Filed 11/23/22 In re J.S. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re J.S., a Person Coming B318498
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 19LJJP00385A)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
M.Y.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Susan Ser, Judge. Affirmed.
David M. Yorton, Jr., under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Stephen Watson, Deputy County
Counsel, for Plaintiff and Respondent.
******
Appellant M.Y. (mother) appeals from the order
terminating parental rights over her daughter, J.S., who was
nine years old when this case commenced in 2019. Mother
contends the order must be reversed because of insufficient
inquiry, investigation, and notice under the Indian Child Welfare
Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.; Welf. & Inst. Code
§ 224.2, subd. (b))1 regarding J.S.’s Indian ancestry. Mother
further contends the beneficial parent-child relationship
exception to terminating her parental rights applied. We affirm
the juvenile court’s order.
BACKGROUND
Referral, investigation, and detention
On June 5, 2019, the Los Angeles County Department of
Children and Family Services (the Department) received a
referral that mother and her male companion, Casey P., had been
arrested for vandalism and resisting arrest while J.S. was
present. J.S. was taken into protective custody.
Mother told the responding social worker that she belonged
to the Seminole Tribe of the Cherokee Indians. When asked
about her current status with the tribe, mother said she had
1 All further statutory references are to the Welfare and
Institutions Code unless stated otherwise.
2
traveled to Palmdale in order to speak with the Tribal TANF.2
Mother identified J.S.’s father as Justin S. but said she had not
been in contact with him for several years and did not know how
to reach him.
Mother told the social worker she removed J.S. from school
at age seven and teaches the child at home. J.S. had been
diagnosed with ADHD and dyslexia but was not currently taking
any medication or receiving any services for those conditions.
J.S. told the social worker she is Cherokee. The child said
she was homeschooled by mother but was unable to spell her own
name or tell the social worker her year of birth. J.S. reported
that she is “whooped” by mother and Casey P. with a hanger,
belts, and device chargers.
Mother provided contact information for the maternal
grandfather, who lived in San Francisco. The maternal
grandfather’s history with San Francisco Child Protective
Services precluded him from being a placement option for J.S.
When the social worker contacted the maternal
grandfather, he was aware of mother’s incarceration. In response
to questions about the family’s Indian ancestry, the maternal
grandfather stated he has Seminole ancestry but does not have a
tribal membership number. He did not know whether mother
had a tribal membership number but said she and her current
husband were “deeply involved” and had traveled to Los Angeles
to obtain membership.
2 The California Tribal Temporary Assistance for Needy
Families (TANF) Program assists Indian Tribes of California by
providing funding, tools, and resources. ( [as of Nov. 16, 2022], archived at
.)
3
On June 5, 2019, the social worker contacted the Eastern
Band of Cherokee Indians and left a message requesting
information about the family’s status with the tribe. The social
worker also telephoned the Seminole Tribe of Florida but was
unable to speak to anyone or leave a message because the office
was closed.
Section 300 petition
On June 7, 2019, the Department filed a section 300
petition alleging J.S. was at risk of harm because of mother’s
physical abuse and failure to make an appropriate plan for the
child’s care and supervision during mother’s incarceration. The
petition included an Indian child inquiry attachment on which
the social worker indicated J.S. may have Indian ancestry and
may be a member or eligible for membership in a tribe. The
social worker identified the name of the tribe as “S[e]minole” and
the name of the band as “Cherokee.” The social worker checked a
box on the form that stated: “The child’s parents, grandparents,
or great-grandparents are or were members of a tribe.”
On July 18, 2019, the Department filed a first amended
petition adding allegations regarding Justin S., J.S.’s presumed
father.
Detention hearing and ICWA-020 forms
Mother was present at the June 10, 2019 detention
hearing. She filed an ICWA-020 form on which she checked a box
stating, “One or more of my parents, grandparents, or other
lineal ancestors is or was a member of a federally recognized
tribe.” Mother wrote “Seminole/Cherokee” as the names of the
tribe and band. Mother also provided the names and telephone
numbers of the maternal grandfather and maternal
grandmother.
4
The juvenile court found Justin S. (father)3 was J.S.’s
presumed father and ordered the Department to attempt to
locate him. The court deferred a determination of ICWA status
until father appeared and ordered the Department to investigate
mother’s Seminole and Cherokee heritage. The juvenile court
ordered J.S. detained from both parents and accorded mother
monitored visits three times a week for three hours.
ICWA investigation and notice
In its July 19, 2019 jurisdiction/disposition report, the
Department reported ICWA may apply based on mother’s
claimed Seminole and Cherokee ancestry. When the social
worker asked mother about her Indian ancestry on June 10,
2019, however, mother stated, “They won’t let us in, that’s what
we’re doing down here. We’re here to talk to the Martinez
TANF.”
