In re J.Y. CA4/1

Filed 6/17/22 In re J.Y. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re J.Y., a Person Coming Under
the Juvenile Court Law.
D079912
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. J520193A)

Plaintiff and Respondent,

v.

J.Y.,

Defendant and Appellant.

APPEAL from orders of the Superior Court of San Diego County, Ana
L. Espana and Marian F. Gaston, Judges. Affirmed.
Marisa L.D. Conroy, under appointment by the Court of Appeal, for
Defendant and Appellant.
Lonnie J. Eldridge, County Counsel, Caitlin E. Rae, Chief Deputy
County Counsel, and Eliza Molk, Deputy County Counsel, for Plaintiff and
Respondent.
 Minor J.Y. was detained from his parents at birth after he was exposed
to cocaine and marijuana in utero. Father appeals orders denying his request

under Welfare and Institutions Code1 section 388 for placement of J.Y. with

him and terminating his parental rights under section 366.26.2 He contends
that he qualified as a noncustodial parent under section 361.2 and, therefore,
the court applied the wrong standard in considering his request. He also
contends that the court and the San Diego County Health and Human
Services Agency (Agency) did not comply with their duties of further inquiry
under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; ICWA) and,
therefore, substantial evidence did not support the juvenile court’s finding
that ICWA did not apply to J.Y. We disagree with these contentions and
affirm the orders.
I
BACKGROUND
A. Family History
Mother and Father are legally married and have multiple children
together. The family has a long history of involvement with child welfare
agencies. Over the years, the Agency received multiple reports about
Mother’s untreated mental health conditions and concerns that the children
were not properly fed or cared for. There were also reports of domestic
violence and verbal abuse between the parents and excessive physical
discipline of the children. The family has struggled with housing instability,

1 Further undesignated statutory references are to the Welfare and
Institutions Code.

2 Because appellant and minor share the same initials, we refer to
appellant as Father and to minor by the initials J.Y. Mother is not a party to
this appeal.

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accessing and participating in services, and maintaining sufficient aid levels
to meet minimum standards for food, clothing, and shelter.
B. J.Y.’s Detention
In October 2019, J.Y.’s umbilical cord tissue tested positive for both
marijuana and cocaine at birth, which indicated Mother used drugs during
the last trimester of her pregnancy. Nursing staff fed J.Y. in the hospital
when Mother did not respond to the newborn’s cues. The Agency took
custody of J.Y. due to the toxicology results and concerns about the parents’
ability to care for him.
Mother denied using cocaine. She said that her other children were
living with Father and that he could have J.Y. as well. Father was living in a
motel and stated he was not currently in a position to care for the infant. He
believed he could manage the baby if his oldest daughter could help.
The Agency filed a petition in October 2019 alleging that J.Y. was a
child within the jurisdiction of the juvenile court pursuant to section 300,
subdivision (b)(1) because the child suffered or was at substantial risk of
suffering serious physical harm or illness as a result of the failure or inability
of both parents to protect or care for the child. The Agency alleged that
Mother used cocaine and marijuana during her pregnancy, that she had an
untreated mental health diagnosis, and that she had demonstrated increased
irritability and aggression toward J.Y.’s minor siblings. The Agency alleged
that Father knew about Mother’s history of cocaine usage and mental health
issues.
The Agency expressed concern that Father was not protective because
he had taken their older children into his care at various points, but
eventually all or some of the children returned to Mother’s care. Father
made no efforts to obtain supplies to care for the infant J.Y. He planned to

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care for J.Y. and nine other children in the evenings after work. He said his
adult daughter would watch the non-school-age children, including J.Y.,
along with the daughter’s four children during the day. There were, however,
reports that the adult daughter provided financial support for the family by
exchanging sexual favors for money, apparently in an adjoining motel room.
Father believed his family needed help to obtain permanent housing and
Mother needed mental health help. Father thought the Agency would
provide all necessary childcare supplies.
The Agency requested J.Y.’s removal from the custody of both parents.
At the detention hearing on October 31, 2019, Father did not ask for J.Y.’s
placement with him. He asked the court to give the Agency discretion to
place the infant with him once he had the means and a plan to care for the
child.
The court found that the Agency had made a prima facie showing that
J.Y. was a person described by section 300, subdivision (b) and that removal
from “both parents” was necessary. The court ordered J.Y. placed in a
resource family foster home.
C. Jurisdiction/Disposition
A social worker expressed concern in an interview with Father about
his daughter engaging in prostitution. He said he could not stop her. When
the social worker said he had a choice about who he used to care for his young
children, Father said he knew she did not do it when he was away because
the children would tell him if someone came to the room. Father was
frustrated about his lack of resources and his struggle to support his many
children. Father denied he was unable to care for his children, but said his
limited resources made it difficult. Father was comfortable with J.Y.’s

