In re A.L. CA1/4 ( 2021 )

Filed 12/29/21 In re A.L. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re A.L., et al., a Person Coming
Under the Juvenile Court Law.
SONOMA COUNTY HUMAN
SERVICES DEPARTMENT,
Petitioner and Respondent, A162200
v. (Sonoma County
M.H., Super. Ct. Nos. DEP 5728,
DEP 5729)
Objector and Appellant.
M.H. (Mother), the mother of Al. and An., appeals after the
juvenile court denied her oral motion for modification seeking
return of the children to her care (Welf. & Inst. Code 1, § 388),
terminated her parental rights, and selected adoption as the
children’s permanent plan (§ 366.26). On appeal, Mother argues
that the court erred by denying her section 388 motion, finding
that she failed to establish the beneficial relationship exception
to termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)), and
failing to ensure proper compliance with the Indian Child
Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA). The Sonoma
All further statutory references are to the Welfare and
1
Institutions Code unless otherwise indicated.
1
County Human Services Department (the Department) concedes
error with respect to the latter two issues.
We reject Mother’s contention that the juvenile court erred
in denying her section 388 motion. However, after the court
issued its section 366.26 order, the California Supreme Court
decided In re Caden C. (2021) 11 Cal.5th 614 (Caden C.), which
provided new guidance on how the beneficial relationship
exception should be applied. We cannot determine on the record
before us that the juvenile court’s ruling complied with the
principles announced in Caden C. We also agree with the parties
that the record does not support the juvenile court’s ICWA
findings. Accordingly, we affirm the order denying the section
388 petition, but reverse the section 366.26 order and remand
with directions.
BACKGROUND
The Initial Dependency Proceeding
In December 2018, the Department filed a petition under
section 300 for Al. and An., then six and three years old,
respectively. The petition alleged the children were at risk of
serious harm because Mother and Father engaged in physical
violence with Al. in the zone of danger (§ 300, subd. (a)), and
Mother and Father exposed the children to domestic violence on
at least eight occasions (§ 300, subd. (b)). Under section 300,
subdivision (g), the petition stated Father was incarcerated and
unable to provide care and support. The petition also alleged
that Mother received a criminal protective order (the protective
2
order) against Father in November 2018, and police arrested
Father for violations of this order numerous times.
The Department’s report in support of the petition
summarized nine reports of domestic violence between Mother
and Father or violations of domestic violence protective orders,
dating back to August 2016. When confronted with the
seriousness of the situation, Mother said she would be willing to
move to another home or into a domestic violence shelter to
protect the children. The children were detained.
The Department filed an amended section 300 petition in
January 2019 including an allegation under subdivision (c) that
the children were at risk of suffering serious emotional damage
based on domestic violence. The subdivision (a) and subdivision
(b) allegations were amended to state there had been nine
incidents of serious domestic violence in the prior two and a half
years, there was a chronic pattern of violence, and Mother failed
to protect the children by continuing to allow Father to visit the
children and not pressing charges.
In its jurisdiction/disposition report, the Department
recommended the court take jurisdiction, declare the children
dependents, and order family reunification services for the
parents. The children had been placed with Mother’s cousin and
were doing well. Mother denied being in a relationship with
Father and said Father was repeatedly violent with her in the
children’s presence. Mother had always been a stay-at-home
mother. She had adult children with whom she had no child
protective history. Mother had anxiety and ADHD. She was
3
willing to participate in services, “expressed a strong desire to
reunify,” and spoke passionately about her love for her children.
Father denied harming anyone and accused Mother of hurting
the children and using drugs.
At the February 2019 contested jurisdiction/disposition
hearing, the court found the allegations of the amended petition
to be true and removed the children. Father was declared the
presumed father, and Mother and Father were offered
reunification services. Mother’s case plan included parenting
education, domestic violence support groups, intake assessment
with DAAC (Drug Abuse Alternatives Center), completing an
inpatient or outpatient program as assessed, and submitting to
random drug tests.
The Department’s August 2019 six-month status report
recommended an additional six months of services for Mother,
and termination of services for Father, who had not made efforts
to contact the Department since January 2019. Al. was “very
happy, resilient, and well-adjusted,” with no behavioral issues.
An. was very quiet and reserved, but had normal development.
Al. wanted to be back home with Mother, and An.
“enthusiastically agreed.” Al. and An. felt safe with Mother,
spoke highly of their time with her, and could not wait to spend
time with her again.
Mother’s visitation had been consistent, visitation became
unsupervised, and overnight visits began in July 2019. The
interactions between Mother and the children were consistently
appropriate and positive. Mother was engaged in her case plan,
4
including the requirement that she learn to build and maintain
safe and healthy relationships free of violence. Mother
successfully completed a six-week YWCA domestic violence
program, continued to attend group meetings, and engaged in
therapy. Mother completed an assessment with DAAC in May
2019 which determined there was no need for inpatient or
outpatient services. Mother’s drug tests were negative, although
she missed several tests. The social worker noted that Mother
never appeared to be under the influence, and she did not suspect
that Mother was actively using substances. Father was
incarcerated during much of the review period, and, to the social
worker’s knowledge, Mother had not had contact with him. The
social worker reported growth in Mother’s confidence, and that
Mother was loving and attentive during visits and made the
children feel “confident, comfortable, and safe.”