On June 17, 2019, mother told the social worker she was
not enrolled in the Seminole or Cherokee tribes. When asked
about extended family members, mother said J.S.’s maternal
grandmother had Cherokee heritage and the maternal
grandfather had Seminole heritage, but neither was registered
with a tribe. The maternal grandmother lived in San Francisco
and was approximately 48 years old. Mother provided a
telephone number for the maternal grandmother, but she did not
know the maternal grandmother’s address. Mother further
reported the maternal great-grandmother, Linda Doogle Mack,
had Cherokee heritage but mother did not know if she was
registered with any tribe. Mother was unsure of the spelling of
the maternal great-grandmother’s birth name, Doogle. Mother
3 Father is not a party to this appeal.
5
did not have contact information for the maternal great-
grandmother but said that she also lived in San Francisco and
was approximately 60 years old. The maternal great-
grandfather, Melvin Y., was deceased, and mother was unsure
whether he had Indian ancestry or had been enrolled in any
tribe. Mother further stated that J.S.’s great-grandparents on
mother’s paternal side of the family, Alice D. Davis and Myles A.
Williams, were both deceased and had Seminole heritage, but
mother did not know whether either was enrolled or registered
with a tribe.
The Department located father in San Francisco and
notified him of the proceedings. After father denied having any
Indian ancestry, the Department mailed him ICWA forms.
On July 19, 2019, the Department sent an ICWA notice and
an ICWA ancestry addendum by certified mail to the Bureau of
Indian Affairs (BIA), Secretary of the Interior, Seminole Nation
of Oklahoma, Seminole Tribe of Florida, Cherokee Nation, United
Keetoowah Band of Cherokee Indians in Oklahoma, and the
Eastern Band of Cherokee Indians and was awaiting responses.
The ICWA notice and ICWA ancestry addendum identified the
maternal grandfather as Myles Lee (Williams); indicated that he
was born on September 28, 1955, in South Carolina; and stated
that he had Seminole heritage. The IWCA notice and addendum
identified the maternal grandmother as Melvina Y., stated she
had Cherokee ancestry, gave her birth date and approximate age
as 48 (but indicated that her birth year was not known), and
listed San Francisco as her place of residence. The addendum
identified the maternal great-grandmother as Linda Doogle Mack
as having Cherokee ancestry. The addendum indicated that the
spelling of the maternal great-grandmother’s birth name, Doogle,
6
was uncertain. The addendum stated that the maternal great-
grandmother was born in Louisiana on June 24, indicated that
her year of birth was not known, and listed her approximate age
as 60. The addendum stated that the maternal great-
grandmother currently lived in San Francisco. The addendum
also identified and provided information concerning great-
grandparents Alice D. Davis and Myles A. Williams and stated
that they both had Seminole ancestry.
On August 6, 2019, the Department reported it had
received responses from the Eastern Band of Cherokee Indians
and the Seminole Tribe of Florida. Both tribes stated that J.S.
was not registered or eligible to register for membership.
On August 30, 2019, the United Keetowah Band of
Cherokee Indians informed the Department that J.S. “does not
meet the . . . definition of ‘Indian Child’ in relation to the United
Keetowah Band of Cherokee Indians.” The Cherokee Nation
informed the Department on October 10, 2019, that J.S. was not
an Indian child in relation to the Cherokee Nation as defined
under ICWA. On January 20, 2020, the Seminole Tribe of
Oklahoma notified the Department that J.S. not a member or
eligible for membership in its tribe.
Jurisdiction/disposition hearing
Mother was not present at the July 20, 2020 jurisdiction
and disposition hearing. Her attorney requested a continuance
because she had been unable to reach mother. The juvenile court
found notice was proper and proceeded with the hearing.
The juvenile court found, without objection from any of the
parties, that ICWA did not apply. The court then sustained the
amended section 300 petition and ordered J.S. removed from
parental custody. Mother was accorded family reunification
7
services and monitored visits for a minimum of two hours per
visit, two times a week.
Review proceedings and termination of reunification
services
In January 2021, the Department reported that mother’s
visits and telephone calls with J.S. had been inconsistent.
Mother did not telephone J.S. at all in September or October
2020. She called once in November 2020 and twice in December
2020. Mother’s sporadic telephone calls appeared to trigger
mental health problems for J.S. The child seemed depressed, had
difficulty sleeping, and exhibited behavioral problems such as
impulse control and hyperactivity. J.S. was receiving therapy to
address these problems.
Mother gave birth to a baby girl in September 2020.
Mother had not provided the Department with proof of
participation in any court ordered programs.
Although the juvenile court had found in July 2020 that
ICWA did not apply, mother sent the social worker two e-mails in
December 2020 regarding her Indian ancestry. A December 9,
2020 e-mail stated, “my great great great grandmother on my
father side from the East coast Lillie G. Davis [C]hoctaw roll
#12589 Oklahoma Indian child welfare act [¶] P.s.UCC-1-308
[¶] All Rights Reserved Under United Nations Declaration
Rights of Indigenous People 2010 (Articles 45). American Indian
Choctaw Roll#12589, [¶] All Rights Non Waived 2020.”