4
placement in the foster care home. He said that it might be best to put all of
the children in foster care for their safety due to lack of resources.
Four of the younger children were thereafter voluntarily placed in out-
of-home care while the older children remained with Father. Father denied
using drugs or alcohol, but admitted he used marijuana daily.
The jurisdiction and disposition report considered placement with
Father as a noncustodial parent, but noted that he was not asking for
placement due to his extremely limited resources. The Agency also noted
that Father often left the older children to care for themselves or others while
he was at work.
The Agency did not believe it was safe to return infant J.Y. to the home
of either parent. Mother had disabling and debilitating mental health
concerns. Neither parent had supplies for the infant. Both parents reported
consistent use of marijuana. The social worker commented that the family
had “a tremendous amount of stress with worrying about where they are
going to live, how they are going to put food on the table and getting everyone
from one place to another.” Assessing the case was difficult due to the
“complexities and ever[-]changing dynamics in the two homes.” The Agency
concluded that the current home environments for both parents posed an
imminent risk of neglect, injury, or death to the infant.
The Agency expressed concern that Father would leave J.Y. in the care
of unsafe people or around dangerous activities and that he could not provide
stable food, clothing, or shelter to meet the infant’s needs. Father’s case plan
included a parent education program and substance abuse testing. Father
agreed to the case plan and to receive voluntary services to assist with
housing so he could be in a position to care for J.Y.

5
 In early December 2019, Father reported that six of his minor children
were staying with Mother at a homeless shelter. Father said he lost his job
and wanted to focus on obtaining food stamps and housing before looking for
work. After Mother reported that she had an altercation with some of the
children, she took them to Father’s motel room and went to get something to
eat. When she returned, he yelled at her and threatened to punch her.
About two weeks later, Father answered Mother’s door during an
unannounced home visit. He denied he was living there and said he was
watching the children while Mother was out.
During a visit with J.Y., Father informed the social worker that he did
not want to relinquish his rights to J.Y. and felt the child should be in
Mother’s care. Father said Mother exaggerated her mental health issues and
he did not believe they impacted her ability to parent.
At the contested trial on January 14, 2020, the court received and
considered the Agency’s detention report, jurisdiction and disposition report,
and the addendum report. Father asked the court to find that the Agency
failed to meet its burden, dismiss the petition, and return J.Y. to the parents’
care. He requested unsupervised visitation if the court made a true finding
on the petition. Father did not object to the recommendation for parenting
classes and random drug tests. He requested a referral to a housing
program.
The court made a true finding on the petition and ordered that J.Y.
would “remain removed from his parents.” The court ordered supervised
visitation for the parents. The court also ordered referrals to the housing
program.

6
D. Six-month Review Period
Six months later, in July 2020, the Agency reported that Father had
been looking for housing since he obtained a housing voucher in mid-March.
He reportedly had difficulty finding housing due to credit score requirements.
He stayed with Mother when he did not have money to stay in motels, but
denied living with Mother. Father said he and his son lived in a motel and
they stopped by Mother’s apartment to shower after work. Father was
working again with his prior employer.
Mother’s mental health and memory issues presented significant
challenges for her treatment. Mother obtained housing, but was afraid to
stay alone. Father expressed concern that Mother was using drugs because
she did not return home for weeks at a time.
Father missed phone calls in April 2020 with a parent visitation coach
and a group parenting referral. He enrolled in an online group parenting
class, but did not attend. Father reported in late May 2020 that he
understood someone would set him up with a parenting partner, but he had
not heard from that person. The Agency was concerned that Father was
avoiding services to help him address his anger and impulse issues. He was
not participating in a domestic violence group as required by his case plan. A
service provider said he attended two meetings, but she had not completed
his intake interview and she had not seen him since she moved her practice.
Father complied with requests for drug tests. On each test, he tested positive
for marijuana and negative for other substances.
At a telephonic child and family team meeting on June 24, 2020, Father
reported he was still waiting for a parenting group and was still looking for
housing. Visits with J.Y. were virtual due to COVID-19 restrictions. Father
engaged with the child during the video visits. He shared his observations

7
from these visits and asked about J.Y.’s progress. However, when the team
discussed in-person visits, Father began to yell and curse saying the lawyers
did not care about his family. He became more agitated and raised his voice
when a team member mentioned that the parents needed to address their
domestic violence issues. He admitted they got into a physical confrontation
when Mother called him a racial slur, but said there would be no more
domestic violence issues between them because they would not be around
each other. Father then said he was “ ‘done with this meeting’ ” and abruptly
hung up the phone. Mother became quiet and stated, “you would not
understand, it’s biblical.” As the meeting continued, others on the call heard
through Mother’s line that Father entered Mother’s home, gathered some
belongings, cursed at her, and slammed the door while telling Mother not to
contact him.
The Agency had concerns about Father’s failure to take responsibility
for his role in J.Y.’s detention. The Agency initially recommended
termination of services for Father as of July 2020, but exercised discretion to
recommend an additional six months of services due to disruption in his
services and visitation due to the COVID-19 restrictions.
J.Y. remained in the foster home where he had resided since he was
eight days old. He appeared to be happy, nourished, and adjusted. He was
bonded with his caregivers and treated as a member of their family. He had
a good bond with the caregivers’ other children.
At the contested six-month review hearing in August 2020, the court
adopted the Agency’s recommendations.