At the six-month review hearing, the juvenile court
authorized a trial home visit, and Mother submitted to the
Department’s recommendation. Mother’s updated case plan
included refraining from contact with Father and adhering to the
protective order, developing a written safety plan specifying
whom she would contact in the event she or the girls were in a
violent or threatening situation with Father, and ensuring that
all relationships to which the children were exposed were safe
and free of violence. At the subsequent November 2019 contested
six-month review hearing set by Father, the court terminated his
reunification services.
5
As of the Department’s January 2020 12-month status
report, the children had been on a trial home visit with Mother
for several months. Al. was happy and had no concerns living
with Mother, and An. appeared happy and well-adjusted. Mother
had made significant progress creating healthy relationships, but
there were still serious concerns about her ability to follow
through with some of her children’s needs. Al. had missed forty
percent of the school year since being on the home trial visit, and
Mother failed to maintain adequate contact with services
providers, the social worker, and Al.’s school. Mother’s case plan
continued to require her to provide a safe and violence-free home
by, among other things, refraining from contact with Father,
abiding by the protective order, and ensuring that all
relationships to which the children were exposed were safe and
free of violence. The Department recommended family
maintenance services for Mother, and, at the March 2020 twelve-
month review hearing, the court accepted this recommendation.
The Section 387 Motion and Setting of the Section 366.26 Hearing
On June 11, 2020, the Department filed a section 387
petition alleging that Mother had engaged in verbal and physical
altercations in the home with her boyfriend in the children’s
presence, and she had been arrested for felony aggravated
assault. Mother also allowed the children to be in Father’s care,
despite the fact that he was allowed only Department-supervised
visits, and she coached the children not to tell the Department.
The children were placed back in the care of Mother’s cousin.
6
The Department reported the children knew about the
violent incident with Mother and her boyfriend, but said they did
not see it; they said Mother and her boyfriend argued, screamed,
and yelled in the home, daily. Al. seemed to believe that verbal
and physical arguments were normal. The police had been called
to the home multiple times in the preceding months for concerns
of violence, including for an incident in April 2020 where Father
and Mother were outside the home arguing. The Department
reported concern that Mother had been falsifying drug tests, and
Mother’s then-current appearance indicated substance abuse.
The court found a prima facie case had been made, and,
after a subsequent contested hearing, sustained the section 387
petition. The court approved the children’s placement with the
maternal cousin. Because there was not a substantial probability
of return within the next six months or the time that remained in
the 18-month maximum reunification period, the court
terminated Mother’s reunification services. The matter was set
for a section 366.26 hearing.
Proceedings After Setting of the Section 366.26 Hearing
The Department’s November 2020 section 366.26 report
recommended parental rights be terminated, and a plan of
adoption be ordered.
Mother’s visits with the children initially went well after
the June 2020 removal, at which time Mother had been approved
for three visits a week, supervised by the caregiver. When visits
began, the children had a hard time leaving Mother. In July
2020, the caregiver reported some difficulty in contacting Mother,
7
visits the following month occurred only when the caregiver could
pick Mother up, and visits became more infrequent when the
caregiver started having car problems. In October 2020, Mother
went car shopping and then missed visits after obtaining a car.
The caregiver did not tell the children about visits so they would
not be disappointed if Mother did not show, and she reported the
children no longer struggled at the end of visits. They did not ask
to see or visit with Mother when she did not visit.
Al. and An. had lived in the potential adoptive home, the
home of the maternal cousin, for thirteen months in total during
the dependency, and neither child had developmental,
behavioral, or health concerns. Al. called the maternal cousin her
“Aunt.” Al. responded positively when asked whether she could
see herself growing up with her aunt, and she demonstrated an
understanding of adoption and a desire to grow up with her aunt.
The social worker reported that Al. perceived her potential
adoptive mother as her primary caregiver, and the caregiver was
meeting Al.’s physical and emotional needs. An. was too young to
be interviewed, but the social worker observed that An. saw her
caregivers, and in some ways her older sister, as her primary
caregivers, and they were meeting her physical and emotional
needs.
The relative caregivers were committed to the children and
willing to provide permanency through adoption. They were
experienced parents who had demonstrated good parenting
practices and the ability to meet the children’s needs. The girls
had always had the caregivers in their lives, and they were
8
comfortable with the family. Both children demonstrated strong
emotional ties to the potential adoptive family. The social worker
also reported that the potential adoptive parents and Mother
were committed to maintaining the relationship between Mother
and the children if it was in the children’s best interests, and the
potential adoptive family had been referred to services to mediate
a possible agreement for contact under the Family Code.
The section 366.26 report concluded that both children
would benefit from a permanent plan of adoption. The report
documented an assessment by Sonoma County Family, Youth &
Children’s Services (FY&C), stating, “Although interaction
between the children and the birth parents may have some
incidental benefit, such benefit does not outweigh the benefit that
will be gained through the permanence of adoption. FY&C
assesses that termination of parental rights would not be
detrimental to the [children].”
