In re E.B. CA2/3 ( 2022 )

Filed 8/26/22 In re E.B. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re E.B., a Person Coming B317052
Under the Juvenile Court Law.
(Los Angeles County
LOS ANGELES COUNTY Super. Ct.
DEPARTMENT OF No. 18CCJP07513A)
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
VANESSA S.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Steff Padilla, Judge Pro Tempore. Affirmed.
Janette Freeman Cochran, under appointment by the Court
of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Navid Nakhjavani, Deputy
County Counsel, for Plaintiff and Respondent.
——————————
Mother appeals from juvenile court orders denying her
petition to modify a court order and terminating her parental
rights. On appeal, mother contends the juvenile court erred in
finding she did not establish changed circumstances sufficient to
reinstate family reunification services and in concluding the
parental benefit exception to adoption did not apply in this case.
Mother further contends the order terminating her parental
rights must be reversed because the Los Angeles County
Department of Children and Family Services (DCFS) failed to
conduct an adequate inquiry to determine whether E.B. is or may
be an Indian child. We find no prejudicial error and affirm the
juvenile court orders.
FACTUAL AND PROCEDURAL BACKGROUND
One-year-old E.B. came to the attention of DCFS in August
2018, when the agency received referrals about mother and
father having violent altercations in E.B.’s presence. DCFS
learned mother had a history of alcohol and drug abuse. She had
completed an inpatient drug program in 2014 and other drug
treatment services in 2016. Dependency jurisdiction was
previously asserted over mother’s older child, in part due to
mother’s substance abuse. Although mother denied current drug
or alcohol use, she subsequently admitted she sometimes had
“one beer every now and then,” and she and father argued about
her drinking. Father and several of his relatives reported mother
drank alcohol, acted erratically, and at times appeared to be
under the influence. Despite father’s expressed concerns about
2
mother’s behavior, he left E.B. alone with her. In November
2018, DCFS detained E.B. from both parents and filed a petition
pursuant to Welfare and Institutions Code section 300,
subdivisions (b) and (j),1 alleging mother’s past and current
substance abuse placed E.B. at risk of harm. The petition further
alleged father failed to protect E.B. DCFS subsequently filed an
amended petition alleging father also had a history of substance
abuse and was a current abuser of methamphetamine.
At the January 17, 2019 jurisdiction and disposition
hearing, both parents waived their rights to a hearing and
pleaded no contest. The juvenile court sustained an amended
petition, asserted dependency jurisdiction over E.B., and removed
her from both parents.2 The court ordered DCFS to provide
reunification services to both parents. Mother was ordered to
participate in drug and alcohol services, random drug and alcohol
testing, parenting classes, and individual counseling. The court
ordered mother to have monitored visitation but granted DCFS
discretion to liberalize her visits. DCFS placed E.B. in the home
of a paternal cousin.
1 Allundesignated statutory references are to the Welfare
and Institutions Code.
2 The juvenile court dismissed two counts alleging
jurisdiction was warranted under section 300, subdivision (j), and
amended the petition by interlineation, deleting the allegation
that father failed to protect E.B., limiting the allegations related
to mother to alcohol use that periodically interfered with her
ability to care for E.B., and describing father as a “recent user” of
methamphetamine.
3
Six-month review hearing
In advance of the six-month review hearing, DCFS reported
mother was consistently participating in services. She regularly
submitted to drug and alcohol testing, although in the review
period she had several diluted test results and twice missed tests.
Although mother denied living with father, it appeared to the
social worker that they were either living together or father
visited mother’s home frequently. DCFS had obtained
information that in late March 2019, police were called to
mother’s home to respond to a domestic violence incident
involving father.
Mother was visiting E.B. regularly. During visits mother
was engaged with E.B., she got on the floor at eye level and
played with E.B., she spoke softly and calmly to her, and E.B.
“appear[ed] to have a very good time” during the visits. E.B. had
also “bonded well” with the caregiver. She followed the caregiver
around the home, responded well when the caregiver spoke to
her, and appeared happy and energetic in the home.
At the September 2019 hearing, the juvenile court
continued family reunification services.
Twelve-month review hearing
In the report for the 12-month review hearing, DCFS
informed the juvenile court that mother was arrested on a
driving under the influence charge in May 2019. Since the last
hearing, mother had missed five drug tests and was hospitalized
in September 2019 for kidney failure due to excessive drinking.
