In re April S. CA2/2

Filed 5/25/22 In re April S. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

In re APRIL S. et al., Persons B314127
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct.
No. 19LJJP00459A-C)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

FELIPE S. et al.,

Defendants and
Appellants.

APPEAL from orders of the Superior Court of Los Angeles
County, Michael C. Kelley, Judge. Affirmed.
Terence M. Chucas, under appointment by the Court of
Appeal, for Defendant and Appellant Felipe S.
 Carolyn S. Hurley, under appointment by the Court of
Appeal, for Defendant and Appellant Maria S.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Veronica Randazzo, Deputy
County Counsel, for Plaintiff and Respondent.

******

Appellants Maria S. (mother) and Felipe S. (father) appeal
from the juvenile court’s orders terminating parental rights over
their children, April (born 2011), Ariel (born 2016), and Adan
(born 2017) and freeing the children for adoption. Both parents
contend the orders must be reversed because (1) the beneficial
parent-child exception to terminating parental rights applies, (2)
legal guardianship should have been considered as an
alternative, and (3) a proper inquiry under the Indian Child
Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA) was not
undertaken.
We affirm the juvenile court’s orders.

BACKGROUND
Detention and Welfare and Institutions Code1 section 300
petition
The Los Angeles County Department of Children and
Family Services (the Department) received a referral in
June 2019 alleging drug abuse and domestic violence by the
parents. When the social worker responded to the referral, the

1 All further statutory references are to the Welfare and
Institutions Code, unless stated otherwise.

2
children were living with their paternal grandmother. The
paternal uncle was also involved in the children’s care. The
family had previously been living in the maternal grandfather’s
home. The parents initially agreed to have the paternal
grandmother become the children’s legal guardian but changed
their minds after an argument with the paternal uncle.
In early July, mother and father signed an affidavit
allowing the children to be removed from their care and placed
with maternal aunt Angeles R. pending a detention hearing. The
maternal aunt lived with her partner, Sara B., and Sara’s family.
On July 9, 2019, the Department filed a petition under
section 300, subdivision (b), alleging the parents’ history of
substance abuse and current abuse of amphetamine and
methamphetamine rendered them incapable of providing regular
care for the children and placed the children at risk of harm. The
petition further alleged that mother had mental and emotional
problems, including a diagnosis of depression and suicidal
ideation, had attempted suicide in the past, and had been
previously hospitalized for evaluation and treatment of a
psychiatric condition. The petition alleged that father knew of
mother’s condition and failed to protect the children.
At the July 10, 2019 detention hearing, the juvenile court
found father to be the children’s presumed father. Both parents
filed ICWA-020 Parental Notification of Indian Status forms in
which they denied knowledge of any Indian ancestry. The
Department’s detention report indicated that during a June 13,
2019 interview with the social worker, mother and father had
denied any Indian ancestry. The juvenile court found it had no
reason to know ICWA applied but advised the parents to make

3
their attorneys, the Department, and the court aware of any new
information concerning possible ICWA status.
The juvenile court then ordered the children detained from
parental custody. The court granted the parents monitored
visitation a minimum of three times per week, three hours per
visit, limited only by the availability of a monitor.
Jurisdiction and disposition
The children remained placed with maternal aunt at the
time of the August 19, 2019 adjudication hearing. Maternal aunt
was willing to become the children’s legal guardian if the parents
failed to reunify.
Mother and father both pleaded no contest to the
allegations of the petition, which the juvenile court amended by
interlineation. The sustained allegations state that the children
were at substantial risk of abuse or neglect because of the
parents’ methamphetamine abuse, mother’s mental and
emotional problems, and father’s failure to protect the children
from mother’s mental and emotional problems.
The juvenile court declared the children to be dependent
children and removed them from parental custody. The court
ordered both parents to enroll in a full drug and alcohol program
with weekly random testing and aftercare, conjoint counseling,
and parenting classes. The court ordered mother to enroll in
individual counseling and psychiatric services and to comply with
the recommendations of her mental health provider. Both
parents were granted monitored visits a minimum of nine hours
per week.

