visitation with and Knowledge
of the Children
Meanwhile, the children continued to thrive in foster
care. Andre, who had been diagnosed as autistic, was
receiving services through the Regional Center and had an
Individualized Education Program (IEP). Father did not
participate in the meeting at which the IEP was developed,
and agreed that decisions could be made in his absence. In
general, Father had very limited knowledge about his

12
children, at one point claiming he did not know he could ask
questions about them.
Father’s visits lessened in duration from three hours to
one hour, and he sometimes canceled on the day of the
scheduled visit. He did not reschedule canceled visits and
did not schedule visits over the holidays. The foster parents
noted that when Father did visit, he was minimally involved
with the children, spending the time on his cell phone, and
deferring discipline of the children to the foster parents.
DCFS encouraged Father to assert himself as an authority
figure, and suggested activities to do with the children, but
while Father was receptive to the feedback, his behavior did
not change in subsequent visits. The children were
comfortable with Father, and “appear[ed] to be securely
bonded.”
On February 25, 2019, at one of the previously
scheduled 18-month review hearings that the court
continued, Father reported he was being provided with only
two hours of visitation each week when the court had
ordered twice weekly visits, each with a two-hour minimum.
The court ordered DCFS “to immediately figure out how to
at least provide the court-ordered minimum amount of
visitation.” However, the court reiterated to Father, “I am
making very clear orders today, if you don’t get at least four
hours per week of visitation, call your attorney and just
make it happen, because you want to move step by step
towards taking care of your children.”

13
 After this hearing, Father was informed that he could
visit the children for two hours on Mondays and two hours
on Thursdays. However, in March, he visited the children a
total of three times, once for 90 minutes, and twice for an
hour. Starting April 1, 2019, Father was given a written
visitation schedule, which provided not only two-hour
monitored visits on Mondays and Thursdays, but also
two-hour unmonitored visits on Saturday. Father received
this schedule and stated he had no questions, but his visits
still did not exceed 90 minutes. When asked later how the
Saturday visits were going, Father claimed not to know he
could visit his children on Saturdays. He had to be
prompted by DCFS several times over several days before he
contacted the foster parents to arrange for a Saturday visit.
His two Saturday visits, which were unmonitored, also
lasted only 90 minutes.
DCFS made an unannounced visit on April 29 to a
monitored visit and observed that when the children ran
around the McDonald’s where the visits took place, and
jumped on tables, Father made no attempt to control them.
But when the foster father told the children to stop, they
complied immediately. DCFS witnessed the children going
to the foster father to “tattle.” It was reported that this was
Father’s typical behavior when it came to discipline; when
asked to explain himself, he claimed to be uncomfortable
asserting himself while the foster parents were observing
him, because they might give a “bad report” to DCFS, and
claim he was “being real mean” to his kids. Father also

14
claimed he was “unaware that he could parent his children
while they were in foster care.”
Regarding the fact that he was not using the full two
hours of his visits, Father explained that the visits began at
4:00 p.m. in Compton, and he did not want to be in Compton
after dark. Sometimes he left before dark, because he
thought the foster parents looked tired, but acknowledged
they never asked him to end the visits early. He provided no
explanation for the abbreviated duration of his Saturday
visits.

3. The Hearing
At the May 23, 2019 hearing, after admitting DCFS’s
exhibits without objection, the court heard argument from
the parties. Father’s counsel argued the children should be
returned to Father because DCFS had not demonstrated
they would be unsafe in his care. With the exception of
conjoint counseling, and “a few hiccups here and there,”
counsel asserted that Father had been in full compliance
with the case plan. In regard to conjoint counseling, counsel
argued that DCFS had failed to assist Father “as proactively
as they should have” and thus did not provide reasonable
services. Counsel also pointed out Father had tested
negative for drugs and alcohol for the past seven months.
Father and his children were mutually bonded and loved
each other, and while Father’s counsel admitted that Father
had not been an active parent during his visits, she blamed
this on Father’s being a “reserved man” and it being “very

