In re K.O. CA1/3

Filed 6/29/22 In re K.O. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

In re K.O., a Person Coming
Under the Juvenile Court Law.

SONOMA COUNTY
DEPARTMENT OF HUMAN A162198, A162415, A163649
SERVICES,
(Sonoma County Sup. Ct.
Plaintiff and Respondent, No. DEP-5836)
v.
M.O. et al.,
Defendants and Appellants.

C.R. (Mother) and M.O. (Father) appeal the juvenile court’s order
terminating their parental rights. They argue the court prejudicially failed to
rule on a modification petition and improperly declined to apply the parental
benefit exception. We disagree. We do, however, agree with their final
contention — they argue the court failed to comply with its duty of inquiry
under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA).
We conditionally reverse the order terminating parental rights and remand
the matter for the court to comply with its duty of inquiry under ICWA.

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 BACKGROUND
The history of this dependency proceeding is set forth in this court’s
prior opinion, which we incorporate here by reference. (Sonoma Cty. Dep’t of
Human Servs. v. C.R. (In re K.O.) (May 5, 2020, A158039) [nonpub. opn.].) In
that case, this court affirmed a July 2019 dispositional order sustaining
Sonoma County Department of Human Services’ (Department’s) allegations
that K.O. came within Welfare and Institutions Code1 section 300 due to
Mother’s ongoing substance abuse problem — she tested positive for
methamphetamine, benzodiazepine, and opiates throughout her pregnancy.
(In re K.O., supra, A158039; § 300, subd. (b) [child has suffered or there is
substantial risk the child will suffer serious physical harm or illness resulting
from parent’s failure or inability to supervise or protect the child].) The
juvenile court further found true allegations that Father had a substance
abuse problem, and he knew of Mother’s substance abuse but failed to
intervene to protect the child. (In re K.O., supra, A158039.) The court
declared K.O. a dependent, removed her from her parents’ custody and placed
her in foster care the same day K.O. was discharged from the hospital after
her birth, and ordered reunification services for both parents. (Ibid.)
After a six-month review hearing, the juvenile court extended
reunification services for both Mother and Father and ordered in-person
supervised visitation. Yet Father did not participate, showed little interest or
acknowledgement of K.O., and would often wander to his car and back. By
October 2020, the Department’s status review report recommended
terminating reunification services and setting a hearing to select and
implement a permanent plan for K.O. (§ 366.26.) In its report, the

1 Undesignated statutory references are to the Welfare and Institutions
Code.
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Department noted Mother and Father were being evicted from their home,
which had severe cleanliness and safety issues. Mother and Father further
declined to sign a case plan, which among other things, required them to
abstain from using illegal drugs or alcohol, to comply with required drug
tests, and to express anger appropriately. Although Mother stated she
complied with the case plan by attending weekly Alcoholics Anonymous
meetings, participating in individual therapy, creating a network of sober
friends and extended family, she refused to sign a release of information that
would allow the Department to verify her case plan progress. Mother also
failed to provide the Department with any verifiable substance testing
results. Moreover, the Department could not verify Father’s progress on the
case plan since Father refused to sign a release of information, and he
refused any referrals or services offered by the Department, such as
parenting classes, substance testing, and counseling.
Father later filed a petition to modify the juvenile court’s 2019 order
removing K.O. (§ 388.) He sought overnight and unsupervised visitation,
and the return of K.O. to his custody within 30 days. Father alleged he
developed a positive support system and addressed the elements in his case
plan, both changed circumstances. According to Father, a modification was
in K.O.’s best interests because she had no opportunity to attach to him, and
he had a proven track record of parenting his other children.
After a hearing on Mother and Father’s 18-month status review and
Father’s modification petition, the juvenile court concluded returning K.O. to
their physical custody created a substantial risk of detriment to her safety,
protection, or physical or emotional well-being. It found by clear and
convincing evidence reasonable services were offered, but there was no
substantial probability K.O. would be returned to her parents because of