8
D. Twelve-month Review Period
Father completed a hair follicle test in October 2020, which tested
positive for cannabinoids, amphetamines, and methamphetamines. Father
denied using substances other than marijuana.
Father’s housing situation was unchanged. He had only a few housing
leads. He was let go from his job, but was later rehired. He received
parenting services through a family support partner, but had not yet been
assigned to a therapist. He reported struggling with anger and being “ ‘on
the edge of losing it’ ” with the dependency case. During a child and family
team meeting in November 2020, Father raised his voice and said the social
worker was creating barriers to prevent him from getting his son back. He
left the meeting and said he would not attend in-person visits with J.Y.
because he was not comfortable with the caregivers.
Father attended some in-person visits but was not very interactive with
J.Y. and did not stay close to J.Y. when he was climbing on objects. Father
said he did not feel bonded with J.Y. because he missed in-person time during
the first year of J.Y.’s life.
J.Y. continued to do well in his foster family. His caregivers loved and
cared for him, were attentive to him, and took him to medical appointments,
physical and occupational therapy, and infant education programs. Father
expressed his gratefulness to the caregivers for caring for J.Y. so well.
The Agency believed it would be detrimental to return J.Y. to his
parents’ home because neither parent could meet his needs. Mother
continued to use illegal substances and struggled with her own needs.
Father continued to spend time with Mother and had a positive drug test. He
was compliant with parent education, but did not participate in in-person
visits between July 2020 and mid-October 2020. Father did not demonstrate

9
his abilities to feed, diaper, or engage with J.Y. He did not have the means to
provide shelter or adequate supervision. In the status review report, the
Agency initially recommended termination of reunification services for
Mother, and continuation of services for Father to the 18-month hearing.
At the 12-month review hearing on December 9, 2020, both parents
requested a trial. Father requested return of J.Y. to his care. He said that he
obtained housing the day before and hoped to bring all the children home.
The court set the matter for trial.
In February 2021, J.Y. received a working diagnosis of cerebral palsy.
The Agency also changed its recommendations and requested terminating
reunification services for both parents after receiving concerning information
about Father’s inability to maintain boundaries with Mother. The Agency
learned that Father took the other dependent children to Mother’s home
during his unsupervised visits even though he was not permitted to supervise
Mother’s visits with the children. Father was let go from his job and his
housing lead fell through. He had been unable to obtain housing in over a
year. In an unannounced visit to Mother’s home, Father answered the door.
Both parents admitted that Father resided with Mother despite their
differences and their history of domestic violence.
In March 2021, the Agency received reports that Father screamed in
the face of one of his children as the child held his hands over his face.
Father said he was disciplining the boy and talking to him about something
serious.
The contested 12-month hearing was continued to April 16, 2021 to
coincide with the trial on the siblings’ case. In an addendum report filed
before the contested hearing, Father reported that he secured a three-
bedroom apartment and was waiting to finalize the paperwork. The Agency

10
reported that Father had recently moved out of Mother’s home and only
recently started putting up boundaries with Mother. The Agency continued
to recommend termination of reunification services for both parents.
E. Termination of Services
Father testified at the contested hearing that he signed a lease for a
three-bedroom apartment. He needed furniture, including beds for the
children, and the ability to obtain food. He requested placement of J.Y. with
him.
After hearing the evidence presented, the court found it would be
detrimental to place J.Y. with either parent. The court terminated services
for both parents. The court found “with a heavy heart” that they were “out of
time” for J.Y., that it would be “detrimental to place [J.Y.] with either
parent,” and that there was not a substantial probability that he could be
returned to either parent by the 18-month review date, which was then only
two weeks away. The court concluded by saying it had “no doubt that
[Father] loves [J.Y.] and wants to be able to parent him, but he simply has
not been able to invest the time. Sadly, we are at the end of the time allotted
by the Legislature . . . for [Father] to show that he can safely parent [J.Y.].”
The court set a hearing to determine a permanent plan pursuant to section