4
Review proceedings
The Department reported in February 2020 that the
children remained in the care of maternal aunt, to whom they
were bonded.
Mother had been accepted into a drug court program in
August 2019 but was discharged from the program in October
2019 when she tested positive for methamphetamine and refused
to enroll in residential treatment. Mother thereafter completed
an outpatient substance abuse program but tested inconsistently
for drugs. She had either tested positive or failed to appear for
12 out of 18 scheduled tests. Father had tested positive for
methamphetamine in October 2019 and had not complied with
his case plan.
Mother and father visited regularly with the children. The
parents arrived on time for all scheduled visits and were
attentive to the children’s needs. The social worker observed that
the children appeared comfortable and were affectionate toward
the parents.
At the six-month review hearing held on February 19,
2020, the juvenile court continued reunification services for both
parents.
In August 2020, the Department reported that the children
were closely bonded with maternal aunt. The social worker
observed that Adan was comforted by maternal aunt’s presence
and reached for her to pick him up. When maternal aunt did so,
Adan rested his head on her shoulder.
The maternal aunt updated the Department on the
children’s participation in services. Adan was receiving weekly
regional center services. Ariel had completed mental health
services and had been referred for speech evaluation. April was

5
participating in weekly therapy. Her therapist reported that
April had expressed mixed feelings about returning to the
parents. When the social worker asked April if she wanted to live
with mother and father, April responded, “sometimes yes, but not
all the time.” April explained that the parents did not have a
house and that she liked living in her present home. When asked
if she had any other concerns about living with her parents, April
responded, “they fight.”
Mother and father were in partial compliance with their
case plans. Both parents had drug-tested inconsistently. Mother
had completed an outpatient substance abuse program and was
enrolled in individual counseling. The parents had not begun
conjoint counseling. Mother explained they were waiting for
father to complete his substance abuse program.
The parents’ in-person visits with the children were
suspended in March 2020 because of COVID-19. The in-person
visits were replaced by daily video visits. By July 2020 the
parents’ video visits with the children became more sporadic. On
August 24, 2020, the juvenile court ordered the Department to
prepare an update on the parents’ progress and continued the
matter to September 29, 2020.
The Department reported in September 2020 that mother
and father had enrolled in a 12-week parenting class and had
attended three of four sessions. Both parents failed to appear for
eight scheduled drug tests.
In-person visits between the parents and children resumed
in August 2020. The social worker monitored weekly two and a
half-hour visits on Tuesdays, and the maternal aunt monitored
weekend visits. The social worker noted that the parents did not
effectively manage the children’s tantrums and aggressive

6
behaviors. The parents would admonish the children not to hit
one another, but would engage in rough play with them
immediately thereafter. The social worker observed that Adan
began biting both mother and his siblings upon the parents’
arrival at an August 2020 visit. Mother admonished Adan not to
bite but then rolled on the ground with the children as they
pushed and climbed atop one another. Adan slapped mother on
the face several times and was aggressive with his siblings and
with mother throughout the visit. He cried at the end of the visit
and refused to get into his car seat.
When the social worker asked maternal aunt about Adan’s
behavior, she responded that Adan exhibited behavioral issues
after in-person visits with the parents. He had begun hitting and
biting other children at childcare. At home, Adan would refuse to
follow instructions, throw tantrums, and cry, asking for the
parents. His disruptive behaviors subsided two or three days
after parental visits. Maternal aunt further stated that the
parents “baby” the children, who then regress, mumbling and
speaking like babies when with the parents. The children then
had difficulty transitioning back to maternal aunt’s home, where
they were not allowed to engage in such behaviors.
Mother testified at the September 29, 2020 12-month
review hearing. She said she visited consistently with the
children; and when in-person visits were suspended, she and the
children participated in video visits that lasted between 30 and
40 minutes. Mother stated that April sometimes appeared
distant during the video visits and would not want to talk to her.
She added that video visits with the younger children were
sometimes very short. When in-person visits resumed in August
2020, mother did not miss a single visit. Mother said the

7
children were affectionate with her. She was never told that the
visits were inappropriate or had not gone well.
At the conclusion of the hearing, the juvenile court found
both parents to be in partial compliance with their case plans and
that neither parent had made significant progress in resolving
the problems that led to the children’s removal. The court
terminated reunification services and set the matter for a
permanency planning hearing.
Section 366.26 proceedings
The Department reported in January 2021 that maternal
aunt and her partner were strongly committed to adopting the
children. The Department noted that the children were closely
bonded with their caregivers, with whom they had been placed
since early July 2019.
The Department reported in March 2021 that April said
she was “happy” living with maternal aunt. Ariel also said she
“like[s] living with my auntie.” Adan appeared happy and
comfortable in maternal aunt’s home. The social worker observed
the children hugging maternal aunt and looking to her for
comfort. Maternal aunt responded by hugging the children in
return and giving them her attention.
Maternal aunt reported that father continued to call the
children on a weekly basis, but mother’s calls had become less
frequent. Both parents attended in-person weekly visits. When
asked if any of the children cried at the end of the visits,
maternal aunt responded no, the children had adjusted to the
routine.
At the March 29, 2021 hearing, the juvenile court identified
adoption as the appropriate permanent plan.

