In re E.T. CA2/4

Filed 10/4/22 In re E.T. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FOUR

In re E.T., a Person Coming Under B315104
the Juvenile Court Law.

(Los Angeles County
Super. Ct. Nos. 19CCJP05355,
19CCJP05355A)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

R.T.,

Defendant and Appellant.

APPEAL from orders of the Superior Court of Los Angeles County,
Hernan D. Vera, Judge. Affirmed.
 Roni Keller, under appointment by the Court of Appeal, for Defendant
and Appellant.
Dawyn Harrison, Acting County Counsel, Kim Nemoy, Assistant
County Counsel, Kimberly Roura Deputy County Counsel, for Plaintiff and
Respondent.

Mother R.T. appeals from the juvenile court’s order terminating her
parental rights over her daughter, E., following a hearing pursuant to
Welfare and Institutions Code section 366.26.1 She argues that the trial
court erred in dismissing her section 388 petition alleging changed
circumstances without a hearing. She further contends that in terminating
parental rights and determining that the parental benefit exception did not
apply, the trial court considered improper factors and failed to account for
mother’s bond with the child. We find no error in the trial court’s orders.
Mother also contends the juvenile court’s finding that the Indian Child
Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) did not apply was erroneous
because it was predicated upon a defective ICWA inquiry by the Los Angeles
County Department of Children and Family Services (DCFS). We agree with
mother that DCFS failed to conduct an appropriate inquiry into E.’s possible
Native American heritage. We agree with DCFS, however, that the error was
harmless. Applying the standard articulated in In re Dezi. C. (2022) 79
Cal.App.5th 769, review granted Sept. 21, 2022, S275578 (Dezi C.), we
conclude the record contains no information suggesting a reason to believe E.
may be an Indian child such that further inquiry might lead to a different
ICWA finding by the juvenile court. We accordingly affirm.
BACKGROUND
I. Prior Dependency History
The family consists of mother, father, J.L., and their daughter E. (born
in 2016). Mother also has eight other children, born between 1992 and 2010,
all of whom were permanently removed from mother’s care based on
sustained allegations of drug use, neglect/endangerment, and mental illness.2

1 All further statutory references are to the Welfare and Institutions
Code unless otherwise indicated.
2 Father and mother’s other children are not parties to this appeal.
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 Mother has an extensive prior child welfare history with the DCFS, as
well as the same department in San Bernardino County, including more than
30 referrals between 1994 (when mother was 17 and her first child was two)
and June 2019, including 12 substantiated referrals and six dependency
cases. Mother’s criminal history included misdemeanor convictions in 2002
for abandonment of a child and inflicting injury on a child, a conviction in
2005 for misdemeanor battery and felony petty theft with priors, and a
conviction in 2008 for driving under the influence of drugs and alcohol.
In September 2016, the juvenile court sustained a prior dependency
petition on behalf of E., based on allegations that mother had mental and
emotional problems and had stopped taking her prescribed medication,
placing E. at risk of serious physical harm. The court placed E. with mother
with family maintenance services, ordering mother to participate in a
parenting class, counseling, weekly drug and alcohol testing, and a drug
treatment program, and requiring mother and E. to reside in a maternal
uncle’s home. Mother also completed a section 730 mental health
evaluation.3 The court terminated jurisdiction in June 2017. At that time,
DCFS reported that mother was testing negative for drugs, doing well with
her parenting classes and counseling, and her psychiatrist reported that
mother was stable and did not currently need any medication.
In April 2018, DCFS filed another dependency petition on behalf of E.,
alleging that mother physically abused E. by pulling her hair and dragging
her on the floor. The court terminated jurisdiction in July 2018, after DCFS
recommended dismissal without prejudice because mother agreed to informal
supervision. The voluntary family maintenance plan included random drug
and alcohol testing for mother and mental health services for both mother
and E. DCFS stated that mother participated in the plan from June 2018 to
March 2019, at which time the court found mother in compliance and closed
the case.
In the four months between the closure of informal supervision in
March 2019 and the July 2019 referral at issue here, DCFS received four
additional referrals concerning mother and E. In April, a reporting party
alleged general neglect and emotional and physical abuse. DCFS determined

3 We granted mother’s request for judicial notice of this evaluation.
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the allegation to be inconclusive as to neglect and unfounded as to abuse. In
May, a party alleged general neglect following an alleged incident of domestic
violence between mother and her male companion. DCFS determined the
report was unfounded. The same day, DCFS received a separate report of
general neglect after mother appeared disoriented and unable to walk
straight during her counseling session, at which E. was present. DCFS
determined that report was inconclusive.
In June, DCFS received a report of general neglect from E.’s school,
stating that E. had been missing a lot of school and was displaying
increasingly disruptive behavior, including biting mother. E. attended a
special education class for speech and language delay, but attended on
average only two days per week and was one to two hours late on the days
she did attend. The caller reported that mother and E. generally appeared
unkempt and mother appeared to be on drugs. E. often arrived with a dirty
diaper and once arrived with a dirty backpack containing spoiled milk.
Mother also used curse words when speaking to E. Mother denied the
allegations and agreed to receive informal services. She was referred to
mental health services and the referral was closed on July 19, 2019.
However, the mental health service provider later reported that mother
cancelled numerous appointments and failed to complete an intake for these
services.
II. Referral and Petition
On July 25, 2019, DCFS received an emergency response referral
alleging general neglect of E. (then three years old) by mother. The reporting
party stated that mother and E. were referred for therapy and had an initial
session at mother’s home on July 23, 2019. The session was conducted
outside because the floor was covered with items and there was no room to
walk or sit. During the session, mother was struggling to keep from falling
asleep. Mother reported that she had been discharged from her own therapy
due to attendance issues. E. ran in and out of the house during the session
and drew all over her face. Mother appeared disorganized and confused, and
the reporting party expressed concern for mother’s ability to supervise the
child.

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 A DCFS children’s social worker (CSW) met with mother and E. on
August 1, 2019 at DCFS’s office. Mother stated that the referral was “bull
shit” and she was doing everything her prior social worker told her to do. She
reported that she and E. were both enrolled in mental health services,
although she did not know what type of services E. was receiving. Mother
stated that DCFS was “out to get her” and she was no longer taking
prescribed medication because she did not need it. During the interview, the
CSW observed E. running around the lobby, at one point approached by a
security guard to slow down. When the CSW twice directed mother’s
attention to E., mother stated that the child was fine. Mother told DCFS that
she had no contact information for father other than that he lived in Las
Vegas, Nevada.
The CSW contacted mother’s therapist on August 2, 2019, who reported
that mother was no longer enrolled in services because she had not met the
attendance requirements since June 21, 2019. The therapist also stated that
mother had been inconsistent with E.’s appointments since February, and
that mother had once dozed off during a session. The therapist reported that
E. was diagnosed with “unspecified disruptive, impulse-control and conduct
disorder,” and that medication was being considered. However, because of
the inconsistency with attendance, medication had not been prescribed.
Another therapist reported that mother stopped attending therapy in
May, last saw her psychiatrist in January, and was last prescribed her
medication in January. The therapist observed that mother had “limited
insight into her mental health.” Mother walked into the office of the mental
health services provider on August 12, 2019 and inquired about reconnecting
with services. The provider told DCFS that it could not schedule an
appointment with mother because she was “so unreliable” and did not have
access to a working phone. Mother was told to return the following week.
Between August 6 and 13, 2019, the CSW made multiple unsuccessful
attempts to contact mother. Mother had previously reported that her cell
phone was broken and/or lost.
DCFS spoke with E.’s doctor on August 16, 2019, who reported that E.
was diagnosed with generalized seizure disorder and developmental disorder.
E. had been diagnosed with the seizure disorder in January 2019 and was

5
prescribed medication. The doctor reported that she had observed mother fail
to provide E. with adequate supervision.
The court detained E. from mother on August 16, 2019 and placed her
in foster care. In the detention report, DCFS assessed the risk level to E.
from remaining with mother as “very high” and opined that mother’s “history
and current lack of follow through regarding psychiatric treatment for
herself” and E. posed a risk of harm to E.
DCFS filed a dependency petition on August 20, 2019 on behalf of E.
under section 300, subdivision (b)(1).4 In count b-1, the petition alleged that
mother “has a history of mental and emotional problems, including diagnosis
of Bipolar Disorder and [S]chizoaffective Disorder which renders [her]
incapable of providing regular care and supervision” of E. and which resulted
in prior dependency proceedings for E. and permanent placement services for
E.’s sibling, R. The petition further alleged that mother failed to “regularly
participate in mental health counseling,” or take her prescribed psychotropic
medication. Count b-2 alleged that E. “has behavioral issues including
diagnosis of unspecified disrupted [sic], impulse control and conduct disorder”
and that mother “failed to ensure the child received regular mental health
services since February 2019.” In the Indian Child Inquiry Attachment
(CWA-010(A)), DCFS reported that it had made the required inquiry and that
E. “has no known Indian ancestry.”
Mother completed a Parental Notification of Indian Status form
(ICWA-020) on August 21, 2019. She checked the box stating, “I have no
Indian ancestry as far as I know.”
Mother appeared at the detention hearing, but DCFS had not been able
to locate father.5 The court found a prima facie case for jurisdiction over E.

