In re S.R. CA1/5

Filed 7/25/22 In re S.R. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 FIVE

In re S.R., a Person Coming Under
the Juvenile Court Law.

SONOMA COUNTY DEPARTMENT
OF HUMAN SERVICES,
Plaintiff and Respondent, A164102
v.
A.R., (Sonoma County
Defendant and Appellant. Super. Ct. No. DEP6163)

The juvenile court terminated the parental rights of A.R. (mother) over
her now two-year-old daughter S.R. On appeal, mother challenges the
juvenile court’s (1) denial of her petition under Welfare and Institutions Code
section 3881 seeking to provide six months of reunification services and
(2) termination of her parental rights. She also contends the juvenile court
erred by failing to make findings regarding compliance with the Indian Child
Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.). The Sonoma County
Department of Human Services (Department) concedes error regarding the

All statutory references are to the Welfare and Institutions Code
1

unless otherwise stated.

1
ICWA issue and requests that the order terminating parental rights be
conditionally affirmed with directions to comply with ICWA. We affirm the
order denying mother’s section 388 petition and conditionally affirm the order
terminating parental rights. However, we remand for the limited purpose of
determining ICWA compliance.
FACTUAL AND PROCEDURAL BACKGROUND
I. Prior Sacramento County Dependency Proceedings Regarding
S.R.’s Half Siblings
In 2014, mother’s four other children, S.R.’s half siblings, were removed
from mother and their father, J.J., due to mother’s substance abuse and
mental health issues and J.J.’s failure to protect them from mother. Mother
received family reunification services, and J.J. received family maintenance
services. In June 2015, a psychological evaluation of mother concluded that
mother was unlikely to benefit from further reunification services within the
legal time frame for reunification and that she would likely require a
residential treatment program to address her mental health and substance
abuse issues. In July 2015, the dependency case was closed and J.J. was
granted sole physical and legal custody of the children.
In September 2015, S.R.’s half siblings were again removed from their
parents’ care due to domestic violence and J.J.’s failure to protect the
children. At the time, mother was living in the home with J.J. and the
children in violation of a court order. Reunification services were provided to
mother and J.J. The services were terminated in October 2016 due to their
failure to comply with their case plans. In March 2017, the Sacramento
Juvenile Court ordered legal guardianship of the children with maternal
relatives. The dependency proceeding was dismissed in September 2017.

2
II. Petition Regarding S.R.
On July 14, 2020, the Department filed a dependency petition alleging
that S.R., who was four months old, came within the jurisdiction of the
juvenile court under subdivisions (a), (b)(1), (g) and (j) of section 300. The
petition alleged S.R. was at risk of physical harm due to three incidents of
domestic violence in May and July 2020 between mother and R.R., whom the
petition alleged was S.R.’s father.2 The petition alleged that in May 2020
R.R. strangled mother and threatened her with a firearm while S.R. was in
her care. On July 4, 2020, R.R. struck mother on her neck and her eye.
Further, he dragged mother to her vehicle while she was carrying S.R. On
July 6, 2020, R.R. smacked mother on the side of her head with both hands
while she was in their bed. He then grabbed her neck with both hands,
pinned her against a wall, squeezed her neck for six to eight seconds, and
threw two frozen water bottles at her head while calling her names. Then he
squeezed her chin and bit her nose and lips with his dentures. S.R. was in
the bed with mother at the time of the assault.
The petition further alleged that mother was dishonest with the
Department about her living conditions and that she continued to live with
R.R. despite having an emergency protective order. The petition also alleged
mother had untreated mental health issues, including diagnoses of
schizophrenia, bipolar disorder, and postpartum depression. Finally, the
petition summarized the prior dependency proceedings in Sacramento

2 Mother subsequently informed the court that R.R. was not S.R.’s
biological father. The petition alleged that he had a substance abuse problem
and that his whereabouts were unknown. R.R. is not a party to the appeal,
and we limit our discussion of allegations regarding him to those relevant to
the issues mother raises.

3
County that led to S.R.’s half siblings being placed under the guardianship of
their maternal grandmother in 2017.
A. Detention Hearing
On July 15, 2020, the juvenile court detained S.R., finding that there
was no reasonable means to ensure S.R.’s physical and emotional health
without removing her from mother’s physical custody. Mother told the
juvenile court that although R.R. was listed on S.R.’s birth certificate, he was
not her biological father. She provided another name for the biological father
and said he did not know of S.R.’s existence. Further, mother did not know
his whereabouts. Mother also stated that R.R. did not live with her.
Mother’s counsel stated that mother was seeking a protective order against
R.R. and that mother was living in a safe location and was on the waiting list
for the YWCA shelter. Mother further said that the prior dependency
proceedings in Sacramento involved domestic violence in her 17-year
marriage but that she was now divorced and the prior proceedings had
nothing to do with S.R.
B. Jurisdiction Hearing
On August 5, 2020, the Department filed a jurisdiction report
recommending that the juvenile court bypass reunification services under
section 361.5, subdivision (b)(10).3 The recommendation was based on the

3 Section 361.5, subdivision (b)(10)(A) states: “Reunification services
need not be provided to a parent or guardian described in this subdivision
when the court finds, by clear and convincing evidence, any of the following:
[¶] . . . [¶] (10)(A) That the court ordered termination of reunification services
for any siblings or half siblings of the child because the parent or guardian
failed to reunify with the sibling or half sibling after the sibling or half
sibling had been removed from that parent or guardian pursuant to Section
361 and that parent or guardian is the same parent or guardian described in
subdivision (a) and that, according to the findings of the court, this parent or
guardian has not subsequently made a reasonable effort to treat the problems