A December 10, 2020 e-mail stated in relevant part:
“The Binay Yeha Noha Nation
“Contact: Chief Peace Eaglefeather
“Office address: 1530 N Harrison St. #1012
Shawnee OK. 74804
8
“Office hours: T-F from 10am-4pm, Sat. from
10am-3pm
“Phone number: 217-364-2045
“Website: info@thebinaytribe.com
“Turtle Island North American
“Contact: Chief Spirit Falcon
“Office email: myobgov@gmail.com
“Website: MY-OB.com
“Phone number: 916-750-4192”
J.S. was present by Webinex at the February 5, 2021 six-
month review hearing, but neither parent was present. The
juvenile court found the parents had not substantially complied
with their respective case plans and terminated reunification
services. The court noted that mother was “rarely visiting” and
that her visits had “not been consistent even to say once a
month.” J.S.’s counsel reported that mother’s sporadic contact
with J.S. was impeding the child’s progress. Counsel further
stated that J.S. was requesting suspension of mother’s visits for a
time, because the child had said she “needs a break from mom.”
Over the objection of mother’s attorney, the juvenile court
suspended both parents’ visits until “they make themselves more
available [t]o the Department in regards to their abilities to
maintain their composure during the telephone calls.” The court
gave the Department discretion to resume the visits.
As to ICWA, the juvenile court noted that mother had
frequently provided information regarding her possible Indian
ancestry and that her most recent submission included tribal
enrollment numbers. The Department’s counsel stated that the
9
Department did not believe mother’s e-mail submissions referred
to any federally recognized tribes. The juvenile court pointed out
that Choctaw was a federally recognized tribe and ordered the
Department to send notice, including the enrollment number
mother had provided, to the Choctaw tribes.
Section 366.26 proceedings
The Department reported in June 2021 that it had mailed
ICWA notices to the Choctaw Nation of Oklahoma, the
Mississippi Band of Choctaw Indians, and the Jena Band of
Choctaw Indians but had not yet received responses.
Mother had not visited J.S. since 2019, and her telephone
calls with the child remained inconsistent. During the calls
mother often spoke about her new baby rather than asking about
J.S. Telephone calls with mother continued to trigger mental
health problems for J.S.
J.S. appeared to be struggling with rejection by her
parents. When asked about adoption, J.S. said she did not want
to be adopted but preferred to stay with “Aunt Wendy,” the sister
of the current caregiver. That caregiver subsequently asked J.S.
to be replaced because of behavioral issues. J.S. was placed with
a new caregiver on May 7, 2021.
In a last minute information for the court dated July 16,
2021, the Department reported that it had received a document
from the Chata/Choctaw Muskogee Yamassee Nation, The
Return of The Mound Builders indicating that mother and J.S.
were enrolled members of the tribe, and that the tribal court had
accepted jurisdiction and ordered J.S. returned to mother’s care.
After obtaining contact information for the tribe from mother, the
social worker spoke by telephone with Chief Rawsheed Stone
Coyote Patton, who confirmed mother’s enrollment in the tribe.
10
Chief Patton stated that the tribe “is related to the mother Tribe
of Yamassee Nation . . . under a Tribal Community called Undrip
International Law . . . registered as Allodial Title, which is
honored by the Law of Republic.” Chief Patton gave the social
worker an address for the tribe in Lancaster, which the
Department later determined to be a 1,697-square-foot single
family home. After additional investigation and research, the
Department determined that the Chief Patton’s tribe was not
federally recognized, nor was it recognized in the State of
California or the County of Los Angeles.
Mother was present at the July 19, 2021 hearing at which
the juvenile court stated that based on mother’s claims that she
may have Cherokee, Seminole, or Choctaw ancestry, the
Department had sent ICWA notices to those tribes. Responses
from the Choctaw tribes were still pending, but the court had
received notice that J.S. was not a member of or eligible for
membership in the Cherokee or Seminole tribes. The court
nevertheless ordered the Department to send notice of the section
366.26 hearing to all previously noticed tribes.
The juvenile court then addressed the document received
from the Chata/Choctaw Muskogee Yamassee Nation, The
Return of The Mound Builders and asked whether counsel for
any of the parties wished to be heard. Counsel for the
Department and for J.S. both reported that they had separately
investigated the matter and determined that the tribe was not
federally recognized. Counsel for mother submitted the matter to
the court. The juvenile court stated that there was no tribal
court in Los Angeles County for any federal or state recognized
Indian tribe. The court accordingly stated it would not enforce
the purported tribal court order to release J.S. to mother. The
11
juvenile court found that J.S. was not an Indian child under
ICWA or applicable California law and set a section 366.26
hearing for October 5, 2021.
Members of the Chata/Choctaw Muskogee Yamassee
Nation were present at the August 5, 2021 hearing to review the
permanent plan. Mother’s counsel asked that J.S. be returned to
mother’s custody. Mother’s counsel also requested a written
visitation order and a random drug testing order. Counsel for
J.S. and the Department opposed further reunification services
and asked that mother’s visits be reduced to once a month.