8
 In a May 2021 addendum report, the Department reported
that maternal aunt and her partner were closely bonded with the
children and were strongly committed to adopting them.
Maternal aunt said she would continue mother’s visits with the
children after the adoption. April told the social worker that she
wanted to be adopted by maternal aunt and to continue living
with her. April said she did not want to live with mother.
On May 27, 2021, the juvenile court set the matter for a
contested section 366.26 hearing. The court ordered the
Department to interview April and to prepare a supplemental
report.
In a last minute information for the court, the Department
reported that when the social worker asked April on May 28,
2021, whether she wanted to live with mother, the child said,
“Kind of.” April responded “yes” when asked if she wanted to
continue living with maternal aunt. In a June 12, 2021
interview, April told the social worker she wanted to be adopted
by her caregivers. April identified her caregivers as people she
could trust and speak to about anything. When asked if she felt
the same way about mother, April responded, “no.”
Section 366.26 hearing
Father did not attend the July 12, 2021 section 366.26
hearing. Mother was present and testified that she and father
had in-person weekend visits with the children that lasted
between two to three hours. Mother said that when the children
see mother and father, they run toward the parents and scream,
“Mommy, Daddy, we love you.” She described her relationship
with the children as “amazing.” During the visits, the children
show mother their art projects and tell her about what they had
learned in school. Mother testified that she also had daily

9
telephone contact with the children and maternal aunt. Mother
said she and maternal aunt had a good relationship and
communicated regularly about the children’s health and their
progress in school.
After hearing argument from counsel, the juvenile court
found by clear and convincing evidence that the children were
adoptable. The court then noted that the California Supreme
Court had recently “clarified the standard that applies” when
assessing the beneficial parent-child exception to terminating
parental rights. The juvenile court found that mother had
“probably carried her burden of demonstrating regular visitation”
with the children but noted that “the key issue” was “whether it’s
in the child’s best interest to avoid adoption and preserve the
parental bond and the parental relationship.”
The juvenile court observed that “[w]hile mother’s visits are
generally good, her monitoring of school progress does not really
equate with actually being a parental figure and being
responsible for the day-to-day oversight of the child’s progress in
school.” The court found significant April’s clearly stated
preference to be adopted: “She is the oldest child. She was in
mother’s care the longest. And she is quite clear . . . that she
would, in fact, like to be adopted. . . . And given that the other
two children are even younger and were in mother’s care for
much short[er] periods of time, I think the inference is quite
strong that there is not the kind of bond between mother and the
children that would not be compensated [by] the security of a new
and permanent adoptive home.” The juvenile court found no
exception to adoption applied and terminated parental rights.
The court responded in the affirmative to a request by father’s

10
counsel that the minute order “reflect that the termination of
parental rights is also over father’s objection.”
This appeal followed.

DISCUSSION
I. Beneficial parent-child exception
A. Applicable law and standard of review
Once a juvenile court has terminated reunification services
and determined that a child is adoptable, the court is required to
terminate parental rights unless it finds an applicable exception.
(§ 366.26, subd. (c)(1).) The exception at issue here, sometimes
referred to as the beneficial parent-child exception, applies when
“[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).)
The parent bears the burden of proving that the exception
applies. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 952-954.) To
do so, the parent must prove three statutory elements: “(1)
regular visitation and contact, (2) a relationship, the continuation
of which would benefit the child such that (3) the termination of
parental rights would be detrimental to the child.” (In re
Caden C. (2021) 11 Cal.5th 614, 631 (Caden C.).)
For the first element, visitation, the question is simply
whether the parent visited consistently, as permitted by court
orders. The focus is not on punishing or rewarding parents for
their behavior in visiting or maintaining contact, but on the best
interests of the child. (Caden C., supra, 11 Cal.5th at p. 632.)

11
 As to the second element, whether the child would benefit
from continuing the relationship, “the parent must show that the
child has a substantial, positive, emotional attachment to the
parent—the kind of attachment implying that the child would
benefit from continuing the relationship.” (Caden C., supra, 11
Cal.5th at p. 636.) The parent must also show that “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 re Autumn H.
(1994) 27 Cal.App.4th 567, 575 (Autumn H.).) Relevant factors in
assessing the parent-child relationship include “[t]he age of the
child, the portion of the child’s life spent in the parent’s custody,
the ‘positive’ or ‘negative’ effect of interaction between parent and
child, and the child’s particular needs.” (Id. at p. 576.) For the
third element, whether termination would be detrimental to the
child, the court must determine “how the child would be affected
by losing the parental relationship—in effect, what life would be
like for the child in an adoptive home without the parent in the
child’s life.” (Caden C., supra, at p. 633.)
We review the juvenile court’s findings concerning
visitation and whether the child would benefit from continuing
the relationship with the parent for substantial evidence.
(Caden C., supra, 11 Cal.5th at pp. 639-640.) Whether
termination of parental rights would be detrimental to a child
because of the child’s relationship with the parent is a question
we review for abuse of discretion. (Ibid.)
B. Father forfeited any claim that the exception
applies to him
Father forfeited any appellate challenge based on the
beneficial parent-child exception by failing to raise the issue in