4
prior Sacramento dependency proceedings, in which mother received
reunification services but did not reunify.
The Department reported that when mother was interviewed about the
allegations in the current petition, she was “emotionally labile,” veering
between being cooperative and defensive. At times she raised her voice,
cried, and asked to be excused because she needed to vomit. Mother told the
social worker that she had a traumatic brain injury in 2018 that caused her
memory problems, but she also said she had fully recovered. She denied that
her brain injury was from a domestic violence relationship, but mother’s
friend told the social worker that the injury was from a domestic violence
incident that occurred with another man after mother divorced J.J. The
report also attached police reports regarding the 2018 domestic violence
incident, in which witnesses stated mother’s then-boyfriend, Shamal R.,
punched mother’s head with his fist and stomped on her head with his foot.
Mother admitted the recent domestic violence incidents described in
the petition, but she denied that S.R. had been in the zone of danger. The
police reports regarding the incidents in May 2020 and July 2020 state that
mother told the police that S.R. was near her when R.R. assaulted her.
Mother denied having mental health issues that prevented her from caring
for S.R. She acknowledged that she had been diagnosed with postpartum
depression, fibromyalgia, and bipolar disorder. Mother reported that she was
no longer employed due to her disabilities and that she received Social
Security disability benefits. Mother declined to sign a release to allow the
Department to speak with her physician about whether she was taking her
prescribed medications.

that led to removal of the sibling or half sibling of that child from that parent
or guardian.”

5
 The Department reported that S.R. was doing well in her foster
placement. Due to concerns about COVID-19 exposure, the Department
recommended virtual visitation with mother.
On October 23, 2020, the Department filed an amended petition,
adding an additional allegation under section 300, subdivision (b)(3)
regarding mother’s alleged substance abuse. The new allegation stated that
mother tested positive for methamphetamine on September 11, 2020, and
that in June 2019 mother asked a cousin to bring methamphetamine to her
apartment and they both snorted several lines. Mother then began having
paranoid thoughts and had a psychotic episode over the next few days in
June 2019, during which she believed neighbors were “ ‘out to get her,’ ” and
she wanted to hurt her neighbors. Law enforcement was summoned, it was
determined that mother was a danger to herself and others, and she was
transported to a hospital under section 5150.
On October 23, 2020, the Department filed an addendum report, which
continued to recommend that mother be bypassed for reunification services.
The Department reported that throughout the prior dependency cases
regarding S.R.’s half siblings, mother tested positive for various substances
and, ultimately, did not complete the substance abuse treatment she was
offered. Since the detention hearing in the current case, the Department
asked mother to submit to a drug test eight times. On four occasions, she did
not test. On September 11, 2020, she tested positive for methamphetamine,
and on other dates she tested positive for benzodiazepine and amphetamine.
The Department noted that mother had a current prescription for alprazolam
and Adderall. When mother was informed of her positive methamphetamine
test, she insisted that it was a false positive and that she only uses the drugs
prescribed by her physician. The Department reported that mother similarly

6
denied abusing drugs in her prior dependency proceedings regarding S.R.’s
half siblings despite testing positive for cocaine.
The jurisdiction hearing was held on January 4, 2021. Mother’s
support person, S.B., testified that S.R. was not with mother during the
May 13, 2020 domestic violence incident. S.B. saw mother on May 13, 2020,
and observed bruises on mother’s neck, face and arms, and marks in her
mouth. S.B. further testified that mother previously had a substance abuse
problem, five or six years earlier, but S.B. did not believe mother was
currently abusing drugs. Social worker Melissa Tice testified consistently
with the Department’s reports. Tice also testified that in her experience
Adderall does not produce a positive test result for methamphetamine.
At the conclusion of the hearing, the juvenile court struck the language
in the amended petition alleging that S.R. was in the mother’s care during
the May 13, 2020, domestic violence incident. The juvenile court sustained
the rest of the petition and found S.R. to be a person described in section 300,
subdivisions (a), (b), (g) and (j). Mother was ordered to complete a
psychological evaluation and submit to a hair follicle drug test.
C. Disposition Hearing
In advance of the disposition hearing, the Department submitted an
update reporting that mother’s hair follicle test taken on January 11, 2021,
was positive for amphetamine and methamphetamine. The Department also
reported that the prior September 11, 2020 toxicology screening was
confirmed to be positive for both amphetamine and methamphetamine. The
Department referred mother for an assessment for substance abuse
treatment, and mother responded in writing, denying that she had a
substance abuse problem and insisting that she only uses prescribed drugs.
Mother did not complete a substance abuse assessment.

