In re L.L. CA5

Filed 2/22/21 In re L.L. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIFTH APPELLATE DISTRICT

In re L.L. et al., Persons Coming Under the
Juvenile Court Law.

MERCED COUNTY HUMAN SERVICES F081371
AGENCY,
(Super. Ct. Nos. 20JP-00004-A & B)
Plaintiff and Respondent,

v. OPINION
JENNA L.,

Defendant and Appellant.

APPEAL from orders of the Superior Court of Merced County. Donald J. Proietti,
Judge.
Nicholas J. Mazanec, under appointment by the Court of Appeal, for Defendant
and Appellant.
Forrest W. Hansen, County Counsel, and Jennifer Trimble, Deputy County
Counsel, for Plaintiff and Respondent.
-ooOoo-
Jenna L. (mother) appeals from the juvenile court’s findings and orders made at
the conclusion of the jurisdiction and disposition hearing concerning her two sons, now
15-year-old L.L. and 12-year-old S.L., whose respective fathers are W.T. and J.L. After
the juvenile court removed both sons from mother’s custody, it granted mother
reunification services with respect to S.L., and placed L.L. in his father’s custody while
retaining limited jurisdiction for the purpose of reviewing his placement in three months,
as provided in Welfare and Institutions Code section 361.2, subdivision (b)(2).1 While
mother was granted visitation with her sons, the juvenile court gave them discretion to
opt out of visits.
On appeal, mother contends: (1) the visitation order impermissibly delegates to
her children the authority to determine whether any visits will occur; and (2) the juvenile
court erred by failing to comply with the notice requirements of the Indian Child Welfare
Act (ICWA) (25 U.S.C. § 1901 et seq.). We agree with mother’s first contention and
reverse the visitation order as to S.L., but otherwise affirm the juvenile court’s orders.
FACTUAL AND PROCEDURAL BACKGROUND
Then 14-year-old L.L. and 11-year-old S.L. were placed in protective custody on
January 8, 2020, after the Child Welfare Services of Merced County Human Services
Agency (Agency) completed an investigation into three referrals alleging mother was
physically abusing them. The Agency filed a dependency petition alleging the boys came
within the provisions of section 300, subdivisions (a) (serious physical harm), (b)(1)
(failure to protect) and (c) (serious emotional damage). The petition alleged multiple
incidents of excessive physical discipline by mother, including hitting her sons with a
cord, belt, belt buckle, paddle and her fist. Mother forced the boys to take Epsom salt
baths to prevent bruising and used creams and oils to heal any marks or bruises. The
petition further alleged both fathers, who admitted being aware of the excessive physical
discipline, failed to protect the boys from it. The boys were alleged to have suffered
serious emotional damage as a result of the excessive discipline.
The Detention Hearing
At the January 13, 2020 detention hearing, the juvenile court elevated both fathers
to presumed father status and conducted an inquiry into Native American ancestry. The

1 Undesignated statutory references are to the Welfare and Institutions Code.

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Agency had completed an “Indian Child Inquiry Attachment” (unnecessary capitalization
omitted) form (ICWA-010(A)) for each boy. L.L.’s form stated he may have Indian
ancestry; while mother stated she did not have any Native American heritage, W.T.
reported L.L.’s paternal grandfather told him “years ago” that he may have “a small
percentage Cherokee, but not enough.” S.L.’s form stated he had no known Indian
ancestry, as both mother and J.L. denied having any Native American heritage.
The juvenile court confirmed mother did not believe she had any Indian heritage
and W.T. was saying he thought he had some Cherokee Indian heritage on his father’s
side, but not enough to be on any membership roll. No one had followed up on paternal
grandfather’s claim that W.T. might have some Cherokee heritage. The juvenile court
confirmed paternal grandfather was still alive and said it would have both parents fill out
a “Parental Notification of Indian Status” (unnecessary capitalization omitted) form
(ICWA-020). The juvenile court further stated it was “[p]robably appropriate” to have
W.T. fill out the “Notice of Child Custody Proceedings” (unnecessary capitalization
omitted) form (ICWA-030) “so the Agency can follow up and make sure that we don’t
miss something,” because even if there were a small percentage, they “should give notice
to the appropriate Indian tribe so they can make that determination whether they have any
involvement in the case or not. We’ll have you fill out an ICWA 30 form.” According to
the minute order of the hearing, the juvenile court reserved ICWA findings as to all
parents, mother was provided with an ICWA-030 form and the Agency was to provide
the ICWA-030 form to W.T., who appeared at the hearing telephonically because he
lived in Oklahoma.
The detention hearing was continued to the following day, as S.L.’s father wanted
a contested hearing. At the continued hearing, the juvenile court stated it received
information that S.L.’s father passed away the day before. The juvenile court found a
prima facie case and placed the boys in the Agency’s care.