Counsel for the Department also asked the juvenile court to make
a finding that ICWA did not apply. Mother’s counsel objected to
the reduced visitation request and noted that mother and the
Chata/Choctaw Muskogee Yamassee Nation disagreed with the
juvenile court’s previous finding that ICWA did not apply.
The juvenile court denied the request for random drug
testing and ordered adoption as the permanent plan. The court
accorded mother one monitored visit a month and ordered the
Department to provide mother with a written visitation schedule.
The juvenile court noted it had previously found, in a July 19,
2021 minute order, that J.S. was not an Indian child under
ICWA.
In September 2021, the Department reported that it had
sent notice of the section 366.26 hearing to the BIA, the Secretary
of the Interior, and the Cherokee, Seminole, and Choctaw tribes.
The Department further reported that mother had a
telephonic visit with J.S. on August 27, 2021, and an in person
visit on August 31, 2021. During the in person visit, mother and
J.S. had lunch together and discussed many subjects including
12
school and video games. J.S. appeared sad at the end of the visit
and said she wanted the visit to last longer.
J.S.’s current caregiver, Ms. B., said she was looking
forward to adopting J.S. and noted that the child had made
positive changes. J.S. told the social worker that she enjoyed
living with Ms. B., whom she called “mom.”
On October 5, 2021, mother’s counsel requested increased
visitation. The juvenile court ordered the Department to assess
providing mother more visitation and to interview J.S. regarding
her wishes for permanency.
In January 2022, the Department reported that J.S. was
doing well with Ms. B. but continued to struggle with rejection by
her parents. Mother appeared to be making minimal efforts to
attend in person visits. Mother had an in person visit with J.S.
on September 21, 2021. Mother brought food and made a shell
and bead necklace for J.S. Mother attempted to coach J.S. to say
she wanted to “come home” and criticized the child for being
unable to read a letter mother had written for her. When the
social worker redirected mother, mother became angry and
confrontational, and J.S. became upset. When the social worker
had to terminate the visit 30 minutes early, mother became
abusive and yelled profanities at the social worker.
Mother had in person visits on October 8, 2021, and
October 15, 2021. The October 15, 2021 visit was appropriate,
although mother arrived 45 minutes late. She brought food, a
birthday balloon, and a cake for J.S. Mother had a telephonic
visit with J.S. on November 17, 2021, but was upset that Ms. B.
monitored the visit. During the visit, J.S. repeatedly told mother
she was ready to end the call and get ready for dinner. An
13
attempted telephonic visit on December 9, 2021, was
unsuccessful, as mother’s phone repeatedly disconnected.
J.S. continued to struggle with emotional problems
triggered by in person visits with mother. Ms. B. noted that J.S.
was generally unhappy after the in person visits and would take
about an hour to return to normal. J.S. was in counseling to
address her behavioral and emotional issues. The child
expressed conflicting feelings about mother. She said she loved
living with Ms. B., but also wanted to live with mother.
Section 366.26 hearing
At the February 7, 2022 section 366.26 hearing, the
juvenile court admitted into evidence the Department’s reports.
The court also admitted a September 19, 2021 letter from New
Directions Alcohol and Drug Services stating that mother had
enrolled on August 2, 2021, and was receiving individual
counseling, parenting, and substance abuse education.
J.S. testified in chambers. She said she did not talk with
mother very often. When prompted by mother’s counsel, J.S. said
she spoke with mother once a week. J.S. could not articulate
what adoption meant to her. When mother’s counsel asked
whether J.S. knew that once she was adopted, she would be
unable to speak to mother again, J.S. responded, “Will I be able
to see aunt Wendy?” After a discussion about aunt Wendy and
J.S.’s history of foster placements, mother’s counsel again asked
how J.S. would feel about not being able to speak with mother.
J.S. responded, “A little—I would have a little bit of second
thoughts about that there. But maybe I’ll have,—maybe I’ll
change my mind. I don’t know. I don’t know.” When asked how
she would feel if she could not have any more visits with mother,
J.S. replied, “A little sad.” J.S. said she called both mother and
14
Ms. B. “mom.” J.S. further stated that she “wanted to stay with
[Ms. B.] because she was the nicest person that was going to take
care of me. So I’m—I’m going to stay with her. And I might want
to be adopted by her.” When mother’s counsel asked, “Right now
would you like to be adopted by her?” J.S. replied, “As long as
as—as long as I don’t have [to] have any more therapy sessions.”
Mother’s counsel then asked J.S. whether she participated
in any traditions with mother and her tribe. J.S.’s counsel
objected on relevance grounds, and the juvenile court asked
mother’s counsel to explain the relevance of that question.
Mother’s counsel responded, “because these are traditions that
she won’t be able to participate in, when adopted.” The juvenile
court sustained the relevance objection.
J.S.’s counsel asked the child, “When was the last time you
had your visit with your mom?” J.S. stated, “Like, I don’t know; a
long time ago.”
