In re A.H. CA2/1

Filed 3/30/22 In re A.H. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re A.H., a Person Coming Under B314058
the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 18CCJP06539)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
L.B.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Hernan D. Vera, Judge. Reversed with
directions.
Elena S. Min, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, Jacklyn K. Louie, Principal Deputy
County Counsel, for Plaintiff and Respondent.
__________________________________
In these dependency proceedings, L.B. (mother) appeals
from a juvenile court order terminating her parental rights over
A.H., her four-year-old son, contending the court erred in finding
no substantial evidence supported a finding that the parental-
benefit exception to adoption applied, in applying improper legal
criteria to that determination, and in finding the lack of a
complete inquiry under the Indian Child Welfare Act of 1978
(ICWA) (25 U.S.C. § 1901 et seq.) to be nonprejudicial. We agree
with each contention, and thus reverse with directions to order a
further ICWA inquiry.
BACKGROUND
The family consists of mother, now four-year-old A.H., and
D.H. (father), A.H.’s father, who is not a party to the appeal.
Mother called the Department of Children and Family
services (DCFS or the department) in October 2018 and asked
that the department take custody of then eight-month-old A.H.,
stating she was homeless and unable to care for him. Mother
reported she had no immediate family, and a maternal uncle and
paternal relatives did not want to care for the child. When social
workers met mother at her motel, she told them A.H. was in the
lobby, and began to walk away.
The social workers observed A.H. was healthy, and spoke
with mother, who said she was “in a bad situation” and homeless,
and could not care for the child. Mother said that father, who
2
suffered from schizophrenia and post-traumatic stress disorder
(PTSD), had left a week earlier.
Mother was uninterested in a family shelter where she
could stay with A.H., or in any other plan that would keep the
child with her, and signed an affidavit “giving consent DCFS
custody of my child [A.H.] until I find stable housing and job.”
A social worker spoke with the father by phone, who said
mother was out to get him and wanted him dead, and he was
unable to care for A.H. and did not want to visit him. Father
reported that mother had told him she used methamphetamine
in the past, and confirmed there were no relatives who were able
to care for A.H.
W.H., a paternal aunt who was with father during the call,
reported they were both homeless and staying at a motel, and no
family member, including mother and father, could care for A.H.
A maternal uncle reported the same.
At the detention hearing, the juvenile court detained A.H.
and allowed the parents unmonitored visitation for at least two
hours twice a week, granting DCFS discretion to liberalize
visitation.
In preparation for the jurisdiction/disposition hearing,
DCFS reported that A.H. was placed in the foster home of A.V.
and W.V. His parents had not visited. The caregiver reported
mother did often text to ask after A.H.
DCFS reported that mother said she was living with a
friend and working at Macy’s, and hoped to save enough money
to find a place of her own. Mother was unsure whether A.H.
could live with her at the friend’s house.
DCFS filed a petition pursuant to Welfare and Institutions
Code section 300, subdivision (b)(1) based on the parents’
3
inability to care for A.H. and mother’s request to have him
1
removed.
The Indian Child Inquiry Attachment form attached to the
petition indicated that an inquiry had been made and that A.H.
had “no known Indian ancestry.” On October 11, 2018, the
parents completed Parental Notification of Indian Status forms,
each indicating there was no known Indian ancestry. At the
detention hearing, the juvenile court found there was no reason
to suspect A.H. had Indian ancestry and ordered the parents to
inform their attorneys, DCFS, and the court of any new ICWA-
related information.
On March 5, 2019, the court sustained the uncontested
petition.
On April 18, 2019, DCFS reported it had provided the
parents with housing and shelter referrals, and A.H. had been
placed in the home of J.B.
After a contested disposition on April 18, 2019, the court
declared A.H. to be a dependent of the court, removed custody
from the parents, and ordered family reunification services,
unmonitored visitation, with DCFS having discretion to liberalize
visitation.
By October 2019, the parents had moved to a single room
apartment with a bathroom shared with other tenants, and had
obtained a bed for A.H. so that overnight visits could be possible.