4 Section 300 states, in relevant part, “A child who comes within any of
the following descriptions is within the jurisdiction of the juvenile court
which may adjudge that person to be a dependent child of the court: . . . [¶]
(b)(1). The child has suffered, or there is a substantial risk that the child will
suffer, serious physical harm or illness, as a result of the failure or inability
of his or her parent . . . to adequately supervise or protect the child.”
5
The court found father to be the alleged father of E., as he was not
present at her birth, did not sign the birth certificate, had not held himself
out as the parent, and had not contributed to supporting the child.
6
under section 300. The court ordered E. removed from both parents and
ordered her continued placement in foster care. The court also ordered
monitored visitation for mother. The court also found that it had no reason to
know E. was an Indian child within the meaning of ICWA. The court ordered
mother and father to keep their counsel, DCFS, and the court apprised of any
new information relating to possible ICWA status.
III. Jurisdiction/Disposition Report
DCFS filed a jurisdiction/disposition report on September 17, 2019.
DCFS reported that it had not been successful in locating father.
DCFS attempted to interview E. on September 10, 2019, but E. was
unable to provide much meaningful information due to her age. E. stated
that she missed mother and “papa,” mother’s boyfriend. She also said that
mother’s boyfriend “yells at me and he yells at my mom.” E.’s caregiver
reported that E. was doing well, was almost potty-trained, was eating and
sleeping well, and consistently took her medication.
A CSW met with mother on the same day. They met at DCFS’s offices
after mother stated she did not want DCFS to come to her home because it
was dirty. Mother told the CSW that she had not done anything wrong and
wanted to regain custody of E. She acknowledged losing custody of her other
children, but stated “that was a long time ago,” and “[t]hings are different
with this baby.” Mother also stated that her boyfriend of three years loved E.
and E. called him “papa.” Mother reported that she had been attending
counseling but she no longer needed therapy and was “okay now.” She stated
that her doctor told her she no longer needed medication but she would take
it if it meant getting E. back. Mother denied missing therapy and doctor
appointments for E., stating that she was “just looking for another therapist
and another doctor” and that E. was “doing fine.”
Maternal uncle told DCFS that he no longer lived with mother, but
visited her often. He stated that he stopped living with mother because her
“living habits are not sanitary,” but mother loved E.
Mother’s therapist spoke with DCFS on September 12, 2019. He
reported that mother had been inconsistent with her therapy visits and had
missed several months of appointments with her therapist and her
psychiatrist, but that in September mother had been calling the office or

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showing up almost daily. He also stated that mother’s current diagnoses
were depression and anxiety. DCFS recommended that mother complete a
new 730 evaluation to help determine her current mental health status.
DCFS also reported that E.’s current caregiver did not want to continue
to monitor mother’s visits with E., because mother acted inappropriately
during a visit and would not stop her behavior when instructed to do so. In
addition, mother’s FaceTime phone call with E. was cancelled after mother
gave the phone to her boyfriend who acted inappropriately with the child.
In a last-minute information filed September 24, 2019, DCFS noted
that on two occasions, mother asked to meet at the DCFS office because her
home was not clean. Mother also admitted that she had not been taking her
prescribed psychotropic medication or attending therapy regularly.
IV. Adjudication and Disposition
At the adjudication and disposition hearing on September 24, 2019, the
court found notice of the proceedings was not proper as to father, and
continued the matter to November 12, 2019. DCFS filed a last-minute
information on October 28, 2019, reporting that mother was having
monitored visits with E. at the DCFS office. Mother acted appropriately with
E. and brought toys for E. to play with. DCFS filed another last-minute
information on November 12, reporting that mother continued to have
appropriate monitored weekly visits with E. DCFS also reported that mother
was not enrolled in any programs and she was “adamant” that she was not
willing to enroll in further programs because she had already completed the
requirements of her last case and felt she had done nothing wrong. E. was
doing well in her placement, had some improvements in behavior, and was
consistently taking her medication to prevent seizures. DCFS therefore
changed its recommendation to the court, urging the denial of reunification
services to mother, given her failure to reunify with her other children, and
her non-compliance and unwillingness to work with DCFS on a case plan to
reunify with E.
The court continued adjudication and ordered DCFS to submit a
supplemental report regarding mother’s disability assessment and
department attempts to locate relatives for possible placement. In a last-
minute information on December 4, DCFS reported that mother had

8
presented at the North Los Angeles County Regional Center for assessment
in September 2019, but failed to provide the necessary documents including
medical and educational records. The Center reached out to the high school
mother said she attended, but it had no record of her attendance. Thus, the
Center stated that the assessment could not be completed. Although mother
had previously denied having contact information for her other children, she
ultimately provided DCFS with contact information for multiple relatives,
including several of her adult children. DCFS identified mother’s cousin as a
potential placement for E.
The adjudication hearing proceeded on December 9, 2019. Mother
testified that she did not currently have a mental health diagnosis. She
stated that she and E. had been going to counseling for the past four years.
She also said that she had an appointment for later in the month with the
County Department of Mental Health to get a diagnosis and she was
prepared to take any medication prescribed. She was taking parenting
classes, meeting with her Narcotics Anonymous sponsor, and had been sober
for the past five or six years. Mother also testified about her efforts to meet
E.’s needs, including participating in counseling and taking medication.
E.’s counsel noted that mother’s testimony was directly in conflict with
the evidence from her care providers regarding her consistency and need for
medication. The court sustained count b-1 as to mother, amending the
allegations to include depression and anxiety as mother’s current diagnoses.
The court dismissed count b-2. The court found jurisdiction over E. under
section 300, subdivision (b)(1). The court also found by clear and convincing
evidence that it was reasonable and necessary to remove E. from her parents
and that DCFS made reasonable efforts to prevent removal. The court
denied reunification services as to father. Over the objection of counsel for
DCFS and E., the court granted reunification services to mother with
monitored visitation three times per week. The court warned mother that it
was giving her a chance, but if she did not complete her case plan, the court
would consider terminating reunification services. Mother’s court-ordered
case plan required her to complete eight random or on-demand consecutive
drug tests, with a full drug rehabilitation program for any missed or dirty

9
tests, a parenting program, individual counseling, and mental health
counseling, including taking all prescribed psychotropic medication.
V. Period of Review
DCFS filed a status review report on June 4, 2020 in advance of the six-
month review hearing pursuant to section 366.21, subdivision (e). E.
continued to live with her foster caregivers and DCFS reported that she had
“fully adjusted” and “formed a healthy attachment” to that family. Her
caregiver stated that E. had greatly improved, having fewer tantrums,
sleeping and eating well, progressing in her toilet training, and improving in
her speech. E.’s clinical service providers also reported that she had made
significant progress.
DCFS reported that mother had failed to comply with her case plan.
Mother’s mental health providers stated that she was being treated for
anxiety disorder and was not currently under medication treatment. On May
18, 2020, mother’s therapist stated that she had not been consistent with her
participation. The CSW enrolled mother for random drug testing on
December 31, 2019, but mother was a “no show” for testing on the nine dates
scheduled following her enrollment. Mother also failed to make progress in
completing her court-ordered parenting program. Mother was inconsistent in
her monitored visits with E., as she was “constantly late,” and sometimes
missed a scheduled visit. During visits, the DCFS monitor reported that
mother was “continuously on her phone” and did not pay attention to E.
Mother also had FaceTime visits with E., but she often put her boyfriend on
the phone with E. Both the CSW and E.’s caregiver told mother that her
FaceTime visits would be cancelled if she allowed her boyfriend to have
phone contact with E.
DCFS also stated that when mother visited the DCFS offices, she was
“always inappropriately dressed, yells, screams and uses inappropriate
language when talking to staff.” Mother also called the CSW and caregiver
after 10 or 11 p.m. and sent them “irrelevant text messages.” Mother
continued to state that E. was taken from her for no reason and appeared
“volatile” and “scattered” when meeting with the CSW. On May 14, 2020,
mother told the CSW that she was being evicted and would be moving to
Nevada. Mother subsequently failed to return repeated calls from DCFS.