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The Jurisdiction and Disposition Reports
In the jurisdiction report, the Agency recommended the juvenile court take
jurisdiction of the boys pursuant to section 300, subdivisions (a), (b) and (c). The boys
were placed with a relative. The report stated ICWA may or may not apply. While
mother and S.L.’s father told the social worker they did not have Native American
heritage, L.L.’s father told the social worker he had heard about possible Cherokee in his
family, but he did not have “enough” for tribal membership.2 After that, W.T. filled out
an ICWA-020 form stating he did not have any Indian ancestry. W.T. was provided with
an ICWA-030 form on January 15, 2020.
The report recounted the history of referrals to child protective services, a past
case in Yolo County, and past services offered to the family on a voluntary basis, as well
as reports from child protective services in Oklahoma and psychiatric hospital reports
regarding S.L. Prior referrals indicated instances of the boys reporting being hit with
spoons and a belt, and mother having the boys take long baths and then using essential
oils and salt to help the wounds heal more quickly.
The social worker included summaries of interviews with the boys, mother, L.L.’s
father, and maternal grandfather. L.L. reported he had been abused his whole life; the
first abuse he remembered occurred when he was seven years old. Mother hit him with
objects such as a frying pan, belts, and spoons. No one believed him when he reported
the abuse and if he told anyone, mother would not let him talk to them anymore. He
could not take the abuse and thought of killing himself or disappearing at school. He did
not tell his father about the abuse because he was afraid he would get hurt. S.L. also
reported mother hitting them. Both boys reported mother would promise them money or
video games if they stayed quiet about the abuse. Mother, however, denied physically
abusing the boys or forcing them to take baths. W.T. saw mother hit S.L. with a belt and

2 Mother and S.L.’s father completed ICWA-020 forms, in which they checked that
they did not have any Indian ancestry as far as they knew.

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he heard things from family, but he was unaware of the severity of the abuse because he
had been kept at “arm’s length” and was incarcerated a number of years.
In the disposition report, the Agency recommended mother be offered
reunification services for S.L., custody of L.L. be granted to W.T., and the dependency
dismissed with a custody and visitation order. The report stated ICWA did not apply to
S.L., but there was “reason to believe” it may apply to L.L. On February 28, 2020, the
Agency sent an ICWA-030 form to the three federally recognized Cherokee tribes for L.L
via certified mail, which gave notice of the March 12, 2020 jurisdiction and disposition
hearing.3 The report stated all tribes received the ICWA-030 form, with the last tribe
served on March 7, 2020. Mother had biweekly supervised visits with the boys. There
were concerns she was being manipulative, as she deleted the boys’ social media
accounts and asked them to provide information or communicate with her in order to
obtain the password to the accounts. In addition, mother attempted to reach the boys
through third parties when they asked not to speak with her.
The Jurisdiction and Disposition Hearing
A contested jurisdiction and disposition hearing was held on June 23 and 30, 2020.
The social worker testified about the events that led to the Agency’s involvement,
mother’s response, her interviews of the boys and others involved in the case, and
mother’s proposed case plan. She also testified the boys’ placements and events leading
to a change in their placement, as well as the boys’ needs.
S.L. testified his mother had abused him his whole life by hitting him with objects
and she made him take baths in Epsom salts to try to reduce bruising. S.L. stopped
talking to mother about two weeks before the hearing because he did not want to talk to
her “right now” and he had an opportunity to visit mother the day of the hearing, but he
told them no and he was not open to visiting her later that day. S.L. ended his testimony

3 The Agency also sent the Cherokee tribes an ICWA-030 form for S.L., even
though his parents denied any Native American heritage.