However, mother had completed a substance abuse program in
October 2019. She had also completed a parenting program.
Father had tested positive for methamphetamines several
times, then he stopped submitting to drug tests. Mother denied
4
that she and father were still in a relationship, yet both parents
admitted they had frequent contact and father said he spoke with
mother daily. Mother was not participating in individual
counseling regularly and had only had two sessions since June
2019.
Mother continued to visit E.B. Mother played with E.B.
appropriately, brought food and snacks, provided E.B. positive
reinforcement, and focused solely on her during visits.
The review hearing, originally set for March 2020, was
delayed until October 2020 as a result of the COVID-19
pandemic. In the meantime, in a September 2020 report, DCFS
informed the juvenile court mother had been arrested on another
driving under the influence charge in August 2019. Since the
March 2020 report, mother had missed several random drug and
alcohol tests. She said she was participating in remote Alcoholics
Anonymous (AA) meetings, but she provided no proof of
attendance to DCFS. However, mother had re-enrolled in
individual counseling. She continued to visit E.B., virtually in
the early months of the pandemic, then again in person
beginning in July 2020.
On October 1, 2020, the day of the review hearing, DCFS
submitted a last minute information report informing the
juvenile court that mother tested positive for methamphetamine
and amphetamine on September 18, 2020.3 Mother told DCFS
she had remained consistent in individual therapy, but the
therapist told DCFS that mother had completed only seven
sessions since enrolling in March 2020.
3 Because of the pandemic-related delays, the hearing was
scheduled as a combined 12- and 18-month review hearing.
5
Mother testified at the hearing. She indicated she had
gained coping skills to avoid resorting to alcohol. She further
testified that she had completed a 12-step program and was
looking for a sponsor. She admitted testing positive for
methamphetamine on September 18, but claimed she had last
used the drug in 2015 and denied any recent use. Mother had
been attending AA meetings for around a year and a half and had
completed 10 therapy sessions with her current therapist. She
testified her therapist felt she had grown from the therapy and
was discontinuing the sessions. However, mother had not told
her therapist that she tested positive for methamphetamine in
September.
On cross-examination, mother claimed she had missed drug
and alcohol tests due to lack of transportation or because she was
working. She denied being hospitalized for kidney failure from
excessive drinking—she asserted there were false test results—
and she believed the positive methamphetamine test was also an
incorrect test.
The juvenile court terminated the parents’ reunification
services and set a hearing pursuant to section 366.26 (.26
hearing) for February 2021.
Section 388 and .26 hearings
The .26 report indicated mother continued to visit E.B. The
visits were appropriate. DCFS noted, however, that E.B. had
lived in the home of the caregiver for almost three years. E.B.
saw the caregiver as “her primary mother-figure” and their
relationship continued to “bond and grow stronger each day.”
The caregiver, E.B.’s paternal second cousin, wanted to adopt
her. E.B. received “good care, safety and a sense of security” with
the caregiver and her family.
6
Shortly before the February 2021 .26 hearing date, mother
filed a request to change a juvenile court order pursuant to
section 388. Mother declared she had enrolled in another
substance abuse program in late October 2020 and completed the
program in early December 2020. She was participating in an
outpatient program. As of January 2021, she had enrolled in a
transitional housing program and was participating in domestic
violence, anger management, and parenting programs. She was
testing negative for drugs and alcohol. Mother further indicated
she and E.B. had a strong bond, she had obtained housing, and
she maintained consistent visits with E.B. Mother asked the
court to order DCFS to provide additional reunification services
and transition E.B. back into her care. The juvenile court set the
matter for a hearing.4 Separately, the court continued the .26
hearing to June 2021.
In a response to mother’s section 388 petition, DCFS
reported mother had been cited for driving under the influence on
May 5, 2021. When interviewed, mother denied driving under
the influence. She asserted she had been in a car accident and
was cited only for driving without a license. Mother had moved
to a different inpatient program; she denied being terminated
from the program she was in at the time she filed her section 388
petition. Mother reported she was participating in counseling
and maintaining her sobriety. A March 24, 2021 letter from a
substance abuse program reported mother enrolled in services in
4 The juvenile court initially set the matter for hearing on
April 5, 2021, to determine whether to grant or deny an
evidentiary hearing. On April 5, the court set the matter for an
evidentiary hearing on June 10, 2021.
7
late December 2020 and she was continuing to participate in the
program. DCFS had also received a March 24, 2021 letter stating
mother had been receiving counseling services since mid-
February 2021. A social worker was unable to make contact with
mother’s therapist to confirm mother’s participation in
counseling.
