In re Daniel A. CA5

Filed 6/28/22 In re Daniel A. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

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

FRESNO COUNTY DEPARTMENT OF F083678
SOCIAL SERVICES,
(Super. Ct. Nos. 19CEJ300311-1,
Plaintiff and Respondent, 19CEJ300311-2)

v.
OPINION
CAROLINA H.,

Defendant and Appellant.

THE COURT *
APPEAL from orders of the Superior Court of Fresno County. Kimberly J.
Nystrom-Geist, Judge.
Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Defendant
and Appellant.
Daniel C. Cederborg, County Counsel, and Carlie Flaugher, Deputy County
Counsel, for Plaintiff and Respondent.

* Before Hill, P. J., Peña, J. and DeSantos, J.
 -ooOoo-
Carolina H. (mother) appeals the juvenile court’s order terminating her parental
rights to Daniel A. (born November 2013) and An.A. (born March 2015) (collectively,
the children) pursuant to Welfare and Institutions Code section 366.26.1 Mother
contends (1) the juvenile court considered improper factors in determining that the
parental-benefit exception to adoption did not apply, and that (2) the Fresno County
Department of Social Services (department) failed to comply with the inquiry
requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and
related California law. We conditionally affirm the orders terminating parental rights and
remand for the juvenile court and the department to comply with the inquiry provisions of
ICWA and related California law.
FACTUAL AND PROCEDURAL BACKGROUND
Petition and Detention: September 2019
On September 2, 2019, the department received a referral on behalf of the children
after their three-year-old brother, A.A., suffered serious physical trauma that resulted in
his death while in the care of mother and Randy A. (father). 2 Two days later, the
department filed a petition pursuant to section 300, subdivisions (a), (b)(1), (c), (f), (i),
and (j) on behalf of the children, alleging the circumstances surrounding A.A.’s death
placed them at substantial risk of suffering serious physical harm and neglect. 3 The
children were placed in a licensed foster home.

1 All further statutory references are to the Welfare and Institutions Code.
2 There was conflicting evidence as to whether father caused A.A.’s injuries and
death, or if he died as a result of accidentally choking on food.
3 During the pendency of these proceedings, mother and father had a fourth child.
The child was detained after birth and the department filed a section 300 petition on his
behalf. That child is not part of this appeal.

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 The detention report showed that in June 2016 the child ren and A.A. were
removed from mother’s custody in a Los Angeles County dependency case due to
father’s substance abuse and mental health problems. Mother and father were ordered to
participate in reunification services. Mother successfully reunified with the children, but
father’s services were terminated after he failed to comply with his case plan. Mother
was granted sole legal and physical custody of the children and father was granted
supervised visitation.
At the detention hearing on September 6, 2019, the juvenile court ordered mother
to participate in weekly therapeutic supervised visits with the children. The court found
visits with father would be detrimental and denied him visitation.
Interim Review: October 2019
The interim review report indicated the children were doing well in foster care
placement. The previous month the children had attended A.A.’s funeral services.
Mother was present but did not acknowledge them. The children appeared
“disconnected” and “estranged” in her presence. Mother did not comfort the children
when they began crying. The report further stated mother had not been compliant in
scheduling therapeutic supervised visits with the children.
At the interim review hearing on October 3, 2019, the juvenile court terminated
mother’s therapeutic supervised visits and ordered she participate in supervised visits
twice a week.
Jurisdiction and Disposition
Jurisdiction and Disposition Report: November 2019
In October 2019, mother began supervised visits with the children. She attended
six visits and missed one visit. Mother was appropriate with the children during visits.
She hugged them, played with them, and had age-appropriate conversations with them.
She took snacks and was able to redirect them when necessary. However, mother lacked
confidence when the children asked difficult questions. Daniel A. had a hard time at the