15
difficult for him to show any type of authority in front of
foster parents, who he knows are constantly reporting back
to the social worker, and he knows are actively looking for
ways to . . . essentially adopt these kids.” Father’s counsel
therefore suggested the court could implement a phased plan
to transition the children back to his care or, if the court
were not inclined to implement this plan just yet, to at least
continue the hearing while implementing some portion of the
plan. The children’s counsel, while acknowledging this was
a “close case,” joined Father’s counsel in asking the court to
return the children to Father, with services provided to the
family. DCFS’s counsel countered that Father had received
21 months of reunification services, and had failed to
demonstrate he was a fit parent. He lacked knowledge of
important aspects of his children’s lives, such as their
medical, behavioral, and academic needs. DCFS had been
required to continually prod Father to visit his children in an
unmonitored setting, his visits never exceeded 90 minutes,
and he failed to fully engage with the children during those
visits. DCFS’s counsel therefore asked the court to
terminate reunification services.
The court found that Father had not demonstrated he
could safely care for the children on a full-time basis. The
court mentioned that in a previous hearing, “it was super
clear that it was really important for the father to use all of
his visitation time to be able to show that he is capable of
keeping these children safe and meeting their needs on a
full-time basis. And in spite of that, Father maintained a

16
pattern of visitation where he would show up and then leave
after about an hour, and an hour and a half.” The court
noted it was “not that hard to take care of two small active
boys for an hour or an hour and a half at a time” but “super
hard to take care of two small active boys 24 hours a day,
seven days a week.” And while acknowledging that Father
loved his children and they loved him, the court observed,
“Father’s behavior has clearly indicated that he is not in a
place to be a full-time parent.” The court also specifically
found that DCFS had made reasonable efforts in that it
“made proactive and good faith efforts to work with the
father on this case and has tried to help the father
understand that he needs to show proactive behavior. And,
at a certain point, the parent also has a responsibility to be
proactive.” Because the court did not believe that continuing
the hearing “would make it any more likely that the father
would be able to parent these children full-time” and “would
just be delaying permanency,” the court terminated family
reunification services, and set a hearing under section
366.26. The court did not advise Father of the requirement
to file an extraordinary writ to challenge this order, and
Father did not do so.

F. Section 366.26 Hearing on February 6, 2020
When DCFS spoke with the children about the foster
parents adopting them, Andre stated he was a little sad, and
wanted to return home with Father, but also stated he was
happy living with his foster parents and would be happy to

17
do so forever. Donte stated he was happy to be able to stay
with his foster parents. DCFS informed the court the
children were adoptable and had thrived in the care of the
foster parents, and the most suitable plan was for them to be
adopted by the foster parents.
Through last minute informations, DCFS additionally
informed the court that the foster parents wanted Andre to
be assessed for psychotropic medication for his autism, but
Andre’s Regional Center case manager as well as ChildNet
had both advised that Andre should first participate in
applied behavioral analysis therapy (ABA services). As of
January 16, 2020, the foster parents had not yet initiated
ABA services, but a February 6, 2020 report indicated DCFS
had assisted them in “locating a service provider for ABA
and provided instructions how to transition the youth from
his medi-cal plan to a plan accepted by the ABA service
providers.”
DCFS also informed the court that the foster parents
“had been considering not adopting and only accepting Legal
Guardianship for the children” but later provided
clarification: the foster parents were concerned about their
ability to “get services for the children,” but after being
provided by DCFS with written information about the
services available after adoption, they were “committed to
adoption.”
Finally, DCFS informed the court that the quality and
duration of Father’s visits had not improved; from August 3,
2019 to January 18, 2020, Father had visited the children 13