Father kept a machete by his bed for protection, and earned
money by participating in pharmaceutical studies, purchasing an
1
Undesignated statutory references will be to the Welfare
and Institutions Code.
4
Xbox game console and new television with his earnings. Mother
participated in her court-ordered case plan.
A.H. thrived in the care of and became bonded with J.B.,
who looked after his sensitive skin needs, took him to visit her
family in Hawaii, went with him on local trips to church,
playdates, and an aquarium, and participated in his weekly
therapy sessions. A.H. looked to her for comfort and
encouragement, developed “a healthy and strong attachment” to
her, and experienced developmentally appropriate separation
anxiety when they were apart. J.B. was committed to providing
him with a loving adoptive home if reunification did not occur.
A.H. called J.B. caregiver “mama” and called mother “nana.”
The parents had two-hour unmonitored visits with A.H.
twice a week at a park. The foster family agency (FFA) reported
that mother and father were “consistent in attending visits” and
behaved appropriately with the child, although J.B. reported the
parents would sometimes cancel or end a visit early. DCFS
reported that “[v]isits with A[.H.] have been consistent with
mother. Mother has had a few cancellations and sees A[.H.]
almost every week.” The report reflected that mother had 28
visits between March 14, 2019 and September 16, 2019, with two
cancelled visits. Both parents admitted A.H. was more attached
to father, than mother.
However, A.H. told a social worker that he had visits with
“mommy,” and during virtual visits said “Hi mommy,” and waved
to mother. J.B. reported that A.H. was excited about and looked
forward to his visits with mother. He enjoyed playing while
mother watched him during the virtual video visits, and
sometimes J.B. allowed an extension of visit time.
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DCFS and J.B. reported that mother’s visits with A.H. were
appropriate despite her financial challenges and the fact that she
sometimes did not have money for snacks for him, and called the
foster parent for assistance.
At the October 17, 2019, six-month review, the court found
the parents’ progress in the case plan was insubstantial but
ordered that reunification services continue.
DCFS declined to liberalize visitation due to a continued
concern about father’s mental health, aggressive behavior, and
lack of consistency with taking his medication and attending
therapy. Father said he had auditory and visual hallucinations,
could not sleep, and became irritable and aggressive. Instead of
taking his medication, he used alcohol and marijuana to help
with his mood. Mother described her relationship with father as
“toxic.”
Mother and father reported they did not want to have
overnight visits with A.H. in their single room housing due to a
lack of an appropriate environment there.
Mother visited A.H. almost every week but canceled some
visits and declined to make them up. During visits at her
residence, mother allowed the child to watch television and play
on a tablet.
During the Covid pandemic, mother and father chose to
have virtual rather than in-person visits in order to protect A.H.
and J.B.’s family. They would sing with and read to the now two-
year-old A.H. during the visits, but two hours was too long for
either side, and engagement would wane. The visits were
eventually shortened to 30 to 40 minutes. Sometimes, mother
and father texted J.B. for help when they became frustrated
during visits. The parents asked for in-person visits, which J.B.
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resisted. She offered more virtual visits, but the parents
declined. A.H. was excited to see his parents during the virtual
visits.
In October 2020, mother and father both informed a social
worker that father had threatened to kill mother with his
machete, and father reported he had beaten his case manager for
allegedly lying to the social worker about him. Mother and father
separated for a while but then resumed their live-in relationship.
On March 10, 2021, the court found the parents’ progress in
the case plan was insubstantial, terminated reunification
services, and ordered mother be allowed in-person, unmonitored
visits in a neutral setting.
At a contested permanency hearing on July 8, 2021, mother
testified she visited A.H. twice a week: once virtually and once in
person. The visits had been unmonitored for the past five weeks
and for two weeks in the previous September. She at first made
the decision to have virtual rather than in-person visits due to
the pandemic. At the start of in-person visits, A.H. would run to
her, call her “mommy,” and hug her. During visits, they would
play in the park, recite the alphabet, count in Spanish, and read
together. A.H. would not want the visits to end, and would ask,
“Can I go home with you?”