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their failure to make significant and consistent progress in any court-ordered
services. The court terminated reunification services and scheduled
a hearing to determine K.O.’s permanent plan — whether to terminate
parental rights that would then allow for adoption, or maintain parental
rights and select a different permanent plan. (§ 366.26.) The court did not
rule on the modification petition.
In 2021, the Department filed a report, again recommending Mother
and Father’s parental rights be terminated and adoption for K.O. K.O.’s
foster parents expressed the desire to adopt K.O., who had been in their care
since birth and regarded them as her parents. Mother regularly attended in-
person visits with K.O., who responded well to her affection and appropriate
play. Father also began participating more during visits that took place
outdoors. But at the end of visits, K.O. sought her foster mother and easily
transitioned back into her care.
In May 2021, relying on an April 2019 drug test result, Mother filed
a petition to modify the juvenile court’s order terminating reunification
services. (§ 388.) She also alleged she had safe, stable housing — a new
apartment. She requested additional reunification services and K.O.’s return
to her custody. At a combined contested permanency hearing and a hearing
on Mother’s modification petition, a social worker testified K.O. had
developed a very secure attachment to her foster parents, who meet her daily
needs. According to the social worker, removing K.O. from her foster parents
would be traumatic.
The juvenile court found Mother and Father had shown a change of
circumstances, but modification was not in K.O.’s best interests since it
would be harmful to return her to their custody. It also found under the
totality of the circumstances that it was in K.O.’s best interests to be adopted

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by her foster family and to terminate parental rights. The court determined
Mother had not established termination would be detrimental to the child
under the parental benefit exception — applicable where the parent has
maintained regular visitation and contact with the child, the child would
benefit from the continued relationship, and termination of the relationship
would be detrimental to the child. The court terminated parental rights,
selected adoption as K.O.’s permanent plan, and designated her current
caregivers as the prospective parents.
DISCUSSION
Mother and Father advance a series of challenges to the juvenile court
order terminating their parental rights.2 Father argues the court committed
reversible error when it failed to rule on his modification petition. Mother
also argues the court improperly assessed the parental benefit exception.
Finally, they argue conditional reversal is warranted because the
Department and court failed to comply with the statutory requirements for
an adequate inquiry into whether K.O. may be an Indian child under ICWA.
We address each argument in turn.
First, Father contends the juvenile court order terminating parental
rights must be reversed due to the court’s failure to rule on his modification
petition seeking additional visitation and returning K.O. to his custody.
Father forfeited this argument on appeal.
During the hearing on Mother and Father’s 18-month status review,
the juvenile court acknowledged Father’s modification petition, proceeded to
hear argument on both the petition and the review, and issued its findings
and orders concerning the review. But Father, who was represented by

2Mother and Father filed separate appeals which we later
consolidated.
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counsel, did nothing to secure a ruling on his modification petition. (In re
Malick T. (2022) 73 Cal.App.5th 1109, 1127 [forfeiture applies “when a party
did not alert the juvenile court that he or she objected to an order being made
or when a party failed to ask in the juvenile court for relief being sought on
appeal”].) The lack of a ruling was thus based on Father’s failure to alert the
court to its oversight, not on an erroneous interpretation of law, contrary to
Father’s assertions. (Compare with ibid [lower court “denied a party’s
request for an order on a legally incorrect ground”].)
Even assuming the failure to rule on Father’s petition was error, it was
harmless. (In re J.F. (2011) 196 Cal.App.4th 321, 336.) The record
demonstrates there is no reasonable probability the juvenile court would
have granted Father’s requested modification had it issued a ruling. (In re
Cristian I. (2014) 224 Cal.App.4th 1088, 1098–1099 [reversal justified only
where the party would obtain a more favorable result in the absence of the
error].) Under section 388, a court may modify an order if a parent
establishes, by a preponderance of the evidence, that changed circumstances
exist and the proposed modification would promote the child’s best interests.
(§ 388; In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) Father failed to
demonstrate either element.
The juvenile court found Father’s progress toward mitigating the issues
necessitating removal — Father’s substance abuse problem as demonstrated
by seven convictions for substance abuse related crimes — was nonexistent.
(In re A.A. (2012) 203 Cal.App.4th 597, 612 [“The change in circumstances
must relate to the purpose of the order and be such that the modification of
the prior order is appropriate”].) While Father insisted he did not have
a substance abuse problem, he refused to sign releases of information that
would allow the Department to verify progress on his case plan. (In re