12
the juvenile court below. An appellant’s failure to raise a
statutory exception to termination at the section 366.26 hearing
forfeits the issue on appeal. (In re Daisy D. (2006) 144
Cal.App.4th 287, 292.) Father’s counsel’s request that the court’s
minute order “reflect that the termination of parental rights is
over father’s objection” was insufficient to preserve the issue for
appellate review.
We decline father’s request to excuse his failure to raise the
exception in the juvenile court. While an appellate court has
discretion to review claims not raised in the trial court that
present important legal issues, that “discretion must be exercised
with special care,” particularly in dependency matters where
“considerations such as permanency and stability are of
paramount importance.” (In re S.B. (2004) 32 Cal.4th 1287,
1293.) A determination concerning the beneficial parent-child
exception raises factual questions that are unsuitable for
resolution on appeal. We therefore decline to exercise our
discretion to excuse father’s forfeiture of the issue.
C. Substantial evidence supports the finding that
the children did not share a substantial,
positive emotional attachment with mother that
would not be outweighed by the permanency of
an adoptive home
The juvenile court found, and the parties do not dispute,
that mother met her burden of showing regular visitation with
the children. The issue is whether mother met her burden of
proving that the children shared a substantial, positive emotional
attachment with her that would not be outweighed by the
security and permanency of an adoptive home. Substantial

13
evidence supports the juvenile court’s finding that mother did not
sustain this burden.
At the time of the section 366.26 hearing, the children had
been placed with their prospective adoptive parents for two
years—most of Adan’s and Ariel’s young lives. All three children
were closely bonded to their caregivers. April, the oldest child
who had lived with mother the longest, clearly and unequivocally
stated that she wanted to be adopted and did not want to live
with mother. April identified her prospective adoptive parents as
people she could trust and speak to about anything. She denied
that mother was such a person.
That the children were affectionate and comfortable with
mother during visits is insufficient to satisfy mother’s burden of
demonstrating that the children shared a substantial, positive
emotional attachment with her that would not be outweighed by
the benefits of adoption. To meet this burden, “[a] parent must
show more than frequent and loving contact or pleasant visits.”
(In re C.F. (2011) 193 Cal.App.4th 549, 555.) The positive aspects
of the children’s visits with mother were also offset by negative
behaviors the children exhibited during and after the visits.
When in-person visits resumed after the COVID-19-related
hiatus, the children had difficulty transitioning back to their
caregivers’ home and to childcare after the visits. Adan began
exhibiting behavioral issues, hitting and biting other children at
childcare and throwing tantrums at home. Adan also exhibited
aggressive behaviors during visits with mother. He bit his
siblings and mother and slapped mother in the face.
Mother’s claim that the juvenile court erroneously based its
decision on the fact that she did not occupy a “parental role” in
the children’s lives is unavailing. Some appellate courts have

14
expressed concern that a juvenile court’s use of that term or
similar terms such as “parental relationship” in the context of the
beneficial parent-child exception suggest that an improper legal
standard was applied. (See In re J.D. (2021) 70 Cal.App.5th 833,
864 (J.D.) [juvenile court’s conclusory determination that
mother’s relationship with child did not “‘amount to a parental
bond’” did not address whether child had a substantial, positive
emotional attachment to parent]; In re B.D. (2021) 66
Cal.App.5th 1218, 1229-1230 [questioning whether juvenile court
improperly “equated a parental role, as it related to application of
the parent-child relationship exception, with the ability to parent
‘on a fulltime basis’”].) That concern is not present here.
The juvenile court here stated on the record the relevant
factors delineated by the Supreme Court in Caden C., supra, 11
Cal.5th 614 for determining whether the beneficial parent-child
exception applies. It then applied those factors. The juvenile
court’s observation that mother did not occupy a “parental role”
does not persuade us that the court applied an incorrect legal
standard in this case.
We reject mother’s argument that the record contained
insufficient facts for the juvenile court to assess the strength of
her bond with the children as an improper request to reweigh the
evidence. Under the applicable standard of review, we must
uphold the juvenile court’s findings if, on the entire record, there
is substantial evidence to support those findings. We do not
reweigh the evidence; rather, we draw all reasonable inferences
in support of the findings and view the record in the light most
favorable to the juvenile court’s order. (In re Megan S. (2002) 104
Cal.App.4th 247, 251.)