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end of visits, but mother comforted him and engaged staff members to help prepare him
for separation. At a visit in November 2019, mother reported she was experiencing
severe domestic violence with the children’s father and asked the visitation coordinator
for help. She reported all of her “ ‘no shows’ ” to court and visitation were always
because father had “beat” her and he would not allow her to leave the house until the
bruises were gone. The visitation coordinators helped mother get into a women’s shelter
and they did not hear from her again.
A family reunification panel determined it would not be in the children’s best
interests to provide either mother or father with reunification services because they had
caused A.A.’s death through abuse or neglect. The department recommended a selection
and implementation hearing be set to establish a permanent plan for the children.
Jurisdiction and Disposition Hearing: February 2020
On February 10, 2020, social worker Karla Aguilar testified that mother’s visits
with the children had been generally inconsistent except during the months of
October 2019 and January 2020. In December 2019, Aguilar spoke to mother over the
phone and asked why she had not visited the children. Mother reported she had
transportation problems, but father was listening and Aguilar did not want to ask for
details in his presence. The following day, Aguilar met with mother in person. Mother
reported she was experiencing severe domestic violence with father and was fearful.
Aguilar provided mother with a resource list of domestic violence services. Early in
February 2020, Aguilar reached out to mother about setting up visits with the children.
Mother reported she was living at a shelter and was no longer in a relationship with
father. Aguilar had previously informed mother the children were being placed in
Los Angeles County and mother agreed to visit them there. As for the quality of
mother’s visits, Aguilar testified the visits “seem[ed] to be going okay.” The children
expressed they wanted to continue visiting mother and were happy when they saw her.
The children did not cry or appear sad when mother missed visits, but they did state they

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missed her. As far as accessing domestic violence services, Aguilar testified mother had
a pattern of going to the women’s shelter and then going back to father.
The juvenile court found all allegations in the petition true except for the serious
emotional damage (§ 300, subd. (c)) allegation. Mother was bypassed for reunification
services pursuant to section 361.5, subdivision (b)(4), and was granted supervised
visitation with the children for a minimum of two times per month.4 The court set a
section 366.26 hearing for June 3, 2020, but it was continued several times and was not
heard until September 2021.
Section 366.26
Section 366.26 Report: June 2020
The children’s care provider, C.S., reported that Daniel A. had a short temper and
became upset easily. He was very fearful of the shower and was hypersensitive to
sounds. An.A. continued to talk about the domestic violence she witnessed in her
parents’ home. Mother’s visits had been limited to supervised video chat visits and
telephone calls due to COVID-19 restrictions. C.S. was to facilitate two 1-hour video
chat visits and two 15-minute phone calls per month. Mother missed one video chat visit
because her phone would not hold a charge.
The department reported the children were generally adoptable due to their young
age and good health. They had no medical or developmental problems and were
participating in therapeutic services. C.S., who was the children’s care provider during
the previous Los Angeles County dependency case, wished to adopt the children.
The department conducted a likelihood of adoption analysis, first analyzing the
strength and bond between the children and each care provider (i.e., C.S. and mother).
The department considered four specific areas—structure, nurturing, challenge, and

4 Mother filed a section 388 petition asking the juvenile court to change the order
bypassing her for reunification services. The petition was heard on the same date as the
section 366.26 hearing and was denied.

5.
engagement. The department had observed three video chat visits between mother and
the children and conducted three home visits by video chat and used those observations to
conduct its analysis. Regarding structure, C.S. had a daily routine for the children, which
they had grown accustomed to. The department noted C.S. had provided out-of-home
care for the children during the Los Angeles County dependency proceedings from
June 2016 to November 2018 and the children were again placed with her in September
2019.5 As for mother, she demonstrated an appropriate ability to provide structure during
the video chat visit as she kept the children engaged with an activity.
As for nurturing, C.S. demonstrated an appropriate ability to nurture the children
with hugs, play, affection, and boundaries. Mother also demonstrated an appropriate
ability to nurture the children. Mother took time to plan the visit and would give the
children words of affirmation by complimenting them and telling them she loved and
missed them. An.A. would ask when mother would be visiting them and would say she
did not want calls to end because she loved her. An.A. sometimes referred to mother by
her first name and other times called her “ ‘mommy.’ ” Daniel A. did not want to visit
mother at times and would not always stay in view of the camera. When mother would
tell him she loved him, he would sometimes say it back. However, mother did not know
how to respond to the children sometimes. During an Easter activity, mother asked the
children what she should draw on her paper egg. The children repeatedly told her to
draw herself with A.A. Mother would not respond and after repeated requests, the
children clarified, “ ‘You and who’s dead.’ ” Mother then drew a little boy with angel
wings and a halo. Daniel A. said he wanted to be an angel, and again mother did not
respond.

5 Although the report stated the children were placed with C.S. on September 2,
2019, the social worker testified the children were not placed in Los Angeles County
until January 2020.

