In re Mar.D. CA4/1

Filed 5/17/23 In re Mar.D. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re Mar.D. et al., Persons Coming
Under the Juvenile Court Law.
D081304
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. Nos. J520405A, C)

Plaintiff and Respondent,

v.

M.D. et al.,

Defendants and Appellants.

APPEALS from orders of the Superior Court of San Diego County,
Browder A. Willis III, Judge. Conditionally reversed and remanded with
directions.
Marisa L. D. Conroy, under appointment by the Court of Appeal, for
Defendant and Appellant, K.J.
Valerie N. Lankford, under appointment by the Court of Appeal, for
Defendant and Appellant, M.D.
 Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy
County Counsel, and Eliza Molk, Deputy County Counsel, for Plaintiff and
Respondent.
K.J. (Mother) and M.D. (Father) (collectively, the parents) appeal from
juvenile court orders terminating parental rights to their sons, Mar.D. and

My.D. (collectively, the children). (Welf. & Inst. Code,1 § 366.26.) The
parents make two contentions on appeal: (1) the juvenile court erred by
finding the beneficial parent-child relationship exception to the statutory
preference for adoption did not apply (§ 366.26, subd. (c)(1)(B)(i)); and (2) the
San Diego County Health and Human Services Agency (Agency) failed to
comply with their inquiry duties under the Indian Child Welfare Act (ICWA,
25 U.S.C. § 1901 et seq). As explained below, we conclude the juvenile court
did not err by finding the beneficial parent-child relationship exception did
not apply to preclude the termination of parental rights. However, we agree
that the Agency failed to fulfill their duties of inquiry under ICWA, and we
conditionally reverse the orders terminating parental rights for the limited
purpose of compliance with ICWA and its related statutory provisions.

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

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 FACTUAL AND PROCEDURAL BACKGROUND
I.
Events Leading to Dependency

In May 2020, the parents’ three children, Mar.D., My.D., and Mas.D.,2
came to the Agency’s attention when My.D.’s urine tested positive for cocaine
shortly after his birth. My.D. exhibited symptoms of in utero cocaine
exposure, including a low birth weight. Mother admitted to hospital staff
that she used cocaine while two-year-old Mas.D. and four-year-old Mar.D.
played outside during her pregnancy with My.D. She also disclosed that she
was diagnosed with “Bipolar I disorder,” and she was not participating in
treatment to address her mental health issues. Father informed a social
worker he was recently out of town for work and that he was unaware of
Mother’s drug use.
The Agency prepared a safety plan that prohibited Mother from using
drugs or being left alone with the children. After Mother and My.D. were
discharged from the hospital, the parents violated the safety plan within two
weeks of its implementation by leaving Mother alone with the children while
Father was away at work. Mother was offered resources to address her
substance abuse and mental health issues, but she did not enroll in the
services. Neither parent participated in a scheduled “family team meeting”
and Father told the Agency he would not cooperate, stating, “Get a court
date. I’ll do what a judge tells me but until then I’m not.” He also told an
Agency social worker that he had dual citizenship and could leave the
country with the children.

2 Mas.D. was returned to the parents’ custody during the dependency
proceedings involving Mar.D. and My.D. He is not a party to this appeal and
discussed only when relevant.
3
 Consequently, the Agency filed dependency petitions alleging the
children fell within the jurisdiction of the juvenile court pursuant to section
300, subdivision (b). Specifically, the petitions alleged the children suffered,
or were at substantial risk of suffering, serious harm due to the parents’
inability to provide for the children. The petitions discussed Mother’s drug
use and untreated mental health diagnosis, and Father’s failure to protect
the children from Mother’s drug use and his threat to flee the country with
the children.
The court issued protective custody warrants pursuant to section 340
and detained the children in out-of-home care. At the jurisdiction and
disposition hearing, the court made true findings on the petitions and
declared Mar.D. and My.D. dependents of the juvenile court. Reunification
services were offered to the parents and Father was allowed unsupervised
visitation with the children. Mother’s visitation was required to be
supervised.
II.
Reunification Period
During the initial review period, the parents obtained stable housing
and maintained regular contact with the Agency. They participated in
parenting classes and Mother started receiving medication and therapy.
Father worked full-time to provide for the family and expressed a desire to
reunify with the children. Mar.D. was placed in a foster home with My.D.,
and Father regularly communicated with the children’s caregivers to request
photos and video chats in order to maintain a bond with both children.
In a status review report prepared for the six-month review hearing,
the Agency opined that if the parents continued to engage with services, the
children would be returned to their care by the 12-month review date. The