In advance of the section 366.26 hearing, the Department
provided the court with a copy of a police report from a December
26, 2020 incident involving domestic violence between Mother
and Father. In the report, Mother said Father broke into her
home and was standing over her when she awoke; her son, who
heard Mother screaming, reported that she told him to call the
police. Father told police Mother battered him, and he visited the
house every once in a while. Father was arrested for domestic
battery and violation of the protective order. The police report
also included a statement from Mother’s son that Father “comes
9
to the house about once a week and stays for about an hour at a
time.”
The court held a virtual contested section 366.26 hearing
on January 8, 2021 that concluded on January 11, 2021. The
Department’s section 366.26 report and witness disclosure, which
included the December 26, 2020 police report, were moved into
evidence. The court stated it had read and reviewed the entire
file, including the protective order from November 2018, and it
took judicial notice of its file.2
Mother’s counsel made an oral motion under section 388
asking for return of the children because Mother had maintained
suitable housing, she was not in a relationship with her prior
boyfriend, she enjoyed frequent visits with the children, she
believed the girls wanted to return to her care, and she had a
close relationship with the girls. The court stated it would take
the motion under submission, and then heard testimony from
Mother and a social worker.
Mother testified that she could provide a safe home for her
daughters. She had lived in a three-bedroom house with her
adult son since February 2019. Mother said that she called the
police in December 2020 after Father came to her house in
violation of the protective order. Father appeared at her house
2 The day before the section 366.26 hearing, Father filed a
section 388 petition asking that the children be returned to him
or for additional reunification services, and Father testified at the
hearing regarding the services he had completed. The court’s
denial of Father’s section 388 petition is not at issue in this
appeal.
10
with presents for the kids around Christmas, and she told him to
leave. He appeared again the next morning, this time in her
home, and she called the police because she had learned no
tolerance. Mother testified that the statement in the police
report indicating Father had been coming over to her home about
once a week was false. She then qualified that Father had been
there “a few times” prior. Mother testified that she had
participated in parenting classes, was engaging in counseling to
address her ADHD and PTSD, and was taking prescribed
medications. Mother was willing to check in with the social
worker and to be monitored.
Regarding visitation, Mother stated she visited with the
girls “a few times a week for a few hours and one day on the
weekend.” Mother testified that she had a “really close”
relationship with Al., that they were “best friends,” and Al. “most
definitely” viewed her as her mother. Mother had the closest
relationship with An., who was her “sidekick and [ ] shadow.”
Mother said she had not missed visits with Al. and An.; some
visits had been rescheduled, but not missed. Mother believed
terminating her parental rights would have a “devastating effect”
on her children, and they would be “traumatized severely.” She
said that the “absence of a mother is just not being complete
ever,” and there would “always be something missing from their
lives.” Mother testified that An. was hurting without Mother, she
had begun peeing in her pants after the June 2020 removal, and
Al. told her An. cries for Mother at night.
11
The social worker testified that the caregiver stated that
visitation had been difficult. The caregiver brought the children
to visits, and if the caregiver’s car was not working, visits did not
occur. However, the social worker conceded that, in the weeks
prior to the hearing, visits had resumed at multiple times per
week. The social worker stated that the children “respond fine
for the most part” after visits; they did not cry or ask for Mother.
The caregiver reported that the children do not ask about
Mother, and if the caregiver did not talk about visits, the children
did not ask for visits. The caregiver supervised the visits
between the children and Mother, and the social worker had not
observed any visit. An.’s enuresis had resumed at visits or
immediately after visits with Mother.
The social worker testified that Al., who was old enough to
be asked about the prospects of adoption, told the social worker
that she wanted to grow up with her caregiver, and she liked
where she was living. Al. did not say she wanted to live with
Mother. The social worker opined that termination of parental
rights would not be detrimental to the children, and the children
depended on the caregiver as their primary parental figure.
The Juvenile Court’s Ruling
On the first day of the hearing, the court denied the section
388 petitions of Mother and Father, stating, “Both of you seem to
be doing well. And you are in the process of changing your lives.
This particular petition is somewhat difficult for a parent to
prevail because they have to show that their circumstances have
been totally and completely changed. [¶] Both [Mother] and
12
[Father] are in the process of changing their lives . . . [¶] I’m
going to deny the JV-180s for both. They do not show changed
circumstances to the extent that would be necessary. And there
is no showing that it would be in the best interest of the children
at this time, based on those two prongs.”