6.
 Concerning challenge, C.S. challenged the children by giving them daily chores
and praising them when done. She reinforced good behavior by occasionally buying
them ice cream or toys. Mother demonstrated an appropriate ability to challenge the
children by pretending she did not know how to draw something and asking the children
to show her how to do it. Mother asked about Daniel A.’s homework, and she practiced
colors and numbers with them.
Finally, in regard to engagement, C.S. demonstrated an appropriate ability to
engage with the children. She helped Daniel A. with homework and helped prepare
An.A. for kindergarten. She engaged them in art projects and outdoor activities. Mother
engaged the children through activities, such as making paper crafts. She also talked to
the children about how to express their feelings appropriately, encouraging them to take
deep breaths when angry and apologizing to others.
The department next considered the children’s need for stability, noting the
children had formed a parent-child relationship with C.S. and referred to her as “ ‘mama
[C.S.].’ ” The children looked to her for safety, reassurance, love, affection, attention,
and nurture. C.S. was willing and able to provide for the children’s needs. Although
mother had previously successfully reunified with the children, she returned to a violent
relationship with father that resulted in A.A.’s death. The department concluded the
children’s need for safety and stability outweighed their relationship with mother and
father. The department recommended parental rights be terminated with adoption as the
children’s permanent plan.
Section 366.26 Addendum Report: May 2021
In February 2021, a social worker met with each child individually. The social
worker drew a “ ‘safe house’ ” with An.A. and explained to her that everyone inside the
house were safe people. The social worker asked An.A. who she wanted to live in the
house with her. An.A. named C.S., Daniel A., A.A., and her new infant brother. The
social worker asked how she would feel if she lived with mother. An.A. would not

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answer. When asked if she would rather live with C.S. or mother, An.A. quickly replied
that she would rather stay with C.S. The social worker then asked how she would feel if
her infant brother were to live with mother. She said, “ ‘bad,’ ” but could not say why.
When the social worker asked Daniel A. who he would want living in his safe house, he
said, “ ‘Angel.’ ” He explained Angel was “his brother who died.” He said C.S. and
An.A. could also live in his safe house. When asked how he would feel about living with
mother, he said, “ ‘I don’t know; it would be boring.’ ” He said he would rather live with
C.S. but could not say why. He would feel “sad” if his infant brother went to live with
mother. C.S. said Daniel A. expressed he did not want his infant brother to go with
mother because he was afraid he would die.
As for mother’s visitation, the report stated mother visited the children
consistently. The visits were supervised by C.S. C.S. did not have any concerns
regarding the visits and said mother did well engaging the children in games and learning
activities. According to C.S., the children enjoyed the visits. Daniel A. sometimes
questioned mother about why father “did what he did” to A.A., but mother would never
answer.
The department concluded it would not be detrimental to the children to terminate
parental rights. Although they shared a parent-child relationship with mother, it was
more akin to that of a “ ‘friendly visitor’ ” and it did not outweigh the benefits of
adoption.
Section 366.26 Hearing: September to November 2021
On September 16, 2021, mother testified she had been participating in domestic
violence services and felt like she had become a better parent. As far as visits with the
children, she said An.A. had a difficult time hanging up at the end of visits. An.A. would
ask, “ ‘Mommy, when am I going to go with you?’ ” and, “ ‘Mommy, when are you
going to come and move in with Mommy [C.S.]? Don’t worry, she’ll cook for you and
she will clean. She will make a room for you.’ ” She said Daniel A. used to talk a lot