4
Agency felt the parents were making slow but steady progress toward
creating a stable home environment for the children. At the six-month
review hearing in April 2021, the court found that the parents had
substantially progressed in mitigating the causes leading to the children’s
dependency. Mas.D. was reunified with the parents, and a transition plan
was implemented to allow the parents overnight visits with Mar.D. and
My.D.
Following the six-month review hearing, the Agency received two
referrals from a child abuse hotline. The first referral alleged that Father hit
Mother during an altercation, causing her lip to bleed, and he then pushed
Mas.D. down. The allegation was found to be inconclusive. The second
referral alleged that Mas.D. left the family home without the parents’
knowledge and was later returned home by a neighbor. Mother admitted
that Mas.D. briefly left the home unaccompanied. The parents also admitted
they left the children in the care of a friend during an overnight visit, which
violated the Agency’s rules prohibiting third-parties from caring for the
children without Agency clearance.
In September 2021, the Agency was contacted when My.D.’s daycare
facility became concerned that he was absent. An Agency social worker
responded to the parents’ home during the children’s overnight visitation and
observed injuries to My.D.’s face. My.D. had significant bruising on the left
side of his temple, eye, jawline, and forehead, and he had a split and swollen
lip. Father claimed the bruising was caused when Mar.D. hit My.D. in the
face with a toy the day prior.
The Agency social worker spoke privately with Mar.D. in the parents’
bedroom. Mar.D. denied hitting My.D. with a toy and claimed that Mother
“smacked [My.D.] hard.” Mar.D. maintained that Mother hits My.D. “a lot,”

5
and that she also hits him. The parents interrupted the interview and
Mother repeated Father’s claim that Mar.D. hit My.D. in the face. Mar.D.
responded by calling Mother a “liar” and stating, “No, you did it.”
The social worker transported the children to the hospital. During
their drive, Mar.D. stated that Mother hit My.D. on five different occasions
throughout the day prior. He also told the social worker that Father was
“beating [Mother] up” and that Father would push Mar.D. if he tried to
intervene. At the hospital, Mar.D. repeated his claim that Mother caused
My.D.’s injuries and denied hitting his brother with a toy.
My.D. was evaluated at the hospital and additional bruising was
observed behind his ear. He had redness on the entirety of his buttocks that
his treatment team concluded was a bruise caused by the palm of a hand. A
child abuse expert evaluated My.D.’s injuries and concluded that his bruising
was not caused by a toy. She raised concerns that the injuries were
intentionally inflicted.
Following this incident, the Agency asked the juvenile court to change
the parents’ visitation with the children from unsupervised to supervised.
Counsel for Mar.D. and My.D. filed petitions asking the court to terminate
reunification services and set the matter for a section 366.26 hearing. The
court granted the Agency’s request to modify the parents’ visitation and set a
hearing to address minor’s counsel’s petitions to terminate reunification
services.
Thereafter, the Agency reported that the parents failed to complete
their case plan requirements, including parenting classes, and did not
maintain consistent contact with the Agency. Father was scheduled for
supervised visitation with the children at a family visitation center, but the
referral was closed due to lack of contact. Mother did not progress in her

6
services, telling the Agency she did not believe that she needed therapy. She
reported feeling overwhelmed when Father frequently left her alone to care
for the children, including the parents’ fourth child who was born in May
2021.
Following the infliction of My.D.’s injuries, Mar.D. emotionally
deteriorated. He experienced increased nightmares and bedwetting, and his
caregivers observed him struggle with self-esteem, confidence, and emotional
expression. He participated in weekly therapy to address his trauma, and his
therapist reported that he would need continued support in his foster home to
learn to process his experiences in a healthy way. Mar.D.’s caregivers
received training and education to support his emotional needs, and they
noticed a positive shift when they implemented the skills they learned. As to
My.D., the Agency reported that he thrived in the home of his caregivers once
he healed from his injuries.
On December 16, 2021, the juvenile court combined the 18-month
review hearing with the hearing to address minor’s counsel’s request to
terminate reunification services. At the hearing, the Agency recommended
that the juvenile court terminate the parents’ reunification services and set
the matter for a section 366.26 hearing. The juvenile court found that
although the parents had been provided with reasonable services, the extent
of their progress has been none. Consequently, the court terminated
reunification services and set the matter for a section 366.26 hearing, finding
there was no probability of the children’s return to the parents’ custody if
reunification services were continued.