7
 Mother submitted a psychological evaluation report prepared by
Dr. Weedn, which was admitted into evidence at the disposition hearing.
Dr. Weedn reviewed the records regarding the dependency proceedings,
interviewed mother, and conducted various psychological assessments.
Dr. Weeden also interviewed mother’s close friend S.B., her personal
physician, and her mother. Dr. Weeden stated that although mother
appeared to want to cooperate, she was defensive and refused to talk about
her past involvement with law enforcement and Child Protective Services.
Mother explained them away as “ ‘in the past’ ” and not relevant. Mother
was unable to reflect on her own past behaviors and instead blamed others,
including social workers and abusive men. She believed that the police and
social workers misrepresented her words and actions. She stated she
completed all classes and services offered to her in the past but could not
recall the names of them or produce certificates of completion. Mother
contradicted herself regarding her brain injury, which her physician
explained was the result of a skull fracture she suffered in a domestic
violence incident that left her in a coma for several weeks. Mother
acknowledged at one point that she had difficulty with cognition due to the
injury but then said she was completely recovered.
Dr. Weedn diagnosed mother with generalized anxiety disorder,
postconcussive syndrome, posttraumatic stress disorder, unspecified
personality disorder (turbulent) style, and compulsive personality style.
Dr. Weedn concluded mother’s denial, minimization, and projection lead to
impaired judgment. She believed that mother may need substance abuse
treatment, based on her recent positive test for methamphetamine, and that
mother also requires long-term psychiatric and psychological treatment,
including trauma-informed care, for her personality disorders.

8
 The juvenile court held the disposition hearing on February 8–9, 2021.
S.B. and mother’s adult daughter K.J. testified on behalf of mother. S.B.
testified that mother’s mental health had improved significantly in the past
five years and that she was a good mother to S.R. K.J. also testified to
positive changes in mother, including that mother held herself accountable
for things she may have done wrong. K.J. lived with her grandmother but
visited mother on weekends, and observed mother caring for S.R. and
believed mother was able to meet S.R.’s needs.
The juvenile court found the Department met its burden to show that
mother had not made reasonable efforts to address her substance abuse or
domestic violence problems, which continued to exist. It denied family
reunification services under section 361.5, subdivision (b)(10) and (13), and
set a section 366.26 hearing for June 3, 2021.
D. Section 388 Petition and Visitation
In May 2021, mother filed a petition under section 388 asking the
juvenile court to continue the section 366.26 hearing and order six months of
reunification services. In support of the petition, mother provided
documentation that since February 2021, she had participated in multiple
classes and programs regarding parenting, drug abuse and domestic violence,
as well as joined a counseling group. Mother began weekly mental health
therapy in April 2021. She alleged that she was maintaining her weekly
virtual visits with S.R. and that they were close. S.R. knew mother’s voice
and called her “ ‘mommy’ ” during their visits. The juvenile court found
mother made a prima facie showing of changed circumstances and granted
her a hearing on her section 388 petition to be held in conjunction with the
section 366.26 hearing. The hearings were continued to September 16, 2021.

9
 In the interim, the Department filed a motion for a bonding study to
aid in assessing the bond between mother and S.R. At the hearing on the
motion, mother’s counsel objected to the bonding study as untimely because it
had been over 30 days since the bypass order. There was discussion on the
record regarding the number of in-person visits that would be needed to
complete a bonding study. S.R.’s counsel and the social worker voiced
concerns that more than two to three weekly in-person visits would be very
hard on S.R., and the Department then withdrew its motion for the bonding
study. Mother’s counsel requested that in-person visits resume in advance of
the section 366.26 hearing. S.R.’s counsel objected to weekly in-person visits
on the basis that S.R. had severe reactions to visits. The social worker stated
that S.R. had severe separation anxiety, and she was concerned about in-
person visits without the presence of S.R.’s foster parents. The juvenile court
ordered one in-person visit for one hour, to be supervised by the Department,
after which the parties were to return to court for a further hearing.
The Department also requested that the juvenile court order mother to
sign a release so the Department could speak with her physician regarding
her medications. The juvenile court stated it would not order mother to sign
a release; however, it urged her to do so and noted that refusal to do so would
be considered at the section 366.26 hearing. Mother refused to sign the
release, but she agreed to another drug test.
On September 1, 2021, the Department filed a report from a social
worker regarding the in-person visit on August 26, 2021. One social worker
observed the visit in person, and a second social worker supervised the visit
virtually. The report stated the social worker met with mother, S.R., and
S.R.’s foster parents outside. As mother carried S.R. toward the visitation
room, S.R. looked at her foster parents and began whining. When she

10
entered the visitation room, S.R. cried and called out for “ ‘mama’ ” multiple
times.4 Mother brought S.R. toys, a blanket she made, a snack, and a drink.
Mother attempted to comfort S.R. but was unable to console her or engage
her in play. S.R. cycled through episodes of whimpering, crying, calling for
“ ‘mama,’ ” looking at the social worker, then shutting down and becoming
flat in affect. She looked at mother once briefly as mother tried to play
peekaboo and then began crying. After 25 minutes, S.R. became inconsolable
and the visit ended. S.R. stopped crying when she was returned to her foster
parents. Following the visit, S.R. reportedly remained quieter than usual
and stayed in very close contact with her foster parents. She had difficulty
falling and staying asleep through the next day, and she was more easily
upset and more difficult to console. The social worker reported that although
mother loved S.R., the Department did not believe in-person visitation was in
S.R.’s best interests. The Department recommended that visits revert to
virtual only pending the section 366.26 hearing.
At the September 1, 2021, interim hearing, S.R.’s counsel also
requested that visitation return to virtual only. Mother stated that the
Department’s report did not accurately describe the visit and that she was
able to soothe S.R. The juvenile court considered whether to permit further
in-person visits but ultimately decided to revert to virtual visits.
E. Section 366.26 Report and Hearing
The Department’s report in advance of the section 366.26 hearing
recommended termination of parental rights and a plan of adoption. S.R.’s
foster parents, with whom she had lived since July 2020, when she was five
months old, wished to adopt her. The Department stated its continuing

4 Based on the context described in the report, we understand that
S.R.’s cries for “ ‘mama’ ” referred to her foster mother.