Mother testified that her last visit with J.S. was on
October 15, 2021. She had a Zoom call with J.S. on January 28,
2002. Mother explained that she learned in November that the
maternal grandfather had been hospitalized, and she returned to
San Francisco to care for him. Mother lived in San Francisco at
the time of the section 366.26 hearing. When asked how often she
spoke with J.S., mother said “maybe once a month.”
The Department’s counsel asked mother how often she had
visited with J.S. in 2020. Mother replied, “I believe it’s—I was
there four times.” Mother said she visited the child “about five
times” in 2021. When asked if she was having weekly calls with
J.S., mother said, “No. I just had one Zoom meeting with her.”
Counsel for the Department then asked mother whether she
15
participated in any of J.S.’s education activities. Mother
responded, “No. Everything’s classified.”
After hearing argument from counsel, the juvenile court
found there was no reason to know J.S. was an Indian child. The
court further found mother had not maintained regular visitation
or contact with J.S. and had not maintained a bond with the
child. The juvenile court terminated parental rights, ordered
adoption as the permanent plan, and designated Ms. B. as the
prospective adoptive parent.
This appeal followed.
Mother’s additional evidence on appeal
While this appeal was pending, we granted mother’s
request that we consider additional evidence she presented
pursuant to Code of Civil Procedure section 909 (see In re Dezi C.
(2022) 79 Cal.App.5th 769, 779, fn. 4 (Dezi C.), review granted
Sept. 8, 2022, S275578) and took judicial notice of mother’s
declaration and the following documents attached as exhibits to
her declaration:
Exhibit A: Department of the Interior, Commission to the
Five Civilized Tribes, In the Matter of the Allotment of the Lands
of the Choctaws and Chickasaws, General Office, Allotment to
Lillie G. Davis, Choctaw Roll by Blood No. 12589, Ledger No. 18,
Page 191.
Exhibit B: Department of the Interior, Commission to the
Five Civilized Tribes, In the Matter of the Allotment of the Lands
of the Choctaws and Chickasaws, General Office, Allotment to
Lillie M. Davis, Choctaw Roll by Blood No. 15615, Ledger No. 20,
Page 226.
Exhibit C: Department of the Interior, Commissioner to
the Five Civilized Tribes, Creek Land Office. Allotment to Celia
16
Cole, Minor Creek Freedman enrolled under Act of Congress
approved April 26, 1906, (Public No. 129.), No. 256.
Exhibit D: Department of the Interior, Commission to the
Five Civilized Tribes, In the Matter of the Allotment of the Lands
of the Choctaws and Chickasaws, General Office, Allotment to
Celia Cole, Choctaw Freedmen Roll No. 2795, Ledger No. 9, Page
337.
Exhibit E: a document from the National Archives and
Record Administration, page 16 of 114, regarding mother’s great-,
great-grandmother Mary Miller’s enrollment in the Cherokee
Tribe.
DISCUSSION
I. ICWA
A. Applicable law and standard of review
ICWA reflects the Legislature’s intent “to protect the best
interests of Indian children and to promote the stability and
security of Indian tribes and families by the establishment of
minimum Federal standards for the removal of Indian children
from their families.” (25 U.S.C. § 1902; see In re K.R. (2018) 20
Cal.App.5th 701, 706, fn. 3.) An “Indian child” is defined as any
unmarried person under the age of 18 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); Welf. & Inst. Code, § 224.1, subds. (a), (b).)
“Because it typically is not self-evident whether a child is
an Indian child, both federal and state law mandate certain
inquiries to be made in each case. These requirements are
sometimes collectively referred to as the duty of initial inquiry.”
(In re Benjamin M. (2021) 70 Cal.App.5th 735, 741.) “The duty to
17
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 court and child welfare department
“have an affirmative and continuing duty” to inquire whether a
child for whom a petition under section 300 may be or has been
filed may be an Indian child. (§ 224.2, subd. (a).)
Under California law, the child welfare department’s initial
duty of 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.” (§ 224.2, subd. (b).) Under ICWA, the
term “extended family member” is “defined by the law or custom
of the Indian child’s tribe or, in the absence of such law or
custom, shall be a person who has reached the age of eighteen
and who is the Indian child’s grandparent, aunt or uncle, brother
or sister, brother-in-law or sister-in-law, niece or nephew, first or
second cousin, or stepparent.” (25 U.S.C. § 1903(2).)
The juvenile court must also inquire at each participant’s
first appearance in court whether the participant knows or has
reason to know that the child is an Indian child. (§ 224.2, subd.
(c).) In addition, the juvenile court must instruct the parties to
inform the court if they subsequently receive information that
provides reason to know the child is an Indian child. (Ibid.)
If the initial inquiry creates a “reason to believe” the child
is an Indian child, then the Department “shall make further
inquiry regarding the possible Indian status of the child, and
shall make that inquiry as soon as practicable.” (§ 224.2, subd.
18
(e).) The required further inquiry includes (1) interviewing the
parents and extended family members; (2) contacting the BIA
and State Department of Social Services; and (3) contacting
tribes the child may be affiliated with, and anyone else, that
might have information regarding the child’s membership or
eligibility in a tribe. Contact with a tribe must include telephone,
facsimile, or electronic mail contact to each tribe’s designated
agent for receipt of notices under ICWA. (§ 224.2, subd. (e).)