366.26.3

3 Reunification services for the parent of a child who was under three
years of age on the date of initial removal are generally provided with a
presumptive minimum of six months of services, but no longer than 12
months from the date the child entered foster care, unless the child is
returned to the home of the parent. (§ 361.5, subd. (a)(1)(B); In re M.F. (2019)
32 Cal.App.5th 1, 21; In re Jesse W. (2007) 157 Cal.App.4th 49, 59.) This
expedited statutory scheme recognizes that “time is of the essence” for very
young children in the foster system and they require “ ‘a more timely
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F. Father’s Section 388 Motion and Contested Section 366.26 Hearing
Father filed a section 388 motion requesting the return of J.Y. to his
care in September 2021. He stated that he had successfully reunified with
his other minor children and he was compliant with his services. He stated
that J.Y. would benefit from being raised with his siblings and from being
part of the family’s faith.
The Agency filed an addendum report recommending denial of Father’s
section 388 petition. The Agency noted that J.Y. was a happy toddler who
was doing well with the caregivers he had been with since he was released
from the hospital at eight days old. J.Y.’s caregivers had consistently
ensured that all of his physical, developmental, and emotional needs were
met. They were interested in adopting J.Y.
J.Y. had significant medical needs. He had been diagnosed with
cerebral palsy, and his caregivers took him to multiple medical and
nonmedical appointments each week. The caregivers had been diligent in
informing Father of all services and appointments, but he had attended only
one medical appointment and had not inquired on his own initiative.
Since Father’s reunification services had been terminated in April
2021, he had missed all of his scheduled virtual visits with J.Y. and attended
only 13 of his 20 scheduled in-person visits. Since reunifying with his older
children in the summer of 2021, Father had cancelled approximately every
other visit with J.Y. He appeared to be overwhelmed with the schedules of
his older children.
The Agency stated that at J.Y.’s age (nearly two years old), consistent
and frequent interaction was necessary to build healthy attachments with his

resolution of a permanent plan because of their vulnerable stage of
development.’ ” (Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 846-847.)

12
parental figures. Thus, the Agency did not believe it would be in J.Y.’s best
interests to be placed with Father. The Agency also expressed concern about
Father’s ability to meet J.Y.’s ongoing medical and developmental needs if he
were the primary caregiver.
Father’s section 388 motion and the contested section 366.26 hearing
were heard over four days between November 29, 2021 to January 6, 2022.
1. Testimony
Father testified that most of his minor children were recently placed in
his care. His 19-year-old son also lived with him. One minor child remained
out of the home due to emotional or behavioral issues.
Father had stable housing for the last seven to eight months. He
denied having a substance abuse problem and said he complied with every
request for a drug test. He completed a parenting class and he addressed
issues of domestic violence and codependency in individual therapy. Father
denied learning anything in his parenting class. He said he knew most of
what was taught from raising so many other children. He believed he could
take care of all his children.
Father said he had not had much contact with Mother since March
2021.
Father considered his 19-year-old son to be his parenting support
because the son would sit with the children if needed. According to Father,
most of the children were old enough to look after one another.
J.Y. never lived with Father. During Mother’s pregnancy with J.Y.,
Father was homeless and living on the street while Mother stayed in a
shelter with the other children. He denied knowing she used drugs.
Father believed his visits with J.Y. were consistent. He cancelled
several visits when he had conflicts with other appointments for his case

13
plan. Father denied knowing he was scheduled for weekly virtual visits in
addition to weekly in-person visits. When Father saw comments in Agency
reports that he was not attending virtual visits, he did not seek to arrange
virtual visits because he had things to do with his other children.
Father thought he and J.Y. had “somewhat of a bond.” He believed J.Y.
understood Father was his biological father. Father thought the COVID-19
restrictions hindered his ability to make a connection. A social worker
testified that J.Y. did not call Father by any name. He did not appear
distressed at the end of any visit.
After Father regained custody of his other children, he took them to
visits with J.Y. J.Y. interacted and played well with the other children
during visits. The social worker reported that the older siblings checked in at
the beginning and the end of the visits with J.Y., but explored other parts of
the park on their own. The social worker expressed concern that Father was
unable to see or hear the children at the other part of the park. Father
denied that he did not adequately supervise the other children. Because
most of the children are older, he did not believe he needed to supervise them
in the same fashion as the younger children.
Father allowed J.Y. to ride a scooter with an older sibling. J.Y. did not
have a helmet and wore leg braces. The social worker expressed safety
concerns about allowing the children to go too far away from him. Father
minimized concerns that J.Y. was in danger.
Father did not provide diaper supplies because the caregiver brought
those items. He said he brought snacks, clothing, and shoes. After
reunification with his other children, Father claimed he cancelled two visits
with J.Y. because of childcare issues or because he was tending to matters
required by the dependency proceedings for his other children.