18
times, with no visit lasting more than one hour and 45
minutes. The foster father reported that Father watched
videos on his phone with the children during the visits, and
did not converse with them. Father had also asked DCFS to
draft a letter to the housing authority stating that he was
still receiving family reunification services and the children
would be returning to his custody. When informed that his
services had been terminated, Father “was adamant that
they were not,” and did not understand why they had been.
He stated he would lose his housing.
The court held the Section 366.26 hearing on February
6, 2020. The parties stipulated that if called to testify, the
children would say they enjoyed their visits with Father
(whom they called “‘Daddy’”) and loved him. The parties
further stipulated that if called to testify, Father would state
that he had visited the children 15 times since September
29, 2019; that the visits were two hours in duration and took
place at a McDonald’s; that he asked the children about
school; that they called him “‘Daddy’”; and that he believed
there was a strong bond between the children and him. The
court then heard argument. The children’s counsel asked
the court to terminate parental rights and set a permanent
plan of adoption. Father’s counsel opposed the termination
of parental rights, arguing the beneficial parental bond
exception set forth in section 366.26, subdivision (c)(1)(B)(i)

19
applied.5 Father’s counsel argued he had had regular
visitation with the children, and the bond between them was
strong enough they would suffer a detriment if his parental
rights were terminated. The children’s counsel countered
that it was only recently that Father’s visitation had become
more regular but that in any case, Father did not assume a
parental role during the visits. Acknowledging that there
was a bond between Father and the children, their counsel
argued it did not outweigh the benefits of permanency and
adoption. DCFS’s counsel agreed with the children’s
counsel.
While the court acknowledged more-or-less consistent
visitation by Father, it found he had not demonstrated he
could be an active parent. The court found by clear and
convincing evidence that “although father has maintained
regular visitation with the children and has established a
bond with the children, any benefit accruing to the children
from their relationship with the father is outweighed by the
physical and emotional benefit that the children would
receive through the permanency and stability of adoption,

5 “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 the child
[because] . . . [t]he 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).)

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and adoption is in their best interest.” The court therefore
terminated Father’s and Mother’s parental rights, set
adoption as the permanent plan, and designated the foster
parents as the prospective adoptive parents. Father timely
appealed.

DISCUSSION

A. Reasonable Services
An agency providing reunification services to a parent
“must make a good faith effort to provide reasonable services
responsive to the unique needs of each family.” (Patricia W.
v. Superior Court (2016) 244 Cal.App.4th 397, 420.) “‘[T]he
reasonableness of the [Agency’s] efforts are judged according
to the circumstances of each case.’ [Citation.] To support a
finding reasonable services were offered or provided, ‘the
record should show that the supervising agency . . .
maintained reasonable contact with the parents during the
course of the service plan, and made reasonable efforts to
assist the parents in areas where compliance proved difficult
. . . .’” (Tracy J. v. Superior Court (2012) 202 Cal.App.4th
1415, 1426.)
At the 18-month review hearing, the court found that
DCFS had made “reasonable efforts” to assist Father.
Father argues this finding was erroneous because conjoint
counseling did not commence until April 2019, eight months

21
after the court ordered it.6 We review the court’s finding for
substantial evidence. (Katie V. v. Superior Court (2005) 130
Cal.App.4th 586, 598 (Katie V.).)
Father contends “nothing happened” after the court
ordered conjoint counseling on July 31, 2018. But the record
demonstrates DCFS continually attempted to arrange for
conjoint counseling through the agency providing Andre with
individual therapy, and simultaneously encouraged Father
to ascertain his children’s availability for conjoint therapy.
Specifically, Kandace Brown, a therapist working for
ChildNet Youth and Family Services, had been providing
individual therapy to Andre. DCFS e-mailed or phoned
Brown at least once a month from August 2018 to January
2019 to ask about conjoint counseling. Brown never

6 Because this finding was made in the order setting the
Section 366.26 hearing, Father’s failure to file an extraordinary
writ challenging that order would normally foreclose him from
challenging it now. (See, e.g., In re Cathina W. (1998) 68
Cal.App.4th 716, 720 [“An aggrieved party may seek review of
the setting order by appeal from the order subsequently made at
the section 366.26 hearing, but only if . . . the party filed a timely
petition for extraordinary writ review of the setting order”].)
However, Father argues, and DCFS agrees, that in light of the
court’s failure to advise him of the writ requirement, he may
make his challenge in this appeal. (In re Athena P. (2002) 103
Cal.App.4th 617, 625 [when court fails to advise of writ
requirement, “in most cases the parent has good cause to be
relieved of the requirement. Thus, even though the parent failed
to file a writ petition, he or she can still challenge, on appeal, the
order setting a section 366.26 hearing”].)