The juvenile court found that mother’s recent visits with
A.H. were regular, but prior visitation had been “very
inconsistent.” The court found that “although there is some
evidence that A.H. is bonded, it appears to be of the sort that the
attachment that occurs in the normal course and not of the kind
that case law specified as meeting prong two.”
Regarding whether terminating the relationship between
mother and A.H. and choosing adoption would be detrimental to
7
A.H., the court stated: Specifically, the juvenile court expressly
stated:
“And most importantly for the third prong, the court really
has looked through the record for more evidence of [mother]
playing a parental role, although some limited evidence of that
was adduced yesterday through [mother’s] testimony, it’s not
sufficient to meet the parental role requirement of prong three.
And the court had initial concerns about that in terms of whether
[mother] really was able to. [¶] In looking at the history, it does
appear that [mother] really did have time and opportunities to
separate herself from father in a way that would have allowed for
greater liberalization. And because of her actions, that did not
occur. And so there wasn’t an opportunity for that role to be
expanded.” The court stated, “[Mother’s] continued relationship
with father . . . to this day poses a significant and substantial risk
to the minor.”
The court therefore found the parental beneficial
relationship exception to adoption did not apply, and terminated
parental rights, designating J.B. as the prospective adoptive
parent.
DISCUSSION
Mother contends the juvenile court erred in terminating
her parental rights because (1) no substantial evidence supports
the court’s finding that mother’s visits were inconsistent, (2) the
court applied an incorrect legal standard in finding mother had
not formed a beneficial bond with A.H., (3) no substantial
evidence supported the court’s finding that no beneficial bond
existed, and (4) the court abused its discretion in finding the
benefits of adoption outweighed those of a continued parent-child
relationship. Mother further contends the court erred in
8
terminating her parental rights because DCFS failed to comply
with ICWA and related state statutes. We agree with all but the
second contention. Therefore, we reverse.
I. Parental Benefit Exception to Adoption
A. Applicable Law: In re Caden C. (2021) 11
Cal.5th 614At a permanency planning hearing pursuant to section
366.26 the court is charged with determining a permanent plan
of care for a child. If the child is likely to be adopted, adoption is
the preferred plan. (In re Caden C. (2021) 11 Cal.5th 614, 631
(Caden C.).)
The Legislature has provided an exception to the general
rule of adoption where “[t]he court finds a compelling reason for
determining that termination would be detrimental to the child
due to one or more of the following circumstances: [¶] (i) The
parents have maintained regular visitation and contact with the
child and the child would benefit from continuing the
relationship.” (§ 366.26, subd. (c)(1)(B)(i).) “From the statute, we
readily discern three elements the parent must prove to establish
the exception: (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.)
“[I]n assessing whether termination would be detrimental, the
trial court must decide whether the harm from severing the
child’s relationship with the parent outweighs the benefit to the
child of placement in a new adoptive home. [Citation.] By
making this decision, the trial court determines whether
terminating parental rights serves the child’s best interests.” (Id.
at p. 632.)
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“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
orders.’ ” (Caden C., supra, 11 Cal.5th at p. 632.)
“As to the second element, courts assess whether ‘the child
would benefit from continuing the relationship.’ [Citation.] . . .
[T]he focus is the child. And the relationship may be shaped by a
slew of factors, such as ‘[t]he age of the child, the portion of the
child’s life spent in the parent’s custody, the “positive” or
“negative” effect of interaction between parent and child, and the
child’s particular needs.’ [Citation.] . . . [C]ourts often consider
how children feel about, interact with, look to, or talk about their
parents. [Citation.] . . . [C]ourts must remain mindful that
rarely do ‘[p]arent-child relationships’ conform to an entirely
consistent pattern.” (Caden C., supra, 11 Cal.5th at p. 632.)
“Concerning the third element—whether ‘termination
would be detrimental to the child due to’ the relationship—the
court must decide whether it would be harmful to the child to
sever the relationship and choose adoption. [Citations.] Because
terminating parental rights eliminates any legal basis for the
parent or child to maintain the relationship, courts must assume
that terminating parental rights terminates the relationship.