The sharing of information with tribes at the ICWA inquiry
stage is distinct from formal ICWA notice, which requires a
“reason to know”—rather than a “reason to believe”—that the
child is an Indian child. (In re D.S. (2020) 46 Cal.App.5th 1041,
1048-1049 (D.S.).) A “reason to know” that a dependent child is
an Indian child exists under any of six enumerated
circumstances: “(1) A person having an interest in the child,
including the child, an officer of the court, a tribe, an Indian
organization, a public or private agency, or a member of the
child’s extended family informs the court that the child is an
Indian child. [¶] (2) The residence or domicile of the child, the
child’s parents, or Indian custodian is on a reservation or in an
Alaska Native village. [¶] (3) Any participant in the proceeding,
officer of the court, Indian tribe, Indian organization, or agency
informs the court that it has discovered information indicating
that the child is an Indian child. [¶] (4) The child who is the
subject of the proceeding gives the court reason to know that the
child is an Indian child. [¶] (5) The court is informed that the
child is or has been a ward of a tribal court. [¶] (6) The court is
informed that either parent or the child possess[es] an
identification card indicating membership or citizenship in an
Indian tribe.” (§ 224.2, subd. (d).) The less stringent “reason to
19
believe” standard requiring further inquiry is based upon the six
“reason to know” statutory circumstances: “There is reason to
believe a child involved in a proceeding is an Indian child
whenever the court, social worker, or probation officer has
information suggesting that either the parent of the child or the
child is a member or may be eligible for membership in an Indian
tribe. Information suggesting membership or eligibility for
membership includes, but is not limited to, information that
indicates, but does not establish, the existence of one or more of
the grounds for reason to know enumerated in paragraphs (1) to
(6), inclusive, of subdivision (d).” (§ 224.2, subd. (e).)
We review the juvenile court’s ICWA findings for
substantial evidence. But where the facts are undisputed, we
independently determine whether ICWA’s requirements have
been satisfied. (D.S., supra, 46 Cal.App.5th at p. 1051.)
B. Initial and further inquiry
Mother contends the Department and the juvenile court
failed to fulfill their duties of initial and further inquiry under
ICWA because the juvenile court failed to instruct mother at the
detention hearing that she should inform the court of any
subsequently obtained information regarding J.S.’s possible
Indian ancestry and because the social worker refused to accept
mother’s information regarding Indian ancestry and failed to
provide relevant information to the juvenile court.
The juvenile court’s failure to instruct mother to provide
further ICWA-related information was harmless. The record
shows that throughout the case mother, on her own initiative,
regularly provided the Department and the juvenile court with
information she believed relevant to an ICWA determination.
There is no reason to believe that a different result would have
20
occurred if the juvenile court had instructed mother to do so.
(Dezi C., supra, 79 Cal.App.5th at p. 779, review granted.)
The record shows that any deficiency in the Department’s
initial ICWA inquiry was also harmless. Although the record
does not indicate that the Department attempted to locate and
interview the maternal grandmother or the maternal great-
grandmother, whose names, approximate ages, and city of
residence mother provided (mother also provided a telephone
number for the maternal grandmother), mother told the social
worker that the maternal grandmother was not enrolled or
registered in any tribe. Mother, father, and the maternal
grandfather all denied being enrolled or registered in any
federally recognized Indian tribe. Mother told the social worker
in June 2019 that the tribes she had identified “won’t let us in.”
Further inquiry accordingly would not have resulted in a reason
to know that J.S. is an Indian child, defined under ICWA as a
child who is either a member of an Indian tribe or is or 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); see § 224.1,
subds. (a), (b).)
The additional evidence proffered by mother on appeal does
not alter this result. In the declaration mother submitted in
support of her request to present additional evidence, mother
states that sometime between April 20, 2021, and February 7,
2022, she obtained additional information concerning J.S.’s
Indian ancestry (exhibits A-E attached to mother’s declaration).
Exhibits A and B to mother’s declaration are documents that
concern maternal great-, great-, great-grandmother, Lillie G.
Davis, and maternal great-, great-grandmother, Lillie M. Davis,
and appear to provide enrollment numbers for both women in the
21
Choctaw Tribe. Exhibits C and D concern Celia Cole, a maternal
great-, great-, great-grandmother, and appears to provide an
enrollment number for her on the “Choctaw Freedmen Roll.”
Exhibit E concerns Mary Miller, a maternal great-, great-
grandmother purportedly showing her enrollment in the
Cherokee tribe. Mother states in her declaration that she sent
exhibits A, C, and D to the social worker sometime before
mother’s parental rights were terminated on February 7, 2022,
but she did not send exhibit B because the social worker told her
the Department did not want additional information as mother
was not an enrolled member of the tribe.