8.
during visits, but recently there were times where he did not want to talk to her. She was
surprised when she heard Daniel A. did not want to live with her, but she understood he
wanted to be with “Mommy [C.S.]” where he felt safe. Like the children, mother
referred to the care provider as “Mommy [C.S.].” She said she just wanted the children
to feel safe, welcomed, and loved. Mother noted C.S. was “part of [her] kids, too.”
Mother recognized the children asked about A.A.’s death during visits, but said she never
talked to them about it because she thought she was not allowed to. However, she did
want to talk to them about their experience because she felt it would help them heal.
The department argued the juvenile court should terminate parental rights and
select a permanent plan of adoption because mother had not proven that an exception
applied or that termination of parental rights would be detrimental to the children. The
children’s attorney agreed the parental-benefit exception did not apply. Mother’s
attorney argued the court should not terminate parental rights and should select a
different permanent plan because the children were benefitting from visits and the
children needed ongoing contact with mother so that they could heal with her.
On November 2, 2021, the juvenile court found mother’s progress toward
alleviating or mitigating the causes necessitating placement had been minimal and that
the children were likely to be adopted. The court terminated mother and father’s parental
rights.
On December 20, 2021, mother filed a notice of appeal.
DISCUSSION
I. Substantial Evidence Supports the Juvenile Court’s Implied Finding that the
Parental-Benefit Exception to Adoption Did Not Apply
Mother contends the juvenile court considered improper factors and did not
comply with the dictates of In re Caden C. (2021) 11 Cal.5th 614 (Caden C.) in
determining that the parental-benefit exception did not apply. We disagree.

9.
 A. Legal Principles
“The sole purpose of the section 366.26 hearing is to select and implement a
permanent plan for the child after reunification efforts have failed.” (In re J.D. (2021)
70 Cal.App.5th 833, 851 (J.D.).) “At a permanency plan hearing, the court may order
one of three alternatives: adoption, guardianship or long-term foster care.” (In re S.B.
(2008) 164 Cal.App.4th 289, 296.) “Once the court determines the child is likely to be
adopted, the burden shifts to the parent to show that termination of the parental rights
would be detrimental to the child under one of the exceptions listed in section 366.26,
subdivision (c)(1)(A).” (Id. at p. 297.) “[I]f the parent shows that termination would be
detrimental to the child for at least one specifically enumerated reason, the court should
decline to terminate parental rights and select another permanent plan.” (Caden C.,
supra, 11 Cal.5th at pp. 630–631.)
One exception to adoption is the parental-benefit exception, which requires the
parent to establish, by a preponderance of the evidence, “that the parent has regularly
visited with the child, that the child would benefit from continuing the relationship, and
that terminating the relationship would be detrimental to the child.” (Caden C., supra,
11 Cal.5th at p. 629; see § 366.26, subd. (c)(1)(B)(i).)
“The first element—regular visitation and contact—is straightforward. The
question is just whether ‘parents visit consistently,’ taking into account ‘the extent
permitted by court orders.’ ” (Caden C., supra, 11 Cal.5th at p. 632.)
“As to the second element, courts assess whether ‘the child would benefit from
continuing the relationship.’ ” (Caden C., supra, 11 Cal.5th at p. 632.) “In other words,
‘[t]he 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.’ ” (J.D., supra, 70 Cal.App.5th at p. 854.) “[T]he focus is the child.”
(Caden C., at p. 632.) The court may consider “ ‘[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

10.
between parent and child, and the child’s particular needs.’ ” (Ibid.) “[C]ourts often
consider how children feel about, interact with, look to, or talk about their parents.”
(Ibid.) “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.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
“Concerning the third element—whether ‘termination would be detrimental to the
child due to’ the relationship—the court must decide whether it would be harmful to the
child to sever the relationship and choose adoption.” (Caden C., supra, 11 Cal.5th at
p. 633.) 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.” (Ibid.) “[T]he effects [on the child] might include
emotional instability and preoccupation leading to acting out, difficulties in school,
insomnia, anxiety, or depression. Yet … a new, stable home may alleviate the emotional
instability and preoccupation leading to such problems, providing a new source of
stability that could make the loss of a parent not, at least on balance, detrimental.” (Ibid.)
“When the relationship with a parent is so important to the child that the security and
stability of a new home wouldn’t outweigh its loss, termination would be ‘detrimental to
the child due to’ the child’s beneficial relationship with a parent.” (Id. at pp. 633–634.)
“When it weighs whether termination would be detrimental, the court is not comparing
the parent’s attributes as custodial caregiver relative to those of any potential adoptive
parent(s),” and it “should not look to whether the parent can provide a home for the
child.” (Id. at p. 634.) “Even where it may never make sense to permit the child to live
with the parent, termination may be detrimental.” (Ibid.) “[T]he section 366.26 hearing
is decidedly not a contest of who would be the better custodial caregiver.” (Ibid.)
Moreover, “[a] parent’s continued struggles with the issues leading to the
dependency are not a categorical bar to applying the exception.” (Caden C., supra,