[Citations.] What courts need to determine, therefore, is how the
child would be affected by losing the parental relationship—in
effect, what life would be like for the child in an adoptive home
without the parent in the child’s life.” (Caden C., supra, 11
Cal.5th at p. 633.)
In sum, the court “decides whether the harm of severing
the relationship outweighs ‘the security and the sense of
belonging a new family would confer.’ [Citation.] ‘If severing the
10
natural parent/child relationship would deprive the child of a
substantial, positive emotional attachment such that,’ even
considering the benefits of a new adoptive home, termination
would ‘harm[]’ the child, the court should not terminate parental
rights. [Citation.] That subtle, case-specific inquiry is what the
statute asks courts to perform: does the benefit of placement in a
new, adoptive home outweigh ‘the harm [the child] would
experience from the loss of [a] significant, positive, emotional
relationship with [the parent?]’ [Citation.] When the
relationship with a parent is so important to the child that the
security and stability of a new home wouldn’t outweigh its loss,
termination would be ‘detrimental to the child due to’ the child’s
beneficial relationship with a parent.” (Caden C., supra, 11
Cal.5th at pp. 633-634.)
“When it weighs whether termination would be
detrimental, the court is not comparing the parent’s attributes as
custodial caregiver relative to those of any potential adoptive
parent(s). Nothing that happens at the section 366.26 hearing
allows the child to return to live with the parent. [Citation.]
Accordingly, courts should not look to whether the parent can
provide a home for the child; the question is just whether losing
the relationship with the parent would harm the child to an
extent not outweighed, on balance, by the security of a new,
adoptive home. [Citation.] Even where it may never make sense
to permit the child to live with the parent, termination may be
detrimental. [Citation.] And the section 366.26 hearing is
decidedly not a contest of who would be the better custodial
caregiver.” (Caden C., supra, 11 Cal.5th at p. 634.)
“What’s more, understanding the harm associated with
severing the relationship is a subtle enterprise—sometimes
11
depending on more than just how beneficial the relationship is.
In many cases, ‘the strength and quality of the natural
parent/child relationship’ will substantially determine how
detrimental it would be to lose that relationship, which must be
weighed against the benefits of a new adoptive home. [Citation.]
A child would benefit from continuing a strong, positive, and
affirming relationship, and it would be destabilizing to lose that
relationship. Sometimes, though, a relationship involves tangled
benefits and burdens. In those cases, the court faces the complex
task of disentangling the consequences of removing those
burdens along with the benefits of the relationship.” (Caden C.,
supra, 11 Cal.5th at p. 634.)
The parent challenging the termination of parental rights
based on the parent-child relationship exception has the burden
of proving that the exception applies. (In re C.B. (2010) 190
Cal.App.4th 102, 122.)
B. Standards of Review
We review the juvenile court’s determination whether the
parent has visited and maintained contact with the child
consistently, given the extent permitted by the court’s orders, for
substantial evidence. (Caden C., supra, 11 Cal.5th at pp. 639-
640.) We likewise review for substantial evidence the court’s
determination whether the relationship is such that the child
would benefit from continuing it. (Id. at p. 640.) We may not
reweigh the evidence, evaluate the credibility of witnesses, or
resolve evidentiary conflicts, and will uphold the trial court’s
determination supported by substantial evidence even if
substantial evidence to the contrary also exists. (Ibid.)
12
We review whether termination of parental rights would be
detrimental to the child for abuse of discretion. (Caden C., supra,
11 Cal.5th at p. 639.) “A court abuses its discretion only when
‘ “ ‘the trial court has exceeded the limits of legal discretion by
making an arbitrary, capricious, or patently absurd
determination.’ ” ’ [Citation.] But ‘ “ ‘[w]hen 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 trial court.’ ” ’ (Id. at p. 641.)
C. Application
1. Visitation
Here, the court found that although mother’s recent visits
with A.H. were regular, prior visitation had been “very
inconsistent.” No substantial evidence supports the finding.
On the contrary, DCFS reported that “[v]isits with A[.H.]
have been consistent with mother. Mother has had a few
cancellations and sees A[.H.] almost every week,” reflecting that
mother had 28 visits between March 14, 2019 and September 16,
2019, with two cancelled visits. And the FFA reported that
mother was “consistent in attending visits.”