14
 When asked about the March 2021 incident in which he was observed
screaming in the face of one of the children, Father denied the incident
occurred the way it was reported. He said he needed to raise his voice to get
the child’s attention about a serious issue.
Father disagreed that there was not enough space for J.Y. in the
family’s home. They lived in a three-bedroom apartment and he had a small
bed for J.Y. The girls slept in one room, the boys slept in another, and Father
said he had separate beds for J.Y. and the next youngest child in his room.
Father acknowledged he had a lot of responsibilities with his many
children. But he believed he could include J.Y. in the family. He said he
understood J.Y.’s medical conditions, which include a working diagnosis of
cerebral palsy and an issue with his eyes. He believed he could keep J.Y.’s
medical appointments and therapy. Father believed J.Y. deserved to know
and be a part of his family.
Father’s urine drug tests were consistently negative for substances,
except for marijuana. He agreed a hair follicle test was positive for
methamphetamine, but stated this was a false positive. He denied using
methamphetamine. When he attempted to retest, he was told they did not
obtain a sufficient sample. He did not retest thereafter. Father still uses
marijuana, but denied using it around the children.
Father admitted his oldest son was not permitted to live with him in
his current housing. Under the terms of his housing voucher, he was only
allowed to have seven people live with him whereas there were nine people
living in the home at the time of the hearing.
2. Court Rulings
On December 22, 2021, the court found that there were changed
circumstances for Father given that he reunited with the older children, had

15
housing, and was participating in services. The court commented that it
appeared Father had the most stability he had had in a long time. However,
the court found that it was not in J.Y.’s best interests to place him in Father’s
home and denied Father’s section 388 petition.
At the next hearing on January 6, 2022, the court terminated all
parental rights and declared J.Y. free from both Mother and Father. The
court noted that Father visited J.Y. more often than Mother, but his visits
were limited to one supervised visit per week and were not consistent. The
court found there was no substantial positive emotional attachment between
Father and the child. Father’s relationship with J.Y. was more like a friendly
visitor whereas the child had a significant attachment to his caregivers, who
provided the only home he has known. The court found that there was no
significant parental bond between Father and J.Y. that would outweigh the
benefits that adoption would provide for the child. The court found that
adoption was in the best interests of the child and ordered adoption as the
permanent plan.
II
DISCUSSION
A. The Court Properly Denied Father’s Section 388 Petition
Father contends the juvenile court erred in considering his section 388
petition using the “best interests” standard generally applied to a motion
requesting a modification of a juvenile court order due to changed
circumstances. (§ 388, subds. (a)(1), (d); In re Stephanie M. (1994) 7 Cal.4th
295, 317 (Stephanie M.); In re G.B. (2014) 227 Cal.App.4th 1147, 1157 (G.B.).)
Father argues that the court should instead have used the “detriment”
standard for placement with a noncustodial parent under In re Liam L.
(2015) 240 Cal.App.4th 1068, 1086 (Liam L.). He alternatively contends that

16
even if the juvenile court applied the correct standard, it abused its discretion
in denying his petition. We disagree.
After a juvenile court exercises jurisdiction over a child pursuant to
section 300, it must determine the appropriate disposition for that child.
(§§ 360, subd. (d), 361, 362; In re N.M. (2011) 197 Cal.App.4th 159, 169.) If
the court removes the child from the care of the custodial parent pursuant to
section 361 at the dispositional hearing, section 361.2 requires the court to
determine “whether there is a parent of the child, with whom the child was
not residing at the time that the events or conditions arose that brought the
child within the provisions of [s]ection 300, who desires to assume custody of
the child. If that parent requests custody, the court shall place the child with
the parent unless it finds that placement with that parent would be
detrimental to the safety, protection, or physical or emotional well-being of
the child.” (§ 361.2, subd. (a); In re Zacharia D. (1993) 6 Cal.4th 435, 453
(Zacharia D.).) “ ‘A detriment evaluation requires that the court weigh all
relevant factors to determine if the child will suffer net harm.’ ” (Liam L.,
supra, 240 Cal.App.4th at p. 1086.)
Section 361.2, subdivision (a) generally applies at a dispositional
hearing after a child has been removed from the care of the custodial parent.
(Zacharia D., supra, 6 Cal.4th at p. 453.) However, courts have held that a
noncustodial parent may raise the issue of placement later in the proceedings
by seeking modification of a juvenile court’s disposition order under section
388 based on new evidence or changed circumstances. (Zacharia D., at
pp. 454–455; Liam L., supra, 240 Cal.App.4th at pp. 1083–1084.)
Typically, “[s]ection 388 provides an ‘ “escape mechanism” ’ for parents
facing termination of their parental rights by allowing the juvenile court to
consider a legitimate change in the parent’s circumstances after reunification