15
 J.D., supra, 70 Cal.App.5th 833, on which mother relies as
support for her position, is distinguishable. The mother in that
case presented evidence that her five-and-a-half-year-old son,
who had lived with mother for half of his life, was clearly bonded
to her and remained bonded to her throughout the case. (Id. at
p. 856.) That evidence included reports from a family therapist
who observed that mother and children “‘appear to have a
positive and affectionate relationship,’” agency reports noting
that the children “‘come back from their visit[s] happy,’” and a
caregiver’s statement acknowledging the child’s positive bond
with mother. (Ibid.) Such evidence is not present in this case.
To the contrary, the record shows that April, mother’s oldest
child, who had lived with her the longest, was ambivalent about
returning to mother’s care. She stated unequivocally, however,
that she wanted to remain with her maternal aunt and to be
adopted by her. Unlike the children in J.D. who returned happy
from their visits with their mother, the children in this case
engaged in regressive or disruptive behaviors after parental
visits. Adan exhibited aggressive behaviors, throwing tantrums
at home and biting and hitting other children at daycare.
Substantial evidence supports the finding that the children
did not share a substantial, positive, emotional attachment with
mother that would not be outweighed by the benefits of a
permanent adoptive home with their maternal aunt.
D. No abuse of discretion in juvenile court’s
determination that terminating parental rights
would not be detrimental to the children
The juvenile court did not abuse its discretion by
concluding that terminating parental rights would not be
detrimental to the children. The relevant inquiry in this

16
determination “is how the child would be affected by losing the
parental relationship—in effect, what life would be like for the
child in an adoptive home without the parent in the child’s life.”
(Caden C., supra, 11 Cal.5th at p. 633.)
There is substantial evidence in the record that the
children’s interests would be best served by the stability of
adoption with their current caregivers, who met the children’s
daily physical and emotional needs. Maternal aunt accompanied
the children to their medical appointments, therapy sessions, and
regional service providers. The children looked to their maternal
aunt for comfort and assurance, and she responded by hugging
them and giving them her time and attention. The children were
closely bonded to their caregivers. April repeatedly and
unequivocally stated that she wished to be adopted by her
caregivers and to remain in their home. In contrast, she
expressed ambivalence about returning to mother.
That the children enjoyed visiting with the parents and
referred to them as “mommy” and “daddy” is insufficient to show
that terminating the parental relationship would be detrimental.
“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.”
(Autumn H., supra, 27 Cal.App.4th at p. 575.) The record here
shows that the children shared day-to-day interaction,
companionship, and experiences with their maternal aunt, not
with their mother.

17
 The juvenile court did not abuse its discretion by
terminating parental rights.
E. Legal guardianship
We reject mother’s contention that the juvenile court erred
by not considering legal guardianship as the children’s
permanent plan. Adoption is the preferred permanent plan once
a finding of adoptability has been made. (§ 366.26, subd. (c)(1);
In re S.B. (2009) 46 Cal.4th 529, 532.) Legal guardianship is an
alternative to adoption when a “child is living with a relative who
is unable or unwilling to adopt the child because of circumstances
that do not include an unwillingness to accept legal or financial
responsibility for the child, but who is willing and capable of
providing the child with a stable and permanent environment
through legal guardianship.” (§ 366.26, subd. (c)(1)(A).) Those
circumstances do not exist here. The children’s caregivers here,
maternal aunt and her partner were strongly committed to
adopting the children.
F. Sibling relationship exception
We need not address mother’s argument that the sibling
relationship exception requires reversal of the juvenile court’s
order if this court were to find that terminating parental rights
would be detrimental to one child but not to the others. No such
finding is warranted.
II. ICWA
Both parents contend the order terminating parental rights
must be reversed because the Department and the juvenile court
failed to ask extended family members, specifically, the paternal
grandmother, paternal uncle, maternal grandfather, and
maternal aunt, whether the children are or may be Indian
children under ICWA. The Department concedes that it failed to