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11 Cal.5th at p. 637.) “[W]hen the court holds a section 366.26 hearing, it all but
presupposes that the parent has not been successful in maintaining the reunification plan
meant to address the problems leading to dependency.” (Ibid.) “The parental-benefit
exception can therefore only apply when the parent has presumptively not made
sufficient progress in addressing the problems that led to dependency.” (Ibid.) Thus,
“[p]arents need not show that they are ‘actively involved in maintaining their sobriety or
complying substantially with their case plan’ [citation] to establish the exception.” (Ibid.)
However, lack of progress is not irrelevant. “A parent’s struggles may mean that
interaction between parent and child at least sometimes has a ‘ “negative” effect’ on the
child.” (Ibid.) “Conversely, a parent who gains greater understanding of herself and her
children’s needs through treatment may be in a better position to ensure that her
interactions with the children have a ‘ “positive” … effect’ on them.” (Id. at pp. 637–
638.) “In both scenarios, the parent’s struggles speak to the benefit (or lack thereof) of
continuing the relationship and are relevant to that extent.” (Id. at p. 638.) They “may
also be relevant to the detriment from terminating parental rights.” (Ibid.)
On review, the first two elements are reviewed for substantial evidence. (Caden
C., supra, 11 Cal.5th at p. 639.) “In reviewing factual determinations for substantial
evidence, a reviewing court should ‘not reweigh the evidence, evaluate the credibility of
witnesses, or resolve evidentiary conflicts.’ [Citation.] The determinations should ‘be
upheld if … supported by substantial evidence, even though substantial evidence to the
contrary also exists and the trial court might have reached a different result had it
believed other evidence.’ ” (Id. at p. 640.) The third element is reviewed for abuse of
discretion. (Id. at p. 641.) A court abuses its discretion only when it “ ‘has exceeded the
limits of legal discretion by making an arbitrary, capricious, or patently absurd
determination.’ ” (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.) “When two or
more inferences can reasonably be deduced from the facts, the reviewing court has no

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authority to substitute its decision for that of the trial court.” (Shamblin v. Brattain
(1988) 44 Cal.3d 474, 478–479.)
B. Analysis
In ruling at the section 366.26 hearing, the juvenile court went over the
department’s adoption assessment on the record, and then stated it read and considered all
of the department’s reports and took judicial notice of the court file. The court then
found the children were likely to be adopted and terminated parental rights. The juvenile
court did not expressly address the parental-benefit exception, but we note that it was not
required to do so. (In re A.L. (2022) 73 Cal.App.5th 1131, 1156 [there is no requirement
“that the juvenile court, in finding the parental-benefit exception inapplicable, must recite
specific findings relative to its conclusions regarding any or all of the three elements of
the exception”].) “[A]lthough a statement by the trial court of its findings (or reasons) for
its decision is helpful in conducting appellate review, it was not a legal requirement in
this instance.” (Ibid.) We also note that Caden C. was decided in May 2021,
approximately five months before the juvenile court’s section 366.26 ruling. “ ‘In the
absence of evidence to the contrary, we presume that the court “[knew] and [applied] the
correct statutory and case law.” ’ ” (People v. Jones (2017) 3 Cal.5th 583, 616.) Because
the juvenile court did not expressly address the parental-benefit exception, there is no
evidence it considered improper factors. The record shows the court’s statements
regarding “the strength and bond between the children, parent and the caretaker” applied
to the adoption assessment. Thus, we presume the court applied the correct law.
As we shall discuss, substantial evidence supports the juvenile court’s implied
finding that the parental-benefit exception did not apply. Concerning the first element—
regular visitation and contact—it is questionable whether mother satisfied this element.
In September 2019, mother was ordered to participate in therapeutic supervised visits
with the children but never scheduled any visits. She then participated in supervised
visits in October 2019 for approximately one month and then stopped going. She was