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by sharing a text he sent mother stating he did not want to live with her, but he was
willing to work on their relationship if she did not “try to mess things up for me” by
fighting with him or stopping him from moving on with his life.
L.L. testified mother abused him his entire life by hitting him with various objects
and made him take salt baths to make the bruises heal faster. Nothing in the world would
make him go back to mother because he did not want to live with someone who would
hurt him. L.L. wanted to live with his father.
W.T. testified about his criminal history, wife and stepchildren, housing, sobriety,
his son’s visits in Oklahoma, and his willingness to work with mother to arrange
visitation. He was not aware of the abuse and he agreed with the Agency’s
recommendation to have his son placed with him. After the conclusion of the first day of
the contested hearing, the juvenile court allowed L.L. to be placed with his father, finding
it would be in L.L.’s best interest and there was no detriment. The Agency agreed to
attempt to arrange a visit between L.L and mother before he left California.
At the continued hearing on June 30, 2020, mother’s attorney recalled the social
worker, who was questioned about the boys’ educational needs and individualized
education plans (IEP). Mother also called Wendy Westsmith, the director of services
who oversees special education for the school district. She testified about the boys’ IEPs,
the assessments, and mother’s active participation in the IEP process, including providing
information when requested. Mother’s counselor, Rhonda Kinser, testified about
mother’s background and her telephone sessions with mother. Kinser testified to
mother’s progress in their sessions, her willingness to work with Kinser to manage
conflicts, the improvement of her self-confidence and recognition of the appropriate
sharing of information with the boys.
Mother testified and continually denied physically abusing her sons, although she
admitted spanking them with her open hand and hitting them with a belt. She also denied
having the boys take salt baths to reduce swelling or bruising or using oils on them. She

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testified about the boys’ educational history, her advocacy for services to meet their
needs, and their psychological, behavioral, and medical histories. She expressed her
concerns with the boys being placed with W.T. and relatives, and explained the classes
and services she voluntarily engaged in. Mother wanted to reunify with both boys and
asked that they be returned to her.
Following argument by counsel, the juvenile court stated the boys “gave very
powerful testimony” which it found to be “very credible,” while mother’s testimony was
“overly justified” at times. The juvenile court was troubled mother did not have the
capacity to describe a clear understanding of what her sons were suffering. The juvenile
court took jurisdiction and found the boys were persons falling within section 300,
subdivisions (a), (b) and (c).
With respect to S.L., the juvenile court removed him from mother’s custody and
ordered reunification services. The juvenile court ordered once monthly supervised visits
between S.L. and mother, which may include video, audio or other means of
communication, and ordered supervised sibling visits, which the social worker would
coordinate with L.L.’s father. The juvenile court gave the Agency discretion to expand
or limit S.L.’s visits with mother and L.L., considering S.L.’s best interests, and if visits
were not occurring, the court would review the concerns. The juvenile court allowed
mother to retain her educational rights. The juvenile court set a six-month review hearing
for August 27, 2020.
S.L.’s attorney then asked that S.L. “be able to opt out” of visits with mother, but
they should “keep a close, close tab on that,” as it was not necessarily in S.L.’s best
interests to get to a point where he was never speaking to mother again. The juvenile
court agreed, stating it would include in the order that S.L. “is of sufficient age and
ability to make the determination that if he wishes not to have contact he can opt out,” but

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they needed to “keep a close tab on that” because if it was abused or misused it would
undermine reunification.4
With respect to L.L., the juvenile court had reservations about dismissing
jurisdiction because it wanted to ensure L.L. would receive services. County counsel
asked the juvenile court, if it was not inclined to terminate jurisdiction, to proceed under
section 361.2, subdivision (b)(2), which would allow W.T. to assume custody but
required a home visit within three months, so the Agency could be involved and ascertain
whether L.L. was getting the services he needed. Mother’s attorney requested joint legal
custody and her visits with L.L. be unsupervised, but if it was supervised, asked that
W.T.’s sister supervise them.
The juvenile court adopted county counsel’s suggestion, removed L.L. from
mother’s custody, placed him with his father under section 361.2, subdivision (b)(2), and
ordered a home visit to occur within three months to determine whether his father was
meeting his needs. The juvenile court stated it was giving W.T. sole legal custody of
L.L. and it believed L.L. “should have the ability to have visitation or contact with his
mother, either supervised or unsupervised, given his age, at his discretion, including the
opportunity to opt out if he chooses not have contact.”5 The juvenile court set a hearing
for August 27, 2020, to determine whether the custody order needed to be adjusted and
whether it would be safe to terminate jurisdiction.
The juvenile court subsequently signed a custody order which gave W.T. sole
legal and physical custody of L.L. The attached visitation order granted mother visitation

4 The minute order of the hearing states visitation will be at least once a month, but
S.L. “may opt out of the visits.” S.L.’s written visitation order issued after the hearing
provides that the social worker will arrange visitation with mother no less than once a
month, “as recommended and in the best interest” of S.L., but S.L. “may opt out of
visitation,” and the social worker is authorized to expand visitation to include supervision
by others as well as unsupervised visitation.
5 The minute order of the hearing states that visitation with L.L. will “be at least
once a month and will be at the discretion of the minor.”