The court then turned to the section 366.26 issues. The
court observed that reunification services had been terminated
over a year prior for Father and over six months prior for Mother,
and the children needed stability. It found by clear and
convincing evidence that the children were generally and
specifically adoptable and stated the permanent plan was
adoption. Regarding the beneficial relationship exception, the
court ruled Mother “tried her best and has maintained
reasonable visitation with her children.” However, neither
parent had “prove[n] by a preponderance of the evidence that the
children would benefit from continuing the parental relationship
to such a degree that terminating parental rights would be
detrimental to the child. That has not been shown by any
evidence in this hearing.” The court continued, “So with that I
am going to note that mother, once she had – once she exposed
the children to domestic violence back last year, mid—in her
relationship around the middle of last year, that at the end of this
last year she was allowing [Father] in the house based on the
information that was – I know that this is not her testimony, but
the information contained in the reports, including the testimony
of other children, show that [Father] was coming over there at
least once a week even though there was a criminal protective
13
order, and at one point [Father], though it did not result in a
conviction, was arrested for domestic violence and he has – has
testified so. [¶] So based on all of that information, the parental
rights are terminated.” Mother timely appealed from the court’s
January 11, 2021 order.3
DISCUSSION
I. Denial of Mother’s Section 388 Motion
Mother contends that the trial court abused its discretion
in denying her section 388 request by requiring a showing of
circumstances that had “totally and completely” changed, rather
than the pertinent substantial change standard. (See In re
Esperanza C. (2008) 165 Cal.App.4th 1042, 1061 [“A decision that
rests on an error of law constitutes an abuse of discretion”].) She
also contends that the court abused its discretion when it
determined that she had not established that return of the
children would be in their best interests. We need not decide
whether the juvenile court used an incorrect standard to evaluate
Mother’s changed circumstances showing because we find no
merit to Mother’s second contention.4
Mother’s counsel filed a notice of appeal for her on March
3
9, 2021, and Mother filed what is designated in the record as a
“duplicate notice” on March 11, 2021.
4Mother’s notices of appeal designate an appeal from a
January 11, 2021 order under “Section 366.26.” Her duplicate
notice indicates an appeal from “January 11, 2021. Order of
termination of parental rights, planned permanency placement,”
and from an order in June 2020 under “Section 360,” “Removal of
custody from parent or guardian.” These notices do not specify
the section 388 order. The court in In re Madison W. (2006)
141 Cal.App.4th 1447, 1450–1451, explained that it routinely
14
Section 388 authorizes a parent to petition the court to
change a previous order based on a change in circumstances or
new evidence if undoing the prior order would be in the child’s
best interests. (§ 388, subds. (a)(1), (d); In re Kimberly F. (1997)
56 Cal.App.4th 519, 526–527 & fn. 5, 529 (Kimberly F.).) The
parent bears the burden to establish a genuine change of
circumstances, and that undoing the prior order would be in the
best interests of the child. (Kimberly F., at p. 529.) Section 388
serves as “an ‘escape mechanism’ when parents complete a
reformation in the short, final period after the termination of
reunification services but before the actual termination of
parental rights.” (Id. at p. 528.) In this respect, it is “vital to the
constitutionality of our dependency scheme as a whole, and the
termination statute, section 366.26, in particular.” (Ibid., citing
In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.).)
Nonetheless, after reunification services have been
terminated and a section 366.26 hearing has been set, as in this
case, “the parent[’s] interest in the care, custody and
companionship of the child are no longer paramount. Rather, at
deemed notices of appeal from termination of parental rights to
include denials of section 388 petitions filed within 60 days prior.
In re J.F. (2019) 39 Cal.App.5th 70, 77–78, declined to follow
Madison W. where the court denied a section 388 petition 44 days
before the termination of parental rights and appellant’s briefing
addressed only the 388 petition. We will follow Madison W. here
and liberally construe the notices of appeal because Mother made
her section 388 motion on the day of the section 366.26 hearing,
both parties’ briefing addresses the sections 388 and 366.26
orders, and the Department does not argue the section 388 order
was not appealed, nor does it assert any prejudice.
15
this point ‘the focus shifts to the needs of the child for
permanency and stability’ ([Marilyn H., supra, Cal.4th at
p. 309]), and in fact, there is a rebuttable presumption that
continued foster care is in the best interests of the child.’ ” (In re
Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).) “A court
hearing a motion for change of placement at this stage of the
proceedings must recognize this shift of focus in determining the
ultimate question before it, that is, the best interests of the
child.” (Ibid.)
The determination of a section 388 motion is committed to
the sound discretion of the juvenile court, which we do not
disturb unless abuse of discretion is clearly established, that is, if
the trial court “ ‘exceeded the bounds of reason.’ ” (Stephanie M.,
supra, 7 Cal.4th at pp. 318–319.) This is a high standard, and an
order denying a section 388 motion is rarely reversed. (In re
Daniel C. (2006) 141 Cal.App.4th 1438, 1445.) If the facts are
susceptible to more than one inference, we may not substitute our
inference for that of the trial court. (Stephanie M., at p. 319.)
Here, we find no abuse of discretion in the trial court’s
denial of Mother’s last-minute section 388 request: Mother did
not establish that the children’s need for permanency and
stability would be advanced by granting her motion. Mother
testified that she was taking her medication, going to counseling,
she was in contact with the YWCA, and she had stable housing.
However, Mother ignores the juvenile court’s salient finding that,
towards the end of 2020, Mother was allowing Father to visit her
on a weekly basis (ultimately culminating in Father’s arrest for
16
domestic battery), despite the case history and the protective
order. It is not the province of this court to reevaluate a witness’s
credibility. (In re I.B. (2020) 53 Cal.App.5th 133, 156 (I.B.).)
Considering the evidence of Mother’s recent inability to cut ties to
Father, who visited in violation of the protective order,
reasonable uncertainty existed that Mother would be successful
in providing her children with a stable home and protecting them
from domestic violence. Given the children’s need for safety,
stability, and a permanent home at this point in the process, the
juvenile court did not abuse its discretion in deciding Mother had
not sufficiently demonstrated it would be in the children’s best
interests to grant the section 388 request.