13.
again consistent in January 2020. By the time the section 366.26 addendum report was
written in May 2021, the department reported mother had been visiting the children
consistently. Therefore, we acknowledge there was evidence from which the court could
have concluded mother visited regularly.
In regard to the second element—whether the children would benefit from
continuing their relationship with mother—the evidence did not show the children had a
substantial, positive, emotional attachment to her. (See J.D., supra, 70 Cal.App.5th at
p. 854.) The juvenile court was allowed to consider the children’s ages and the portion of
their lives spent in mother’s custody. (See Caden C., supra, 11 Cal.5th at p. 632.) When
the current dependency proceedings began, Daniel A. was five years old and An.A. was
four years old. By the time of the section 366.26 hearing, Daniel A. was seven years old
and An.A. was six years old. Between the prior Los Angeles County dependency case
and the current case, the children had spent approximately four-and-a-half years in out-
of-home care. Thus, the children had spent a significant portion of their lives outside of
mother’s care. The court was also allowed to consider how the children felt about,
interacted with, and talked about their mother. (Caden C., at p. 632.) In this case, the
children enjoyed visiting with mother. An.A. expressed during visits that she did not
want calls to end because she loved her. There were times when Daniel A. also had a
difficult time separating at the visits. However, more recently Daniel A. did not want to
participate in visits. By mother’s own account, Daniel A. did not want to talk to her
sometimes. Even though the children generally enjoyed visiting with mother, they
seemed to be hesitant about the relationship. When asked how they would feel about
living with mother, An.A. would not answer, and Daniel A. stated he did not want to live
with her. Neither of the children included her in their “ ‘safe house,’ ” or wanted their
infant brother to live with her. Daniel A. was afraid his infant brother would die if he
were to go live with her and An.A. said it would be “ ‘bad.’ ” Overall, the department
described mother’s relationship with the children as that of a “ ‘friendly visitor.’ ” (See

14.
In re B.D. (2021) 66 Cal.App.5th 1218, 1230 [“an emotional attachment is one where the
child views the parent as more than a mere friend or playmate”].) Moreover, An.A. told
mother she wanted her to go live with them at C.S.’s house and that C.S. would clean,
cook, and make a room for her. An.A.’s statement indeed suggests she saw mother as a
friendly visitor. Thus, the second element was not satisfied.
Finally, as to the third element—whether termination of parental rights would be
detrimental to the child—there is no evidence showing that the bond between mother and
the children was so strong that it would outweigh “ ‘the security and sense of belonging a
new family would confer.’ ” (Caden C., supra, 11 Cal.5th at p. 633.) Accordingly, the
juvenile court acted within its discretion in rejecting application of the parental-benefit
exception.
II. Substantial Evidence Does Not Support the Juvenile Court’s ICWA Finding
Mother contends the juvenile court’s ICWA finding was not supported by
substantial evidence because the record does not reflect that known relatives were asked
about possible Indian ancestry, or that the department asked child welfare services in
Los Angeles County about findings in prior dependency proceedings. We agree.
A. Additional Background Information Pertaining to ICWA
On the day the petition was filed, father completed a Parental Notification of
Indian Status form (ICWA-020) and checked the box stating he had no Indian ancestry as
far as he knew. That same day the social worker completed the Indian Child Inquiry
Attachment forms (ICWA-010(A)) for both children, stating the children did not have
known Indian ancestry.
The detention report stated ICWA did not apply because mother and father
reported they did not have Indian ancestry. At the detention hearing, the juvenile court
confirmed with mother and father that they each completed ICWA-020 forms and

15.
checked the box indicating they had no known Indian ancestry. Both mother and father
agreed.6
At the jurisdiction and disposition hearing on February 10, 2020, the juvenile court
found ICWA did not apply.
On March 12, 2020, the department conducted an updated ICWA inquiry for
mother and she reported she did not have Indian ancestry. The department was unable to
conduct an updated inquiry for father as his whereabouts were unknown.
B. Legal Principles
“Congress enacted ICWA in 1978 in response to ‘rising concern in the mid -1970’s
over the consequences to Indian children, Indian families, and Indian tribes of abusive
child welfare practices that resulted in the separation of large numbers of Indian children
from their families and tribes through adoption or foster care placement, usually in
non-Indian homes.’ ” (In re Isaiah W. (2016) 1 Cal.5th 1, 7.) “ICWA provides that ‘[i]n
any involuntary proceeding in a State court, where the court knows or has reason to know
that an Indian child is involved, the party seeking the foster care placement of, or
termination of parental rights to, an Indian child shall notify the parent or Indian
custodian and the Indian child’s tribe, by registered mail with return receipt requested, of
the pending proceedings and of their right of intervention.’ ” (In re A.R. (2022) 77
Cal.App.5th 197, 203 (A.R.); 25 U.S.C. § 1912(a).) “This notice requirement, which is
also codified in California law [citation], enables a tribe to determine whether the child is
an Indian child and, if so, whether to intervene in or exercise jurisdiction over the
proceeding. ” (In re Isaiah W., at p. 5.)
“In California, section 224.2 ‘codifies and elaborates on ICWA’s requirements of
notice to a child’s parents or legal guardian, Indian custodian, and Indian tribe, and to the
[Bureau of Indian Affairs].’ ” (A.R., supra, 77 Cal.App.5th at p. 204.) “[S]ection 224.2,