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 DCFS also reported that a new referral was generated on May 19,
2020, alleging that mother’s boyfriend sexually abused E. According to E.’s
caregiver, the child was observed “self-stimulating” and then told the
caregiver that “it is ok” because “her daddy did it” to her. The caregiver
stated that E. referred to mother’s boyfriend as her “daddy,” and that E. also
said that the boyfriend had showed E. his penis. According to the caregiver,
mother had not had contact with E. in approximately a month, but the last
time they had a FaceTime call, mother allowed her boyfriend to speak to E.
DCFS recommended terminating family reunification services for
mother, finding that continued services would not be beneficial to E. given
mother’s failure to make efforts to comply with her case plan.
In June 2020, the court granted DCFS’s ex parte application seeking a
forensic interview of E. in light of the allegations of sexual abuse by mother’s
boyfriend. DCFS reported that mother denied any possibility of sexual abuse
and became defiant and aggressive with the CSW. Mother also refused to
consent to a forensic interview for E. or otherwise cooperate with DCFS’s
investigation.6
After the six-month review hearing was continued because of the
COVID-19 pandemic, DCFS filed a status review report on August 27, 2020.
DCFS reported that E. “continues to thrive” with her caregiver, whom she
called “mommy” and to whom she was strongly bonded. E. no longer had
daily tantrums, she was able to verbally express her wants and needs, her
nightmares had decreased, and she was sleeping through the night. This
report of progress was echoed by E.’s mental health providers. On August 3,
2020, E.’s provider team reported that E. had met all of her goals and would
be referred to individual therapy as she no longer needed the same intensive
level of therapy. E.’s current caregiver was unable to adopt E., so DCFS was
continuing to look for family members who could provide permanent
placement for the child.
As for mother, DCFS reported that she remained non-compliant with
her case plan. She was in individual therapy but “has been unable to grasp
the issues” that initiated the case, continuing to state that E. was removed

6
E. was given a forensic interview in July 2020, but she was distracted
and unable to answer basic questions.
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from her for no reason. She also continued to send irrelevant text messages
to the caregiver and the CSW and to call the caregiver at inappropriate
times, despite being told not to do so. Mother also failed to comply with the
schedule for FaceTime visits with E., missing scheduled calls and instead
calling “at all hours of the day and night.” Mother revealed that she had not
intended to move to Las Vegas, as she had previously reported to DCFS, but
made that claim in an attempt to get E. back sooner.
Mother’s clinician at the mental health center reported that she had
recently attended sessions only sporadically. Her individual therapist stated
that mother was consistent but did not employ any of the tools or
recommendations discussed during her sessions. Thus her therapist opined
that mother’s therapy was “stagnant” as she could not understand why her
daughter was removed from her care and therefore could not move forward
with any goals. Mother failed to submit to the approved drug testing
between December 2019 and June 2020. However, as of August 6, mother
had completed eight parenting classes, with additional classes on hold due to
the pandemic. DCFS concluded that E.’s risk level was very high and again
recommended terminating services for mother.
The six-month review hearing proceeded on September 11, 2020.
Mother’s counsel requested six more months of services, arguing that she had
been making efforts to comply with her case plan. He stated that mother was
turned away from the DCFS approved drug testing site because she had
COVID symptoms, but that mother had enrolled in an outpatient program
and had been drug testing there. Mother also claimed that the reports that
her visits with E. were inappropriate and that she allowed her boyfriend
contact with the child were false. Both DCFS and E.’s counsel again
requested that the court terminate services for mother.
The court continued mother’s reunification services, finding that
mother had been making some effort to meet with her therapist and address
her mental health issues, taking her parenting classes, and visiting E. The
court reminded mother to comply with her case plan, and that she was not to
contact the caregiver or allow her boyfriend to attend her visits with E. The
court cautioned mother, “you are on notice that this is your last opportunity
to demonstrate to this court that the child can be safely returned to you,” and

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that the court would terminate reunification services at the next hearing if
mother was not in compliance.
DCFS filed a status review report on February 23, 2021 in advance of
the scheduled 18-month review hearing. DCFS reported that E. had
“sporadic” calls with mother, who was inconsistent in her participation.
Mother had partially complied with her case plan, as she had completed a
parenting program and was participating in individual therapy. However,
she had not submitted to drug testing or enrolled in a full drug rehabilitation
program, and did not follow through with seeing a psychiatrist as
recommended by her therapist. DCFS noted that mother “appears to be
gravely affected by mental health symptoms including . . . paranoia, and
audio hallucinations.” Mother continued to lack insight into her situation,
stating that she did not understand why E. was removed. When asked why
she missed calls with E., mother claimed that her phone had been hacked.
In February 2021, mother’s therapist reported that mother had
delusions, paranoia, trouble perceiving things as they are and grasping
reality, poor insight, and a hard time processing and understanding. She
opined that mother was not mentally able to care for her child and was
seriously affected by her mental health symptoms. The therapist referred
mother to a psychiatrist.
Mother claimed that she was never told that she was enrolled in
random drug testing. Mother told the CSW she had submitted to drug
testing through a different service, and submitted negative test results for six
dates between August and November 2020. The drug program provider told
DCFS that mother previously participated in substance abuse meetings, but
she no longer attended. The provider observed that mother had abrupt mood
swings, did not follow directions, and could not sit still or pay attention.
N.W., the non-relative extended family member acting as mother’s
visitation monitor, reported that the visits were poor in quality, as mother
often talked to herself and laughed uncontrollably for long periods of time
and then refused redirection. Mother also had abrupt changes in mood. N.W.
stated that mother’s mental health seemed to have deteriorated. Mother
continued to miss scheduled video visits.

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 Because of issues with E.’s caregiver, DCFS planned to place E. on an
emergency basis with N.W., who stated she was willing to adopt E. E. told
DCFS that she missed mother but would like to live with N.W.
DCFS noted that mother had partially complied with her case plan but
continued to display severe mental health symptoms, including paranoia and
hallucinations. DCFS stated that the issue that brought the family to the
department’s attention had not been resolved, and that mother “may need
more intensive services and possibly medication.” DCFS concluded that
while mother “appears to genuinely love and care for” E., she “is not able to
appropriately and safely care of her at this time.” DCFS again recommended
termination of services for mother.
In a last-minute information on March 5, 2021, DCFS reported that
mother had enrolled in a substance abuse program, but the program
counselor stated mother was not participating in any of the program’s
requirements. Mother’s therapist reported that mother attended six sessions
between August 2020 and February 2021.
E. was placed with N.W. on March 1, 2021. DCFS reported that
mother had been calling and harassing N.W.’s employer, despite the CSW’s
requests that she stop. Mother also called and texted the CSW excessively,
often with nonsensical messages. The CSW also stated that phone calls with
mother were difficult as she “does not appear to have any insight on her
mental health symptoms” and did not understand why DCFS was not
returning E. to her. When the CSW explained the department’s concerns,
mother would become enraged, yell, and use profanity.
The court held the review hearing on March 11, 2021. Once again,
DCFS and E.’s counsel recommended terminating services for mother.
Mother’s counsel argued that mother was in substantial compliance with her
plan, given her participation in therapy, parenting classes, drug testing, and
visitation, and that there was no substantial risk to E. if she was returned to
mother. The court found that the evidence demonstrated that mother’s
“mental health issues are still very much in play.” Thus, the court found that
continued jurisdiction was necessary, it would be detrimental to E. to return
her to mother, and that mother had made only partial progress toward
alleviating or mitigating the causes necessitating placement. The court