Mother’s arguments to the contrary are unavailing. She
contends recent authority supports the continued use of the
factors in Kimberly F., supra, 56 Cal.App.4th 519, to evaluate the
child’s best interests. (See In re J.C. (2014) 226 Cal.App.4th 503,
527 [declining to apply Kimberly F. factors because they did not
take into account shift of focus to child’s best interests and
Stephanie M. rather than parent’s efforts]; I.B., supra,
53 Cal.App.5th at p. 163 [trial court did not abuse discretion by
also considering Kimberly F. factors as part of “holistic
evaluation” where mother established she could immediately
provide permanent and stable home for her child; explaining J.C.
declined to apply the factors because parent failed to address
permanency and stability]; In re J.M. (2020) 50 Cal.App.5th 833,
847–851 (J.M.) [applying Kimberly F. factors].) Observing that
courts may be tempted to simply compare the household and
17
upbringing provided by the parents with that of the caretakers,
the Kimberly F. court listed factors courts should consider when
assessing the minor’s best interests on a petition for modification.
(Kimberly F., at pp. 529, 532.) These factors include the
seriousness of the problem that led to the dependency; the
strength of the relative bonds between the dependent children to
both the parent and caretaker; and the degree to which the
problem may be easily removed or ameliorated and the degree to
which it actually has been. (Id. at p. 532.)
The evidence and findings from below establish that the
Kimberly F. factors do not help Mother. The issues that brought
Mother before the dependency court were serious. Mother and
Father initially failed to protect the children from domestic
violence, and Father placed the children at risk of physical harm.
The section 387 petition occurred because of domestic violence
between Mother and her boyfriend and because Mother allowed
Father to visit her and the children without Department
supervision, in violation of the protective order. Mother’s counsel
represented Mother had ended her relationship with her
boyfriend. But the court found that Mother had been allowing
Father to visit in violation of the protective order, and he was
arrested at her home on December 26, 2020 for domestic battery.
Mother thus had not remedied or shown that she was likely to
remedy the serious problems underlying the dependencies. As to
the strength of the children’s bonds, the evidence established a
strong bond with Mother, but it also showed a strong bond to the
18
caregiver, with whom Al. said she wanted to grow up, and who
was meeting the children’s emotional and physical needs.
Both I.B. and J.M., upon which Mother relies, are
distinguishable. In J.M., domestic violence issues with the father
served as the basis for the dependency petition (J.M., supra,
50 Cal.App.5th at p. 836), and in I.B., exposure of the children to
domestic violence between the mother and the father and an
unsanitary home served as the basis for the dependency petition
(I.B., supra, 53 Cal.App.5th at pp. 136–137). As of the filing of
the section 388 petitions in both cases, the mothers had ceased
contact with the fathers for significant periods of time, and each
had ameliorated the concerns that led to the dependencies.
(J.M., at pp. 836, 843, 845–849; I.B., at p.157.) The cessation in
contact with the fathers in both cases supported the courts’
conclusions that the mothers could offer a safe, permanent, and
stable home. (See J.M., at pp. 848–849; I.B., at p. 161.) That is
not the case here.
We recognize the evidence shows that Mother loved her
children, and she made progress by completing a domestic
violence program, attending counseling, and taking her
medication. But the focus at this stage is on the best interests of
the children. Considering all relevant factors and the trial court’s
credibility findings, the court reasonably concluded the children’s
best interests would not be served by returning them to Mother.
II. The Beneficial Relationship Exception
Mother next contends that the juvenile court incorrectly
found the beneficial relationship exception inapplicable.
19
(§ 366.26, subd. (c)(1)(B)(i).) The Department concedes remand is
required in light of our Supreme Court’s recent guidance on this
exception in Caden C. For the reasons set forth below, remand is
required.
The purpose of the section 366.26 hearing is to select a
permanent plan for the child after reunification efforts have
failed. (§ 366.26, subd. (b); Marilyn H., supra, 5 Cal.4th at
p. 304.) Adoption, where possible, is the permanent plan
preferred by the Legislature for a dependent minor child who has
not been returned to the custody of his or her parents and is
found by the court to be adoptable. (In re Autumn H. (1994)
27 Cal.App.4th 567, 573.) When the court finds that a child is
likely to be adopted if parental rights are terminated, it must
select adoption as the permanent plan unless “the parent shows
that termination would be detrimental to the child for at least
one specifically enumerated reason.” (Caden C., supra,
11 Cal.5th at p. 630.)
In Caden C., the Supreme Court provided new guidance
regarding the beneficial relationship exception to termination of
parental rights. To apply this exception, a parent is required to
show “(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.” (Caden C., supra, 11 Cal.5th at p. 631, italics omitted.)
“The first element—regular visitation and contact—is
straightforward. The question is just whether ‘parents visit
consistently,’ taking into account ‘the extent permitted by court
20
orders.’ ” (Id. at p. 632.) For the second element, “courts assess
whether ‘the child would benefit from continuing the
relationship.’ ” (Ibid.) “[T]he 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.” (Id. at p. 636.) That
relationship may be shaped by numerous factors, such as “ ‘[t]he
age of the child, the portion of the child’s life spent in the parent’s
custody, the “positive” or “negative” effect of interaction between
parent and child, and the child’s particular needs.’ ” (Id. at
p. 632.) For the third element, the court decides whether it
would harm the child to sever the relationship and choose
adoption. (Id. at p. 633.)