Respondent argues that mother canceled two visits and
ended some early. But both DCFS and FFA nevertheless
considered her overall pattern to constitute “consistent”
visitation. Consistency in anything suggests only a settled,
regular, predictable pattern, not uniformity of conduct. Section
366.26 itself requires only “regular,” not 100 percent visitation.
(§ 366.26, subd. (c)(1)(B)(i).) That mother visited A.H. 28 out of
30 times over a period of six months can only be deemed to
constitute regular visitation.
13
Respondent suggests that mother’s initial deferral of J.B.’s
offer of in-person visits supports the court’s finding that mother
had not regularly visited A.H. We disagree. First, mother was
visiting regularly by video conference. That she at first eschewed
changing the nature of visitation from virtual to in-person does
not vitiate the regularity of the video visits. Second, mother’s
deferral was reasonable under the circumstances, as she wished
to avoid putting her son and his foster family at risk given the
pandemic and her housing situation (a single room occupancy
with a bathroom shared with other tenants). Nothing suggests
such a precaution was irregular or inconsistent with the Welfare
and Institution Code’s requirement of regular visitation.
We conclude that no substantial evidence supports the
juvenile court’s finding that mother’s visits were inconsistent.
2. Beneficial Parent-Child Relationship—
Legal Standard
The juvenile court found that “although there is some
evidence that [A.H.] is bonded [to mother], it appears to be of the
sort that the attachment that occurs in the normal course and not
of the kind that case law specified as meeting prong two.” The
court found little evidence that mother “play[ed] a parental role”
in A.H.’s life, and mother’s failure to take advantage of
“opportunities to separate herself from father in a way that
would have allowed for greater liberalization” prevented “an
opportunity for [the parental] role to be expanded.” The court
found that mother’s “continued relationship with father . . . poses
a significant and substantial risk to the minor.”
Mother argues that to classify a relationship as “parental”
is to impose a “narrow or rigid definition of the type of
14
relationship,” which is impermissible in determining whether the
beneficial parent-child relationship exception applies.
We reject the argument’s premise: Rather than narrow or
rigid, the adjective “parental” is so broad and flexible as be
practically meaningless for determining whether a beneficial
relationship exists in any particular instance. In one sense it
suggests simply that one-half of the relationship contains a
parent, for good or ill. “[R]arely do ‘[p]arent-child relationships’
conform to an entirely consistent pattern.” (Caden C., supra, 11
Cal.5th at p. 632.)
The proper determination here is whether a child has a
substantial, positive emotional attachment to a parent. (Caden
C., supra, 11 Cal.5th at p. 632.) An improper determination
would be, for example, whether the parent is able to provide for
the child’s daily needs (In re B.D. (2021) 66 Cal.App.5th 1218,
1228-1230) or attend medical appointments and understand the
child’s medical needs (In re D.M. (2021) 71 Cal.App.5th 261). All
three relationships can be fairly characterized as “parental.”
That the juvenile court here used the conclusory expression
“parental” in its findings does not suggest it meant the term in an
improper rather than proper sense.
3. Beneficial Parent-Child Relationship—
Substantial Evidence
Mother argues that even if the juvenile court applied the
proper standard, no substantial evidence supports its finding that
she and A.H. did not enjoy a substantial, positive, emotional
attachment. We agree.
The two- or three-year-old A.H. told a social worker that he
had visits with “mommy,” and during virtual visits said, “Hi
mommy,” and waved to mother. He was excited about and looked
15
forward to his visits with mother, and enjoyed playing while
mother watched him during the virtual video visits. During in-
person visits, A.H. would run to mother, call her “mommy,” and
hug her. They would play in the park, recite the alphabet, count
in Spanish, and read together. A.H. would not want the visits to
end, and would ask, “Can I go home with you?” This constitutes
substantial evidence of a substantial, positive, emotional
attachment between A.H. and mother. No evidence suggests they
had a lesser relationship.