14
terminated reunification services for mother and set the matter for a
permanency planning hearing.
VI. Termination
DCFS filed a section 388 petition on May 25, 2021, seeking to modify
the prior court orders by terminating mother’s visitation. DCFS reported
that it had ongoing issues with mother’s visitation and her “untreated severe
mental health has impeded consistent, purposeful, and meaningful visitation”
with E. For example, DCFS stated that mother failed to appear on April 7,
2021 for a scheduled visit with E. at a local park at 1:00 p.m. When the CSW
called mother, she sounded “drowsy or sleepy” and asked her neighbor for a
ride to the visit. The CSW advised mother that they would only wait a half
hour. At 1:30 p.m., when mother had not arrived, the CSW left with E., who
was crying and upset that mother was not there. Mother texted the CSW at
1:50 p.m. that she had arrived for the visit. When informed that the visit had
been cancelled because of mother’s late arrival, mother began swearing at the
CSW. The following week, the CSW spoke with mother’s neighbor, who had
been allowing mother to use her phone for contact with DCFS. The neighbor
stated that she would no longer do that, as mother was “mean, disrespectful,
and aggressive” toward the neighbor and that living next door to mother had
been the “worst year of her life” because of mother’s erratic behavior. The
neighbor stated that mother was a “scary person and she should not be given
her child.”
On April 26, 2021, the neighbor told DCFS that mother was harassing
her, asking to use her phone and claiming that E. had been kidnapped by
N.W. The neighbor reported that mother was banging on her door at 2:00
a.m., demanding to use the phone. She also reported an incident in which
mother came out of her home screaming and pulling her pants down.
On May 6, 2021, the CSW and E. arrived for a scheduled visit with
mother at 12:00 p.m. Mother was not there, and when contacted, she
appeared confused about the time and location of the visit. After mother
arrived at the visit, she spent most of the time on her phone and talking
about the case, despite repeated redirection from the CSW to focus on E.
While in E.’s presence, mother also repeatedly referenced having a mental
breakdown the day before and asked the CSW if she could take E. home with

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her. Mother told the CSW, “I feel like running away” with E. and asked him
what he would do if she took E. and ran away. Mother stated that she
planned to kidnap E. that day. As the CSW and E. started to leave, mother
began walking behind them, laughing spontaneously. Mother’s substance
abuse counselor also reported that mother had expressed thoughts of
kidnapping E. during visitation.
N.W. told DCFS that following the visit with mother, E. had two
toileting accidents and woke up crying from nightmares. She also reported
that since the visit, E. had regressed to baby behaviors. E.’s therapist sent a
letter to DCFS expressing her “observations and findings regarding the
deleterious impact of E[.]’s visitations with her mother.” The therapist
opined that “the documented severity of [ ] mother’s profound and untreated
mental health issues (possible schizophrenia and active substance use) cause
E[.] considerable trauma as evidenced by significant regressive behaviors,
emotional dysregulation, and encopresis.” The therapist noted that during
sessions, when asked about mother, E. “almost instantly reverts to regressive
language and behavior.” She concluded that the “degree and severity of E[.]’s
regressive behaviors speak to the severe stress she experiences in
relationship to visitation with her mother.”
DCFS changed mother’s visits from in-person to virtual due to her
statements regarding kidnapping. Mother missed the next scheduled virtual
visit on May 13, 2021, causing E.’s mood to change from excitement to
sadness when she realized the visit had been cancelled. DCFS opined that
E.’s visits with mother were detrimental to E. and creating a barrier to E.’s
treatment.
DCFS filed a section 366.26 report on June 17, 2021. DCFS reported
that about June 1, 2021, mother called law enforcement stating that E.’s
caregiver, N.W., had kidnapped the child. Mother also called the CSW,
falsely claiming the court had authorized E. to be returned to her. Mother’s
counselor stated that mother was having a “psychosis episode.” Approval of
N.W. for adoption was still pending. DCFS recommended termination of
parental rights as to both mother and father upon approval of N.W.’s home
study.

16
 At a hearing on July 8, 2021, both DCFS and E.’s counsel asked the
court to grant DCFS’s section 388 petition and terminate visitation for
mother in the best interests of the child. The court noted it was generally
reluctant to limit visits but that the record was “quite substantial and
concerning” regarding the harm to E. from her visits with mother. The court
found that DCFS had met its burden, but rather than ending visitation
entirely, the court reduced mother’s visitation schedule to monitored
visitation once every two weeks. The court cautioned mother about the
importance of following the rules during visitation and “modeling the best
behavior that you can.”
Mother filed a section 388 petition on September 3, 2021.7 She
requested the transfer of her case to family court and return of E. to her
custody, stating that “I did everything I’m supposed to.” She claimed to have
provided the eight required drug tests, and that her completion of classes was
delayed by the COVID-19 pandemic. She attached a certificate of completion
for parenting classes, negative drug test results, and a letter confirming her
monthly counseling.
DCFS filed a status review report on September 13, 2021, in advance of
the hearing scheduled for the same day. DCFS reported that E. was doing
well in her placement with N.W. and N.W.’s children, and appeared to be
“comfortable, safe, and bonded” with that family. E. expressed that she liked
living there and appeared well adjusted in the home. She continued to have
weekly therapy sessions. E. stated that she liked having visits with mother
because mother “buys her things.” N.W. reported recently changing her
phone number because mother “continued to harass her by continuously
sending her pictures and inappropriate text messages.” The CSW observed
that N.W. was invested in E.’s safety and well-being, and expressed her
desire to adopt E.
DCFS also reported that mother had lost her housing and had been
living in a shelter for the past three months. She had maintained
communication with the CSW, but continued to state that E. should return to
her care because she had complied with the court’s orders. The CSW also

7 Although mother was represented by counsel throughout the
proceedings below, she filed the section 388 petition herself.
17
stated that mother’s mental health appeared to be deteriorating, detailing
several recent anxiety attacks, and suggesting that “mother needs more
intensive services perhaps even inpatient.” The CSW observed that “mother
loves her child and is actively advocating for herself to get E[.] back, but
unfortunately, mother is not in a position” to provide for E.’s safety and well-
being.
Mother provided DCFS with paperwork confirming that she had been
prescribed mood-stabilizing medication in August of 2021 and was continuing
monthly counseling. The CSW reported that he had monitored three visits
with mother since August 15, 2021 and those visits went “fairly well” because
mother was more receptive to him than the prior CSW assigned to the case.
However, during the visit he had to “continuously redirect” mother away from
talking about the case. The CSW observed that E. was excited to see mother,
but regressed into talking in a baby voice during visits. Mother often brought
multiple toys to each visit, and the CSW observed that E. spent more time
opening the toys and asking mother to buy more toys than playing with
mother. DCFS reported that N.W.’s home was approved for adoption and
that N.W. was cooperative with DCFS and dedicated to E.’s well-being. DCFS
recommended continued adoptive planning for E.
In a last-minute information, DCFS provided a progress letter from E.’s
therapist. The therapist expressed her continuing opinion that mother’s
mental health issues caused E. “considerable trauma.” She also indicated
that it was important to “highlight for the court” that according to N.W.,
when she informed E. of an upcoming visit with mother, E. “vomited and
defecated on herself as well as demonstrated emotional dysregulation post
visit. It is my ongoing clinical observation that this physiological reaction, in
combination with regressive ‘baby talk,’ demonstrations of anxious
attachment (disinhibited social interactions and continued insecure bids for
attachment), a[n] observable transactional relationship with [mother] (‘I miss
the toys mom brings me’ and ‘I want toys from mom’), and emotional
dysregulation pre and post visits, is continued evidence of the profound bio-
psycho-social stress reaction E[.] experiences related to her interactions and
relationship” with mother.