When a social worker spoke with father, he reported that
mother had recently been arrested for driving under the influence
after she totaled her car, and that she had been drinking “on and
off [the] entire time.” DCFS subsequently learned that contrary
to mother’s reports about her living situation, the transitional
housing and aftercare program she had been in asked her to
leave after she was arrested for driving under the influence. The
program administrator said, “[M]other’s recent arrest was a huge
downfall and the mother needs to use the tools that she has been
taught.”
Mother had continued to regularly visit E.B. The caregiver
reported the visits were pleasant and took place at the park or
McDonalds.
In the section 388 response, DCFS praised mother’s efforts
to participate in programs but expressed concern that she
continued to have an unresolved substance abuse problem and
recurrent relapses. DCFS noted that even though mother had
completed multiple programs, she had not “substantively
benefitted” from the services she had received. Further,
“mother’s deep rooted underlying issues cannot be mitigated in
an additional six months as evidenced by the mother’s relapse
and criminal actions and convictions.” DCFS opined that
disruption to E.B.’s environment would be detrimental to her,
and interrupting permanency would place her “at risk of yet
8
another traumatic experience that may have a negative impact in
her development and mental health.”
The section 388 hearing took place over two days,
beginning on August 18, 2021. Mother testified she had been in
three drug and alcohol programs since the case opened. She was
arrested for driving under the influence after completing the last
substance abuse program. Mother again testified that she had
learned coping skills through her programs and had a sponsor.
She expected to complete her current substance abuse program
on September 14, 2021.
Mother further testified that she and E.B. still shared a
bond and E.B. asked to see her. She had not visited E.B. in over
two months after her driving under the influence arrest and
entry into an inpatient treatment program.5 Prior to that time
she was visiting E.B. once a week. During visits, mother and
E.B. played games, went on the slide at the park, engaged in
activities mother brought, and had lunch together. E.B. was
almost four years old and had last lived with mother when she
was one year old. E.B. called her “Vanessa Mommy.” Mother
testified E.B. was excited and happy to see her during visits.
When visits ended, E.B. would ask the caregiver for “five more
minutes, just five more minutes.” Mother video chatted or texted
with E.B. two or three times a day. E.B. described her school and
activities to mother.
5 Mother eventually explained that she was in a treatment
program (Shiloh), she was arrested for driving under the
influence and went to another program (Stepping Stones), and at
the time of the section 388 hearing was in a different program
(Mariposa Recovery).
9
On September 28, 2021, the second day of the section 388
hearing, mother was in a different substance abuse program. A
last minute information submitted to the juvenile court included
information from the caregiver that mother was terminated from
the previous substance abuse program due to “wanting to fight
someone.” The social worker had not yet been able to make
contact with the program to confirm the reasons for mother’s
departure. Mother denied being terminated from the prior
program, insisting the new program was a better opportunity for
her as it would also help her with housing. However, mother
admitted that prior to her admission into the most recent
program she had stayed briefly in a hotel.
The juvenile court concluded mother had not established
changed circumstances and denied the section 388 petition. The
court pointed out mother’s frequent program changes, noting
mother had been in three programs that year, which reflected her
instability. The court further explained: “Mother has a problem
with alcohol. She continues to deny it but it impacts her
parenting . . . it’s clear that it does.”
The juvenile court then proceeded to the .26 hearing.
Mother argued the parental benefit exception to adoption applied.
The court found the exception did not apply, noting the case had
been pending for three years, and during that time E.B. had
thrived with the same caregiver. Mother’s visits remained
monitored and the caregiver was E.B.’s one consistent parental
figure. The court further noted that in the preceding year, there
were times mother was unable to visit because she was taking
care of her own needs. The court therefore rejected the exception
and terminated parental rights. Mother timely appealed.
10
DISCUSSION
I. The juvenile court did not abuse its discretion in
denying mother’s section 388 petition
Mother contends the juvenile court abused its discretion
when it denied her section 388 petition seeking additional
reunification services and the return of E.B. to her care. We
disagree.
A. Applicable legal principles
“Section 388 permits the parent of a dependent child to
petition the juvenile court for a hearing to modify an earlier order
on the basis of changed circumstances or new evidence. (§ 388,
subd. (a)(1).) The petitioning party bears the burden of showing
that there is new evidence or changed circumstances and that the
proposed modification would be in the best interests of the child.