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Anthony W. (2001) 87 Cal.App.4th 246, 251 [finding allegations regarding
participation in substance abuse classes conclusory when made without
dates, certificates, or drug test results].) He consistently refused the
Department’s referrals for services, including substance testing and
counseling. In addition, Father acknowledged smoking a marijuana joint one
month or several weeks before the 18-month status review hearing. He
further admitted to difficulties in identifying whether Mother was under the
influence, a factor that could impact Father’s ability to protect K.O. To the
extent Father cites his ability to care for his other children as evidence of
changed circumstances, we disagree. The dependency petition was not based
on Father’s ability, or lack thereof, to care for his other children. (See In re
A.A., at p. 612.)
Nor was there evidence demonstrating that increased visitation and
transitioning K.O. back to Father’s custody would be in her best interests.
The juvenile court expressly found returning K.O. to her parents would result
in a substantial risk of harm to K.O.’s safety and emotional well-being. K.O.
had lived with her foster parents since birth, identified them as her parents,
and looked to them to satisfy all her needs. After visits with Mother and
Father, K.O. easily transitioned back to her foster mother’s care. Due to
K.O.’s substantial ties to her foster parents, the Department reported her
removal from their home would be traumatic and detrimental to her well-
being. Father himself testified it would be difficult to transition K.O. back to
his care because she had bonded with her foster parents. (In re Kimberly F.
(1997) 56 Cal.App.4th 519, 532 [“strength of relative bonds between the
dependent children to both parent and caretakers” a factor to consider when
deciding whether granting a section 388 petition is in the child’s best

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interests].) There is no reasonable probability the court would have granted
Father’s request to modify the order removing K.O.
Next, Mother contends both that the juvenile court relied on improper
factors when assessing whether the parental benefit relationship exception
applied, and the Department’s report did not provide adequate information
regarding Mother’s relationship with K.O. or the benefits of continuing that
relationship. We disagree.
At a permanency plan hearing, the juvenile court selects and
implements a permanent plan for a dependent child, such as adoption,
guardianship, or long-term foster care. (§ 366.26, subd. (b); In re Fernando
M. (2006) 138 Cal.App.4th 529, 534.) If the court finds a child is adoptable, it
must terminate parental rights and order the child placed for adoption unless
termination would be detrimental under an enumerated statutory exception,
such as the parental benefit exception. (§ 366.26, subd. (c)(1); In re Mary G.
(2007) 151 Cal.App.4th 184, 206–207.) A parent establishes this exception by
demonstrating by a preponderance of the evidence “(1) regular visitation and
contact, and (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.).) We review
the factual determinations underlying the court’s evaluation of the first two
elements for substantial evidence, but the “the ultimate decision—whether
termination of parental rights would be detrimental to the child due to the
child’s relationship with [the] parent—is discretionary and properly reviewed
for abuse of discretion.” (Id. at pp. 640–641.) An arbitrary, capricious, or
patently absurd determination is an abuse of discretion. (Id. at p. 641.)
Evaluating whether Mother established the parental benefit exception,
the juvenile court acknowledged Mother’s regular and consistent visitation

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with K.O. It recited the factors for assessing the existence of a beneficial
relationship, such as the “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
the parent and the child, and the child’s particular needs.” (Caden C., supra,
11 Cal.5th at p. 632.) The court noted that if “severing the natural parent-
child relationship would deprive the child of a substantial positive emotional
attachment” that would greatly harm the child, Mother overcomes the
preference for adoption. (Id. at p. 633 [“court must decide whether it would
be harmful to the child to sever the relationship and choose adoption”].)
Finally, it stated the need to “balance the strength and quality of the natural
parent-child relationship” “against the security and sense of belonging a new
family would confer.” (Ibid.) It then concluded, “It’s been two years and four
months, and at this point, and based on the circumstances of the totality of
this case, it is [K.O.’s] best interest that she be adopted by her resource
family.”
The record suggests Mother regularly visited K.O., and that Mother
had an affectionate and playful relationship with K.O., the continuation of
which would benefit K.O. to some degree.3 But the juvenile court did not err
in declining to apply the parental benefit exception as substantial evidence
supports an implied finding that Mother failed to establish terminating the
relationship would harm K.O. to an extent not outweighed by the benefits of
adoption. (Caden C., supra, 11 Cal.5th at pp. 634, 636; In re Zacharia D.