18
 N.W. told DCFS that E. had recently exhibited increased bed wetting,
behavioral issues, and nightmares in which a monster was going to get her.
E. stated that the monster in the dreams was mother’s boyfriend who had
been accused of sexually abusing E.
The CSW reported that mother exhibited “odd” behavior during a visit
on August 26, 2021. Mother was talking to herself and was not attentive to
or playing with E. Mother denied being under the influence of any
substances.
The court held the permanency planning hearing on September 13,
2021. Both DCFS and counsel for E. requested that the court terminate
parental rights, proceed with adoption, and designate N.W. as the prospective
adoptive parent.
The court summarily denied mother’s section 388 petition without a
hearing, finding mother had not demonstrated a change in circumstances. As
to terminating parental rights, mother’s counsel argued that mother had
maintained regular visitation with E. and that the child would benefit from
continuing the relationship. She noted that E. referred to mother as “mama
Rita,” demonstrated sadness when mother was unable to attend a visitation,
and happiness when mother arrived at visits, indicative of a strong parent-
child bond. Mother addressed the court directly, arguing that she had done
everything that was asked of her, she had “been in compliance the whole
time,” and that DCFS was “not even respecting me.”
The court found that continued jurisdiction was necessary and by clear
and convincing evidence that E. was adoptable. The court further found that
mother had not played a sufficient parental role or established a bond with
the child and that any benefit to E. from her relationship with mother was
outweighed by the physical and emotional benefit she would receive through
the permanency and stability of adoption. The court found that adoption was
in E.’s best interests and by clear and convincing evidence that it would be
detrimental to E. to be returned to her parents. The court also found that no
exception to adoption applied and therefore terminated mother’s and father’s
parental rights. The court further found that DCFS complied with the case
plan by “making reasonable efforts, including whatever steps are necessary
to make and finalize the permanent placement” of E. The court designated

19
N.W. as the prospective adoptive parent. At the conclusion of the proceeding,
mother was escorted from the courtroom after she was disruptive for several
minutes while the court was making its findings. Mother then began
swearing and stating that “I’m not going to accept that . . . . I’m going to steal
my baby then.”
Mother timely appealed.
DISCUSSION
I. Denial of Section 388 Petition
Mother contends that the juvenile court erred in summarily denying
her section 388 petition. She argues that she made a prima facie showing of
changed circumstances based on her compliance with the case plan and the
best interests of the child, and therefore the court abused its discretion by
failing to conduct an evidentiary hearing. We disagree.
A. Legal Principles
Pursuant to section 388, a parent may petition the juvenile court for
modification of any previous order based upon changed circumstances or new
evidence. (In re Alayah J. (2017) 9 Cal.App.5th 469, 478.) A parent may seek
relief under section 388 even after the juvenile court has terminated family
reunification services. Section 388 thus acts as an “‘escape mechanism’” for a
parent facing termination of his or her parental rights by allowing the
juvenile court to consider a legitimate change in the parent’s circumstances
after reunification services have been terminated. (In re Marilyn H. (1993) 5
Cal.4th 295, 309.) “After reunification services have been terminated, it is
presumed that continued out-of-home care is in the child’s best interests.
[Citation.] Section 388 allows a parent to rebut that presumption by
demonstrating changed circumstances that would warrant modification of a
prior court order.” (In re Alayah J., supra, 9 Cal.App.5th at p. 478)
To obtain modification of an order under section 388, the parent must
demonstrate, by a preponderance of the evidence, both a change of
circumstances or new evidence, and that the proposed change is in the best
interests of the child. (In re Alayah J., supra, 9 Cal.App.5th at p. 478; In re
Mickel O. (2011) 197 Cal.App.4th 586, 615.) In evaluating a section 388
petition, the juvenile court may consider factors such as “the seriousness of
the reason leading to the child’s removal, the reason the problem was not

20
resolved, the passage of time since the child’s removal, the relative strength
of the bonds with the child, the nature of the change of circumstance, and the
reason the change was not made sooner.” (In re Mickel O., supra, 197
Cal.App.4th at p. 616; see also In re Kimberly F. (1997) 56 Cal.App.4th 519,
530-532.) The analysis is a searching one; the court may consider the entire
factual and procedural history of the case. (In re Mickel O., supra, 197
Cal.App.4th at p. 616.) “In assessing the best interests of the child, ‘a
primary consideration . . . is the goal of assuring stability and continuity.’”
(Ibid.)
“To support a section 388 petition, the change in circumstances must be
substantial.” (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223.) Moreover,
“[o]nce reunification services are ordered terminated, the focus shifts [from
reunification] to the child’s need for permanency and stability,” and a
presumption arises that “continued care [under the dependency system] is in
the best interest of the child.” (In re Marilyn H., supra, at pp. 309–310.)
After reunification services are terminated, inquiry into a child’s best
interests includes consideration of his or her need for permanency and
stability. (In re J.C. (2014) 226 Cal.App.4th 503, 526–527.)
On receipt of a section 388 petition, the court may either summarily
deny the petition or order a hearing held. (In re Lesly G. (2008)162
Cal.App.4th 904, 912.) Section 388 petitions “are to be liberally construed in
favor of granting a hearing to consider the parent’s request.” (In re Marilyn
H., supra, 5 Cal.4th at p. 309; see also Cal. Rules of Court, rule 5.570(a).)
However, in order to proceed to a hearing, the petitioner must make a prima
facie showing in his or her favor. (Ibid.; see also In re Marilyn H., supra, 5
Cal.4th at p. 310.) “‘There are two parts to the prima facie showing: The
parent must demonstrate (1) [either] a genuine change of circumstances or
new evidence, and . . . (2) [that] revoking the previous order would be in the
best interests of the [child].’” (In re C.J.W. (2007) 157 Cal.App.4th 1075,
1079; see also In re Kimberly F., supra, 56 Cal.App.4th at p. 529; Rules of
Court, rule 5.570(d)(1) & (2).) “‘If the liberally construed allegations of the
petition do not show changed circumstances such that the child’s best
interests will be promoted by the proposed change of order, the dependency
court need not order a hearing.’” (In re C.J.W., supra, at p. 1079; see also In

21
re Edward H. (1996) 43 Cal.App.4th 584, 592 [“A ‘prima facie’ showing refers
to those facts which will sustain a favorable decision if the evidence
submitted in support of the allegations by the petitioner is credited.”].)
“‘[S]pecific allegations describing the evidence constituting the proffered
changed circumstances or new evidence’ is required. [Citation.] Successful
petitions have included declarations or other attachments which demonstrate
the showing the petitioner will make at a hearing of the change in
circumstances or new evidence.’” (In re Anthony W. (2001) 87 Cal.App.4th
246, 250, citing In re Edward H., supra, 43 Cal.App.4th at p. 593.)
We review the juvenile court’s summary denial of a section 388 petition
for abuse of discretion. (In re C.J.W., supra, 157 Cal.App.4th at p. 1079.)
B. Analysis
The juvenile court found that mother failed to meet her initial burden
to show both a genuine change of circumstances and that it would be in E.’s
best interest to reinstate reunification services or return E. to mother’s
custody. As such, the court concluded mother was not entitled to an
evidentiary hearing on her section 388 petition. We find no abuse of
discretion in the court’s summary denial.
The juvenile court did not err in finding that mother’s petition failed to
establish a prima facie case of changed circumstances. Indeed, nowhere in
her arguments below or on appeal has mother explained what change in
circumstances would support her request to return E. to her care.8 In her
petition, mother focused on her claim that she had “done everything [she was]
supposed to” do, namely, completion of parenting classes, attendance at
monthly therapy, and submission of eight negative drug tests. Crucially, this
was the same information before the court when it terminated mother’s
reunification services and was therefore insufficient to establish any change
in circumstances. Mother’s petition contended that the court’s finding of
partial compliance with the case plan ignored her evidence. But the court
explicitly noted that it was not terminating reunification for mother based on