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 III.
Post-Reunification Period
After reunification services were terminated, the parents continued to
have supervised visitation with the children. The Agency documented their
observations of the visits and described the children as excited to see the
parents. The Agency noted that the children ran toward the parents and
gave them hugs during their visits.
However, My.D. also ran toward his caregivers at the end of his visits
and he did not appear to struggle to say goodbye to the parents. An Agency
social worker observed that My.D. had difficulty separating from his
caregivers and noted that he did not express a desire to be held or consoled by
the parents when he cried. On one occasion, when Father attempted to grab
My.D., he cried and held on tightly to his caregiver’s shirt.
During Mar.D.’s visits, he told the parents that he loved and missed
them and he cried when he talked about not seeing them. He expressed that
he wanted to live with the parents and had a difficult time saying goodbye.
He became more willing to say goodbye when he learned that he would see
the parents again the following week. On one occasion, after a visit with the
parents was cancelled, Mar.D. became upset and stated he did not want to
leave the visitation center without seeing them.
The children’s caregivers expressed an interest in adopting both
children. In June 2022, Mar.D. expressed he did not want to be adopted and
that he wanted to be returned to the parents. However, it was unclear if
Mar.D. understood the meaning of adoption because of his young age. The
Agency requested a continuance to allow his therapist to assist Mar.D. in
processing the concept of adoption. In July 2022, Mar.D. was more
understanding of the meaning of adoption after discussing the concept with

8
his therapist, and he indicated he wanted to be adopted by his caregivers. In
November 2022, Mar.D. again expressed that he wanted to be adopted by his
caregivers, stating it would make him “very happy” to be adopted. However,
he also stated he would like the opportunity to spend time with his parents
from time to time because he enjoyed their visits.
The Agency opined that Mar.D. shared a significant parent-child
relationship with the parents. But the Agency also noted that in the home of
his caregivers, whom Mar.D. identified as his “new mothers,” he improved
academically, socially, and emotionally. On more than one occasion, he
expressed a desire to be adopted by them. Accordingly, the Agency believed
that the continuation of the parental relationship did not “supersede the
benefits of adoption.” As to My.D., the Agency opined that he did not share a
significant parent-child relationship with the parents. Consequently, the
Agency recommended that the juvenile court terminate parental rights to
both children and order permanent plans of adoption.
III.
Section 366.26 Hearing
At the section 366.26 hearing, the juvenile court heard testimony from

one witness, social worker Paloma Del Prado.3 The court admitted into
evidence, without objection, Del Prado’s curriculum vitae, the April 13, 2022,
section 366.26 report and related addendum, and addendum reports dated

3 Prior to the start of the section 366.26 hearing, the court addressed
Father’s section 388 petition in which he asked the court to reinstate
reunification services and place “the minor” in Father’s care. The court found
that Father did not make a sufficient showing of changed circumstances and
summarily denied the petition.

9
July 12, 2022, September 8, 2022, November 8, 2022, and November 29,
2022.

Del Prado testified that Mar.D.4 enjoyed visiting with the parents. She
noted that they laughed and played together, and that he sought out the
parents for affection, calling them “Mom and Dad.” She observed that Father
came prepared for his visits with the children and she believed that he
wanted to remain part of his children’s lives.
Del Prado recognized the concern of Mar.D.’s therapist that he may
experience grief, loss, and confusion in the future if parental rights were
terminated. And she acknowledged that Mar.D. and the parents appeared to
share a significant parent-child relationship. However, she opined that the
parent-child relationship did not “supersede the benefits of adoption” because
Mar.D. needed the stability and structure offered by adoption. She noted
that although Mar.D. initially stated he would be sad if he were adopted, he
later expressed a desire to be adopted by his caregivers.
Following Del Prado’s testimony, Mother argued that the evidence did
not support the termination of her parental rights. She emphasized the
existence of a significant parent-child bond, “particularly with [Mar.D.].” She
asked the juvenile court to implement a plan of guardianship, rather than
adoption.
Father asked the court to apply the beneficial relationship exception to
adoption. He acknowledged that the evidence demonstrated a stronger bond
between Father and Mar.D., than between Father and My.D., based on
Mar.D.’s age and the portion of his life spent in the parents’ care. He
discussed his efforts at financially providing for the family and argued that