[Citation.] [¶] In determining whether the petitioning party has
carried his or her burden, ‘the court may consider the entire
factual and procedural history of the case.’ [Citation.] . . . [¶]
‘Not every change in circumstance can justify modification of a
prior order.’ [Citation.] The change in circumstances supporting
a section 388 petition must be material. [Citations.] In the
context of a substance abuse problem that has repeatedly resisted
treatment in the past, a showing of materially changed
circumstances requires more than a relatively brief period of
sobriety or participation in yet another program.” (In re N.F.
(2021) 68 Cal.App.5th 112, 120–121.)
After the juvenile court has terminated family reunification
services, family reunification is no longer the primary goal of the
proceedings. Instead, “ ‘the focus shifts to the needs of the child
for permanency and stability’ [citation], and in fact, there is a
rebuttable presumption that continued foster care is in the best
11
interests of the child. [Citation.] 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.” (In re
Stephanie M. (1994) 7 Cal.4th 295, 317.)
We review a juvenile court order denying a section 388
petition for abuse of discretion. (In re J.C. (2014) 226
Cal.App.4th 503, 525.) “ ‘The appropriate test for abuse of
discretion is whether the . . . court exceeded the bounds of reason.
When two or more inferences can reasonably be deduced from the
facts, the reviewing court has no authority to substitute its
decision for that of the . . . court.’ ” (In re Stephanie M., supra, 7
Cal.4th at pp. 318–319.)
B. Discussion
The juvenile court did not abuse its discretion in denying
mother’s section 388 petition. Dependency jurisdiction in this
case was necessary in part due to mother’s unresolved alcohol
abuse. Although mother began participating in substance abuse
programs at the outset of the case, by September 2021, three
years later, mother was still struggling to consistently maintain
her sobriety. After she filed her section 388 petition in February
2021, she was again arrested for driving under the influence in
May 2021. This was an indication that mother continued to
abuse alcohol and engage in dangerous behavior while under the
influence. While the section 388 petition was pending, mother
was enrolled in at least three different substance abuse
programs. The switching of programs had impaired her ability to
maintain regular visits with E.B.
The juvenile court and DCFS commended mother’s
persistence in seeking substance abuse treatment, despite her
12
relapses. However, the court did not exceed the bounds of reason
in concluding that mother had not presented evidence of a
substantial change of circumstances as she was far from
demonstrating sustained sobriety.
Further, even if mother’s evidence established a change of
circumstances, the juvenile court did not abuse its discretion in
concluding mother had not established the requested change—
additional reunification services to facilitate an eventual return
of custody—would be in E.B.’s best interests. E.B. had been out
of mother’s care for three years. Mother’s evidence of her
relationship with E.B. did not establish that delaying
permanence and stability for E.B., in whatever form that might
take, would be in E.B.’s best interests. E.B. had been living with
the caregiver for most of her life, was attached to her, and saw
her as her primary parental figure. Mother’s circumstances were
unstable and changing, even during the pendency of the
section 388 petition. Due to delays, mother received nine months
of reunification services beyond the applicable 12-month
statutory maximum period. (§ 361.5, subd. (a)(1)(B) [for child
under three at time of initial removal, services are to be provided
for period of no more than 12 months from the date child entered
foster care].) In addition, after mother’s reunification services
were terminated, the evidence established that she continued
participating in services for 10 additional months before the
section 388 hearing.6 Yet, return of E.B. to her care was still not
6 The juvenile court detained E.B. on November 26, 2018.
The 12-month review hearing should have taken place by
January 26, 2020. (§ 366.21, subd. (f)(1)(A); § 361.5,
subd. (a)(1)(B); § 361.49.) Instead, and in part due to pandemic-
13
appropriate and mother’s request was for an additional period of
reunification services. The juvenile court acted well within its
discretion in concluding that mother did not establish that
granting her request, thereby further delaying permanence and
stability, would be in E.B.’s best interests.
II. The juvenile court did not err in finding the parental
benefit exception to adoption did not apply
Mother further contends the juvenile court erred when it
rejected her argument that parental rights should not be
terminated because she established the parental benefit
exception to adoption. We again disagree.