8 In her briefing on appeal, mother repeatedly notes that she filed her
section 388 petition in propria persona. But mother was represented by
counsel throughout the proceedings, including at the hearing where her
counsel argued on behalf of the section 388 petition.
22
minor details regarding drug testing (which mother claimed to have
completed but DCFS contended was not at an authorized site or consecutive
as required) or the parenting class (which mother was unable to complete
because of the pandemic), but rather the court’s ongoing concerns over
mother’s mental health issues.
Mother’s focus on the portions of the case plan she completed ignores
the court’s previous findings regarding the persistence—and even
worsening—of the issues that led to jurisdiction in the matter. Notably,
mother’s petition failed to address the reports by DCFS that mother’s
visitation with E. was inconsistent in frequency and deteriorating in quality,
which had caused the court to reduce her visits and spurred observations by
N.W. and E.’s therapist regarding the negative effects of the visitation on E.
Mother also ignored additional evidence that her mental health issues were
worsening, rather than improving, including the report of her continued
harassment of E.’s caregiver and her refusal to cooperate with DCFS.
Mother’s claim that she fully “participated in such mental health services as
were provided throughout the dependency” and that the court “denied” her
additional necessary services is not supported by the record. Mother’s care
providers reported that she was inconsistent in attendance, or if she did
attend, she was focused on her claim that she had been wronged by DCFS,
both of which made it difficult to effectively diagnose and treat her. The
record also shows that attempts by mother’s therapists to schedule more
frequent treatment or refer mother for psychotherapy and possible
medication were met with resistance and refusal by mother. Neither mother
nor her counsel ever requested additional mental health services; indeed,
mother’s section 388 petition asked the court to terminate jurisdiction,
insisted she had complied with all requirements, and sought E.’s return to
her care. Under these circumstances, it was not an abuse of discretion for the
court to conclude that mother failed to make a prima facie showing that
circumstances had changed in mother’s favor since the termination of
reunification services.
Moreover, it was within the juvenile court’s discretion to conclude that
E.’s interest in permanency and stability would not have been served by the
requested change. At the time of mother’s petition, E. had been involved in

23
the current dependency proceedings for more than two years, and had been
the subject of repeated dependency referrals since shortly after her birth in
2016. Mother’s visitation with E. during the proceedings deteriorated to the
point that she was allowed only bi-weekly, monitored, virtual visitation, and
she was inconsistent in adhering to any visitation schedule or focusing on E.
during visits. As observed by N.W. and E.’s therapist, mother’s visitation
with E. was detrimental to E., leading to increased issues with toileting,
nightmares, and regressive behavior. Moreover, E. was well-cared for by and
well-bonded with N.W. and her family, and N.W. consistently expressed her
commitment to offer E. a permanent home. “A petition which alleges merely
changing circumstances and would mean delaying the selection of a
permanent home for a child to see if a parent, who has repeatedly failed to
reunify with the child, might be able to reunify at some future point, does not
promote stability for the child or the child’s best interests. (In re Edward H.,
supra, 43 Cal.App.4th 584, 594.) ‘[C]hildhood does not wait for the parent to
become adequate.’” (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The court
was not required to disrupt E.’s life at this late stage based on mother’s
claims here.
II. Termination of Parental Rights
Mother also contends the court erred in finding that the parental
benefit exception to adoption did not apply and thereby terminating her
parental rights pursuant to section 366.36. We find the court did not abuse
its discretion in concluding that mother had not established the necessary
exception.
A. Legal Principles
1. Parental benefit exception
Section 366.26’s express purpose is “to provide stable, permanent
homes” for dependent children. (§ 366.26, subd. (b).) If the juvenile court has
decided to end reunification services, adoption is the legislative preference.
(§ 366.26, subd. (b)(1); see also In re Celine R. (2003) 31 Cal.4th 45, 53
[“‘Adoption is the Legislature’s first choice because it gives the child the best
chance at [a full] emotional commitment from a responsible caretaker.’”].)
Thus, once the juvenile court finds the child is adoptable, “the court must
order adoption and its necessary consequence, termination of parental

24
rights,” unless a parent can demonstrate one of the exceptions set forth in
section 366.26 applies. (In re Celine R., supra, 31 Cal.4th at p. 53; see also §
366.26, subd. (c)(1); In re Caden C. (2021) 11 Cal.5th 614, 625 (Caden C.).)
The specified circumstances in section 366.26, subdivision (c)(1)(B) are
“actually, exceptions to the general rule that the court must choose adoption
where possible.” (In re Celine R., supra, 31 Cal.4th at p. 53.) They “‘must be
considered in view of the legislative preference for adoption where
reunification efforts have failed.’ [Citation.] At this stage of the dependency
proceedings, ‘it becomes inimical to the interests of the minor to heavily
burden efforts to place the child in a permanent alternative home.’
[Citation.] The statutory exceptions merely permit the court, in exceptional
circumstances [citation], to choose an option other than the norm, which
remains adoption.” (Ibid.; see also In re A.L. (2022) 73 Cal.App.5th 1131,
1150.)
The exception at issue here is the parental benefit exception, which
permits the selection of another permanent plan if “[t]he parents have
maintained regular visitation and contact with the child and the child would
benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) In
Caden C., supra, 11 Cal.5th 614, our Supreme Court “discern[ed] three
elements the parent must prove” to establish the parental benefit exception
under section 366.26, subdivision (c)(1)(B)(i). (Id. at p. 631.)
First, the parent asserting the exception must show “regular visitation
and contact with the child, taking into account the extent of visitation
permitted.” (Caden C., supra, 11 Cal.5th at p. 636.) This element is
“straightforward,” involving an assessment of whether the parent visits
consistently. (Id. at p. 632.)
Second, the parent must show that “the child has a substantial,
positive, emotional attachment to the parent—the kind of attachment
implying that the child would benefit from continuing the relationship.”
(Caden C., supra, 11 Cal.5th at p. 636.) In assessing whether the child would
benefit from continuing the relationship with the parent, “the focus is the
child. And the relationship may be shaped by a slew of 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

25
the child’s particular needs.’” (Id. at p. 632.) Thus, “courts often consider
how children feel about, interact with, look to, or talk about their parents.”
(Ibid.)
For the third element, the parent must show that terminating the
parent-child attachment “would be detrimental to the child even when
balanced against the countervailing benefit of a new, adoptive home.” (Caden
C., supra, 11 Cal.5th at p. 636.) “Because terminating parental rights
eliminates any legal basis for the parent or child to maintain the
relationship, courts must assume that terminating parental rights
terminates the relationship. [Citations.] What courts need to determine
therefore, is how the child would be affected by losing the parental
relationship—in effect, what life would be like for the child in an adoptive
home without the parent in the child’s life.” (Id. at p. 633.) This evaluation
consists of a “subtle, case-specific inquiry[,]” including consideration of
whether “the benefit of placement in a new, adoptive home” outweighs the
harm the child “would experience from the loss of [a] significant, positive,
emotional relationship” with the parent. (Ibid.) In making this detriment
determination, the juvenile court does “not look to whether the parent can
provide a home for the child,” and “is not comparing the parent’s attributes as
custodial caregiver relative to those of any potential adoptive parent(s).” (Id.
at p. 634.)
2. Standard of review
In Caden C., supra, 11 Cal.5th 614, our Supreme Court clarified the
standard of review applicable for a juvenile court’s findings regarding the
parental-benefit exception. The first two elements—regular visitation and a
beneficial relationship—involved determinations that were essentially
factual; we therefore review those findings for substantial evidence. (Id. at p.
640.) The third element requires the juvenile court to determine whether any
harm the child would suffer from the severance of the parental bond would
outweigh the benefit to the child of adoption. (Ibid.) This requires a “hybrid”
standard of review. (Id. at pp. 640-641.) Like the first two elements, the
juvenile court must make a series of factual determinations including
determinations about the child’s relationship with a parent, which we review
for substantial evidence. (Id. at p. 640.) However, “the ultimate decision—