4 Del Prado did not testify regarding the significance of the parental
relationship between the parents and My.D.
10
he maintained consistent visitation with the children throughout the
dependency case.
The juvenile court first found that both children were generally and
specifically adoptable. As to My.D., the court then found there was “no
significant relationship or bond,” considering he never resided with the
parents and was in the foster system since birth. As to Mar.D., the court
found it was “clear” he shared a significant bond with the parents, noting
that he lived in the care of the parents for the first four years of his life. The
juvenile court commented on the affection expressed between Mar.D. and the
parents, stating, “there is a great deal of love and concern expressed both
ways.”
However, the court ultimately concluded there was “not sufficient
evidence to lead [the juvenile court] to believe that the termination of
parental rights would be a detriment to [Mar.D. or My.D.].” Thus, the court
found that adoption was in the children’s best interests. The court
terminated the parental rights of the parents and declared Mar.D. and My.D.
free from their custody and control.
Mother and Father filed a timely notice of appeal.
DISCUSSION
I.
Beneficial Parent-Child Relationship Exception
The parents contend the juvenile court erred by finding that the
beneficial parent-child relationship exception did not apply to preclude the
termination of their parental rights. They argue that the juvenile court
misapplied the applicable legal factors and relied on erroneous evidence in
rendering its decision. Therefore, they assert that its findings were not
supported by substantial evidence and its ultimate decision constituted an

11
abuse of discretion. For the following reasons, we disagree and conclude the
parents have not met their burden of affirmatively demonstrating error.
At a section 366.26 hearing, “ ‘the court may order one of three
alternatives: adoption, guardianship or long-term foster care. [Citation.] If
the dependent child is adoptable, there is a strong preference for adoption
over the alternative permanency plans.’ [Citation.]” (In re B.D. (2021) 66
Cal.App.5th 1218, 1224.) Once the juvenile court has determined that the
dependent child is likely to be adopted, “the court shall terminate parental
rights and order the child placed for adoption” unless a statutory exception to
the preference for adoption applies. (§ 366.26, subd. (c)(1).)
One such statutory exception is the beneficial parent-child relationship
exception. (§ 366.26, subd. (c)(1)(B)(i).) It applies if “[t]he court finds a
compelling reason for determining that termination would be detrimental to
the child” because “[t]he parents have maintained regular visitation and
contact with the child and the child would benefit from continuing the
relationship.” (Ibid.) The beneficial parent-child relationship exception is
applicable if the parent proves the following three elements by a
preponderance of the evidence: “(1) regular visitation and contact, and (2) a
relationship, the continuation of which would benefit the child such that (3)
the termination of parental rights would be detrimental to the child.” (In re
Caden C. (2021) 11 Cal.5th 614, 631 (Caden C.), italics in original.)
We review the juvenile court’s findings as to the first two elements
(regular contact and visitation and the existence of a beneficial parent-child
relationship) for substantial evidence. (In re B.D., supra, 66 Cal.App.5th at
p. 1225.) The second element—whether the parent and child have a
beneficial relationship—significantly overlaps with the first element “because
‘[t]he [benefit] exception applies only where the court finds regular visits and

12
contact have continued or developed a significant, positive, emotional
attachment from child to parent.’ [Citation.]” (In re G.H. (2022) 84
Cal.App.5th 15, 26–27.) Factors the juvenile court may consider in
evaluating the beneficial nature of the parent-child relationship are: “ ‘[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 [the]
child, and the child’s particular needs.’ [Citation.]” (Caden C., supra, 11
Cal.5th at p. 632.)
Here, in evaluating the second element of the beneficial parent-child
relationship exception, the juvenile court discussed the qualitative nature of

the parents’ visits with the children.5 The court noted that the parents
behaved appropriately during their supervised visitation with the children
and that the children enjoyed seeing the parents. The court found that
Mar.D. shared a “significant bond with his parents,” emphasizing that he
lived with the parents for the first four years of his life and that he
recognized the meaning of their relationship. The court reached the opposite
conclusion for My.D., finding that he did not share a “significant relationship”
with the parents.