22
provided an update, and DCFS discovered on January 22
that Brown had left ChildNet’s employ. DCFS then worked
with Brown’s supervisor to identify another therapist who
could provide conjoint counseling, finding one in early March
2019.
While DCFS was communicating with ChildNet, it also
reminded Father in October 2018 that the court had ordered
conjoint counseling, and requested he contact the foster
parents to coordinate dates for the sessions. Father did not
do so.7 After ChildNet identified a new therapist, DCFS
texted Father on March 4 and asked him to contact her. In
mid-March, ChildNet told DCFS that therapy could begin
“next week or the week after,” but ChildNet needed to
confirm a date and time for the session, and to speak with
Father. Father made no attempt to contact the therapist
until March 29, and it took another week before they spoke.
Counseling began shortly thereafter.
While DCFS might have done more -- for example, by
following up with Brown more frequently and insistently
before she left ChildNet -- as courts have consistently
observed, “in most cases more services might have been
provided and the services provided are often imperfect.

7 Father claimed DCFS told him the foster parents would
provide details regarding conjoint counseling, but he had no
cogent explanation for failing to simply ask them for this
information, especially after confirming that he understood the
importance of conjoint counseling, and that it was necessary for
reunification.

23
[Citation.] ‘The standard is not whether the services
provided were the best that might be provided in an ideal
world, but whether the services were reasonable under the
circumstances.’” (Katie V., supra, 130 Cal.App.4th at
598-599.) “[T]he mere fact that more services could have
been provided does not render the Department’s efforts
unreasonable.” (In re Alvin R. (2003) 108 Cal.App.4th 962,
973 (Alvin R.).)8 Here, DCFS consistently tried to enroll

8 Father’s reliance on T.J. v. Superior Court (2018) 21
Cal.App.5th 1229 (T.J.) and Alvin R., supra, 108 Cal.App.4th 962
is unhelpful. In T.J., the Court of Appeal reversed a juvenile
court’s finding by clear and convincing evidence that the San
Francisco Human Services Agency provided reasonable services
when the parent had “mental health and intellectual disability”
issues, it took the agency nearly 11 months to provide her with a
therapist and almost eight months to provide in-home parenting
services, and the agency “failed completely” to provide the parent
help with anger management, independent living skills, or
housing assistance. (T.J., supra, at 1244, 1248.) In Alvin R., this
court found that the juvenile court erred in finding by clear and
convincing evidence that reasonable reunification efforts had
been made where DCFS’s “only effort” to overcome the “major
obstacle” of a harried grandmother’s insistence that DCFS find a
therapist for the minor in her care near her home “was
apparently to make a referral to a therapist who had no time
available to see [the minor].” (Alvin R., supra, at 973.) Therapy
for the minor was vital because he would refuse to visit his father
without it. (Ibid.)
The facts of the instant case are materially different.
Preliminarily, because the court made its finding at the 18-month
review hearing, it was required to find reasonable efforts by a
preponderance of the evidence, not by clear and convincing
(Fn. is continued on the next page.)

24
Father in conjoint therapy, but was stymied by an
unresponsive therapist and a lackadaisical parent. On this
record, we find substantial evidence supports the juvenile
court’s finding that DCFS expended reasonable efforts in
providing Father with the services needed.

B. Beneficial Parental Bond Exception
“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
the child [because] . . . [t]he parents have maintained
regular visitation and contact with the child and the child
would benefit from continuing the relationship.” (Welf. &
Inst. Code, § 366.26, subd. (c)(1)(B)(i).) It is the parent’s
burden to prove the exception. (In re Lorenzo C. (1997) 54
Cal.App.4th 1330, 1343 [“[I]f there is clear and convincing

evidence. (Katie V., supra, 130 Cal.App.4th at 598.)
Additionally, unlike the mother in T.J., Father does not contend
DCFS was deficient in providing any service other than conjoint
counseling. Moreover, unlike the agency in T.J., DCFS did not
simply refer Father to a therapist for conjoint counseling and
leave him to his own devices; it consistently followed up both with
the therapist and with Father himself. Nor was visitation an
issue as in Alvin R. -- the minors visited Father regularly even
without conjoint therapy. Finally, there was no evidence that
Father lacked ability, time, or resources to expend some effort
himself.