11
significant concerns regarding mother’s parental fitness despite her
commendable recent progress in programs and classes addressing domestic
violence, substance abuse, and parenting skills. It noted that due to mother’s
refusal to sign releases that would allow the Department to speak with her
health care providers, the Department was unable to determine whether
mother’s August and September 2021 positive drug tests for benzodiazepine,
amphetamine and THC were attributable to prescription drugs in the
prescribed dosages. The Department was also concerned that mother was not
working with a psychiatrist despite her significant mental health history.
Mother continued to be emotionally labile, alternating between being
cooperative and hostile.
The Department further stated that although mother recently
completed parenting classes, she continued to show a lack of understanding
regarding S.R.’s emotional cues, as evidenced by the in-person visit in August
2021. During a telephone conversation between the social worker and
mother, the social worker attempted to discuss S.R.’s distress and trauma
response. Mother became defensive and hung up on the social worker. The
Department did not believe there was a significant change in mother’s
behavior to warrant continuing the section 366.26 hearing or delaying
permanency for S.R.
The Department reported that due to public health orders regarding
COVID-19, the visits were primarily virtual throughout the proceeding.
Mother consistently attended visits. During the virtual visits, mother was
excited and happy to see S.R. and talked to her in “ ‘baby talk,’ ” told her she
loved her, sang to her, and read her books. S.R. often held the phone and ran
around. She generally did not respond to mother but engaged for short
periods with the encouragement of her foster parent. The virtual visits often

12
ended early at mother’s request based on her belief that S.R. needed a nap.
In addition to the August 2021 in-person visit, the Department reported that
there were two in-person visits in November 2020 and two in February 2021.
According to notes from the in-person visits, the Department reported that
S.R. had difficulty transitioning to the visits and often cried for significant
periods of time. Mother held S.R., sang to her, and told her she loved her, but
was not able to engage S.R. in play. S.R. appeared to “zone out” while mother
held her and sang to her.
S.R. was happy and well cared for in her foster home, where she had
spent the majority of her life. She identified her foster parents as her parents
and looked to them to meet her needs. S.R. had substantial emotional ties to
her foster family, and the Department opined that removing her from their
care would be detrimental.
The combined section 388 and section 366.26 hearing was held on
November 19, 2021. Mother testified that she had been participating in the
Drug Abuse Alternatives Center (DAAC) program for nine months and
admitted she had been using methamphetamine. The DAAC program
included relapse prevention, anger management, parenting recovery,
triggers, domestic violence, life skills, and coping skills. She also attended
domestic violence classes at the YWCA and the Center for Domestic Peace.
She learned to identify “red flags” for domestic violence and how to protect
herself. She had a safety plan to guard against domestic violence in the
future, which included the support of her mother, her “sober sisters,” and the
YWCA. She also took several parenting classes, where she learned how to
create a safe environment and establish routines and stability for her
children. She testified that virtual visits were challenging with a five-month-
old, but she did the best she could and became creative by using music boxes

13
and books. Once, she sang S.R. to sleep. Mother testified that the visits went
well and denied that S.R. was ever traumatized by them. Regarding her
medications, mother said her doctor wrote a letter confirming that she had
valid prescriptions for the medications she took, but she was not able to pick
it up before the hearing. She acknowledged that she would not allow the
Department to speak with her doctor. She explained she believed the
Department would use information from her doctor to attack her. Mother
believed it was in S.R.’s best interests to be with her biological family.
Grandmother testified that mother had regained her self-esteem, was
off drugs, and had a good relationship with her older children, who were
under grandmother’s care. Mother’s older daughter K.J. testified that after
participating in services, mother’s demeanor improved. She was more
thoughtful and focused. K.J. believed mother’s issues with domestic violence
and substance abuse were behind her and that she could provide for S.R.
financially and emotionally.
The Department social worker acknowledged that mother had made
progress and should be commended for her efforts at seeking services on her
own. However, she believed that S.R.’s reaction to mother did not evidence
an emotional attachment. Mother still had difficulty recognizing S.R.’s cues
and was unable to engage her. S.R. did not seem to look forward to the visits,
and she was usually exhausted afterward. S.R. was very comfortable in her
foster home and was attached to her foster parents. The social worker
testified that delaying permanency for reunification efforts would be
detrimental to S.R. S.R. had a stable environment in her foster home, where
she had lived for the majority of her life. It would not be detrimental to S.R.
to terminate parental rights. S.R. was specifically adoptable, and her need