26
whether termination of parental rights would be detrimental to the child due
to the child’s relationship with his [or her] parent—is discretionary and
properly reviewed for abuse of discretion.” (Ibid.)
We also note that, unlike in Caden C., the juvenile court here found
that mother did not meet her burden of proving the exception. In such a case,
where the trier of fact has “expressly or implicitly concluded that the party
with the burden of proof did not carry the burden and that party appeals, it is
misleading to characterize the failure-of-proof issue as whether substantial
evidence supports the judgment. This follows because such a
characterization is conceptually one that allows an attack on (1) the evidence
supporting the party who had no burden of proof, and (2) the trier of fact’s
unassailable conclusion that the party with the burden did not prove one or
more elements of the case [citations].” (In re I.W. (2009) 180 Cal.App.4th
1517, 1528, overruled on other grounds by Conservatorship of O.B. (2020) 9
Cal.5th 989.) Thus, to the extent mother challenges the juvenile court’s
findings regarding her failure of proof, we determine whether the evidence
compels a finding in appellant’s favor as a matter of law, asking whether that
evidence was uncontradicted and unimpeached and of such a character and
weight as to leave no room for a judicial determination it was insufficient to
support a finding. (In re I.W., supra, 180 Cal.App.4th at p. 1528.)
B. Analysis
1. No reliance on an impermissible factor
Mother first contends that the juvenile court impermissibly relied on a
requirement that she occupy a “parental” role with E. as part of its analysis
of the parental benefit exception. She argues that under Caden C., supra, 11
Cal.5th at p. 278, the court cannot require a parent to show that he or she
occupies a parental role in the child’s life. We disagree that the court
required such a showing here.
As acknowledged by the appellate court in In re L.A.-O. (2021) 73
Cal.App.5th 197, 210, “the words ‘parental role,’ standing alone, can have
several different meanings.” The phrase could reflect a proper analysis of the
parental benefit exception, or it could reflect factors disallowed under Caden
C. (Ibid.) As explained by the Supreme Court, a court may not rely solely on
“[a] parent’s continued struggles with the issues leading to dependency,” such

27
as mental health or substance abuse, nor may the court assess “the parent’s
attributes as custodial caregiver relative to those of any potential adoptive
parent(s),” or “look to whether the parent can provide a home for the child.”
(Caden C., supra, 11 Cal.5th at pp. 634, 637.) Instead, the court must assess
the strength and quality of the parent’s relationship with the child and
whether the child would “benefit from continuing the relationship and be
harmed, on balance, by losing it.” (Id. at p. 638.)
Here, there is no indication in the record that the juvenile court
improperly relied on mother’s mental health struggles apart from its effect on
her ability to form a substantial, positive bond with E. While mother argues
that the court may not make an “arbitrary determination” that one home is
better for a child than another or punish a parent for ongoing mental health
issues, the record establishes the opposite. The juvenile court here extended
mother multiple chances to maintain an appropriate relationship with E.
over the course of several years, despite repeated objections from DCFS and
E.’s counsel, and in the face of an extensive history that included mother
losing custody of all of her other children. The record thus demonstrates that
the court properly discussed and assessed the bond E. had with mother and
whether that bond outweighed the benefits of E.’s adoption. As such, mother
has failed to demonstrate error.
2. Case-specific inquiry
Mother also argues that the juvenile court erred by failing to conduct
the case-specific weighing required under Caden C. We disagree.
We reject mother’s contention that the court failed to “engage in a
subtle [and] detailed analysis of the nature of the relationship” between E.
and mother, as required by Caden C. Other than her citation to the court’s
reference to a “parental role,” mother does not elaborate on her contention
that the court failed in its duties. To the extent mother contends the juvenile
court was required to make specific findings in declining to apply the
parental benefit exception, she forfeited that argument by failing to object
below. (See In re E.A. (2012) 209 Cal.App.4th 787, 790–791.) In fact, the
court’s statement of its findings on the record at the hearing was repeatedly
interrupted by outbursts from mother, requiring ongoing intervention by the
courtroom bailiff. Moreover, the court was not required to explain its reasons

28
in refusing to apply the exception. (In re A.L., supra, 73 Cal.App.5th at p.
1156.)
We do not read the record here to suggest that the juvenile court’s
statements were “intended to be a comprehensive recitation of the grounds
for its decision.” (In re A.L., supra, 73 Cal.App.5th at p. 1156.) Rather, the
court’s findings followed argument by all counsel as well as a statement by
mother, and reflected its findings that mother had not demonstrated a strong
bond with E. and that any benefit of continuing their relationship was
outweighed by the benefits of adoption for E.
The court’s finding that mother failed to establish the elements of the
parental benefit exception is supported by ample evidence. While mother
contends she met the first element under Caden C., requiring consistent
visitation with E., we disagree. The record reveals that mother was
inconsistent with visitation, often missing visits, arriving late, or requiring a
phone call from DCFS to remind her that it was occurring. She also refused
to adhere to an established schedule for FaceTime visits, instead calling the
caregiver late at night.
Similarly, the record demonstrates that mother failed to establish the
second element: that E. had a substantial, positive, emotional attachment to
her. (Caden C., supra, 11 Cal.5th at p. 632.) To the contrary, E.’s therapist
twice expressed her concerns to the court regarding the serious negative
effects that mother’s visitation was having on the child. These statements
were echoed by N.W., who observed E. having increasing issues with
toileting, nightmares, and other regressive behaviors as the visits with
mother deteriorated. There was evidence that E. had some bond with
mother, as she called her “mama Rita” and seemed happy to see her.
However, E.’s therapist noted that the relationship appeared largely
transactional, which was supported by E.’s statement to DCFS that she liked
when mother brought her toys and the observations during visitation that E.
appeared more interested in the toys than in interacting with mother. For
her part, mother seemed to struggle with interacting with E. appropriately,
requiring repeated redirection from the visitation monitors.
We also note that, in contrast to Caden C., the record does not contain
any evidence suggesting E. had difficulty separating from mother at the end

29
of visits or that E. had such an “intense” bond with mother that severing the
relationship would lead to trauma such as emotional instability, acting out,
difficulties in school, insomnia, anxiety, or depression. (Caden C., supra, 11
Cal.5th at p. 628 [relying on expert testimony].) Indeed, E.’s counsel agreed
with the department’s recommendation to terminate parental rights.
Moreover, the record showed that E. was doing well in N.W.’s home and was
bonded to N.W. and her family. Thus, the juvenile court was within its
discretion to find that the benefits E. would gain through adoption by N.W.
would outweigh any detriment she would suffer due to termination of her
relationship with mother.9
On this record, we cannot conclude that the juvenile court abused its
discretion by finding the benefits of placing E. in an adoptive home with
N.W., a longtime family friend, outweighed any detriment she would suffer
due to the loss of her relationship with mother. Thus, the juvenile court did
not err in concluding mother failed to satisfy the parental benefit exception.
III. ICWA Inquiry
Mother argues that the court’s finding that ICWA did not apply is
invalid due to DCFS’s failure to discharge its duty of inquiry into E.’s possible
Native American heritage. DCFS responds that mother’s denials of Native
American heritage gave the court no reason to know E. was an Indian child.
It further asserts that any inquiry error was harmless, as mother makes no
affirmative representation of Native American heritage on appeal.
A. Requirements
“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

9
Notably, mother’s statement to the court during the hearing
demonstrated many of issues leading to the court’s determination. She
argued that she had been in full compliance with her case plan, suggested
that DCFS was acting improperly, and ignored the concerns raised by the
department, E.’s caregiver, and E.’s therapist regarding her relationship with
E. She then began interrupting the court using profanity and threatened to
“steal” E.
30
re Isaiah W. (2016) 1 Cal.5th 1, 7.) “ICWA established minimum standards
for state courts to follow before removing Indian children from their families
and placing them in foster care or adoptive homes.” (In re D.S. (2020) 46
Cal.App.5th 1041, 1048.) California has incorporated many ICWA standards
and requirements into state statutory law. (In re Abbigail A. (2016) 1 Cal.5th
83, 91.)
“In any given case, ICWA applies or not depending on whether the
child who is the subject of the custody proceeding is an Indian child.” (In re
Abbigail A., supra, 1 Cal.5th at p. 90.) Both ICWA and state statutory law
define an “Indian child” as a child who is either a member of an Indian tribe
or is eligible for membership in an Indian tribe and is the biological child of a
member of an Indian tribe. (25 U.S.C. § 1903(4); accord, § 224.1, subds. (a)-
(b).) When a court “knows or has reason to know that an Indian child is
involved” in “any involuntary proceedings in a State court,” the agency
seeking foster care placement of an Indian child is required to “notify the
parent or Indian custodian and the Indian child’s tribe . . . of the pending
proceedings and of their right of intervention. . . . No foster care placement ...
proceeding shall be held until at least ten days after receipt of notice by the
parent or Indian custodian and the tribe or the Secretary. . . .” (25 U.S.
§ 1912(a).)
“‘“ICWA itself does not impose a duty on courts or child welfare
agencies to inquire as to whether a child in a dependency proceeding is an
Indian child. [Citation.] Federal regulations implementing ICWA, however,
require that state courts ‘ask each participant in an emergency or voluntary
or involuntary child-custody proceeding whether the participant knows or has
reason to know that the child is an Indian child.’ [Citation.] The court must
also ‘instruct the parties to inform the court if they subsequently receive
information that provides reason to know the child is an Indian child.’”‘“ (In
re Y.W. (2021) 70 Cal.App.5th 542, 551; see 25 C.F.R. § 23.107(a) (2021).)
Additionally, state law “more broadly imposes on social services agencies and
juvenile courts (but not parents) an ‘affirmative and continuing duty to
inquire’ whether a child in the dependency proceeding ‘is or may be an Indian
child.’” (In re Benjamin M. (2021) 70 Cal.App.5th 735, 741-742; see § 224.2,
subd. (a); In re Y.W., supra, 70 Cal.App.5th at p. 551.)