17
services have been terminated. [Citation.] This procedural mechanism,
viewed in the context of the dependency scheme as a whole, provides the
parent due process while accommodating the child’s right to stability and
permanency. [Citation.] After reunification services have been terminated, it
is presumed that continued out-of-home care is in the child’s best interests.
[Citation.] Section 388 allows a parent to rebut that presumption by
demonstrating changed circumstances that would warrant modification of a
prior court order.” (In re Alayah J. (2017) 9 Cal.App.5th 469, 478.) The
petitioner bears the burden of showing, by a preponderance of the evidence,
both: (1) a change in circumstances or new evidence; and (2) that the
requested order is in the child’s best interests. (§ 388, subds. (a)(1),
(d); Stephanie M., supra, 7 Cal.4th at p. 317; G.B., supra, 227 Cal.App.4th at
p. 1157.)
Although the juvenile court here applied the statutory “best interests”
standard (§ 388, subd. (d)), Father contends that it should have applied the
detriment standard of Liam L. In Liam L., several minors were detained
based on reports of physical abuse by their mother. (Liam L., supra,
240 Cal.App.4th at p. 1074.) The minors’ father, who lived out of state and
had not seen the children for five years, learned about the dependency
proceedings and contacted the Agency. (Ibid.) He chose not to seek
immediate custody so that the mother would have an opportunity to reunify
with them. (Id. at p. 1075.) In the meantime, however, the father made
efforts to develop a relationship with the children, including visitation. (Id.
at p. 1076.) At the 12-month review hearing, the court terminated the
mother’s reunification services and ordered the children placed with the
“nonoffending” father. (Id. at pp. 1077-1079.) Although the father had not
actually filed a section 388 petition, we concluded that such a petition was

18
the proper remedy for a noncustodial parent to seek placement after the
disposition hearing, and we found it to be harmless error that he had not
actually filed one. (Id. at pp. 1082-1084, 1086.)
On the merits, we ruled that when a noncustodial parent files a section
388 petition seeking custody for the first time after the disposition hearing, a
court “must place the child with the noncustodial parent unless the opposing
party establishes that the placement would be detrimental to the child’s
safety.” (Liam L., supra, 240 Cal.App.4th at p. 1085.) Our conclusion was
compelled by: (1) a nonoffending parent’s constitutional right to care and
custody of his or her child in the absence of a finding that it would be
detrimental to the child; and (2) the underlying presumption in California’s
dependency scheme that it is in the child’s best interests to be placed with a
parent absent a finding of detriment. (Id. at pp. 1080, 1084-1086.)
We emphasized that in this context, the detriment and best interests
standards “ ‘are basically two sides of the same coin. What is in the best
interests of the child is essentially the same as that which is not detrimental
to the child.’ ” (Liam L., supra, 240 Cal.App.4th at p. 1085; see also id. at
p. 1086 [“In this context, a finding of detriment is equivalent to a finding that
placing the dependent child with the noncustodial parent is not in the child’s
best interests”].)
In Liam L., however, we expressly declined to “consider whether the
presumption that placement with the noncustodial parent would be in the
minors’ best interests (and resulting analysis) would still be applicable if the
noncustodial parent participates in reunification services, the parent fails to
make substantial progress, the court terminates those services, and the court
sets a selection and implementation hearing under section 366.26.” (Liam L.,
supra, 240 Cal.App.4th at p. 1086.)

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 The latter situation is presented here. Father was involved in the
dependency case from the outset. When J.Y. was detained at birth, he was
removed from both parents’ care based, in part, on allegations that Father
knew about Mother’s cocaine usage and mental health issues, his inability to
be protective, and the history of domestic violence between the parents. The
court provided Father with nearly two years of reunification services, but
terminated them at the 12-month review hearing after he failed to make
substantial progress. The court then set a hearing to determine a permanent
plan under section 366.26. These are exactly the circumstances we declined
to address in Liam L.
We now conclude that the Liam L. detriment standard does not apply
in these circumstances. Critically, by the time Father filed his section 388
petition, the juvenile court had already twice made findings that it would be
detrimental to place J.Y. with him. First, at the six-month review hearing,
the court found by clear and convincing evidence that return of J.Y. to either
parent would create a substantial risk of detriment to his physical or
emotional well-being. Second, at the contested 12-month hearing, when
Father requested that J.Y. be placed with him, the court found that Father
had made no progress in alleviating or mitigating the causes necessitating
placement, and that it would be detrimental to place J.Y. with Father due to
Father’s issues with uncontrolled anger as well as his alcohol and marijuana
and an unexplained positive test for methamphetamine.
In these circumstances, the court was not required to apply the
detriment standard yet again in ruling on Father’s section 388 petition.
Where a parent has been given the benefit of reunification services, failed to
make significant progress, and the court has terminated reunification
services based on a finding of detriment, the proper standard for reviewing a