14
for stability and permanency outweighed any relationship she had with
mother.
Mother’s counsel argued that it was in S.R.’s best interests for the
juvenile court to grant mother’s section 388 petition to allow for six months of
reunification services. Alternatively, counsel argued for the application of the
parental benefit exception to termination of parental rights. Counsel for S.R.
and counsel for the Department each argued that although mother’s
circumstances were in the process of changing, mother did not meet her
burden of establishing changed circumstances because her programs and
treatment were not yet completed. They further argued that it was in S.R.’s
best interest to provide stability and permanency for her. Regarding the
parental benefit exception, the Department’s counsel argued that mother
failed to demonstrate S.R. had a significant emotional attachment to mother
or that termination of parental rights would be detrimental to S.R. Although
mother loved S.R., she failed to show that their relationship was so strong
that it outweighed the permanency and stability S.R. would gain from
adoption.
The juvenile court denied mother’s section 388 petition, finding that
although mother met her burden of proving a change in circumstances, she
did not prove that her request for reunification services was in S.R.’s best
interests. Regarding the section 366.26 hearing, the juvenile court noted it
was undisputed that S.R. was adoptable. It further found mother failed to
meet her burden to show the parental benefit exception applied. The court
noted S.R.’s young age and that she had spent less than one-third of her life
in mother’s care. It reviewed the factors identified by the Supreme Court in
In re Caden C. (2021) 11 Cal.5th 614 (Caden C.) and found that mother
established that there was regular visitation but not that S.R. benefited from

15
the visits. Instead, there was evidence of negative effects on S.R., which
mother did not recognize. Finally, the juvenile court explained that the
exception applies only where there is evidence of a significant, positive
emotional attachment, which there was not. The court terminated parental
rights and ordered adoption as S.R.’s permanent plan.
DISCUSSION
I. Section 388 Petition
Section 388 permits a parent to petition the juvenile court for a hearing
to modify an earlier order based on a change of circumstances or new
evidence. (§ 388, subd. (a)(1).) To prevail, a parent must show by a
preponderance of the evidence that (1) there has been a change in
circumstances or new evidence and (2) the proposed modification would be in
the best interests of the dependent child. (In re J.M. (2020) 50 Cal.App.5th
833, 845 (J.M.).) Establishing that the modification is in the child’s best
interests is a difficult burden in cases where reunification services have been
terminated or bypassed because after termination of reunification services,
the focus of a dependency proceeding shifts from the parents’ interest in the
care, custody, and control of the child to the child’s need for permanency and
stability. (In re Angel B. (2002) 97 Cal.App.4th 454, 464.) There is a
rebuttable presumption that continued foster care is in the child’s best
interest, and that presumption “applies with even greater strength when the
permanent plan is adoption rather than foster care.” (Ibid.) We review
orders on section 388 petitions for abuse of discretion. (In re Stephanie M.
(1994) 7 Cal.4th 295, 318.)
Mother argues the juvenile court abused its discretion when it denied
her section 388 petition. Specifically, she contends the juvenile court erred
when it found mother did not meet her burden to show the proposed

16
modification was in S.R.’s best interest. According to mother, the juvenile
court erroneously made a simplistic comparison between the care S.R. would
possibly receive with mother and the care she received in her foster home.
She relies on J.M., supra, 50 Cal.App.5th 833, and In re I.B. (2020) 53
Cal.App.5th 133 (I.B.), and argues that these authorities require a more
nuanced analysis of the child’s best interest than a comparison of the parent’s
home to the home of the longtime caregivers.
J.M., supra, found that mother’s completion of all required domestic
violence training and lack of contact with the abusing father for over a year
constituted changed circumstances where domestic violence was the sole
basis for dependency jurisdiction. (50 Cal.App.5th at pp. 836–837, 846, 849.)
It further found that the trial court abused its discretion when it determined
that placement with mother would not be in the child’s best interest. (Id. at
p. 851.) One of the factors to consider in determining the child’s best interest
is the relative strength of the child’s relationship with his or her parent
compared to his or her relationship with his or her caregivers. (Id. at p. 849.)
J.M. explained that the child’s strong bond with his caregivers was not
“ ‘dispositive . . . lest it create its own self-fulfilling prophecy.’ ” (Ibid.) In
J.M. the agency reported that the relationship between mother and her child
was “blossoming” despite their having only weekly visits. (Ibid.) J.M.’s
counsel joined in mother’s petition arguing in favor of returning J.M. to
mother. (Id. at p. 843.) There was evidence from the social worker that
mother soothed J.M. when he was upset and that J.M. was pleased to see
mother, which he expressed by smiling and reaching out. (Ibid.) Here, there
is no similar evidence of a strong bond between mother and S.R.
J.M., supra, is also distinguishable because there, domestic violence
was the only basis for the dependency petition. (50 Cal.App.5th at pp. 836–

17
837, 846, 849.) Here, mother’s substance abuse and mental health are also at
issue. Although mother provided evidence that she was participating in the
DAAC program, she did not permit the Department to speak with her
physician regarding her prescription medications. Further, Dr. Weedn
concluded mother needs long-term psychiatric and psychological treatment
for her personality disorders.
I.B., supra, also involved a mother who overcame domestic violence
issues and filed a section 388 petition requesting return of her three-year-old
son to her care. (53 Cal.App.5th at pp. 135–136.) The juvenile court granted
the petition, finding that mother demonstrated changed circumstances and
that it was in I.B.’s best interests to be returned to her care. (Id. at p. 150.)
There was evidence that I.B. was bonded with mother, who was a constant
and positive presence in his life. (Id. at p. 159.) The Court of Appeal
explained that even the evidence of bonding may not be enough to rebut the
presumption that adoption by the foster family was in I.B.’s best interests.
(Id. at p. 160.) However, there was also overwhelming evidence that I.B. was
being abused in his foster placement by his older brother, who had extreme
emotional and behavioral issues. (Id. at pp. 160–161.) Under those
circumstances, the Court of Appeal found no abuse of discretion in granting
mother’s petition to return I.B. to her care. (Id. at p. 162.) In contrast, here
there was no evidence S.R. was bonded with mother; nor was there any
evidence that her foster placement was detrimental. Rather, the evidence
showed that S.R. was happy and well cared for by her foster parents and that
she had substantial emotional ties to them.
Mother further argues that her petition should have been granted to
“rectify two years of errors in failing to provide her with meaningful
visitation with her infant turned toddler.” Citing In re Hunter S. (2006) 142

