Filed 11/28/23 In re Kylie A. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

In re KYLIE A., a Person Coming Under the 

Juvenile Court Law.

FRESNO COUNTY DEPARTMENT OF 

SOCIAL SERVICES,

 Plaintiff and Respondent,

 v.

STEVEN A.,

 Defendant and Appellant.

F086194

(Super. Ct. No. 20CEJ300080-2)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Amythest

Freeman, Judge.

Gino de Solenni, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Daniel C. Cederborg, County Counsel, and Ashley N. McGuire, Deputy County 

Counsel, for Plaintiff and Respondent. 

-ooOoo-

* Before Detjen, Acting P. J., Franson, J. and Smith, J.
2.

Steven A. (father) appeals from the denial of his Welfare and Institutions Code 

section 3881 petition requesting placement of his daughter, Kylie, with a paternal relative. 

He also contends the order must be reversed and the matter remanded because the Fresno 

County Department of Social Services (department) failed to comply with the initial 

requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and 

related state statutes. We agree conditional reversal is required for compliance with the 

ICWA, and in all other respects affirm. 

STATEMENT OF THE FACTS AND CASE

Referral

Father and Ashley A., (mother) have one child, Kylie, born in December of 2021. 

Father and mother were not married and did not have a custody agreement or paternity 

judgment. Mother had a previous dependency proceeding in which her parental rights 

were terminated to Liam, a half sibling to Kylie. 

On June 16, 2022, sheriff deputies were called to mother’s home, where they 

discovered mother with injuries to her face. Mother claimed father came to her home 

uninvited and assaulted her before leaving with Kylie. Mother was under the influence at 

the time. Mother admitted drinking alcohol, but said the methamphetamine pipe found in 

the home belonged to father. Father claimed he had gone to mother’s home because he 

was concerned that mother had been drinking alcohol and smoking methamphetamine 

around Kylie. Father wanted to remove Kylie from mother’s home, but the two got into 

an argument and both parents hit each other. Father was arrested for domestic violence 

and a protective hold was placed on Kylie. 

A social worker responded to the scene and asked mother whether there were any 

maternal relatives Kylie could be placed with. Mother suggested maternal grandmother, 

1 All further statutory references are to the Welfare and Institutions Code unless 

otherwise stated. 
3.

Janice P. (hereafter Janice)2, who was willing to be assessed for placement. Janice was 

informed a Team Decision Meeting (TDM) would be held the following day and was 

invited to participate. 

The social worker contacted father, who was in custody at the jail. Father 

informed the social worker that he was Kylie’s father, that there was no custody 

agreement between him and mother, but that his name was on Kylie’s birth certificate. 

Father reported that he lived with his mother and grandmother. 

At the TDM the following day, which included social Worker Robert Brewer, 

father was not present as he was still in custody and would not be released until 

December 15, 2022. Mother said her three-year relationship with father had been mostly 

good, and she denied having any current substance abuse issue and had not used any 

substances in “like 5 years.” Mother was asked to drug test, but did not follow through. 

The department concluded that voluntary family maintenance for mother was 

inappropriate due to her history of substance abuse, her refusal to drug test, that a 

methamphetamine pipe had been found in her home, and the ongoing domestic violence 

between mother and father. Kylie was temporarily placed in Janice’s home, pending a 

final Resource Family Approval (RFA) evaluation. It does not appear that any of father’s 

relatives were considered for placement during the meeting. 

Detention

On June 17, 2022, the department filed a section 300 petition alleging, pursuant to 

subdivision (b), that Kylie was at risk of harm due to mother’s substance abuse issues and 

the domestic violence incident that took place the previous day. The petition further 

alleged Kylie came within the provisions of subdivision (j), abuse of a sibling, since Liam 

2 We will refer to various people by first name only to protect their privacy and 

especially Kylie’s privacy. 
4.

had been removed from mother’s custody in 2020 for similar issues and mother had 

failed to reunite with him. 