At the .26 hearing, the juvenile court must select a
permanent plan for the child, with the express purpose of
providing the child a “stable, permanent” home. (§ 366.26,
subd. (b).) If the court finds by clear and convincing evidence
that the child is likely to be adopted, the court must terminate
parental rights to allow for adoption, unless the parent shows
termination would be detrimental to the child for one of several
reasons set forth in section 366.26, subdivision (c). (In re
Caden C. (2021) 11 Cal.5th 614, 630 (Caden C.).) The “ ‘statutory
exceptions merely permit the court, in exceptional circumstances
[citation], to choose an option other than the norm, which
remains adoption.’ ” (Id. at p. 631.)
Under section 366.26, subdivision (c)(1)(B)(i), the parental
benefit exception applies when the juvenile court finds
related delays, the hearing took place on October 1, 2020. The
section 388 hearing did not take place until August 18, 2021, and
did not conclude until September 28, 2021. By the time of the
section 388 hearing, mother had participated in over 30 months
of programs and services.
14
termination of parental rights would be detrimental to the child
because the parents have maintained regular visitation and
contact with the child and the child would benefit from
continuing the relationship. In Caden C., supra, 11 Cal.5th at
p. 636, our high court explained that a “parent asserting the
parental benefit exception must show, by a preponderance of the
evidence, three things. The parent must show regular visitation
and contact with the child, taking into account the extent of
visitation permitted. Moreover, 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. And the parent must
show that terminating that attachment would be detrimental to
the child even when balanced against the countervailing benefit
of a new adoptive home.”
We review the first two elements for substantial evidence;
the third is reviewed for abuse of discretion. (Caden C., supra,
11 Cal.5th at pp. 639–640.) When reviewing for substantial
evidence we do “ ‘not reweigh the evidence, evaluate the
credibility of witnesses, or resolve evidentiary conflicts.’
[Citation.] The [juvenile court’s factual] determinations should
‘be upheld if . . . supported by substantial evidence, even though
substantial evidence to the contrary also exists and the . . . court
might have reached a different result had it believed other
evidence.’ ” (Id. at p. 640.) As explained above, we will find an
abuse of discretion “only when ‘ “ ‘the . . . court has exceeded the
limits of legal discretion by making an arbitrary, capricious, or
patently absurd determination.’ ” ’ ” (Id. at p. 641.)
Mother asserts the juvenile court failed to properly address
the parental benefit exception because it did not explicitly
15
reference each of the three elements individually. We find no
such error. The juvenile court explicitly referenced Caden C. in
its ruling and expressed an understanding of the relevant law.
The court was not required to make specific findings on the
record as to each element of the exception. (In re A.L. (2022) 73
Cal.App.5th 1131, 1156 [no authority for proposition that specific
findings required and inferring from § 366.26, subd. (c)(1)(D) that
specific findings not required when court concludes terminating
parental rights would not be detrimental].)
Mother testified that she had not visited E.B. in over two
months, although she had maintained contact through other
means.7 The juvenile court also noted mother had not
maintained regular visitation in the year preceding the
.26 hearing. To the extent the court found mother failed to
establish the parental benefit exception’s first element of regular
visitation, we would conclude substantial evidence supported that
finding. (In re Eli B. (2022) 73 Cal.App.5th 1061, 1069 [any
ambiguity in court finding as to regularity of visitation must be
construed against parent].)
However, the juvenile court’s analysis appeared to focus on
the third element, whether terminating the relationship between
mother and E.B. would be detrimental even when balanced
against the benefit of a new adoptive home. We find no abuse of
discretion in the court’s finding that it would not be detrimental.
The juvenile court described several factors it considered:
the significant length of time E.B. had been out of mother’s care;
7 At the .26 hearing, the juvenile court granted mother’s
request that it incorporate and consider mother’s testimony from
the section 388 hearing.
16
that mother’s visits had remained monitored, which prevented
her from taking on more of a meaningful role in E.B.’s life; and
E.B.’s need for permanence and stability. These were all highly
relevant to the question of whether E.B.’s loss of the relationship
with mother would “harm [her] to an extent not outweighed, on
balance, by the security of a new, adoptive home.” (Caden C.,
supra, 11 Cal.5th at p. 634.) The court could reasonably conclude
the benefits of placement in an adoptive home outweighed the
harm of losing the relationship with mother. E.B. was detained
from mother when she was one year old. She was almost four
years old by the .26 hearing. Although there was evidence of a
pleasant, warm relationship between E.B. and mother, there was
no evidence E.B. suffered any distress or negative effects during
the periods mother was unable to visit. (In re A.L., supra,
73 Cal.App.5th at pp. 1158–1159 [evidence that while father’s
visits were consistent and positive, child had no difficulty
separating and was unaffected by missed visits, supported
finding that potential benefit of adoption outweighed harm].)