18
Cal.App.4th 1497 (Hunter S.), mother claims that her visitation was
“ ‘illusory’ ” given that most of the visits were virtual, which even the juvenile
court stated was “basically worthless” with a child S.R.’s age. The
Department argues that mother has forfeited this argument because she did
not raise it below as part of her section 388 petition. (See In re Malick T.
(2022) 73 Cal.App.5th 1109, 1127 [forfeiture rules apply in dependency
cases].)
In her reply brief, mother argues that she complained about visitation
at “every opportunity . . . .” However, the record citation she provides is to
the June 3, 2021 hearing at which the juvenile court agreed to grant a
hearing on mother’s section 388 petition.5 At that hearing, mother’s counsel
requested visitation be increased to weekly visits and the court agreed.
There was no discussion as to whether the visits would be virtual or in
person. Mother’s section 388 petition, filed prior to the June 3, 2021 hearing,
stated she was maintaining her relationship with S.R. through virtual visits.
Neither in mother’s written section 388 petition nor at the June 3, 2021

5 Mother’s reply brief also cites to the January 4, 2021, jurisdiction
hearing but does not provide the correct reporter’s transcript page number.
Our own review of the transcript for the January 4, 2021, hearing reveals
that mother’s counsel noted mother was receiving only virtual visits but did
not request a change in visitation. The Department social worker clarified
that the visits were initially virtual and then beginning in November 2021
there were several in-person visits and then after a shelter-in-place order the
virtual weekly visits resumed. The social worker stated mother missed one of
the in-person visits without notice and she often ended the virtual visits
early. At this point, the juvenile court questioned how much an infant
benefits from a virtual visit but stated virtual visits are better than no visits.
It was in this context that the court stated, “[T]here is a lot of information
that says that these visits are basically worthless,” before commenting that it
may be best for the infant if the virtual visits ended early, as mother often
requested. The juvenile court then proceeded with the contested jurisdiction
hearing.

19
hearing did she specifically request in-person visitation. It was not until the
August 11, 2021 hearing to consider the Department’s request for a bonding
study that mother requested in-person visitation, which she was granted on a
trial basis. At the combined section 366.26/section 388 hearing, mother’s
counsel argued both that virtual visits “hugely impacted” mother’s ability to
bond with S.R. and that her visits and interactions with S.R., including the
in-person visit in August 2021, went well and were beneficial to S.R. On this
record, we agree with the Department that mother has forfeited the
argument that her section 388 petition should have been granted as a remedy
for a lack of meaningful visitation because she failed to raise this issue below.
(In re Malick T., supra, 73 Cal.App.5th at p. 1127.)
However, even if we did not find the argument forfeited, we would
reject it. Mother’s reliance on Hunter S. is inapposite. There, the juvenile
court ordered visitation “ ‘as can be arranged,’ ” but the child refused to visit
despite efforts by a social worker, relatives, and his therapist. (Hunter S.,
supra, 142 Cal.App.4th at p. 1501.) The Court of Appeal found that the order
was improper because it essentially gave the minor complete discretion to
veto visitation. (Id. at p. 1505.) Here, visitation was permitted, albeit
virtually for most of the proceedings due to shelter-in-place orders and
COVID-19 health concerns. When mother requested in-person visitation in
August 2021, the juvenile court granted the request for an initial visit. The
record does not show that mother requested in-person visits prior to August
2021. (See In re Sofia M. (2018) 24 Cal.App.5th 1038, 1046 [stating that it is
the parent’s burden to initiate motions to modify visitation orders and that
“[t]he court does not err by failing to do that which it is not requested to do”].)
After receiving a report from the Department social worker that the August
26, 2021, in-person visit was detrimental to S.R., the juvenile court acted

20
within its discretion by discontinuing in-person visitation and resuming
virtual visits. (§ 366.21, subd. (h) [after family reunification has been
bypassed, visitation must continue unless the court finds it would be
detrimental to the child].)
II. Termination of Parental Rights
Mother contends the juvenile court erred in terminating her parental
rights because it (1) improperly relied upon the lack of a “ ‘parental
relationship’ ” (boldface omitted), (2) failed to consider the parent–child
relationship in the context of the visitation allowed, and (3) improperly
considered a possible promise of postadoption contact between mother and
S.R. Mother argues these aspects of the juvenile court’s reasoning violate the
criteria for determining the applicability of the parental benefit exception,
which was recently clarified by the Supreme Court in Caden C., supra, 11
Cal.5th 614. We find no error.
A. Legal Framework
At a section 366.26 hearing, the juvenile court selects a permanency
plan for the dependent child. (§ 366.26, subd. (b).) At this stage of the
proceedings, if the juvenile court finds by clear and convincing evidence that
the child is likely to be adopted, “the court shall terminate parental rights
and order the child placed for adoption.” (§ 366.26, subd. (c)(1).) However,
section 366.26, subdivision (c) provides certain enumerated exceptions which
permit the juvenile court, “ ‘in exceptional circumstances [citation], to choose
an option other than the norm, which remains adoption.’ ” (Caden C., supra,
11 Cal.5th at p. 631.) The exception relevant here is the parental benefit
exception. (§ 366.26, subd. (c)(1)(B)(i).) To prove this exception applies, the
parent must establish “(1) regular visitation and contact, (2) a relationship,
the continuance of which would benefit the child such that (3) the termination