5 The juvenile court did not make an express finding on whether the first
element, regular visitation and contact, was proven by a preponderance of the
evidence. Because we conclude that the juvenile court did not err in finding
that the second element was not proven in the case of My.D., and that the
third element was not proven in the case of Mar.D., we need not determine
whether substantial evidence supports the first element. However, in our
discussion, we assume arguendo that the parents proved the first element by
a preponderance of the evidence. We include a discussion of the nature of the
visitation to determine whether the juvenile court abused its discretion in
finding that the benefits of adoption outweighed the detriment of terminating
the parental relationship.
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 We interpret the juvenile court’s comment that Mar.D. shared a
“significant bond” with the parents as a finding that they shared a beneficial
relationship for purposes of the beneficial parent-child relationship exception.
We conclude substantial evidence supports the court’s finding. Mar.D. was
six years old at the time of the section 366.26 hearing, and he spent the first
four years of his life in the parents’ care. He continued to refer to the parents
as “Mom and Dad” throughout the dependency case and told them he loved
them. Although Mar.D. ultimately expressed a desire to be adopted by his
caregivers, the evidence also demonstrated that he enjoyed visiting with the
parents and wanted to continue to see them. As the juvenile court noted, the
evidence was clear that Mar.D. and the parents shared “a great deal of love.”
We similarly interpret the juvenile court’s comments that My.D. and
the parents did not share a “significant relationship,” as a finding that the
evidence did not prove a beneficial relationship for the purposes of the
beneficial parent-child relationship exception. As Father acknowledges in his
opening brief on appeal, the substantial evidence standard is weightier
where, as here, the issue on appeal turns on a failure of proof by the party
who bore the burden of proof. In such a case, under the substantial evidence
standard, the question “ ‘for a reviewing court becomes whether the evidence
compels a finding in favor of the appellant as a matter of law’ or, put another
way, ‘whether the appellant’s evidence was (1) “uncontradicted and
unimpeached” and (2) “of such a character and weight as to leave no room for
a judicial determination that it was insufficient to support a finding.” ’ ” (In
re I.W. (2009) 180 Cal.App.4th 1517, 1528, disapproved on other grounds in
Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.)
Having reviewed the entirety of the record, and drawing all reasonable
inferences in favor of the juvenile court’s finding, we conclude the evidence

14
does not compel a finding that the parents and My.D. shared a beneficial
relationship. My.D. spent the entirety of his life outside the parents’ custody,
and he did not look to the parents for consolation during their visits. The
evidence demonstrated that he had difficulty transitioning away from his
caregivers; he was observed to cry and throw himself backward when
separating from them. The Agency opined that neither parent shared a
significant relationship with My.D. and the parents themselves
acknowledged at the section 366.26 hearing that their relationship with
Mar.D. was stronger than My.D. Accordingly, because substantial evidence
supported the juvenile court’s finding that the second element was not proven
as to My.D., we conclude the juvenile court did not abuse its discretion in
determining that the beneficial parent-child relationship exception was not
applicable to preclude the termination of parental rights in his case.
However, as to Mar.D., our inquiry does not stop here. Where the
juvenile court has found the existence of a beneficial parent-child
relationship, as the juvenile court did here, it must then determine whether
terminating the parental relationship would be detrimental to the child.
(Caden C., supra, 11 Cal.5th at p. 633.) In evaluating detriment, the juvenile
court must “decide whether the harm from severing the child’s relationship
with the parent outweighs the benefit to the child of placement in a new
adoptive home.” (Id. at p. 632.) The juvenile court must then weigh the loss
of this relationship with “the benefit of placement in a new, adoptive home.”
(Ibid.) As our Supreme Court cautioned, in performing its weighing analysis,
the juvenile court may “not compar[e] the parent’s attributes as custodial
caregiver relative to those of any potential adoptive parent(s).” (Id. at
p. 634.)

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 We review the juvenile court’s “ruling on the third element under a
hybrid standard, reviewing its factual determinations concerning the
detriment analysis for substantial evidence but its ultimate weighing of the
relative harms and benefits of terminating parental rights for an abuse of
discretion.” (In re Eli B. (2022) 73 Cal.App.5th 1061, 1068.) Under the
substantial evidence standard, “ ‘we draw all reasonable inferences from the
evidence to support the findings and orders of the dependency court; we
review the record in the light most favorable to the court’s determinations;
and we note that issues of fact and credibility are the province of the trial
court.’ ” (In re R.T. (2017) 3 Cal.5th 622, 633.) Under the abuse of discretion
standard of review, we determine whether the juvenile court’s decision
exceeded the bounds of reason, and, in so doing, we cannot substitute our
view for that of the juvenile court. (Caden C., supra, 11 Cal.5th at p. 641; In
re Stephanie M. (1994) 7 Cal.4th 295, 318–319.)
The parents argue, and the Agency concedes, that when the juvenile
court evaluated the harm of severing Mar.D.’s relationship with the parents,
it erroneously attributed aspects of My.D.’s behavior to Mar.D. During its
analysis, the juvenile court stated,
“[A]t least as far as [Mar.D.] is concerned, he does have
difficulties transitioning away from the caregiver to the parents.
Once he gets to the parents, he becomes comfortable. But
initially, those transitions—at least that transition has been a bit
problematic, as the Agency reports that on multiple occasions,
[Mar.D.] would hold onto the caregiver and have difficulty in
making that transition. ¶ And then it was reported that once
the visit was over, [Mar.D.] would run back to the caregiver and
transition in direction rather easily.”