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at least twice a month, to be supervised through a third party in Oklahoma at mother’s
expense, although “[v]isits may be supervised, or unsupervised, at [L.L.]’s discretion.”
The visitation order further stated: “Visits are to take place when it is in the best interest
of the minor, L[.]L[.]” at mother’s expense.
DISCUSSION
I. The Visitation Orders
Mother contends the juvenile court abused its discretion when it allowed S.L. the
ability to “opt out” of visits and L.L. to have “discretion” over whether visits occurred.
The Agency asserts mother forfeited this claim by failing to object to the visitation order
and, in any event, it would not be in the boys’ best interests to force them to visit mother
and they were not given the power to veto visitation altogether.
“The superior court, sitting in dependency cases … has the power and
responsibility to regulate visitation between dependent children and their parents.” (In re
Donnovan J. (1997) 58 Cal.App.4th 1474, 1476.) “Visitation is a necessary and integral
component of any reunification plan.” (In re S.H. (2003) 111 Cal.App.4th 310, 317
(S.H.).) The juvenile court cannot delegate the power to order visitation to child
protective services, a social worker, a counselor, the children’s caretaker, or even the
children themselves. (In re Julie M. (1999) 69 Cal.App.4th 41, 49 (Julie M.).) In
ordering visitation, the juvenile court may vest limited discretion with the supervising
agency to consider the children’s desires regarding visits with a parent. (In re Danielle
W. (1989) 207 Cal.App.3d 1227, 1237.) While “ ‘[a] visitation order may delegate to a
third party the responsibility for managing the details of visits, including their time, place
and manner[,] … “the ultimate supervision and control over this discretion must remain
with the court….” ’ ” (In re Korbin Z. (2016) 3 Cal.App.5th 511, 517.) We review the
juvenile court’s order setting visitation terms for abuse of discretion. (In re Brittany C.
(2011) 191 Cal.App.4th 1343, 1356.)

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 We first address as a threshold matter the Agency’s contention mother forfeited
this argument by failing to raise it before the juvenile court. Mother responds that while
her attorney did not use the word “objection,” it was clear from her attorney’s arguments
she did not agree with the proposed visitation orders. Mother’s attorney asked the
juvenile court to consider family maintenance and in discussing L.L.’s proposed custody
order, which called for only supervised visitation, her attorney stated it seemed like L.L.
and mother “should be able to talk, if it’s appropriate and L[.L.] wants to talk,” and if
visits were supervised, a relative could do it. Asking the court to consider family
maintenance or to allow for unsupervised visits, however, is not an objection to visitation
orders allowing the boys to opt out of visits.
Although we agree mother forfeited the issue by failing to raise it in the juvenile
court, at mother’s request, we will exercise our discretion to consider the visitation orders
as a determination on the validity of the orders would add certainty and stability to the
boys’ visitation. (In re S.B. (2004) 32 Cal.4th 1287, 1293 [discretion to consider
forfeited claims should be exercised with special care in dependency cases;
“considerations such as permanency and stability are of paramount importance”].)
S.H. is instructive on the visitation issue. There, the juvenile court ordered
monitored visitation, but because the children feared their mother and refused visits
during their initial detention, the visitation order specified, “ ‘if the children refuse a visit,
then they shall not be forced to have a visit.’ ” (S.H., supra, 111 Cal.App.4th at pp. 313,
316.) The appellate court held the order was invalid because it “impermissibly
delegate[d] to [the] children the authority to determine whether any visits will occur.”
(Id. at p. 313.) The appellate court acknowledged the order “affirmatively determine[d]”
mother’s right to visitation “rather than making [it] entirely contingent on the child’s
consent” (id. at p. 318), and the juvenile court made additional orders designed to
encourage visitation, including ordering counseling for the children and for their mother
(id. at pp. 318–319). Nevertheless, the appellate court concluded that “by failing to