Respondent offers no substantial rebuttal, but intimates
through a series of incomplete syllogisms that the relationship
between mother and A.H. was not ideal. Respondent observes
“there were concerns about the interaction being lacking” because
some early in-person visits involved watching television or
playing video games, but does not go so far as to suggest that
watching television or playing games together constitutes a lack
of interaction. Respondent observes that sometimes mother
would text J.B. when they became frustrated and did not know
how to handle A.H.’s tantrums, but does not assert that
sometimes reaching out for help constitutes lack of a substantial,
positive, emotional attachment. Respondent observes that
mother sometimes needed J.B.’s help to hold the two- or three-
year-old A.H.’s attention during two-hour long virtual visits, and
failed to realize when A.H. was done with a visit, but draws no
conclusion from those facts. Respondent observes that mother
had a toxic relationship with father, and for reasons of safety
chose not to have in-person visits with A.H., but fails to explain
how a mother shielding her child from danger negates their
positive beneficial relationship.
16
None of these purported deficiencies constitutes substantial
evidence that mother and A.H. enjoyed anything less than a
substantial, positive, emotional attachment. On the contrary, the
only probative evidence reflected just such an attachment, and
the juvenile court erred in finding the second prong of the
beneficial parent-child relationship had not been met.
4. Detriment of Terminating the
Relationship
As to whether terminating the relationship between mother
and A.H. and choosing adoption would be detrimental to the
child, the juvenile court found that mother did not “play a
parental role,” that visits were never liberalized because she
failed to take advantage of “opportunities to separate herself from
father in a way that would have allowed for greater
liberalization,” which prevented “an opportunity for [the
parental] role to be expanded,” and that mother’s “continued
relationship with father . . . poses a significant and substantial
risk to the minor.”
None of these findings was germane to whether
termination of the parent-child relationship would be detrimental
to A.H. because “[n]othing that happens at the section 366.26
hearing allows the child to return to live with the parent.”
(Caden C., supra, 11 Cal.5th at p. 634.) In this instance,
therefore, the juvenile court applied an incorrect legal standard.
“Review for abuse of discretion is . . . focused not primarily
on the evidence but the application of a legal standard.” (Caden
C., supra, 11 Cal.5th at p. 641.) A court abuses its discretion
when it makes an “ ‘ “arbitrary, capricious, or patently absurd
determination,’ ” i.e., where it “ ‘exceed[s] the bounds of
reason.” ’ ” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
17
To base a finding on an irrelevant factor exceeds the
bounds of reason. Accordingly, we need not address whether the
juvenile court abused its discretion in weighing the harm of
severing the parent-child relationship to the benefits of a new
adoptive home. (Caden C., supra, 11 Cal.5th at p. 633.)
II. ICWA
Mother contends no evidence in the record indicates DCFS
asked any extended relatives about A.H.’s possible Indian child
status, in derogation of state law (§ 224.2) implementing ICWA
and contrary to the requirement that the department make and
document such inquiries and any responses. (See Cal. Rules of
Court, rule 5.481, subd. (a)(5) [burden on child welfare agency to
provide detailed requirements of the ICWA have been satisfied is
appropriate]; In re A.M. (2020) 47 Cal.App.5th 303, 314.)
Therefore, mother argues, the juvenile court lacked the power to
terminate her parental rights.
Respondent concedes that section 224.2 was not followed,
but argues the error was harmless because the parents denied
any Native American ancestry.
For reasons stated in our recent opinion in In re A.C.,
(B312391, Mar. 4, 2022) __ Cal.App.5th __ [2022 WL 630860], we
disagree that the error was harmless. We will therefore remand
the matter for a further ICWA inquiry.
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DISPOSITION
The order terminating mother’s parental rights is reversed.
The case is remanded to the trial court to order compliance with
Welfare and Institutions Code section 224.2. The juvenile court
shall order that within 30 days of the remittitur, DCFS report its
investigation of A.H.’s potential Indian ancestry by interviewing
available extended family members.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
BENDIX, Acting P. J.
*
VOGEL, J.
*
Retired Associate Justice of the Court of Appeal, Second
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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