21
of parental rights would be detrimental to the child.” (Caden C., at p. 631,
original italics.) As to the first element, the juvenile court considers whether
the parent visits consistently, “taking into account ‘the extent permitted by
court orders.’ ” (Id. at p. 632.) As to the second element, the court assesses
whether the child has a “substantial, positive, emotional attachment to the
parent . . . .” (Id. at p. 636.) In making this determination, the proper focus
is on the child, and the court may consider factors such as “ ‘[t]he age of the
child, the portion of the child’s life spent in the parent’s custody, the
“positive” or “negative” effect of interaction between parent and child, and the
child’s particular needs.’ ” (Id. at p. 632.)
Regarding the third element, the juvenile court decides “whether the
harm of severing the parental relationship outweighs ‘the security and the
sense of belonging a new family would confer.’ ” (Caden C., supra, 11 Cal.5th
at p. 633.) As explained by the Supreme Court, the juvenile court is not
comparing the parent’s attributes as custodial caregiver to those of the
potential adoptive parents. Instead, “the question is just whether losing the
relationship with the parent would harm the child to an extent not
outweighed, on balance, by the security of a new, adoptive home.” (Id. at p.
634.)
B. Standard of Review
Caden C., supra, clarified that determinations regarding the parental
benefit exception are reviewed under a hybrid standard of review. (11
Cal.5th at pp. 639–640.) As to the first two elements, which are factual
determinations, the reviewing court applies a substantial evidence standard
of review. (Ibid.) The third element—whether termination of parental rights
would be detrimental to the child—is reviewed for abuse of discretion. (Id. at
pp. 640–641.) An abuse of discretion occurs only when “ ‘ “ ‘the trial court has

22
exceeded the limits of legal discretion by making an arbitrary, capricious, or
patently absurd determination.’ ” ’ ” (Id. at p. 641.) If two or more inferences
can reasonably be deduced from the facts, the reviewing court may not
substitute its judgment as to what is in the child’s best interests. (Ibid.)
C. Analysis
Mother contends the juvenile court’s statement that during mother’s
visits she “had not in effect been a parent . . . because the child was too
young” was improper because Caden C. does not use the “ ‘parental role’ ”
label and post-Caden C. decisions do not use the label and, instead, examine
the relationship on a case-by-case basis. (See In re L.A.-O. (2021) 73
Cal.App.5th 197, 210–212.) We find no error. The juvenile court carefully
considered the criteria discussed in Caden C. and determined the evidence
did not support a finding of a “significant, positive emotional attachment.”
(Caden C., supra, 11 Cal.5th at p. 636.) The juvenile court first determined
there had been regular visitation. (Caden C., at p. 632.) It then considered
S.R.’s young age and the fact that she spent less than one-third of her life
with mother. (Ibid.) Most significantly, the juvenile court considered the
impact of the visits on S.R. and found that there was evidence the visits had a
negative effect on S.R. and that mother did not recognize the negative
impact. In discussing the visits, the juvenile court commented that mother
“has not been a parent” during the visits. The juvenile court then concluded,
“[T]he [parental benefit] exception applies only where the visits have resulted
in a significant, positive emotional attachment. [¶] The evidence does not
support that. In fact, the evidence suggests there is not a significant, positive
emotional attachment.”
We recognize that Caden C. does not use the words “ ‘parental role’ ” in
its analysis of the parental benefit exception (In re L.A.-O., supra, 73

23
Cal.App.5th at p. 210 & fn. 3), and that other courts have found it improper
for a juvenile court to rely primarily on a parent’s failure to act in a parental
role in determining whether the parental benefit exception applies. (E.g., In
re D.M. (2021) 71 Cal.App.5th 261, 270–271 [holding court erred in equating
“parental role” with attendance at medical appointments and understanding
medical needs, and remanding for determination of whether there is a
“substantial, positive emotional attachment”]; In re J.D. (2021) 70
Cal.App.5th 833, 864, 870 [finding “parental” descriptor to be vague and
unhelpful and remanding to determine whether child had substantial,
positive emotional attachment to the parent as discussed in Caden C.]; In re
L.A.-O., supra, at pp. 211–212 [same].) However, here, we find no error
because the record establishes that the juvenile court properly focused its
determination on whether there was evidence of a “significant, positive
emotional attachment,” and its finding that there was not is supported by the
social worker’s testimony regarding S.R.’s reactions to the visits. (See In re
Katherine J. (2022) 75 Cal.App.5th 303, 319–320 [affirming juvenile court’s
determination that parental benefit exception did not apply where court
found father did not occupy a “ ‘significant parental role’ ” and there was a
lack of a strong, positive attachment, which was supported by substantial
evidence].)
Next, mother argues the juvenile court erred by failing to evaluate the
visitation and contact between mother and S.R. in terms of “ ‘the extent
permitted by court orders’ ” as stated in Caden C. (Caden C., supra, 11
Cal.5th at pp. 639–640.) The record does not support mother’s position. The
juvenile court, in fact, found that mother established regular visitation,
which satisfied the first portion of the parental benefit exception. (Caden C.,
at p. 632.) Mother again argues that the visitation was ineffective and