Although the record does not show that the Department
provided the juvenile court with any of the exhibits attached to
mother’s declaration or shared those documents with the
contacted tribes, the failure to do so was harmless. The
Department did send notice to the Choctaw Tribes that included
Lillie G. Davis’s enrollment number, but those tribes did not
respond. The record shows that J.S. is not an Indian child as
defined in ICWA, because she is not the biological child of a
member of any of the Indian tribes identified by mother. Nothing
in the record as augmented on appeal changes this result. There
is accordingly no reason to believe that further inquiry
concerning J.S.’s more distant and long-deceased relatives would
lead to a different result.
C. Notice
Here, there was reason to believe J.S. may be an Indian
child, but not reason to know she is an Indian child. Mother does
not contend otherwise but argues nevertheless that ICWA notice
was deficient. Because there was no “reason to know” J.S. is an
Indian child, the Department was not required to notice any
22
tribes in conformance with section 224.3. Although section 224.3,
subdivision (c) requires a child welfare agency to file copies of
ICWA notices sent and return receipts and responses received
when there is a reason to know a child is an Indian child, there is
no similar provision when there is a reason to believe a child is
an Indian child. (D.S., supra, 46 Cal.App.5th at p. 1049 [“The
sharing of information with tribes at [the further] inquiry stage is
distinct from formal ICWA notice, which requires a ‘reason to
know’—rather than a ‘reason to believe’—that the child is an
Indian child.”].) We therefore reject mother’s contention that the
Department’s notice to the tribes did not conform with the
statutory requirements for formal notice.
The record, moreover, shows that the Department did send
multiple ICWA notices to the Seminole, Cherokee, Choctaw, and
Chata/Choctaw Muskogee Yamassee Tribes, and to the BIA and
the Secretary of the Interior.
D. No prejudicial cumulative error
We reject mother’s argument that the record as augmented
by mother’s submissions on appeal demonstrate cumulative
prejudicial error requiring reversal of the juvenile court’s findings
and order. For reasons discussed previously, nothing in the
augmented record gives rise to a reason to know J.S. may be an
Indian child under ICWA.
E. Substantial evidence supports the ICWA finding
The juvenile court found that it had no reason to know J.S.
is an Indian child. Substantial evidence supports that finding.
As discussed, mother and father both stated they were not
members of any Indian tribe recognized under ICWA or
California law. The maternal grandfather also denied being a
member of an Indian tribe, and mother stated that the maternal
23
grandmother was not a member of a tribe. The evidence
accordingly shows that J.S. is not an Indian child as defined in
ICWA and applicable California law. (25 U.S.C. § 1903(4); Welf.
& Inst. Code, § 224.1, subds. (a), (b).)
Moreover, the Department sent ICWA notices to all of the
federally recognized tribes mother identified. The Seminole and
Cherokee Tribes responded by stating that J.S. was not a
member or eligible for membership. The Choctaw Tribes did not
respond. Substantial evidence supports the juvenile court’s
finding that ICWA did not apply.
That the juvenile court precluded mother’s counsel from
asking J.S. at the section 366.26 hearing whether the child
participated in Native-American traditions with mother has no
bearing on whether J.S. is an Indian child. A child’s participation
in Native-American traditions is not one of the enumerated
statutory circumstances for determining whether there is a
reason to believe or a reason to know the child is an Indian child
under ICWA. (See § 224.2, subds. (d), (e).)
II. Beneficial parent-child exception
A. Applicable law and standard of review
Once a juvenile court has terminated reunification services
and determined that a child is adoptable, the court is required to
terminate parental rights unless it finds an applicable exception.
(§ 366.26, subd. (c)(1).) The exception at issue here, sometimes
referred to as the beneficial parent-child exception, applies when
“[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.” (§ 366.26, subd. (c)(1)(B)(i).)
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The parent bears the burden of proving that the exception
applies. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 952-954.) To
do so, the parent must prove three statutory elements: “(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.).)
For the first element, visitation, the question is simply
whether the parent visited consistently, as permitted by court
orders. The focus is not on punishing or rewarding parents for
their behavior in visiting or maintaining contact, but on the best
interests of the child. (Caden C., supra, 11 Cal.5th at p. 632.)
As to the second element, whether the child would benefit
from continuing the relationship, “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.) The parent must also show that “the
relationship promotes the well-being of the child to such a degree
as to outweigh the well-being the child would gain in a
permanent home with new, adoptive parents.” (In re Autumn H.
(1994) 27 Cal.App.4th 567, 575 (Autumn H.).) Relevant factors in
assessing the parent-child relationship include “[t]he age of the
child, the portion of the child’s life spent in the parent’s custody,
the ‘positive’ or ‘negative’ effect of interaction between parent and
child, and the child’s particular needs.” (Id. at p. 576.) For the
third element, whether termination would be detrimental to the
child, the court must determine “how the child would be affected
by losing the parental relationship—in effect, what life would be
25
like for the child in an adoptive home without the parent in the
child’s life.” (Caden C., supra, at p. 633.)
We review the juvenile court’s findings concerning
visitation and whether the child would benefit from continuing
the relationship with the parent for substantial evidence.