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mandate any minimum number of monitored visits per month or even to order that some
visitation must occur each month, the [juvenile] court’s abstract recognition of [the
mother’s] right to visitation [was] illusory, transforming the children’s ability to refuse ‘a
visit’ into the practical ability to forestall any visits at all.” (Id. at p. 319.)6
We conclude the visitation order as to S.L. similarly placed the sole discretion as
to whether any visitation would occur in his hands. As in S.H., the juvenile court here
affirmatively acknowledged mother’s right to visitation. Moreover, the juvenile court
stated at the hearing it did not want S.L.’s right to refuse visits to be abused or misused.
The written visitation order specifies the social worker will arrange visits “no less than
one time monthly, as recommended and in the best interest” of S.L, and that visits are to
be held at the Agency or other approve location, which may include visits via Skype or
other modes of communication.
Like the order in S.H., however, the visitation order here did not mandate any
minimum number of supervised visits per month or otherwise order some visitation to
take place. (S.H., supra, 111 Cal.App.4th at p. 319.) Rather, the court ordered that S.L.
“may opt out of visitation.” Accordingly, the order essentially granted S.L. total
discretion to determine whether visits would take place at all. While it is true, as the
Agency asserts, that if S.L. opted out of a visit another would be scheduled the following
month, by giving S.L. the ability to refuse a visit without ensuring a minimum number of
visits actually took place, the juvenile court effectively gave S.L. the power to veto them.
We agree S.L’s wishes must be considered, particularly given his age and his
fraught relationship with mother and his hesitancy to visit her. Nevertheless, “while the
juvenile court may allow the child to refuse to attend a particular visit, to prevent the
child from exercising a de facto veto power, there must be some assurance that, should

6 Similarly, the appellate court in Julie M. held that a visitation order that gave the
children “the option to consent to, or refuse, any future visits with their mother” was
invalid because it essentially delegated judicial power to the children. (Julie M., supra,
69 Cal.App.4th at pp. 46, 48–49.)

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that occur, another visit will be scheduled and actually take place.” (S.H., supra,
111 Cal.App.4th at p. 319.) As the court in S.H. so aptly stated, “In no event, however,
may the child’s wishes be the sole factor in determining whether any visitation takes
place, either as a formal matter or, as occurred in the case now before us, by effectively
giving the children the power to veto all visits.” (Ibid.)
Here, S.L.’s wishes were the sole factor in determining whether supervised visits
with mother would occur, making her right to visitation essentially illusory. Neither the
Agency nor mother had any way of ensuring visits would take place, such as by
rescheduling missed visits S.L. decided not to attend. We therefore conclude the juvenile
court abused its discretion by giving S.L. the ability to “opt out” of visits, without
ensuring that missed visits took place.
With respect to L.L., the juvenile court similarly stated on the record that it
believed L.L. should have discretion to determine whether visits with mother should be
supervised or unsupervised, as mother’s attorney requested, “including the opportunity to
opt out if he chooses not to have contact.” Giving L.L. the ability to opt out of visits
without ensuring a minimum number occurred would be improper for the same reasons
set forth above. The written visitation order, however, does not contain any such
provision; nowhere does it give L.L. discretion to determine whether visits occur at all.
To the extent that the juvenile court’s oral pronouncement differed from its written order,
the written order controls. (In re Jennifer G. (1990) 221 Cal.App.3d 752, 756, fn. 1.) In
that case, the visitation order as to L.L. is not improper.
Accordingly, we reverse the visitation order as to S.L. and remand for a hearing on
visitation as to him only. Our decision does not preclude the juvenile court from ordering
S.L.’s wishes be considered with respect to scheduling visits with mother, nor should it
be read to force him to visit her. We hold only, as courts have held before us, that his
wishes are not the sole factor in determining whether any visitation takes place. (E.g.,
S.H., supra, 111 Cal.App.4th at p. 319; Julie M., supra, 69 Cal.App.4th at pp. 50–51

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[child’s “aversion to visiting an abusive parent may be a ‘dominant’ factor in
administering visitation” but not “the sole factor”], citing In re Danielle W., supra,
207 Cal.App.3d at p. 1237.)
II. ICWA
Mother contends the Agency failed to comply with ICWA’s requirements because
(1) the ICWA-030 form did not include information available or easily available to the
Agency, namely, the current or former address for maternal grandmother, and the prior
address for mother or W.T.; (2) the Agency failed to file the return receipts showing
proof of notice; and (3) the record did not contain any responses from the tribes. She
asserts a limited remand is required for compliance with the notice requirements.
At the combined jurisdiction and disposition hearing, the juvenile court did not
make any ICWA finding or final ruling as to whether proper notice had been completed
and ICWA applied to the proceedings with respect to L.L. On this basis, we asked the
parties to address whether mother’s appellate arguments are premature, citing In re M.R.
(2017) 7 Cal.App.5th 886, 903-904. There, the juvenile court found at the dispositional
hearing that ICWA noticing had been initiated and ICWA may apply to the children.
(In re M.R., at p. 904.) In their appeal from the dispositional findings and orders, both
parents challenged the adequacy of the efforts made to comply with the ICWA notice
requirements. (In re M.R., at p. 903.) The appellate court determined the dispositional
ICWA finding was not a final ruling as to whether proper notice had been completed or
whether ICWA applied to the proceedings; therefore, any claim of error regarding ICWA
compliance was “simply premature.” Accordingly, the appellate court declined to review
the adequacy of an ICWA noticing process that was still ongoing, noting it could address
any claims of error, including the juvenile court’s final rulings with respect to ICWA
matters, in any subsequent appeal. (In re M.R., at p. 904 & fn. 9.)
In this case, the Agency initiated ICWA noticing by mailing out ICWA-030 forms
to three Cherokee tribes and represented to the juvenile court that the tribes had received