On the third element, Caden C. provided additional
guidance. The court explained that, in conducting its analysis,
the juvenile court must assume that terminating parental rights
entirely terminates the relationship with the child. (Caden C.,
supra, 11 Cal.5th at p. 633.) “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.
[Citation.] . . . [T]he effects might include emotional instability
and preoccupation leading to acting out, difficulties in school,
insomnia, anxiety, or depression [or] . . . a new, stable home may
alleviate the emotional instability and preoccupation leading to
such problems, providing a new source of stability that could
make the loss of a parent not, at least on balance, detrimental.”
21
(Ibid.) If severing the parent/child relationship would deprive the
child of a substantial, positive emotional attachment such that
termination would harm the child even considering the benefits
of a new adoptive home, the court should not terminate parental
rights. (Ibid.) Moreover, whether a parent is ready for a return
of custody is not by itself relevant. (Id. at p. 634.) The court thus
cannot compare the parent’s attributes as a custodial caregiver to
those of a potential adoptive family. (Ibid.)
Caden C. also instructed on the relevance of the parent’s
continued struggles with the issues that led to the dependency,
stating that such struggles “are not a categorical bar to applying
the [beneficial parental relationship] exception.” (Caden C.,
supra, 11 Cal.5th at p. 637.) “Parents need not show that they
are ‘actively involved in maintaining their sobriety or complying
substantially with their case plan’ [citation] to establish the
exception.” (Ibid.) Nevertheless, the issues that led to the
dependency may be relevant to the application of the exception,
such as where there is a negative effect on the child. (Ibid.) But
they are relevant only to the extent they inform whether the child
would benefit from continuing the parental relationship and be
harmed by losing it. (Id. at 638.)
A substantial evidence standard of review applies to the
juvenile court’s findings on the first two elements of the beneficial
relationship exception because these are factual determinations.
(Caden C., supra, 11 Cal.5th at pp. 639–640.) The third element
is subject to a “hybrid” standard of review. (Id. at p. 641.) The
court’s factual determinations regarding, among other things, the
22
specific features of the child’s relationship with the parent, the
harm that would come from losing those specific features, and
how the prospective adoptive placement may offset and even
counterbalance those harms are reviewed for substantial
evidence. (Id. at p. 640.) The court’s “delicate balancing” of “the
harm of losing the relationship against the benefits of placement
in a new, adoptive home” is discretionary and properly reviewed
for abuse of discretion. (Ibid.)
On the first element, the juvenile court here found that
Mother maintained reasonable visitation, the Department agrees,
and substantial evidence supports the finding. Mother’s
visitation in the early stages of the dependency was consistent.
The social worker reported some difficulty in arranging visitation
as a result of transportation challenges after the section 387
petition, but visits had returned to multiple times a week in the
weeks leading to the section 366.26 hearing. Mother, in turn,
testified that she had not missed visits and explained that any
missed visits were rescheduled.
The juvenile court’s findings with respect to the second and
third elements are not as clear. Specifically as to these elements,
the court stated, “[N]either parent has proved by a
preponderance of the evidence that the children would benefit
from continuing the parental relationship to such a degree that
terminating the parental rights would be detrimental to the
child.” But the court also noted the incident of domestic violence
with Mother’s boyfriend, the recent evidence of Father visiting
Mother in violation of the restraining order, and Father’s
23
December 26, 2020 arrest. The court then concluded, “So based
on all of that information, the parental rights are terminated.”
In making these findings, the court seems to have impliedly
found a benefit, and evidence of the children’s age, the length of
time they lived with Mother, and their interactions with her
would support such a finding. Nonetheless, the court also
expressly stated it based the termination of parental rights on
Mother’s ongoing struggles with domestic violence. The court
had noted the children needed stability, and it is possible the
court concluded that Mother’s involvement in violent
relationships meant that her interactions with the children had a
negative impact. However, the children were not present for the
more recent interactions between Mother and Father that the
court mentioned, and there is no indication they knew of these
incidents. Thus, it is not clear that the court did not improperly
fault Mother for her ongoing struggles with domestic violence.
(Caden C., supra, 11 Cal.5th at p. 637.) It is also unclear from
the court’s comments whether it considered Mother’s lack of
ability to provide a safe home for the children in making its
decision. (Id. at p. 634.) Thus, we simply cannot be certain from
this record that the court did not consider improper factors when
assessing whether the beneficial relationship exception applied.
Given these ambiguities and the importance of the parental
relationship, we deem it prudent to remand for reconsideration so
that the trial court can make its findings with the benefit of
Caden C.’s guidance. We recognize it is in the children’s interest
to expeditiously select a permanent plan, but we cannot
24
determine on the record before us that the court’s ruling complied
with Caden C.
III. ICWA
Mother contends that the juvenile court’s ICWA finding
must be reversed because the Department did not adequately
investigate the children’s possible Indian ancestry. We agree.
A. Relevant Background
At the December 2018 detention hearing, Father submitted
an ICWA-020 form indicating he may have Cherokee ancestry on
the paternal side from a great-great grandparent.5 Father made
a similar statement in a January 2019 interview with the
Department. As a result, the Department’s
jurisdiction/disposition report states that “[t]he Department is
engaged in research efforts around [Father’s] ancestry.”