6 The record only contains a copy of father’s ICWA-020 form.

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‘creates three distinct duties regarding ICWA in dependency proceedings.’ ” (In re H.V.
(2022) 75 Cal.App.5th 433, 437 (H.V.).) “First, section 224.2, subdivision (b), requires
the child protective agency to ask ‘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.’ ” (In re J.C. (2022) 77
Cal.App.5th 70, 77 (J.C.).) “Although commonly referred to as the ‘initial duty of
inquiry,’ it ‘begins with the initial contact’ (§ 224.2, subd. (a)) and continues throughout
the dependency proceedings.” (Ibid.) “Second, if the court or child protective agency
‘has reason to believe that an Indian child is involved in a proceeding, but does not have
sufficient information to determine that there is reason to know that the child is an Indian
child,’ the court and the Department ‘shall make further inquiry regarding the possible
Indian status of the child, and shall make that inquiry as soon as practicable.’ ” (Id. at
p. 78, fn. omitted.) “Third, if the further inquiry ‘ “ ‘results in a reason to know the child
is an Indian child, then the formal notice requirements of section 224.3 apply.’ ” ’ ”
(Ibid.)
“ ‘ “ ‘The juvenile court must determine whether proper notice was given under
ICWA and whether ICWA applies to the proceedings.’ ” [Citation.] “If the court makes
a finding that proper and adequate further inquiry and due diligence as required in
[section 224.2] have been conducted and there is no reason to know whether the child is
an Indian child, the court may make a finding that [ICWA] does not apply to the
proceedings, subject to reversal based on sufficiency of the evidence.” ’ ” (J.C., supra,
77 Cal.App.5th at p. 78.) The juvenile court may not “find that ICWA does not apply
when the absence of evidence that a child is an Indian child results from a [child
protective agency] inquiry that is not proper, adequate, or demonstrative of due
diligence.” (In re Josiah T. (2021) 71 Cal.App.5th 388, 408.)

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 “ ‘[W]e review the juvenile court’s ICWA findings under the substantial evidence
test, which requires us to determine if reasonable, credible evidence of solid value
supports the court’s order. [Citations.] We must uphold the court’s orders and findings if
any substantial evidence, contradicted or uncontradicted, supports them, and we resolve
all conflicts in favor of affirmance.’ ” (In re D.F. (2020) 55 Cal.App.5th 558, 565.)
“Thus, we do not consider whether there is evidence from which the dependency court
could have drawn a different conclusion but whether there is substantial evidence to
support the conclusion that the court did draw.” (In re Noe F. (2013) 213 Cal.App.4th
358, 366.)
C. Analysis
Section 224.2, subdivision (b), required the department, as part of its initial
inquiry, to inquire of the children’s extended family members regarding possible Indian
ancestry. “Under both ICWA and California law, ‘ “extended family member[s]” ’
include the 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.’ ” (In re D.S. (2020)
46 Cal.App.5th 1041, 1053; 25 U.S.C. § 1903(2); § 224.1, subd. (c).)
The record reflects that the department interviewed three maternal relatives in
October 2019—a maternal uncle, maternal aunt, and maternal cousin. Additionally, the
department contacted various maternal family members to assess them for placement and
an “aunt Liliana” came forward as a result of the department’s family finding efforts. A
maternal uncle and maternal niece were present at the detention hearing. Father also
provided contact information for a paternal cousin to be assessed for placement. Nothing
in the record suggests anyone in the department asked these family members about
possible Indian ancestry. (See H.V., supra, 75 Cal.App.5th at p. 438 [child protective
agency’s “first-step inquiry duty under ICWA and state law was broader” than simply
asking the parents about possible Indian ancestry, “requiring it also to interview, among
others, extended family members”].) Neither is there any evidence in the record that