We agree with the parents that the behavior described by the juvenile
court was attributable to My.D., as detailed in the Agency’s addendum report
dated September 8, 2022. However, “[e]ven if the trial court articulates the

16
wrong reasons when arriving at a correct conclusion, we will presume the
judgment correct and affirm it on any ground supported by the evidence,
whether articulated by the trial court or not. [Citation.]” (In re Marriage of
Brooks (2019) 33 Cal.App.5th 576, 593.) Thus, “if the trial court’s order was
correct on any legal theory, we will affirm it, even if the trial court’s
reasoning was wrong.” (In re Marriage of Wang & Zhou (2021) 62
Cal.App.5th 1098, 1008.) Disregarding the juvenile court’s statements in
which it apparently confused Mar.D. and My.D.’s behavior, we nevertheless
find no error in the juvenile court’s ruling because substantial evidence
supports a finding that Mar.D. would not suffer detriment at the termination
of parental rights. (See In re Dakota H. (2005) 132 Cal.App.4th 212, 230 [we
uphold the judgment if it is supported by substantial evidence, “[e]ven though
substantial evidence to the contrary also exists and the trial court might have
reached a different result had it believed other evidence.”].)
Contrary to the parents’ arguments, the evidence was not
“uncontroverted” that the strength of Mar.D.’s bond with the parents
compelled a finding of detriment at the severance of their relationship.
Although the evidence demonstrated that the parents’ supervised visitation
was generally positive, Mar.D. disclosed abusive behavior by the parents
during their unsupervised visitation. Mar.D. alleged that Mother repeatedly
hit My.D., causing extensive bruising, and that she falsely blamed Mar.D. for
My.D.’s injuries. Mar.D. “emotionally deteriorated” following this incident
and he needed weekly therapy to address his trauma. He also alleged that
Father was “beating up” Mother in his presence.
Despite evidence of the negative effects of the parents’ behavior on
Mar.D., the juvenile court still acknowledged the existence of a bond between
them, commenting that they shared a great deal of love and that the parents

17
behaved appropriately during their supervised visitation. However, a
“showing the child . . . derive[s] some benefit from continuing a relationship
maintained during periods of visitation” is not a sufficient ground to depart
from the statutory preference for adoption. (In re Angel B. (2002) 97
Cal.App.4th 454, 466.) Affectionate visits with a parent are not enough. (Id.
at p. 468).
The focus of the third element of the beneficial parent-child
relationship exception is on “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.” (Caden C., supra, 11
Cal.5th at p. 633, italics added.) This analysis requires the juvenile court to
look to the child’s experience with the caregivers to determine “how a
prospective adoptive placement may offset and even counterbalance” the
harm in terminating parental rights. (Id. at p. 640.) The focus of this
analysis is not to compare the parental attributes of the caregivers with that
of the parents, but to examine what the child’s life looks like in his
prospective adoptive home, without a parental relationship with the parents.
(Id. at p. 634 [the juvenile court may not compare “the parent’s attributes as
custodial caregiver relative to those of any potential adoptive parent(s).”].)
Here, in the parents’ absence, the Agency reported that Mar.D.
“continued to thrive” in his prospective adoptive placement and “significantly
improved in his academics, and social and emotional skills.” The caregivers
ensured that Mar.D. continued to receive weekly therapy to address his
emotional issues, and they sought out tools to assist him in this process. And
after learning more about the concept of adoption with his therapist, Mar.D.
reported that it would make him “very happy” to be adopted by his
caregivers. The Agency social worker opined that the benefits of adoption