On February 7, 2019, the Department sent ICWA-030
notices to the Cherokee Nation, the Eastern Band of Cherokee
Indians, and the United Keetoowah Band of Cherokee Indians.
The notices included Father’s information, listing “Cherokee
Tribes” thereunder, but they did not contain information about
Father’s relatives. The Eastern Band of Cherokee Indians and
the Cherokee Nation responded that the children were not
eligible for membership.
Mother also submitted an ICWA-020 form stating she
5
may have Native American ancestry. Mother does not challenge
the Department’s handling of her potential Native American
ancestry or the court’s findings under ICWA with respect to
Mother, so we do not discuss the facts underlying the
Department’s ICWA efforts as to Mother.
25
The court’s ICWA findings after the February 28, 2019
contested jurisdiction/disposition hearing stated: “The court and
Department properly inquired of the mother, [M.H.], whether the
children might be Indian children under [ICWA], provided said
party with Notification of Indian Status (Juvenile Court) (ICWA-
020) and ordered the party to complete form ICWA-020 and to
submit it to the court before leaving the courthouse today. The
court orders the Department to conduct additional inquiry and
notice, if necessary, to comply with the Act.”
The Department’s six-month review report indicated that
the Eastern Band of Cherokee Indians and the Cherokee Nation
had responded that the children were not eligible for
membership, but the United Keetoowah Band of Cherokee
Indians had not responded. At the August 2019 six-month
review hearing, the court found ICWA did not apply.
The court’s next ICWA related findings, entered November
13, 2019 after Father’s contest of the six-month review hearing,
stated, “The Court has read and considered the documents
submitted by the Department, including notice sent to the
applicable tribe(s) and the BIA and responses received; [¶] There
is currently insufficient information to determine if the children
may be Indian children; [¶] The Indian Child Welfare Act does
not [ ] apply to this case.”
All subsequent filings by the Department in this matter
contain the statement that the court had found on November 13,
2019 that ICWA did not apply, and no additional information
26
indicated otherwise. The section 366.26 hearing and orders did
not discuss ICWA compliance.
B. ICWA Compliance
“ICWA protects the interests of Indian children and
promotes the stability and security of Indian tribes by
establishing minimum standards for, and permitting tribal
participation in, dependency actions.” (In re A.G. (2012)
204 Cal.App.4th 1390, 1396.) “Indian child” is defined as “any
unmarried person who is under age eighteen and is either (a) a
member of an Indian tribe or (b) 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); § 224.1, subds. (a), (b).)
“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 (D.S.).) As relevant here, “section
224.2 creates three distinct duties regarding ICWA in
dependency proceedings.” (Id. at p. 1052.) After a child welfare
department’s initial contact with the minor and his or her family,
“the statute imposes a duty of inquiry to ask all involved persons
whether the child may be an Indian child. (§ 224.2, subds. (a),
(b).) Second, if that 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.’ (Id.,
subd. (e) . . . .) Third, if that further inquiry results in a reason to
know the child is an Indian child, then the formal notice
27
requirements of section 224.3 apply.” (D.S., at p. 1052, italics
omitted.)
If the court or social worker “has reason to believe that an
Indian child is involved . . . but does not have sufficient
information to determine that there is reason to know that the
child is an Indian child, the court . . . [or] social worker . . . shall
make further inquiry regarding the possible Indian status of the
child.” (§ 224.2, subd. (e).) When there is “reason to believe” the
child is an Indian child, “further inquiry is necessary.” (§ 224.2,
subd. (e)(2).) It includes “[i]nterviewing the parents . . . and
extended family members” to gather specified information,
contacting the Bureau of Indian Affairs (BIA), the State
Department of Social Services, and “the tribe or tribes . . . that
may reasonably be expected to have information regarding the
child’s membership, citizenship status, or eligibility.” (§ 224.2,
subd. (e)(2)(A)–(C); Cal. Rules of Court, rule 5.481(a)(4).)
If, based on this further inquiry, there is “reason to know”
the child is an Indian child, then more formal ICWA notice is
required.6 (§§ 224.2, subds. (d) & (f), 224.3; Cal. Rules of Court,
6 Formal notice must be given to the minor’s parents or
legal guardian, Indian custodian, if any, and the child’s tribe
regarding any hearings that may culminate in an order for foster
care placement, termination of parental rights, preadoptive
placement, or adoptive placement. (§ 224.3, subd. (a).) Notice
must include “[a]ll names known of the Indian child’s biological
parents, grandparents, and great-grandparents, or Indian
custodians, including maiden, married, and former names or
aliases, as well as their current and former addresses, birth
dates, places of birth and death, tribal enrollment information of
28
rule 5.481(b); 25 U.S.C. § 1912(a).) As this statutory scheme
makes clear, the duty to provide notice is narrower than the duty
of inquiry. (In re Austin J. (2020) 47 Cal.App.5th 870, 884.)