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shows the juvenile court inquired about the department’s efforts. (See In re Antonio R.
(2022) 76 Cal.App.5th 421, 431 [“[A] juvenile court errs in making a finding ICWA does
not apply to the proceedings without first ensuring that the Department has made an
adequate inquiry under ICWA and California law, and if necessary, the court must
continue the proceedings and order the Department to fulfill its responsibilities.”].)
“[T]he Courts of Appeal are divided as to whether a parent must make an
affirmative showing of prejudice to support reversal where the Department failed fully to
perform its initial duty of inquiry.” (In re Antonio R., supra, 76 Cal.App.5th at p. 433.)
“The published cases seem to fall into three groups: the first concludes that the conceded
error warrants reversal in every case because the duty to inquire was mandatory and
unconditional.” (A.R., supra, 77 Cal.App.5th at p. 205; see, e.g., H.V., supra, 75
Cal.App.5th at p. 438; see also, e.g., In re Y.W. (2021) 70 Cal.App.5th 542, 556.)
However a “rule establishing automatic reversal without any reason to believe Native
American heritage exists would potentially reward parental gamesmanship and
undermine the policy favoring prompt resolution of juvenile dependency cases. It also
potentially runs afoul of the constitutional requirement that judgments can only be
reversed on appeal in cases where a manifest miscarriage of justice has been shown.”
(A.R., at p. 206.)
“The second group concludes that the error does not warrant reversal unless a
‘miscarriage of justice’ is demonstrated to have occurred as a consequence of the failure
to inquire about Native American heritage.” (A.R., supra, 77 Cal.App.5th at p. 205.)
“These cases would allow a parent to make an offer of proof on appeal, showing there is
reason to believe Native American heritage exists.” (Ibid.) Absent such a showing,
judgment would be affirmed. (Ibid.) But this rule “effectively shifts the agency’s
unconditional statutory burden to the parents in cases where the agency has failed to
fulfill it.” (Id. at p. 206.)

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 “The third option is the self-described ‘middle ground’ approach taken in [In re
Benjamin M. (2021) 70 Cal.App.5th 735], in which the appellate court would determine,
on a case by case basis, whether the record reflects there are known relatives identified by
the child welfare agency, who appear to have been able to shed light on the issue of
Native American heritage. Benjamin M. held that the failure to inquire would be
reversible error if ‘there was readily obtainable information that was likely to bear
meaningfully upon whether the child is an Indian child.’ ” (A.R., supra, 77 Cal.App.5th
at pp. 205–206.) Benjamin M. rejected the idea that an appealing parent had to make an
offer of proof about the child’s Indian ancestry to demonstrate prejudice. (Benjamin M.,
at p. 745.) Moreover, “Benjamin M. rejected an approach that would require reversal in
all cases where the agency erred, explaining: ‘There are cases where … it was obvious
that additional information would not have been meaningful to the inquiry. This might
occur where the evidence already uncovered in the initial inquiry was sufficient for a
reliable determination.’ ” (J.C., supra, 77 Cal.App.5th at p. 81.) For example, additional
information would not be meaningful where the department had already made an
undisputed and unchallenged finding that ICWA did not apply to a dependent child’s full
siblings. (In re Charles W. (2021) 66 Cal.App.5th 483, 490 [department made adequate
initial inquiry where there was an undisputed and unchallenged finding that ICWA did
not apply to two older siblings].) The case before us does not fit into such a category.
Nothing in the record suggests the department reached out to child welfare services in
Los Angeles County to ask about prior ICWA findings.
In this case, there was readily obtainable information available to the department
as it had contact with multiple family members throughout the proceedings. The
department should have asked these known family members about the children’s Indian
ancestry status. Although mother and father denied having Indian ancestry, “it is not
uncommon for parents to mistakenly disclaim (or claim) Indian ancestry.” (J.C., supra,

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77 Cal.App.5th at p. 81.) Thus, we conclude the juvenile court’s finding that ICWA did
not apply was not supported by substantial evidence.
DISPOSITION
The November 2, 2021, orders terminating mother’s parental rights are
conditionally affirmed. We remand for the department and the juvenile court to comply
with the inquiry requirements of ICWA and California law. If the court finds the children
are Indian children, it shall conduct a new section 366.26 hearing, as well as all further
proceedings, in compliance with ICWA and related California law. If not, the court’s
original section 366.26 orders will remain in effect.

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