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parent’s subsequent section 388 petition is the statutory “best interests”
standard. (§ 388, subd. (d).) The detriment standard we adopted in Liam L.
was intended to protect the constitutional rights of a nonoffending,
noncustodial parent who had not previously been the subject of any finding
that placement with him or her would be detrimental to the children.
Our conclusion is consistent with the policies underlying the
dependency scheme. “[A]fter reunification efforts have terminated, the
court’s focus shifts from family reunification toward promoting the child’s
needs for permanency and stability. [Citation.] ‘A court hearing a motion for
change of placement at this stage of the proceedings must recognize this shift
of focus in determining the ultimate question before it, that is, the best
interests of the child.’ ” (In re J.C. (2014) 226 Cal.App.4th 503, 527, quoting
Stephanie M., supra, 7 Cal.4th at p. 317.) Because the court here had already
terminated Father’s reunification services and made findings that placement
with him would be detrimental to the children by the time he filed his section
388 petition, the focus had shifted from family reunification to J.Y.’s needs
for permanency and stability. The statutory “best interests” standard is the
proper standard for ruling on a section 388 petition in these circumstances.
We further conclude that the juvenile court did not abuse its discretion
in applying the best interests standard. In ruling on Father’s section 388
petition, the court carefully considered the evidence and the testimony as
well as the history of the dependency case. The court acknowledged that
Father’s circumstances had changed and recently became more stable than
they had been in a long time after he obtained housing and reunited with his
older children. For reasons it explained in detail at the hearing, however, the
court ultimately determined it could not find that it was in J.Y.’s best
interests to place him with Father.

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 The court observed that J.Y. was placed in his foster home eight days
after his birth when he was released from the hospital. He had formed an
attachment with his caregivers over the past two years and called them
“ ‘Mommy’ ” and “ ‘Daddy.’ ” J.Y. never lived with either parent or his
siblings. J.Y.’s cerebral palsy diagnosis required constant supervision and
presented safety challenges for his caregivers. It also required multiple
medical appointments every week.
Father had not progressed beyond one in-person supervised visit per
week and he only attended 65 percent of the scheduled visits since the
termination of reunification services in April. He also had not participated in
virtual visits during that time. The court found it concerning that Father did
not contact the caregivers between visits to ask about J.Y.’s well-being or
medical needs or to seek additional opportunities to interact with him. The
court did not find credible Father’s claim that he was not permitted to contact
the caregivers. Father had not formed a significant parental bond with J.Y.
and was not fully aware of his needs. The court agreed with an Agency
assessment that it appeared Father was “ ‘content with the knowledge that
[J.Y.] is well cared for by his caregivers and has the advantage of seeing him
once a week.’ ”
The court also expressed concern that a month after Father reunified
with eight of his children, one of his children was again removed because
Father could not manage the child’s behavioral issues. Additionally, Father
had more people living in the home than was allowed by his housing rules,
even without J.Y. in the home.
The juvenile court’s factual findings are supported by the evidence, and
it did not abuse its discretion in applying the best interests standard.
Although it is commendable that Father made changes to his life to provide

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more stability to himself and his older children, there is nothing arbitrary or
capricious about the court’s determination that placement with Father was
not in J.Y.’s best interests. (Stephanie M., supra, 7 Cal.4th at p. 318; In re
Y.M. (2012) 207 Cal.App.4th 892, 920.) After Father’s reunification services
were terminated, the focus shifted to J.Y.’s needs for permanency and
stability. (Stephanie M., at p. 317.) Considering the totality of the record,
the court properly exercised its discretion to deny Father’s section 388
petition and leave J.Y. in the custody of the caregivers he has been with since
birth.
B. ICWA Inquiry
Father also contends that there is no substantial evidence to support
the juvenile court’s finding that ICWA does not apply to this case because the
Agency and the court failed to comply with their duties of inquiry. We again
disagree.
1. General Principles
Congress enacted ICWA to address concerns regarding the separation
of Native American children from their tribes through adoption or foster care
placement. (In re Isaiah W. (2016) 1 Cal.5th 1, 7.) An “ ‘Indian child’ ” is
“any unmarried person who is under age eighteen and is either (a) a member
of an Indian tribe or (b) 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); see
Welf. & Inst. Code, § 224.1, subd. (a) [adopting federal definition of “ ‘Indian
child’ ”].) Under California law adopted pursuant to ICWA, the juvenile court
and the Agency have an “affirmative and continuing duty to inquire” whether
a child “is or may be an Indian child.” (§ 224.2, subd. (a); Isaiah W., at p. 9.)
“[S]ection 224.2 creates three distinct duties regarding ICWA in
dependency proceedings. First, from the Agency’s initial contact with a

23
minor and his family, the statute imposes a duty of inquiry to ask all involved
persons whether the child may be an Indian child. (§ 224.2, subds. (a), (b).)
Second, if that 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.’ (Id., subd. (e), italics added.) Third, if 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 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.) We review the juvenile court’s ICWA findings for substantial
evidence, but “where the facts are undisputed, we independently determine
whether ICWA’s requirements have been satisfied.” (D.S., at p. 1051.)
2. Procedural Background Regarding ICWA Inquiry
In this case, the Agency noted at the inception of the case that Mother
reported in a prior dependency proceeding that she had Sioux heritage
through her father. However, she said she was not a registered member and
did not feel connected to it.
At the detention hearing, Mother advised her attorney and the court
that her grandmother said they had Sioux heritage, but that Mother had no
contact with these relatives. The court ordered the Agency to make