18
outweighed any potential detriment resulting from the termination of
parental rights because Mar.D. needed the stability and structure offered by
adoption. The social worker’s opinion was supported by ample evidence in
the record, discussed above, demonstrating that Mar.D. progressed in the
absence of his parents and in the home of his caregivers.
Accordingly, we conclude substantial evidence supports the juvenile
court’s finding that there was insufficient evidence of detriment, and we
perceive no abuse of discretion in the court’s determination that the
beneficial parent-child relationship did not apply. (See Caden C., supra, 11
Cal.5th at p. 641 [“ ‘ “ ‘the trial court has exceeded the limits of legal
discretion by making an arbitrary, capricious, or patently absurd
determination.’ ” ’ ”].) Thus, the parents have not met their burden of
affirmatively demonstrating error.
II.
ICWA Inquiry
Mother argues substantial evidence did not support the juvenile court’s
finding that ICWA did not apply because the Agency failed to conduct an
inquiry of available extended family members. She further argues the
Agency did not fulfill its inquiry duties under ICWA by failing to review the
parents’ child welfare files. Father joins her argument. The Agency concedes
it did not fully comply with its duties under ICWA by failing to conduct an
inquiry of two paternal uncles with whom the Agency had contact. It further
concedes that to the extent the parents’ child welfare files contained
information that could assist the Agency in conducting its ICWA inquiry, the
Agency should have investigated the files. We accept the Agency’s concession

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and conclude a limited remand is necessary to ensure compliance with

ICWA.6
A. Additional Background
At the outset of the case, the parents informed the Agency they did not
have Native American heritage. The Agency reported the parents’
statements denying Native American ancestry in the detention report, and
the juvenile court found that ICWA did not apply. However, the court
ordered the Agency to conduct a further ICWA investigation and report its
findings to the court.
The record demonstrates that both parents had child welfare history as
minors, and they were a part of the extended foster care system. However,
there is no evidence in the record that the Agency investigated the child
welfare files to determine if there was information relating to ICWA or
contact information for biological relatives who may have had further
information. Nor does the record indicate that the Agency made ICWA
inquiries from two paternal uncles with whom they had contact. Although
Father later affirmed his denial of Native American heritage, there is no
documentation of further investigative efforts by the Agency relating to
ICWA in the record.

6 The Agency further argues the juvenile court failed to ask the parents,
who were present at the hearings, whether they knew or had reason to know
the children were Indian children, and to inform the court if they
subsequently received information providing a reason to know the children
were Indian children. (§ 224.2, subd. (c).) Because we conclude a limited
remand is necessary to permit the Agency to conduct an adequate ICWA
investigation, we assume the juvenile court will fully comply with its duties
under ICWA and need not address the issue.
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 At various hearings throughout the dependency case, including the
section 366.26 hearing at which parental rights were terminated, the juvenile
court found that ICWA did not apply.
B. Analysis
Congress enacted ICWA in order to address the separation of “Indian
children from their families and tribes through adoption or foster care
placement, usually in non-Indian homes. [Citation].” (In re Isaiah W. (2016)
1 Cal.5th 1, 7.) Thereafter, our Legislature enacted statutory provisions to
effectuate ICWA’s purposes. (Id. at p. 9.) Under California law, the juvenile
court and Agency have an “affirmative and continuing duty” to inquire
whether a child subject to juvenile dependency may be an Indian child.
(§ 224.2, subd. (a).)
“This continuing duty [of inquiry] can be divided into three phases: the
initial duty to inquire, the duty of further inquiry, and the duty to provide
formal ICWA notice.” (In re D. F. (2020) 55 Cal.App.5th 558, 566.) In the
first phase, the Agency’s initial duty requires it to, at a minimum, inquire
from the party reporting child abuse or neglect whether they have

information that suggests “the child may be an Indian child.”7 (§ 224.2, subd.

7 Mother argues the Agency was required to interview “extended family
members” as part of its initial inquiry pursuant section 224.2, subdivision (b).
However, as recently clarified in In re Robert F. (Apr. 12, 2023, E080073), the
Agency’s duty to interview extended family members as part of its initial
inquiry is only triggered when a child is taken into “temporary custody of a
county welfare department pursuant to section 306.” (§ 224.2, subd. (b).)
Here, the children were taken into protective custody pursuant to a warrant
under section 340, and therefore section 224.2, subdivision (b), is not strictly
applicable, at least with respect to the Agency’s duty to inquire from
extended family member as part of its initial duties. However, as we further
discuss, under the circumstances of this case the Agency was required to
interview available extended family members as part of its continuing duty of
inquiry.
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(a).) In the second phase, “if that initial inquiry creates a ‘reason to believe’
the child is an Indian child, then the Agency ‘shall make further inquiry
regarding the possible Indian status of the child, and shall make that inquiry
as soon as practicable.’ ” (In re D.S. (2020) 46 Cal.App.5th 1041, 1052.) In
the third stage, “if that further inquiry results in a reason to know the child
is an Indian child, then the formal notice requirements of section 224.3
apply.” (Id. at p. 1052.)
A juvenile court finding that ICWA is inapplicable generally implies
that the Agency has fulfilled its inquiry duty. (See In re Austin J. (2020) 47
Cal.App.5th 870, 885.) We review ICWA findings for substantial evidence,
but “where the facts are undisputed, we independently determine whether
ICWA’s requirements have been satisfied.” (In re D.S., supra, 46 Cal.App.5th
at p. 1051.)
Here, the parents initially denied Native American heritage prior to the
detention hearing, and Father later reaffirmed his denial. Consequently, at
the inception of the dependency case, the Agency did not have affirmative
evidence giving them a reason to believe the “child[ren] may be Indian
child[ren].” (§ 224.2, subd. (a).) However, the Agency’s duty to inquire is
continuing, and the sufficiency of their investigative efforts is “necessarily
fact specific.” (In re K.H. (2022) 84 Cal.App.5th 566, 604.) “The agency’s
inquiry must extend far enough to reasonably ensure that if there is
information the child is or may be an Indian child, that information is
gathered.” (Ibid.) Because their inquiry is “often the only opportunity to
collect such information, it is a critical step in safeguarding the rights ICWA
was designed to protect.” (Ibid.)
On the record before us, we cannot conclude the Agency’s inquiry
extended far enough. As minors, the parents were both part of the child