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the forms. The juvenile court did not make an ICWA finding at the dispositional hearing.
Because the juvenile court did not make a final judgment on the adequacy of the ICWA
notices, the issue is premature.
Mother asserts that by proceeding with the jurisdiction and disposition hearing
without treating L.L. as an Indian child, the juvenile court implicitly found the notices
were proper and ICWA did not apply. We cannot infer these findings, however, because
the juvenile court could have declined to treat L.L. as an Indian child apart from finding
ICWA did not apply, namely, because it did not yet have “reason to know” he was an
Indian child, which essentially requires having information that establishes L.L. is an
Indian child.7 (§ 224.2, subds. (d) & (i)(1).) When there is reason to know the child is an
Indian child, the juvenile court is required to treat the child as an Indian child unless and
until the juvenile court reviews the Agency’s due diligence efforts and copies of notices
and the tribe’s responses, and determines on the record the child does not meet the
definition of an Indian child. (§ 224.2, subd. (i)(1).) The juvenile court may find ICWA
does not apply to the proceedings if it finds the Agency conducted a “proper and
adequate further inquiry” and exercised “due diligence to identify and work” with all the
pertinent tribes to verify “whether the child is in fact a member or whether a biological
parent is a member and the child is eligible for membership.” (§ 224.2, subds. (i)(2) &
(g).)

7 There is “reason to know” a child is an Indian child if: “(1) A person having an
interest in the child … informs the court that the child is an Indian child[;] [¶] (2) The
residence or domicile of the child, the child’s parents, or Indian custodian is on a
reservation or in an Alaska Native village[;] [¶] (3) Any participant in the proceeding …
informs the court that it has discovered information indicating that the child is an Indian
child[;] [¶] (4) The child … gives the court reason to know that the child is an Indian
child[;] [¶] (5) The court is informed that the child is or has been a ward of a tribal
court[;] [¶] [and] (6) The court is informed that either parent or the child possesses an
identification card indicating membership or citizenship in an Indian Tribe.” (§ 224.2,
subd. (d); see 25 C.F.R. § 23.107(c) (2020).)

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 Here, there is nothing to suggest there was reason to know at the time of the
jurisdiction and disposition hearing that L.L. was an Indian child. Therefore, the juvenile
court’s failure to treat him as an Indian child does not mean it impliedly found ICWA did
not apply. Moreover, the juvenile court did not make any findings that the Agency
conducted a proper and adequate inquiry or exercised due diligence, which under
section 224.2, subdivision (i)(2) it must do before it may find ICWA does not apply to the
proceedings. We decline to infer that the juvenile court made such findings.
Since we cannot infer the juvenile court found ICWA did not apply and the
juvenile court did not make an explicit finding, we conclude mother’s ICWA contentions
are premature and decline to address them in this appeal.8
DISPOSITION
The portion of the July 23, 2020 order in S.L.’s case regarding mother’s visitation
is reversed, and S.L.’s case is remanded to the juvenile court to hold a new hearing on the
issue of visitation. In all other respects, the juvenile court’s orders are affirmed.

DE SANTOS, J.
WE CONCUR:

POOCHIGIAN, Acting P.J.

MEEHAN, J.

8 Because the appeal is premature, we deny the Agency’s request to take judicial
notice of response letters from the tribes, which were attached to the Agency’s six-month
status review report, and the September 3, 2020 minute order in which the juvenile court
found ICWA did not apply to L.L., which are part of the appellate record in mother’s
subsequent appeal in case No. F082005. We note that mother may raise any claims of
ICWA error in the subsequent appeal.

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