18
fulfill its statutory duty of initial inquiry by not asking these
extended family members about the children’s possible Indian
status. The failure to do so was error. We conclude, however,
that the error was not prejudicial, given the parents’ disclaimer
of any knowledge of Indian ancestry and the absence of any
indication in the record that there was readily obtainable
information likely to bear meaningfully upon whether the
children are Indian children. (In re Benjamin M. (2021) 70
Cal.App.5th 735, 744 (Benjamin M.).)
A. Applicable law
ICWA and related California statutes reflect the
Legislature’s intent “to protect the best interests of Indian
children and to promote the stability and security of Indian tribes
and families by the establishment of minimum Federal standards
for the removal of Indian children from their families.” (25
U.S.C. § 1902; see In re K.R. (2018) 20 Cal.App.5th 701, 706,
fn. 3.) An “Indian child” is defined as any unmarried person
under the age of 18 who is either a member of an Indian tribe or
is eligible for membership in an Indian tribe and is the biological
child of a member of an Indian tribe. (25 U.S.C. § 1903(4); Welf.
& Inst. Code, § 224.1, subds. (a), (b).)
“Because it typically is not self-evident whether a child is
an Indian child, both federal and state law mandate certain
inquiries to be made in each case. These requirements are
sometimes collectively referred to as the duty of initial inquiry.”
(Benjamin M., supra, 70 Cal.App.5th at p. 741.) “The duty to
inquire begins with the initial contact, including, but not limited
to, asking the party reporting child abuse or neglect whether the
party has any information that the child may be an Indian child.”
(§ 224.2, subd. (a).) The court and child welfare department

19
“have an affirmative and continuing duty” to inquire whether a
child for whom a petition under section 300 may be or has been
filed may be an Indian child. (Ibid.)
Under California law, the child welfare department’s initial
duty of inquiry includes, but is not limited to, “asking the child,
parents, legal guardian, Indian custodian, extended family
members, others who have an interest in the child, and the party
reporting child abuse or neglect, whether the child is, or may be,
an Indian child and where the child, the parents, or Indian
custodian is domiciled.” (§ 224.2, subd. (b).) Under ICWA, the
term “extended family member” is “defined by the law or custom
of the Indian child’s tribe or, in the absence of such law or
custom, shall be a person who has reached the age of eighteen
and who is the Indian child’s grandparent, aunt or uncle, brother
or sister, brother-in-law or sister-in-law, niece or nephew, first or
second cousin, or stepparent.” (25 U.S.C. § 1903(2).)
The juvenile court must also inquire at each participant’s
first appearance in court whether the participant knows or has
reason to know that the child is an Indian child. (§ 224.2, subd.
(c).) In addition, the juvenile court must instruct the parties to
inform the court if they subsequently receive information that
provides reason to know the child is an Indian child. (§ 224.2,
subd. (c).)
If the “initial inquiry creates a ‘reason to believe’ the child
is an Indian child, then the Agency ‘shall make further inquiry
regarding the possible Indian status of the child, and shall make
that inquiry as soon as practicable.’ ([§ 224.2,] subd. (e), italics
added.) [I]f that further inquiry results in a reason to know the
child is an Indian child, then the formal notice requirements of
section 224.3 apply. (See § 224.2, subd. (c) [court is obligated to

20
inquire at the first appearance whether anyone ‘knows or has
reason to know that the child is an Indian child’]; id., subd. (d)
[defining circumstances that establish a ‘reason to know’ a child
is an Indian child]; § 224.3 [ICWA notice is required if there is a
‘reason to know’ a child is an Indian child as defined under
§ 224.2, subd. (d)].)” (In re D.S. (2020) 46 Cal.App.5th 1041,
1052.)
Neither the duty of further inquiry nor the ICWA notice
provisions are at issue here because no one contends there is
reason to know the children are Indian children.
B. No prejudicial error
The parents’ ICWA challenge is based on the Department’s
failure to ask extended family members (the maternal
grandfather, paternal grandmother, paternal uncle, and
maternal aunt) about potential tribal membership. The juvenile
court’s alleged dereliction of its duty is the failure to ensure a
proper inquiry by the Department. The statutory duty to ask
extended family members about a child’s possible Indian heritage
is imposed by California law on child welfare agencies only.
(§ 224.2, subd. (b).) Federal law imposes no such duty. (In re
S.S. (2022) 75 Cal.App.5th 575, 581 (S.S.); In re A.C. (2021) 65
Cal.App.5th 1060, 1069.) The failure to inquire of extended
family members accordingly is an error under state law only.
Under California law, we may not reverse unless we find that
error was prejudicial. (Cal. Const., art. VI, § 13; Benjamin M.,
supra, 70 Cal.App.5th at p. 742.)
In determining whether the failure to conduct a proper
ICWA inquiry was prejudicial, several appellate courts have held
that reversal is warranted only when the record indicates there
was readily obtainable information that was likely to bear