31
 “The duty to inquire begins with the initial contact, including, but not
limited to, asking the party reporting child abuse or neglect whether the
party has any information that the child may be an Indian child.” (§ 224.2,
subd. (a).) The inquiry duty continues if a child is placed in the temporary
custody of a county welfare department. (§ 224.2, subd. (b).) “Inquiry
includes, but is not limited to, asking the child, parents, legal guardian,
Indian custodian, extended family members, others who have an interest in
the child, and the party reporting child abuse or neglect, whether the child is,
or may be, an Indian child and where the child, the parents, or Indian
custodian is domiciled.” (Ibid.) If this initial inquiry creates a “reason to
believe” a child is an Indian child, DCFS is required to “make further inquiry
regarding the possible Indian status of the child, and shall make that inquiry
as soon as practicable.” (§ 224.2, subd. (e); In re D.S., supra, 46 Cal.App.5th
at p. 1052.) If the further inquiry gives DCFS a “reason to know” the child is
an Indian child, then the formal notice requirements set forth in section
224.3 apply. (§§ 224.2, subd. (d), 224.3, subd. (a); In re D.S., supra, 46
Cal.App.5th at p. 1052.) Alternatively, the juvenile court may find that a
child is not an Indian child if the agency’s “proper and adequate” inquiry and
due diligence reveals no “reason to know” the child is an Indian child.
(§ 224.2, subd. (i)(2); In re D.S., supra, 46 Cal.App.5th at p. 1050.)
“We review claims of inadequate inquiry into a child’s Indian ancestry
for substantial evidence.” (In re H.V. (2022) 75 Cal.App.5th 433, 438; see also
In re D.S., supra, 46 Cal.App.5th at p. 1051; § 224.2, subd. (i)(2).) If an
inquiry is inadequate, we “must assess whether it is reasonably probable that
the juvenile court would have made the same ICWA finding had the inquiry
been done properly.” (Dezi C., supra, 79 Cal.App.5th at p.777.) “If so, the
error is harmless and we should affirm; otherwise, we must send it back for
the Department to conduct a more comprehensive inquiry.” (Ibid.)
B. Analysis
The record in this case unquestionably supports mother’s contention
that DCFS failed in its duty of inquiry. Aside from asking parents about
their Native American heritage at the outset of the case, DCFS did not ask
any of the several relatives and non-relative extended family members with
whom it interacted whether E. or her parents might have Native American

32
heritage. None of the reports, last-minute informations, or other filings give
any indication that DCFS broached the topic with anyone other than mother,
even though some of mother’s relatives and non-relative extended family
members were amenable to contact and forthcoming with information about
the family.
DCFS suggests that the court’s ICWA finding was sufficiently
supported by mother’s initial denial of Native American heritage, DCFS’s due
diligence in searching for father, and the court’s admonition to mother to
provide any new information regarding her heritage. This assertion is
unpersuasive. “Nothing in section 224.2, subdivision (b), relieves the
Department of its broad duty to seek that information from ‘all relevant’
individuals [citation] simply because a parent states on the ICWA-020 form, .
. . ‘I have no Indian ancestry as far as I know.’” (In re Y.W., supra, 70
Cal.App.5th at p. 554.) DCFS had a duty to inquire further and failed to do
so. This was error.
“Where, as here, there is no doubt that the Department’s inquiry was
erroneous, our examination as to whether substantial evidence supports the
juvenile court’s ICWA finding ends up turning on whether that error by the
Department was harmless—in other words, we must assess whether it is
reasonably probable that the juvenile court would have made the same ICWA
finding had the inquiry been done properly.” (Dezi C., supra, 79 Cal.App.5th
at p. 777.) This assessment has proved complex in the all-too-frequent
context of inadequate ICWA inquiry. Various courts have devised at least
four different analytical frameworks with which to assess whether a violation
of ICWA’s initial duty of inquiry is harmless. “These rules exist along a
‘continuum.’” (Ibid.) At one end of the continuum is an approach that
concludes “the error is in most cases ... prejudicial and reversible.” (In re
Antonio R. (2022) 76 Cal.App.5th 421, 435; see also, e.g., In re J.C. (2022) 77
Cal.App.5th 70, 80-82.) At the other end is an approach that treats the error
as harmless unless the parent makes a good-faith claim of Native American
ancestry on appeal. (See In re A.C. (2021) 65 Cal.App.5th 1060, 1069-1071;
In re Noreen G. (2010) 181 Cal.App.4th 1359, 1388.)
The third and fourth approaches lie between these poles. In re
Benjamin M., supra, 70 Cal.App.5th at p. 744 holds that “a court must

33
reverse where the record demonstrates that the agency has not only failed in
its duty of initial inquiry, but where . . . there was readily obtainable
information that was likely to bear meaningfully upon whether the child is
an Indian child.” And Dezi C., supra, 79 Cal.App.5th at p. 779 holds that “an
agency’s failure to conduct a proper inquiry into a dependent child’s
American Indian heritage is harmless unless the record contains information
suggesting a reason to believe that the child may be an ‘Indian child’ within
the meaning of ICWA, such that the absence of further inquiry was
prejudicial to the juvenile court’s ICWA finding. For this purpose, the ‘record’
includes both the record of proceedings in the juvenile court and any proffer
the appealing parent makes on appeal.”
For the reasons articulated in Dezi C., supra, we conclude the “reason
to believe” test is the most appropriate approach. It “weaves together the test
for harmless error compelled by our State’s Constitution with the cascading
duties of inquiry imposed upon agencies by our State’s ICWA statutes,”
“reconciles the competing polices at issue when an ICWA objection is asserted
. . . at the final phases of the dependency proceedings,” and focuses “on what
is in the record rather than what is not in the record.” (Dezi C., supra, 79
Cal.App.5th at pp. 779-782.) It also minimizes the pitfalls that may result
from the other approaches, including parental sandbagging, delay of
permanence for children, and inadequate protection of tribes’ rights. (See id.
at pp. 784-785.) Under this approach, “a reviewing court would have ‘reason
to believe’ further inquiry might lead to a different result if the record
indicates that someone reported possible American Indian heritage and the
agency never followed up on that information; if the record indicates that the
agency never inquired into one of the two parents’ heritage at all[citation], or
if the record indicates that one or both of the parents is adopted and hence
their self-reporting of ‘no heritage’ may not be fully informed.” (Id. at p. 779.)
The record here provides no “reason to believe” E. is an Indian child.
Mother informed DCFS she had no Native American heritage in August 2019
and did not provide any updated information throughout the proceedings.
There is no information elsewhere in the record or in the appellate briefing
suggesting otherwise. There is also no indication mother was adopted or
unfamiliar with her biological history, such that her self-reports of no

34
heritage were unlikely to be fully informed. As to father, mother had no
contact information for him or any of his family members, and DCFS’s efforts
to locate him throughout the case were unsuccessful. Under the In C.
framework and the circumstances presented here, the inadequate ICWA
inquiry is harmless.
DISPOSITION
The orders denying mother’s section 388 petition and terminating her
parental rights are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

WILLHITE, ACTING P.J.

CURREY, J.

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