25
proof of adoptability, the juvenile court must terminate
parental rights unless the parent produces evidence
sufficient to persuade the court that the child would benefit
from continuing the parent-child relationship”].)
Here, the court found by clear and convincing evidence
that “although father has maintained regular visitation with
the children and has established a bond with the children,
any benefit accruing to the children from their relationship
with the father is outweighed by the physical and emotional
benefit that the children would receive through the
permanency and stability of adoption, and adoption is in
their best interest.” The court therefore terminated Father’s
parental rights. We review the court’s determination
“whether the existence of [the parental] relationship . . .
constitutes ‘a compelling reason for determining that
termination would be detrimental to the child’” for an abuse
of discretion. (In re K.P. (2012) 203 Cal.App.4th 614, 622.)
Father does not contend the court erred in its factual
findings regarding his relationship with the children.
Instead, he argues the court abused its discretion in finding
that terminating that relationship would not be detrimental
to the children. Specifically, he argues that the foster
parents were “ambivalent” toward adoption; the foster
parents had initially declined ABA therapy for Andre; the
children were bonded to Father; and the delay in the

26
commencement of his conjoint counseling warranted a
“lesser permanent plan.”9 We are not persuaded.

1. Foster Parents
The foster parents were not “ambivalent” toward
adoption. The record shows that the foster parents had
concerns regarding their ability to obtain services for the
children should they adopt them, but once DCFS provided
them with information about the services available after
adoption, they were committed to adopting the children.
Regarding ABA therapy, while the foster parents were
initially in disagreement with such treatment, on February
6, 2020, DCFS submitted a last minute information
indicating that it had assisted the foster parents with
“locating a service provider for ABA and provided
instructions how to transition the youth from his medi-cal
plan to a plan accepted by the ABA service providers.”

2. Parental Bond
While the parties agree Father and the children loved
each other, “[e]vidence of ‘frequent and loving contact’ is not
sufficient to establish the existence of a beneficial parental
relationship.” (In re Bailey J. (2010) 189 Cal.App.4th 1308,

9 Father also argued “to the extent the court took into
consideration the fact that appellant’s visitation was only at the
supervised stage, the law is clear—a parent should not be
penalized because they are only participating in supervised
visitation . . . .” We see no evidence that the court “penalized”
Father because he was still having monitored visits.

27
1315-1316 (Bailey J.).) Courts have consistently interpreted
the beneficial parental bond exception to apply only to those
parent-child relationships the severance of which “would
deprive the child of a substantial, positive emotional
attachment such that the child would be greatly harmed
. . . .” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
“[I]t is only in an extraordinary case that preservation of the
parent’s rights will prevail over the Legislature’s preference
for adoptive placement.” (In re Jasmine D. (2000) 78
Cal.App.4th 1339, 1350.)
Moreover, “for the exception to apply, the emotional
attachment between the child and parent must be that of
parent and child rather than one of being a friendly visitor
or friendly nonparent relative, such as an aunt.” (In re Angel
B. (2002) 97 Cal.App.4th 454, 468.) Here, the evidence was
that Father’s relationship with the children was more
avuncular than parental. Father had little knowledge of his
children’s medical, behavioral, and academic needs or
progress, and never asked the foster parents about them. He
did not participate in Andre’s educational decisions, instead
leaving others to make them. Father did not even use all of
his visitation time with the children, and in the time he did
spend with them, he failed to assume a parental role.
Father’s relationship was more like that of a “friendly
nonparent relative” than a parent.