21
meaningfully upon whether the child is an Indian child.
(Benjamin M., supra, 70 Cal.App.5th at p. 744; In re A.C. (2022)
75 Cal.App.5th 1009, 1017 [applying Benjamin M. court’s
standard for prejudice]; In re Darian R. (2022) 75 Cal.App.5th
502, 509 [same]; S.S., supra, 75 Cal.App.5th at p. 581 [same].)
The courts in In re Antonio R. (2022) 76 Cal.App.5th 421,
435-436 (Antonio R.), and In re H.V. (2022) 75 Cal.App.5th 433,
438 (H.V.), adopted a different standard, holding that the
Department’s failure to interview extended family members
during its initial ICWA inquiry was prejudicial error and
therefore either reversible per se (H.V.) or above such a low bar
for prejudice that it was reversible (Antonio R.). In Antonio R.,
the parents both denied knowledge of any Indian ancestry. The
Department spoke with a paternal great-grandmother, who also
denied knowledge of any Indian ancestry. The Department did
not inquire about possible Indian ancestry with any maternal
extended family members, including the maternal grandparents,
who were designated as the prospective adoptive parents, and
maternal aunts and a maternal uncle, who were present at the
disposition hearing. The court in Antonio R. concluded that the
failure to do so was prejudicial error.
In H.V., the only person asked about possible Indian
ancestry was the minor’s mother, who filed an ICWA-020 form
denying knowledge of any Indian ancestry and informed the
juvenile court that the minor’s alleged father (who did not
appear) had no Indian ancestry. Although the Department
interviewed the minor’s maternal great-grandmother and
maternal great-grandfather, the record did not indicate whether
the social worker asked any of these relatives about the minor’s

22
possible Indian ancestry. The court in H.V. concluded that the
failure to do so was prejudicial and reversible error.
We decline to adopt the standard applied by the courts in
Antonio R. and H.V. We apply instead the standard for
prejudicial error articulated by the court in Benjamin M., supra,
70 Cal.App.5th 735.
The record in this case reveals no readily obtainable
information that was likely to bear meaningfully on whether the
children were Indian children, and neither parent asserts that
such information exists. Both mother and father told the social
worker that they had no knowledge of any Indian ancestry. Both
parents filed ICWA-020 forms stating they had no Indian
ancestry to their knowledge. Both parents appeared at the
detention hearing at which the juvenile court found, based on the
parents’ representations, that it had no reason to know that
ICWA applied. Both parents were instructed by the juvenile
court to make the court, the Department, and the parents’
attorneys aware of any new information concerning possible
ICWA status. Both parents were in contact during the case with
paternal and maternal extended family members. The family
lived in the maternal grandfather’s home at the outset of the
case. The children moved to the paternal grandmother’s home in
June 2019 and the parents initially agreed to have the paternal
grandmother assume legal guardianship over the children. The
children were then placed with maternal aunt, who monitored
the parents’ visits with the children and with whom the parents
remained in contact throughout the case. Neither parent brought
to the Department’s or the juvenile court’s attention any
additional information relevant to ICWA.

23
 Benjamin M., supra, 70 Cal.App.5th 735, In re Josiah T.
(2021) 71 Cal.App.5th 388, and In re Y.W. (2021) 70 Cal.App.5th
542 (Y.W.), on which the parents rely, are factually
distinguishable. The father in Benjamin M. never appeared in
court and was never asked whether he had reason to believe the
subject minor was an Indian child. (Benjamin M., at p. 744.) The
child welfare agency never asked the father’s brother and sister-
in-law, whom the agency contacted in an effort to locate the
father, about the minor’s possible Indian ancestry. The court in
Benjamin M. noted that the father’s brother’s knowledge of his
own Indian heritage was likely to bear meaningfully on the
father’s status. (Id. at p. 745.) Josiah T. similarly involved a
missing father who was not available to claim or deny Indian
ancestry. (Josiah T., at pp. 393-394, 403.) Although the paternal
grandmother in that case claimed Cherokee ancestry, the agency
then failed to disclose or follow up on that claim. Here, in
contrast, both parents appeared in the juvenile court, both filed
ICWA-020 forms denying any knowledge of Indian ancestry, and
both repeatedly denied knowledge of any Indian ancestry. No
extended family member, including paternal relatives with whom
the children were initially placed and who wanted the children
placed with them, claimed to have any Indian ancestry.
Maternal aunt, with whom the children were subsequently
placed and who wanted to adopt the children, also never informed
the Department of any possible Indian ancestry.
In Y.W., supra, 70 Cal.App.5th 542, the mother, who was
adopted, filed an ICWA-020 form stating she had no knowledge of
Indian ancestry. The social services agency interviewed the
adoptive maternal grandmother, who did not know whether
mother’s biological family had any Indian ancestry. The adoptive