E.B. had thrived in the caregiver’s home and viewed the
caregiver as her primary mother figure.
Mother’s contention that the juvenile court failed to
consider the parental benefit exception consistent with Caden C.
is not supported by the record.8 The record indicates the juvenile
8 We do not understand the juvenile court’s references to
mother’s relapses as an indication the court impermissibly
concluded her continued struggle with alcohol abuse was a bar to
the application of the parental benefit exception. (Caden C.,
supra, 11 Cal.5th at p. 637.) In context, the court’s comments
directly related to appropriate considerations: the amount of
time E.B. had spent living with the caregiver and mother’s
17
court considered the exception and found it inapplicable after
appropriately considering and weighing the harms and benefits
of terminating mother’s parental rights. The court’s conclusion
was not arbitrary, capricious, or patently absurd.
III. Reversal is not warranted due to ICWA inquiry error
A. Background
DCFS filed the juvenile dependency petition in this case on
November 21, 2018. An ICWA-010(A) Indian Child Inquiry
Attachment form accompanied the petition. The form indicated
mother was questioned about Indian ancestry and reported “[t]he
child has no known Indian ancestry.” At the November 26, 2018
detention hearing, both parents completed and submitted
Parental Notification of Indian Status (ICWA-020) forms, each
declaring they had no Indian ancestry as far as they knew.
Mother’s form stated a previous ICWA-020 form had been filed
with the court.9 At the hearing, the court twice stated on the
record, “No ICWA.” The minute order from the hearing reported
the filing of the ICWA-020 forms and set forth the detailed
finding that the court did not have a reason to know E.B. was an
Indian child and did not order notice to any tribe or the Bureau of
Indian Affairs. Both parents were ordered “to keep [DCFS], their
inability, at times, to maintain consistent visitation. Moreover,
we do not presume error and any ambiguities are resolved in
favor of sustaining the juvenile court orders. (In re Eli B., supra,
73 Cal.App.5th at p. 1069.)
9 Thismay have been a reference to the prior dependency
matter involving mother’s older child.
18
Attorney, and the Court aware of any new information relating to
possible ICWA status.”
On December 6, 2018, a DCFS social worker again asked
both parents about Indian ancestry. Both parents denied having
“any Native American heritage.” The record does not reflect that
DCFS conducted any further inquiry with respect to ICWA.
B. Analysis
As we understand her arguments, mother contends DCFS
failed to comply with section 224.2, subdivision (b), because no
inquiry was made of extended relatives to determine whether
E.B. is or may be an Indian child. DCFS contends any error was
not prejudicial. Applying the standard set forth by our colleagues
in Division Two of this court in In re Dezi C. (2022) 79
Cal.App.5th 769 (Dezi C.), we find mother has not established
that any error was prejudicial and warrants reversal.
“ICWA was enacted ‘ “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 and the
placement of such children in foster or adoptive homes which will
reflect the unique values of Indian culture . . . .” [Citation.]’ (In
re Isaiah W. (2016) 1 Cal.5th 1, 8 . . . ; see 25 U.S.C. § 1902.)” (In
re Q.M. (2022) 79 Cal.App.5th 1068, 1078.)
Section 224.2 sets forth the duties of a county welfare
department and the juvenile court in determining whether a
child is or may be an Indian child. An “ ‘Indian child’ ” is “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, subd. (a).)
19
Section 224.2, subdivision (a), provides that both the
juvenile court and the child welfare agency have an “affirmative
and continuing duty” to inquire whether a child is or may be an
Indian child, beginning with the “initial contact,” which includes
asking the party reporting abuse or neglect if they have any
information that the child may be an Indian child.
Under section 224.2, subdivision (b), if a child is placed in
DCFS’s temporary custody, the agency must inquire whether the
child is or may be an Indian child, by asking a nonexclusive
group that includes the child, the parents, and extended family
members. Under section 224.2, subdivision (c), at the first court
appearance of each party, the juvenile court must ask whether
the appearing party knows or has reason to know that the child is
an Indian child. In addition, the 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.10
Under section 224.2, subdivision (e), if the juvenile court or
social worker has reason to believe an Indian child is involved in
the proceeding, but does not have enough information to
determine there is a reason to know the child is an Indian child,
the court or the social worker must make further inquiry, as soon
as practicable. “[R]eason to believe” means the court or social
10 Subdivision (b) of section 224.2 was added to the statute
after DCFS’s initial contact with the family and the detention
hearing in this case. (In re D.S. (2020) 46 Cal.App.5th 1041,
1048–1051.) However, the jurisdiction and disposition hearing
occurred in 2019, after amendments to section 224.2 went into
effect, and the juvenile court and DCFS had a continuing duty to
inquire whether E.B. is or may be an Indian child. (§ 224.2,
subd. (a).)