3Even though Mother had the burden of establishing K.O. had
a substantial, positive emotional attachment to her, she challenges the
adequacy of the Department’s permanency report regarding her relationship
with K.O. Mother forfeited this argument by failing to raise it in the
juvenile court. (In re S.B. (2004) 32 Cal.4th 1287, 1293; In re G.C. (2013)
216 Cal.App.4th 1391, 1399.)
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(1993) 6 Cal.4th 435, 456 [appellate courts infer the trial court made all
factual findings necessary to support a judgment in juvenile dependency].)
K.O., who was approximately two years old by the time of the permanency
hearing, had never been in Mother’s care. She was placed in foster care
almost immediately after her birth and had developed a secure attachment to
her foster parents such that being removed from their care would be
traumatic. (Caden C., at p. 632; In re Eli B. (2022) 73 Cal.App.5th 1061,
1074–1076 [child spent minimal time in parents’ care and “had barely ever
known mother as a parental figure”].) On this record, the court was within
its discretion to conclude the benefits of permanence outweighed the
maintenance of K.O.’s relationship with Mother. (Id. at pp. 1075–1076.)
Nothing in the juvenile court’s ruling demonstrates it gave improper
weight to Mother’s ongoing substance abuse when assessing the parental
benefit exception. (In re A.L. (2022) 73 Cal.App.5th 1131, 1161 [indulging
every presumption to uphold juvenile court judgment, and appellant must
affirmatively demonstrate error].) “Parents need not show that they are
‘actively involved in maintaining their sobriety or complying substantially
with their case plan’ ” to establish the exception. (Caden C., supra,
11 Cal.5th at p. 637.) It only applies “when the parent has presumptively
not made sufficient progress in addressing the problems that led to
dependency.” (Ibid. [section 366.26 hearing is held when “the parent has not
been successful in maintaining the reunification plan meant to address the
problems leading to dependency”].) But the record does not indicate the court
used Mother’s problems “to deprive [K.O.] of the chance to continue
a substantial, positive relationship with” Mother. (Caden C., at p. 643.) The
court simply complimented Mother’s progress with maintaining sobriety and
a support network as they related to K.O.’s adoptability assessment and

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Mother’s section 388 modification petition. (Compare with In re B.D., supra,
66 Cal.App.5th at p. 1228 [juvenile court improperly relied heavily on
parents’ failure to complete reunification plans and were unable to care for
children based on continued substance abuse].) It made no mention of
Mother’s lack of progress regarding her substance abuse issues when
assessing the parental benefit exception.
Nor did the juvenile court impermissibly rely on the fact that K.O.’s
primary bond is with her foster parents or the possibility of post-adoption
contact between Mother, Father and K.O., contrary to Mother’s assertions.
(In re J.D. (2021) 70 Cal.App.5th 833, 864, 866–867 [court may not consider
the possibility of any post-adoption contact between parent and child or
compare the child’s attachment to the custodial care giver to the child’s
attachment to the parents when assessing the beneficial-relation exception].)
True, the Department’s report and K.O.’s counsel noted K.O.’s foster parents
were informed they could agree to continued contact between Mother, Father,
and K.O. Similarly, the Department’s report and the social worker testimony
noted K.O. was comfortable with her foster parents. But Mother fails to
identify any statement or ruling by the court that it was relying on either
factor to determine whether Mother established the existence of a beneficial
relationship.4 (In re A.L., supra, 73 Cal.App.5th at p. 1161.)
In sum, the juvenile court properly assessed the parental benefit
exception.