24
maternal grandmother told the social worker that she knew the
name of mother’s biological father but had no additional
information about him or his relatives. The adoptive maternal
grandmother further stated she could obtain contact information
for the mother’s biological maternal aunt. The agency never
followed up or sought to obtain further information about the
mother’s biological parents. (Id. at p. 549.) The court in Y.W.
held that the agency’s failure to do so was prejudicial error. (Id.
at pp. 552-553.) In this case, neither parent was adopted, and
mother and father repeatedly denied any knowledge of Indian
ancestry.
In re A.C., supra, 75 Cal.App.5th 1009, another recently
decided case, is distinguishable for similar reasons. Like the
adopted mother in Y.W., the mother in A.C. lived in foster care,
separated from her biological relatives much of her life. Although
the mother in A.C. denied knowledge of any Indian ancestry
during an initial interview with the social worker and filed an
ICWA-020 form indicating she had no known Indian ancestry,
the Department nevertheless concluded for unidentified reasons
that ICWA “‘may apply.’” (Id. at p. 1013.) There was no
indication that the Department conducted an ICWA inquiry of
any extended family members, including a maternal cousin and
maternal aunt with whom the minors were placed. (Ibid.) The
appellate court noted that the mother, who was a product of
foster care, may not have known her cultural heritage, whereas
the same was not true of the maternal relatives. The court
therefore held that the Department’s failure to ask the maternal
relatives about possible Indian ancestry constituted prejudicial
error. (Id. at p. 1017.)

25
 Cases cited by father, In re T.G. (2020) 58 Cal.App.5th 275
and In re S.R. (2021) 64 Cal.App.5th 303, are equally
distinguishable. The courts in those cases found prejudicial error
when the agency failed to conduct a further ICWA inquiry of
extended family members after a claim of Indian ancestry. (T.G.,
supra, at pp. 282-285 [mother claimed Cherokee heritage]; S.R.,
supra, at pp. 308, 310, 315-316 [maternal grandmother reported
that maternal great-grandmother was a member of federally
recognized tribe].) No claim of Indian ancestry was made in this
case.
The facts here are similar to those in In re Darian R.,
supra, 75 Cal.App.5th 502 and S.S., supra, 75 Cal.App.5th 575.
In Darian R., both parents filed ICWA-020 forms denying
knowledge of Indian ancestry, and the juvenile court ordered the
parents to keep the Department and the court apprised of any
new information relating to possible ICWA status. The court
rejected the mother’s argument that the Department’s failure to
interview the maternal grandfather and maternal aunt about
their Indian ancestry was prejudicial. The court noted that in a
previous dependency case, the juvenile court had found ICWA did
not apply to two of the three children, that all three children had
the same parents, and hence, the same ancestry. (Darian R., at
p. 509.) The court in Darian R. further noted that the mother at
various times had lived with the maternal relatives she claimed
the Department failed to interview and that she had been
ordered to continue to update the Department and the court with
any information relevant to ICWA. (Darian R., at p. 510.) Here,
as in Darian R., the children and the parents lived with maternal
and paternal relatives at the outset of the case. Mother and
father also had ongoing contact with maternal aunt, with whom

26
the children were subsequently placed. The parents were
instructed to continue to provide relevant ICWA information to
the Department and the juvenile court. After denying any Indian
ancestry, mother and father provided no additional ICWA
information.
In S.S., supra, 75 Cal.App.5th 575, the court concluded the
Department’s failure to ask the maternal grandmother about the
child’s possible Indian ancestry was not prejudicial because the
maternal grandmother, the mother’s counsel, and the minor’s
counsel had all requested placement with the maternal
grandmother. Under ICWA, when an Indian child is the subject
of foster care or adoptive placement proceedings, preference must
be given to a member of the Indian child’s extended family. (25
U.S.C. § 1915(a), (b).) The requested placement, the court
reasoned, gave rise to a strong incentive to bring to the juvenile
court’s attention any facts suggesting the minor was an Indian
child. The failure to do so implied that the maternal
grandmother was unaware of such facts. (S.S., supra, at p. 582.)
The children in this case were initially living with paternal
relatives with whom the parents wanted to have the children
placed. The children were subsequently placed with a maternal
aunt who wanted to adopt the children. Like the maternal
grandmother in S.S., the extended family members in this case
had a similarly strong incentive to make the Department aware
of any relevant ICWA information.
On the record presented here, we cannot conclude that the
Department’s failure to ask the maternal grandfather, paternal
grandmother, paternal uncle, and maternal aunt about the
children’s Indian ancestry was prejudicial error.

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 DISPOSITION
The orders terminating parental rights and freeing the
children for adoption are affirmed.

________________________
CHAVEZ, J.

We concur:

________________________
LUI, P. J.

________________________
ASHMANN-GERST, J.

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