20
worker 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.” (§ 224.2, subd. (e)(1).) “Further inquiry”
includes actions such as “[i]nterviewing the parents, Indian
custodian, and extended family members” to gather information
that would be necessary to provide notice to any relevant tribes.
(§§ 224.2, subd. (e)(2)(A), 224.3, subd. (a)(5).) It also includes
contacting the Bureau of Indian Affairs and State Department of
Social Services for assistance in identifying contact information of
relevant tribes, and contacting the “tribe or tribes and any other
person that may reasonably be expected to have information
regarding the child’s membership, citizenship status, or
eligibility.” (§ 224.2, subd. (e)(2)(B)-(C).)
There is “reason to know” a child is an Indian child when:
a person having an interest in the child informs the juvenile court
the child is an Indian child; the residence of the child, the child’s
parents, or the child’s Indian custodian, is on a reservation or in
an Alaskan Native village; a participant in the proceeding, officer
of the court, Indian tribe or organization, or agency informs the
court it has discovered information indicating the child is an
Indian child; the child gives the court reason to know that the
child is an Indian child; the court is informed that the child is or
has been a ward of a tribal court; or the court is informed either
the parent or the child possesses an identification card indicating
membership or citizenship in an Indian tribe. (§ 224.2, subd. (d).)
Section 224.2, subdivision (i)(2), provides that if “the court
makes a finding that proper and adequate further inquiry and
due diligence as required in this section have been conducted and
there is no reason to know whether the child is an Indian child,
the court may make a finding that [ICWA] . . . does not apply to
21
the proceedings, subject to reversal based on sufficiency of the
evidence.” “On appeal, we review the juvenile court’s ICWA
findings for substantial evidence.” (In re D.S., supra,
46 Cal.App.5th at p. 1051; In re Josiah T. (2021) 71 Cal.App.5th
388, 401.)
Here, mother contends DCFS and the juvenile court failed
to comply with the duty of inquiry, without any additional
specific argument. As we understand mother’s argument from
her recitation of the facts, she appears to contend the error was in
DCFS’s failure to ask extended relatives whether E.B. is or may
be an Indian child, consistent with section 224.2, subdivision
(b).11
Section 224.1, subdivision (c), adopts the federal definition
of “ ‘extended family member’ ”: “ ‘[E]xtended family member’
shall be as 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).)
There is no indication that DCFS asked any of the relatives
with whom it had contact whether E.B. is or may be an Indian
11 Mothernotes in her appellate briefing that the juvenile
court did not “inquire on the record” at the .26 hearing, but
simply stated, “No ICWA.” DCFS appears to construe this
factual recitation as a separate assertion of inquiry error; we do
not. Arguments on appeal must be supported by discussion and
citations to legal authority, otherwise we may deem them
forfeited. (Delta Stewardship Council Cases (2020) 48
Cal.App.5th 1014, 1075.)
22
child.12 We therefore agree that DCFS failed to comply with
section 224.2, subdivision (b) and the juvenile court lacked
sufficient evidence to conclude DCFS exercised the due diligence
required for a finding under section 224.2, subdivision (i)(2).
However, as explained in Dezi C., supra, 79 Cal.App.5th 769, any
error in compliance with section 224.2, subdivision (b), is state
law error. Reversal is warranted only if the error is prejudicial.
We must determine whether it is reasonably probable that the
juvenile court would have made the same ICWA finding had
DCFS fully complied with its duty of inquiry. (People v. Watson
(1956) 46 Cal.2d 818, 836; Dezi C., at p. 777.)
We agree with the Dezi C. court that the proper application
of our state’s test for harmless error in this context is that “an
agency’s failure to conduct a proper initial inquiry into a
dependent child’s American Indian heritage is harmless unless
the record contains information suggesting a reason to believe
that the child may be an ‘Indian child’ within the meaning of
ICWA, such that the absence of further inquiry was prejudicial to
the juvenile court’s ICWA finding. For this purpose, the ‘record’
includes both the record of proceedings in the juvenile court and
any proffer the appealing parent makes on appeal.” (Id. at
p. 779.)