28
 3. Delay of Conjoint Counseling
Finally, while the commencement of conjoint
counseling was delayed for many reasons -- including
father’s own inaction -- “‘[t]he factors to be considered when
looking for whether a relationship is important and
beneficial are: (1) the age of the child, (2) the portion of the
child’s life spent in the parent’s custody, (3) the positive or
negative effect of interaction between the parent and the
child, and (4) the child’s particular needs.’” (Bailey J., supra,
189 Cal.App.4th at 1315.) Whether Father promptly
received the therapy ordered does not factor into the court’s
decision.
Father incorrectly contends that In re Amber M. (2002)
103 Cal.App.4th 681 (Amber M.) and In re E.T. (2018) 31
Cal.App.5th 68 (E.T.) compel a contrary result. In Amber
M., “[a] psychologist who conducted a two-hour bonding
study of Mother and Amber concluded that they shared . . . a
‘primary maternal relationship,’” which could be detrimental
to sever. (Amber M., supra, 103 Cal.App.4th at 689.) The
court also found that “Mother visited as often as she was
allowed and acted in a loving, parental role with the children
when permitted visitation.” (Id. at 690.) By contrast, as
discussed above, the children’s relationship with Father was
closer to that of a family friend or uncle, not a parent.
Moreover, Father consistently underused his visitation time
with the children, both in frequency and duration.
Similarly, in E.T., the mother provided comfort and
affection to the children during the visits, and addressed

29
their fears and anxieties. (E.T., supra, 31 Cal.App.5th at
72.) The court found that, over time, Mother “became more
reflective and was better able to handle disagreements with
the children or their misbehavior.” (Id. at 76.) In contrast,
Father’s visits consisted mostly of watching videos with his
children and, when they misbehaved, looking to the foster
parents to discipline them, even when he had been told
repeatedly he needed to assert himself and demonstrate
parental behavior.
“A court exceeds the limits of legal discretion if its
determination is arbitrary, capricious or patently absurd.
The appropriate test is whether the court exceeded the
bounds of reason.” (In re L.W. (2019) 32 Cal.App.5th 840,
851, citing In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
On this record, the court did not exceed the bounds of reason
in declining to find that termination of the parental
relationship in favor of adoption would be detrimental to the
children.

C. ICWA
Father contends DCFS failed to interview some of
Mother’s extended family about her potential Indian
heritage. He also notes several deficiencies in the ICWA-030
notices provided to the Indian tribes. Father therefore asks
us to remand and order DCFS to conduct a proper inquiry
into Mother’s potential Indian heritage. DCFS concedes it
failed to fully comply with the requirements of ICWA, and
agrees we should “order a limited remand to the juvenile

30
court for the purpose of DCFS conducting proper inquiry and
notice under the ICWA as to mother.” We agree.10

10 We decline Father’s request to order further inquiry into
his potential Indian heritage due to a “conflict” between the
ICWA-020 form filed in the previous dependency case and the one
filed in this case. In 2012, when asked about potential Indian
heritage, Father had no useful information, representing that
both his parents were deceased, and that no other family
members would have any relevant information. In 2017, he filed
an ICWA-020 form claiming he had no Indian heritage -- a
representation confirmed in court by his counsel. Father has not
argued the court was obliged to inquire further on this record, nor
has he suggested any factual basis for opening a new inquiry.

31
 DISPOSITION
The court’s February 6, 2020 order is conditionally
reversed. The matter is remanded to the juvenile court with
directions to order DCFS to inquire into Mother’s potential
Indian heritage and, if relevant information not contained in
previous notices sent in this case is discovered, send out new
notices to the relevant tribes in accordance with ICWA and
California law. DCFS shall thereafter inform the juvenile
court of its findings and actions, and the court shall hold a
hearing to determine whether the ICWA inquiry and notice
requirements have been satisfied and whether the children
are Indian children. If the court finds they are Indian
children, it shall proceed in conformity with ICWA and
related California law. If the court finds they are not Indian
children, the court’s February 6, 2020 order shall be
reinstated. Father shall be notified of all hearings related to
this remand, and shall have the right to appear and be
represented by counsel.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

MANELLA, P. J.

We concur:

WILLHITE, J. COLLINS, J.

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