(Caden C., supra, 11 Cal.5th at pp. 639-640.) Whether
termination of parental rights would be detrimental to a child
because of the child’s relationship with the parent is a question
we review for abuse of discretion. (Ibid.)
B. Substantial evidence supports the juvenile
court’s findings
Substantial evidence supports the juvenile court’s finding
that the beneficial parent-child exception did not apply.
The record shows that mother did not maintain regular
visitation with J.S. The Department reported in January 2021
that mother had not been consistently visiting or calling J.S.
Mother did not call J.S. at all in September and October 2020,
called once in November 2020, and twice in December 2020. In
February 2021, the juvenile court found mother was “only rarely
visiting” and had “not been consistent to even say once a month.”
In June 2021, the Department reported mother’s telephonic
contact with J.S. remained inconsistent, and she had not visited
the child since 2019. Mother had a telephonic visit with J.S. on
August 27, 2021, and her first in person visit with the child since
2019 on August 31, 2021. Mother had three in person visits with
J.S. in September and October 2021 and one telephonic visit in
November 2021.
Mother testified at the section 366.26 hearing that she
spoke with J.S. “maybe once a month” and had visited with the
child nine times throughout 2020 and 2021. When J.S. was
26
asked at the hearing when she had last visited with mother, the
child replied, “Like, I don’t know; a long time ago.” Substantial
evidence supports the finding that mother did not maintain
regular visitation with J.S.—a necessary element of the beneficial
parent-child exception.
We reject mother’s argument that the COVID-19 pandemic
and other events precluded her from maintaining visitation with
J.S. Pandemic restrictions did not prevent mother from
maintaining telephonic contact with J.S. The record does not
support mother’s assertion that she visited regularly with J.S.
before the pandemic. Mother chose to relocate to San Francisco
to care for the paternal grandfather rather than remaining in Los
Angeles where she could have in person visits. While in San
Francisco, mother had minimal telephonic contact with J.S.
Mother could not explain why she did not visit more frequently
with J.S. before moving to San Francisco.
Mother’s failure to maintain regular visitation and contact
with J.S. precludes application of the beneficial parent-child
exception to termination of her parental rights. (Caden C., supra,
11 Cal.5th at p. 631.)
Substantial evidence also supports the finding that J.S. did
not share a substantial, positive emotional attachment with
mother that would not be outweighed by the permanency of an
adoptive home. Rather, the record shows that mother’s sporadic
contact with J.S. triggered mental health issues for the child, who
struggled with depression and feelings of rejection throughout
the case. In February 2021, J.S., through her counsel, asked the
juvenile court to suspend mother’s visits because J.S. “need[ed] a
break from mom.” In January 2022, J.S.’s caregiver observed
that the child was unhappy after visits with mother and would
27
take about an hour to return to normal. At the February 2022
section 366.26 hearing, when J.S. was asked whether she knew
she would not be able to speak with mother after being adopted,
J.S. responded, “Will I be able to see aunt Wendy?” When asked
how she would feel if she could no longer visit with mother, J.S.
said she would feel “[a] little sad.” The child also stated that she
wanted to remain with Ms. B., her prospective adoptive parent,
“because she was the nicest person that was going to take care of
me.”
Mother argues that she had a relationship with J.S., the
continuation of which could benefit the child. The mere existence
of a parental relationship, however, is insufficient. “Interaction
between natural parent and child will always confer some
incidental benefit to the child. The significant attachment from
child to parent results from the adult’s attention to the child’s
needs for physical care, nourishment, comfort, affection and
stimulation.” (Autumn H., supra, 27 Cal.App.4th at p. 575.) The
record does not support mother’s assertion that such an
attachment existed between her and J.S.
That the juvenile court precluded mother’s counsel from
asking J.S. at the section 366.26 hearing whether the child
participated in Native-American traditions with mother did not,
as mother claims, impair her ability to demonstrate that she and
J.S. shared a significant bond or attachment. When the juvenile
court asked counsel to explain the relevance of that question,
counsel responded, “these are traditions that she won’t be able to
participate in, when adopted.” Counsel’s inquiry was focused on
the loss of customs or tradition, not on the severing of a parental
bond.
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The juvenile court did not abuse its discretion by
concluding that terminating parental rights would not be
detrimental to J.S. The relevant inquiry in this determination “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.” (Caden C.,
supra, 11 Cal.5th at p. 633.)
J.S. testified that she would feel “[a] little sad” if she could
not longer visit with mother. J.S. also testified that she wanted
to stay with her prospective adoptive parent, whom she called
“mom” “because she was the nicest person that was going to take
care of me.” J.S. then definitively stated, “I’m going to stay with
her.” There is substantial evidence in the record that J.S.’s
interests would be best served by the stability of adoption with
her prospective adoptive parent, who met the child’s daily
physical and emotional needs and offered her a permanent home.
DISPOSITION
The order terminating parental rights is affirmed.
________________________
CHAVEZ, J.
We concur:
________________________
LUI, P. J.
________________________
HOFFSTADT, J.
29