12 Mother identifies “paternal cousins and maternal great-
grandmother” as relatives with whom DCFS had contact.
Although DCFS did learn from the caregiver, E.B.’s paternal
cousin, that she is a “Filipina” and was “raised . . . in
a . . . traditional Filipino household,” and other documents
identified father as “Filipino,” the record does not indicate DCFS
asked the cousin or other relatives about any American Indian
ancestry in the respective families.
23
This approach “effectuates the rights of the tribes in those
instances in which those rights are most likely at risk, which are
precisely the cases in which the tribe’s potential rights do justify
placing the children in a further period of limbo. The ‘reason to
believe’ rule also removes the incentive to use ICWA as a
thirteenth-hour delay tactic and, by allowing parents to cite their
proffers on appeal as well as the juvenile court record, still sends
a ‘message’ to agencies that ICWA’s mandates are not to be
ignored because remand will be ordered in any case where there
is reason to believe the failure to inquire mattered.” 13 (Dezi C.,
supra, 79 Cal.App.5th at p. 782.)
13 We reject the automatic reversal rule adopted by some
courts. (See, e.g., In re H.V. (2022) 75 Cal.App.5th 433, 438; In re
Y.W. (2021) 70 Cal.App.5th 542, 556.) We agree with the courts
and others who have concluded the automatic reversal approach
fails to acknowledge or reconcile the requirements of ICWA and
section 224.2 with the California Constitution’s mandate that a
judgment may not be set aside unless it has resulted in a
miscarriage of justice. (Dezi C., supra, 79 Cal.App.5th at p. 779;
In re A.C. (2022) 75 Cal.App.5th 1009, 1020 (conc. & dis. opn. of
Crandall, J.).) The automatic reversal approach also requires the
court to conclude parents’ reports of their own Indian heritage
cannot be trusted, irrespective of whether there are
circumstances warranting such distrust. (Dezi C., at p. 784; In re
Ezequiel G. (July 29, 2022, B314432) ___ Cal.App.5th ___ [2022
Cal.App. Lexis 671, *33] [because tribal membership typically
requires affirmative act by parent, parent often will be reliable
source of information]; see In re M.M. (2022) 81 Cal.App.5th 61,
71 [“There are serious costs if courts delay finalizing permanency
for a child in every case where extended family was not
questioned, on the remote chance those relatives might have
information which is inconsistent with the parents’ disclaimer of
24
Here, the record contains no information suggesting there
is reason to believe E.B. is or may be an Indian child, such that
the absence of inquiry of other relatives was prejudicial to the
juvenile court’s ICWA finding. Both parents repeatedly denied
any Indian ancestry. The record did not indicate that either
parent was adopted or raised without a connection to their
biological parents or other family members. No other factor
suggested that the parents’ knowledge of Indian ancestry might
not be “fully informed.” (Dezi C., supra, 79 Cal.App.5th at p. 779;
cf. In re Y.W., supra, 70 Cal.App.5th at p. 548 [mother was
adopted and had no information about biological relatives]; In re
Benjamin M. (2021) 70 Cal.App.5th 735, 740 [father never
appeared, and mother had no reason to know father’s ancestry].)
Mother has made no proffer on appeal or representation that
additional inquiry may have led to the revelation of even
potential Indian ancestry.
Under these circumstances, we find any error in DCFS’s
failure to interview extended relatives does not warrant reversal.
Indian ancestry”]; In re H.V., at pp. 439–442 (dis. opn. of Baker,
Acting P. J.).)
25
DISPOSITION
The juvenile court orders are affirmed.
NOT TO BE PUBLISHED.
ADAMS, J.*
I concur:
EGERTON, J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
26
LAVIN, J., Concurring and Dissenting:
I agree that the juvenile court did not abuse its discretion
by denying mother’s petition under Welfare and Institutions
Code section 388. I also agree that the court did not err in finding
the parental benefit exception to adoption did not apply. For the
reasons set forth in my dissent in In re Ezequiel G. (July 29,
2022, B314432) ___Cal.App.5th___ [2022 WL 3009914], however,
I would conditionally affirm the order terminating mother’s
parental rights and remand for further proceedings.
LAVIN, Acting P. J.