4 These portions of the Department’s report and the social worker’s
testimony were presented at a combined section 366.26 permanency and
section 388 modification petition hearing. “Regardless of their significance to
the court’s determination of whether the parental-benefit exception applied,
these were all issues of high relevance to the court’s decision on the 388
petition.” (In re A.L., supra, 73 Cal.App.5th at p. 1160, fn. 13.)

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 Finally, Mother and Father contend the Department failed to fulfill its
obligation to conduct an adequate inquiry under ICWA. We accept the
Department’s concession on this issue.
ICWA establishes minimum federal standards that a state court must
follow before removing an Indian child — a member of an Indian tribe or
eligible for membership in an Indian tribe and biological child of a member —
from his or her family. (25 U.S.C. § 1903(4); § 224.1, subds. (a)–(b); In re T.G.
(2020) 58 Cal.App.5th 275, 287.) The court and county welfare department
have “an affirmative and continuing duty to inquire whether a child” who is
the subject of a juvenile dependency petition “is or may be an Indian child.”
(§ 224.2, subd. (a); Cal. Rules of Court, rule 5.481(a).)5 An initial inquiry
includes asking parents and extended family members whether the child is or
may be an Indian child. (§ 224.2, subd. (b); In re J.S. (2021) 62 Cal.App.5th
678, 686.) If the court or department “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,” they
must further inquire about the child’s possible Indian status as soon as
practicable. (§ 224.2, subd. (e); see rule 5.481(a)(4); J.S., at p. 686.) A further
inquiry requires interviewing extended family members to obtain current and
former addresses, birth date, place of birth and death, and tribal enrollment
information of the child’s parents, grandparents, and great-grandparents or
Indian custodian. (§§ 224.2, subd. (e)(2)(A), 224.3, subd. (a)(5).)
Here, the Department failed to fulfill its duty to engage in this further
inquiry. Although Mother reported she had no Indian ancestry, K.O.’s
paternal grandmother reported there may be Cherokee ancestry through

5Subsequent undesignated rule references are to the California Rules
of Court.
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her mother — K.O.’s great-grandmother. This provided reason to believe
Indian children might be involved in this dependency proceeding and
triggered the Department’s duty to make a further inquiry. (In re T.G. (2020)
58 Cal.App.5th 275, 292.) Nothing in the record indicates the Department
contacted K.O.’s paternal great-grandmother or other extended family who
could have provided different information regarding K.O.’s potential Indian
heritage. (In re Michael V. (2016) 3 Cal.App.5th 225, 235–236 [social services
agency must contact family members who may have relevant information
about possible Indian ancestry].)
The parties dispute the appropriate remedy — conditionally affirming
or conditionally reversing the order terminating parental rights. We
conclude conditional reversal for failure to comply with ICWA is appropriate
where parental rights have been terminated. (In re Veronica G. (2007)
157 Cal.App.4th 179, 187 [noting that affirming juvenile court orders is
proper where parental rights have not been terminated and ICWA
compliance is the only challenge to the juvenile courts’ orders]; In re Justin S.
(2007) 150 Cal.App.4th 1426, 1437 [conditionally reversing order terminating
parental rights to allow parent’s participation in limited remand proceedings
ensuring ICWA compliance].) The order terminating parental rights is
subject to automatic reinstatement if, after the Department engages in
a further inquiry, it is ultimately determined that K.O. is not an Indian child
within the meaning of the ICWA. (In re Elizabeth W. (2004) 120 Cal.App.4th
900, 908.)
DISPOSITION
The order terminating parental rights is conditionally reversed. The
matter is remanded to permit the Department and the juvenile court to
comply with the inquiry and notice provisions of ICWA and California law. If

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the court finds K.O. is an Indian child, it shall conduct a new section 366.26
hearing, as well as all further proceedings, in compliance with ICWA and
related California law. If the court concludes ICWA does not apply, the
section 366.26 order shall be immediately reinstated.

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 _________________________
Rodríguez, J.

WE CONCUR:

_________________________
Tucher, P. J.

_________________________
Petrou, J.

A162198/A162415/A163649

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