24
reasonable efforts to determine if the child was entitled to any of the ICWA

provisions.4
In November 2019, the Agency’s social worker reported that Mother
had spoken to a cousin who said the family has Cherokee rather than Sioux
heritage. The social worker spoke to the cousin who said there is limited
information within the family about their heritage. She heard that her great
great great grandmother was a “ ‘full blooded Cherokee’ ” but the cousin had
no information about the relative’s name or dates of birth and death. The
social worker asked the cousin to reach out to other family members to see if
anyone else had helpful information. The cousin asked the social worker to
call again the next day. The social worker did so, but had to leave a message.
A social worker left additional messages for Mother’s cousin in
February and April 2020. When the cousin did not return the calls, the social
worker also spoke with Mother again to ask for a different contact number.
Mother confirmed the contact information. By July 2020, the cousin still had
not responded.
At the contested six-month review hearing in August 2020, the court
directed the Agency to continue to follow up with the cousin regarding
possible Native American ancestry.
In December 2020, the Agency reported that a social worker spoke with
a maternal aunt who said that Mother shared they have Native American
heritage through their father. The aunt was unaware of this information.
The aunt provided a phone number for maternal grandfather and said she
would reach out to the cousin the Agency previously contacted. The social
worker left a message for the maternal grandfather.

4 Father denied he has any Native American ancestry.

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 In October 2021, the Agency sent ICWA inquiries to 18 Cherokee and
Sioux tribes across the country identifying the parents, the children, and
several of Mother’s relatives. The Agency received responses from 12 tribes,
each stating the children are not eligible or enrolled members. The social
worker interviewed Mother again in October 2021 about any Native
American ancestry. Mother said she only reported what she had heard, but
that any tribal connection was “ ‘generations long time ago.’ ” Mother said
she had no proof or information and said she had no contact with or contact
information for her father’s family. According to Mother, she had no
affiliation with any tribe, she had no reason to believe J.Y. was an Indian
child, and she had no relatives who may have more information.
In connection with the section 366.26 hearing, the Agency submitted
evidence regarding the tribal inquiries along with stipulated testimony from
the social worker stating that she had not heard from additional relatives
after inquiring about additional information. Based on the additional
evidence, the court found that there was no reason to believe that ICWA
applied to this matter.
3. Analysis
The juvenile court’s ruling is supported by substantial evidence.
Mother’s statements about possible Native American ancestry triggered a
duty to conduct further inquiry. The Agency conducted a further inquiry by

interviewing Mother and available extended family members.5 The social

5 ICWA defines “ ‘extended family member’ ” by “the law or custom of the
Indian child’s tribe” or, absent such law or custom, as “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); § 224.1, subd. (c)
[“ ‘extended family member’ . . . defined as provided in [§] 1903” of ICWA].)

26
worker spoke to a maternal cousin and a maternal aunt to gather relevant
information. The worker attempted to obtain contact information for
additional relatives and left a message for maternal grandfather. When the
Agency received no further responses, the Agency took the additional step of
contacting 18 tribes that reasonably could be expected to have information
about the child’s membership or eligibility. (§ 224.2, subd. (e).) Each tribe
that responded indicated there was no evidence of tribal membership or
eligibility for J.Y. or his siblings.
Father criticizes the social worker for asking Mother’s relatives to
inquire of other family members rather than calling additional individuals
herself. However, Father does not identify any additional family members
the Agency should have contacted.
Although the Agency “has the obligation to make a meaningful effort to
locate and interview extended family members to obtain whatever
information they may have as to the child’s possible Indian status” (In re
K.R. (2018) 20 Cal.App.5th 701, 709), it and the juvenile court are not
obligated “ ‘to cast about’ ” for investigative leads. (In re A.M. (2020)
47 Cal.App.5th 303, 323.) The Agency and the juvenile court satisfy their
duty of inquiry if the parent does not provide information requiring follow-up,
or if individuals with additional information refuse to talk to the Agency or
are deceased. (Ibid.)
We conclude substantial evidence supports the juvenile court’s finding
that the agency complied with its obligations of inquiry and further inquiry.
Thus, the trial court committed no error in ruling that there was no reason to
know ICWA applied. Moreover, even if the Agency could have done more,
there is no indication “that there was readily obtainable information that was
likely to bear meaningfully upon whether the child is an Indian child.” (In re

27
Benjamin M. (2021) 70 Cal.App.5th 735, 744; In re Antonio R. (2022)
76 Cal.App.5th 421, 435.) Therefore, even assuming any error, it was
harmless.
DISPOSITION
The orders of December 22, 2021 and January 6, 2022, are affirmed.

BUCHANAN, J.

WE CONCUR:

McCONNELL, P. J.

O'ROURKE, J.

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