If, on the other hand, the juvenile court finds that the
Department has conducted “proper and adequate further inquiry
and due diligence” and that there is no reason to know whether
the child is an Indian child, the court may make a finding that
ICWA does not apply. (§ 224.2, subds. (g) & (i)(2); In re Dominic
F. (2020) 55 Cal.App.5th 558, 570–571.) The Department and the
court, however, have a continuing duty under ICWA, and the
court “shall reverse its determination if it subsequently receives
information providing reason to believe that the child is an
Indian child and order the social worker or probation officer to
conduct further inquiry . . . .” (§ 224.2, subds. (a) & (i)(2); see
D.S., supra, 46 Cal.App.5th at p. 1050.)
“On appeal, we review the juvenile court’s ICWA findings
for substantial evidence. [Citations.] 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.)
Here, the parties agree that the Department’s duty of
further inquiry was triggered after Father submitted an ICWA-
020 form indicating he may have Cherokee ancestry on the
paternal side from a great-great grandmother and after he told
other direct lineal ancestors of the child, and any other
identifying information, if known.” (§ 224.3, subd. (a)(5)(C).)
29
the Department in January 2019 that he may have Cherokee
ancestry. (See In re A.M. (2020) 47 Cal.App.5th 303, 322 [a
mother’s “statement that she was told and believed that she may
have Indian ancestry with the Blackfeet and Cherokee tribes”
and listing her grandfather “as having possible Indian heritage”
were sufficient to trigger the duty of further inquiry].) The
Department’s jurisdiction/disposition report states that “[t]he
Department is engaged in research efforts around [Father’s]
ancestry.” The record subsequently reflects that the Department
sent ICWA-030 notices on February 7, 2019, but they listed only
Father’s information on the paternal side. The Department
concedes that “the record is simply unclear as to whether th[e]
duty [of further inquiry] was performed.” Notably, the record
provides no evidence that the Department asked Father for
relative contact information or engaged in additional research
efforts, as it was ordered to do by the juvenile court at the
February 28, 2019 combined jurisdiction/disposition hearing, and
as it was required to do by statute. (§§ 224.2, subd. (e)(2)(A)–(C),
224.3, subd. (a)(5)(C) [requiring, among other things, that the
social worker interview parents about names, addresses, birth
dates of biological parents, grandparents, and great-
grandparents, or Indian custodians].) Thus, the juvenile court’s
implied findings of further adequate inquiry and of ICWA’s
resultant inapplicability lack support in the record, and the
Department concedes it would be improper to impute such a
finding to the orders entered at the section 366.26 hearing.
30
“[E]rrors in an ICWA notice are subject to review under a
harmless error analysis.” (In re Brandon T. (2008)
164 Cal.App.4th 1400, 1415.) If we conclude the juvenile court
did not comply with the ICWA provisions, we “reverse only if the
error is prejudicial.” (In re A.L. (2015) 243 Cal.App.4th 628, 639.)
Here, the Department either did not take sufficient affirmative
steps to investigate the children’s possible Indian ancestry or did
not document its efforts to do so, and the juvenile court failed to
ensure that an adequate investigation had been conducted. The
Department does not argue harmless error. We note that the
Department’s jurisdictional/disposition report stated Father was
removed from his mother at an early age, and he reported having
no natural supports, so it is possible he had no identifying or
contact information for his extended family. On the other hand,
the same report indicated that Father preferred the children be
placed with the state rather than Mother or his family, indicating
that he may be in contact with them. On this record, and in the
absence of evidence that the Department fulfilled its duty of
further inquiry, we cannot say the Department’s ICWA non-
compliance was harmless. Accordingly, we will conditionally
reverse the order terminating parental rights. (See In re N.G.
(2018) 27 Cal.App.5th 474, 486 [conditionally reversing judgment
terminating parental rights and remanding for court to comply
with inquiry and notice provisions of ICWA and sections 224.2
and 224.3].)
31
DISPOSITION
The juvenile court’s January 8, 2021 order denying
Mother’s section 388 motion is affirmed.
The juvenile court’s January 11, 2021 order terminating
Mother’s parental rights is reversed and the matter is remanded
for the juvenile court to conduct a new section 366.26 hearing
consistent with Caden C., supra, 11 Cal.5th 614, and the views
expressed in this opinion. The parties may introduce such
additional relevant evidence as they deem necessary, including
but not limited to evidence of the family’s current circumstances
and any developments that might have occurred during the
pendency of this appeal. Prior to holding this hearing, the
juvenile court is to comply with the further inquiry and notice
provisions of ICWA as set forth below.
The juvenile court’s January 11, 2021 order terminating
Father’s parental rights is conditionally reversed, and the matter
is remanded with instructions for the juvenile court to order the
Department to comply with the further inquiry provisions under
section 224.2, subdivision (e)(2)(C) regarding the children’s
Cherokee membership status or eligibility. If, after proper
further inquiry, the court finds a reason to know the children are
Indian children, the court must provide notice in accordance with
ICWA. If the court finds that the children are Indian children,
then the court must conduct a new section 366.26 hearing and
any further proceedings in compliance with ICWA and California
law. If the court finds that the children are not Indian children,
32
the section 366.26 order terminating parental rights shall be
reinstated as to Father.
BROWN, J.
WE CONCUR:
POLLAK, P. J.
ROSS, J.
In re A.L. (A162200)

Judge of the Superior Court of California, City and
County of San Francisco, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
33