24
prevented her from establishing a bond with S.R. As discussed ante, mother
argued the opposite below when she asserted that she and S.R. had
established a bond through their weekly visitation, most of which was
virtual. Further, although Caden C. discussed visitation in the context of
what is permitted by court orders, the overriding focus of the parental benefit
exception is whether there is evidence of a “ ‘significant, positive, emotional
attachment from child to parent.’ ” (Caden C., at p. 632.) Nothing in
Caden C. suggests that this standard should be altered depending upon the
type of visitation offered to the parent.
Mother further argues the juvenile court improperly relied on the
promise of the prospective adoptive parents to allow contact and “attempted
to induce [mother] to accept the adoption of her daughter . . . [based] on
expectations that she would be allowed to continue to be a second mother to
[S.R.].” She relies on In re S.B. (2008) 164 Cal.App.4th 289, which found the
juvenile court erred when it found the parental benefit exception did not
apply. (Id. at p. 300.) The juvenile court in S.B. recognized that S.B. would
benefit from continuing her relationship with her father but based its
decision to terminate parental rights in part on the grandparent caregivers’
willingness to allow the father to continue to visit S.B. The Court of Appeal
reversed, finding “a parent should not be deprived of a legal relationship with
his or her child on the basis of an unenforceable promise of future visitation
by the child’s prospective adoptive parents.” (Id. at pp. 298–300, 303; see In
re C.B. (2010) 190 Cal.App.4th 102, 128 [finding that in determining whether
beneficial relationship exception applies, it is improper to consider
prospective adoptive parents’ willingness to allow the children to continue
contact with birth parent].)

25
 The record does not support mother’s contention that the juvenile court
improperly relied on any “unenforceable promise of future visitation” by the
prospective adoptive parents. The Department reported that it informed both
the prospective adoptive parents and mother about the possibility of entering
into a written agreement pursuant to Family Code section 8165.5, to arrange
for continued contact between mother and S.R. after adoption, and that it
made a referral to the Consortium for Children. The Department further
reported that mother was not interested in exploring a plan for postadoption
contact and was focused only on having S.R. returned to her care. Unlike in
In re S.B. and In re C.B., the juvenile court here found that S.R. did not have
a strong emotional attachment to mother, and it then “suggest[ed]” that
mother “change [her] mindset” and “[e]xplore” the opportunity to plan for
future contact with S.R. Nothing in the record suggests that the juvenile
court based its ruling on “an unenforceable promise of future visitation” to
which mother had not even agreed. Instead, the juvenile court simply
suggested that mother might wish to reconsider exploring the possibility of
postadoption contact with S.R.
III. ICWA
Mother argues that the juvenile court never made a definitive ICWA
finding as to S.R. or determined if the Department complied with its duties
under ICWA. The Department concedes, and the record reflects, that
although mother initially denied Native American heritage, on July 23, 2020,
she informed the Department that she had Apache ancestry “ ‘out of San
Antonio, Texas.’ ” She identified an uncle, L.R., as having a family tree but
said he refused to provide information to the family. The Department sent
notices to eight Apache tribes, which included information about some of
mother’s relatives, but did not reference her uncle, L.R.

26
 At the initial hearing on July 15, 2020, the court stated that ICWA may
apply and reserved the issue. The Department’s September 16, 2021, section
366.26 report stated that two of the tribes it notified did not respond and that
the other tribes responded that S.R. was ineligible for membership. The
report recommended that the juvenile court find that ICWA does not apply.
At the combined section 388/section 366.26 hearing, neither party raised the
ICWA issue and the juvenile court did not make any findings regarding
ICWA.
The juvenile court must decide whether ICWA applies in every
dependency proceeding. (In re D.S. (2020) 46 Cal.App.5th 1041, 1048.)
Sections 224.2 and 224.3 specify the steps the Department and the juvenile
court are required to take in determining a child’s possible status as an
Indian child and in providing ICWA notices. (In re D.S., at pp. 1048–1049.)
Here, as the Department concedes, the juvenile court failed to make any
ICWA findings prior to terminating parental rights. Accordingly, we will
remand for the juvenile court to ensure compliance with ICWA and the
related directives of sections 224.2 and 224.3.
DISPOSITION
The order denying mother’s section 388 petition is affirmed. The order
terminating parental rights is conditionally affirmed and remanded to the
juvenile court for the limited purpose of determining whether the
Department discharged its duty of inquiry and notice under sections 224.2
and 224.3, and whether ICWA applies. If the juvenile court determines that
ICWA does not apply, the order terminating parental rights shall remain in
effect. If the court determines ICWA applies, it shall vacate its order
terminating parental rights and proceed in accordance with ICWA and
related state law.

27
 _________________________
Jackson, P. J.

WE CONCUR:

_________________________
Simons, J.

_________________________
Wiseman, J.*

A164102/Sonoma County Dept. of Human Services v. A.R.

*Retired Associate Justice of the Court of Appeal, Fifth Appellate
District, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

28