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welfare system and their history raises concern that the “parents may not
know their possible relationship with or connection to an Indian tribe.” (In re
Y.W. (2021) 70 Cal.App.5th 542, 554 [holding that the Agency’s failure to
interview the biological parents of the mother, who had been adopted, was
reversible error.].) The Agency failed to examine the parents’ child welfare
files for contact information of biological relatives who may have had further
information relating to ICWA. Under the circumstances presented in this
case, these efforts were reasonably necessary for the Agency to fulfill its
duties of inquiry under ICWA. (In re K.H. (2022) 84 Cal.App.5th 566, 604
[“Resolution of the issue in a given case is necessarily fact specific, but
reasonableness, viewed through the lens of ICWA’s purpose, is the
touchstone.”].)
The parents’ denial of any Native American heritage does not relieve
the Agency of its “broad duty” to inquire of readily ascertainable extended
family members whether the children are Indian children. (In re Y.W., supra,
70 Cal.App.5th at p. 554.) A contrary rule would “ignore[ ] the reality that
parents may not know their possible relationship with or connection to an
Indian tribe.” (Ibid.; see In re S.R. (2021) 64 Cal.App.5th 303, 314 [“the
children’s parents apparently had no idea of their family’s connection to
the . . . tribe . . . , even though the children’s great-grandmother was a
member”]; see also In re T.G. (2020) 58 Cal.App.5th 275, 295 [noting that
ICWA’s “expansive” duty of inquiry “is premised on the commonsense
understanding that, over time, Indian families, particularly those living in
major urban centers . . . , may well have lost the ability to convey accurate
information regarding their tribal status”].) Despite the parents’ denials of
Native American heritage, biological relatives—in this case, the paternal
uncles—were readily available to the Agency and their responses would

23
likely have borne “meaningful information,” regardless of the outcome of the
inquiry. (In re Benjamin M. (2021) 70 Cal.App.5th 735, 744.)
Thus, we conclude that substantial evidence does not support the
juvenile court’s findings that ICWA did not apply. We conditionally reverse
the juvenile court’s order terminating parental rights for a limited remand to
ensure compliance with ICWA’s inquiry obligations. Given the importance of
expediency and need for finality, we encourage the parties to stipulate to
immediate issuance of the remittitur in this case. (Cal. Rules of Court, rule
8.272(c)(1).)
DISPOSITION
The orders terminating parental rights are conditionally reversed and
the matter is remanded to the juvenile court with directions that, within 30
days of the remittitur, the Agency must file a report demonstrating its
compliance with the inquiry provisions of section 224.2. Within 45 days of
the remittitur, the juvenile court must conduct a hearing to determine
whether the Agency’s investigation satisfied its affirmative duty to
investigate. The juvenile court has the discretion to adjust these time periods
on a showing of good cause.
If neither the Agency nor the juvenile court has reason to believe or to
know that Mar.D. and My.D. are Indian children, the orders terminating
parental rights shall be reinstated by the juvenile court. Alternatively, if
after completing the inquiry the Agency or the juvenile court has reason to
believe that Mar.D. and My.D. are Indian children, the court shall proceed
accordingly.

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 HUFFMAN, Acting P. J.

WE CONCUR:

KELETY, J.

CASTILLO, J.

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