The report prepared for detention stated that the department was not offering 

services to mother but was considering asking the court to bypass reunification services 

to her. The department considered father an alleged father. At the time of the report, the 

department did not have a copy of Kylie’s birth certificate. Nowhere in the report does it 

state that the social worker had been in contact with L.P., a paternal aunt. The report 

does note that both mother and father told the department they did not have any Indian 

ancestry. 

Father was present at the detention hearing June 20, 2022. When asked, he stated 

he did not have any Native American heritage. Father’s counsel represented that father 

had been present at Kylie’s birth, his name was on her birth certificate, and offered to be 

sworn in and provide testimony to raise his paternity status from that of alleged father to 

presumed father. The juvenile court declined father’s request. Father’s counsel alleged 

both paternal grandmother Shelly, and paternal aunt L.P. had been in touch with the 

department and requested they be assessed for placement once his paternity status was 

elevated to that of presumed father. A combined jurisdiction/disposition hearing was set 

for August 1, 2022. 

Jurisdiction

The initial report for the jurisdiction/disposition hearing was prepared by a new 

social worker, Casandra Torres, who had been assigned after the detention hearing. The 

report stated that, after being placed with Janice, Kylie had been placed in foster care on 

July 8, 2022, because Janice was unable to continue the placement. The report stated that 

L.P. had requested placement of Kylie on July 14, 2022, and was provided information 

for the Resource Family Approval (RFA) orientation. At the time of the August 1, 2022, 

report, L.P. had not yet submitted the application. 
5.

The report stated that the social worker reached out to maternal aunt A.F. on July 

22, 2022, who had adopted Kylie’s half sibling Liam, to inquire whether she was 

interested in placement of Kylie. A.F. expressed uncertainty because mother had 

difficulty with boundaries, and A.F. and her husband were currently caring for five young 

children. 

At the time of the report, mother had still not taken a drug test and the department 

recommended bypassing reunification services for her pursuant to section 361.5, 

subdivision (b)(10) and (11).3 The report also indicated that mother had two additional 

older children not in her care. 

Father was still in custody and, as of the date of the report, the department had not 

yet obtained a copy of Kylie’s birth certificate. Father was still considered an alleged 

father, and the department recommended he not be offered services as he was only an 

alleged father (§ 361.5, subd. (a)).4 The department recommended a permanency 

planning hearing be scheduled and adoption for Kylie with her current caregivers. 

At the jurisdiction hearing which took place August 1, 2022, the juvenile court 

granted father’s request to be elevated to presumed father status and stated it would not 

make any orders concerning placement at the hearing that day. The juvenile court found 

the allegations of the petition true and the disposition hearing was set for November 7, 

2022. 

After the jurisdiction hearing, another social worker, Christina Mares, was 

assigned to the case and an addendum report prepared. The report, dated October 7, 

2022, renewed its recommendation that reunification services be bypassed father, this 

3 Reunification services need not be provided if previous services were terminated 

as to a sibling or half sibling of the child at issue because the parent failed to reunify 

(§ 361.5, subd. (b)(10)), or parental rights had been permanently severed as to a sibling or 

half sibling (§ 361.5, subd. (b)(11)). 

4 Reunification services need not be provided until father is a statutorily presumed 

father (§ 361.5, subd. (a)). 
6.

time citing section 361.2, subdivision (a), as its basis.5 Father was expected to be 

released from custody on December 15, 2022, and had not yet had any visitation with 

Kylie. The report recommended bypass of reunification services for mother as well and 

that a permanency planning hearing be held. 

The report stated that the department had filed a section 388 petition on August 

18, 2022, requesting to suspend mother’s visitation with Kylie after mother refused to 

return Kylie at the end of a visit. It took over two hours for several police officers to 

retrieve Kylie from mother. The officers believed mother was under the influence at the 

time. An earlier hair follicle test on mother came back positive for methamphetamine. 

Visitation was suspended on September 7, 2022. 

The report also reflected that a CFT meeting had been held September 2, 2022, in 

which the RFA unit advised that six relatives had applied for placement of Kylie, all of 

whom would need to apply for a criminal exemption waiver for possible placement: 

“Specifically the paternal grandmother, Shelly [A.] and the paternal aunt, 

[L.P.], who reported that both wanted to provide placement and a 

permanent plan of care for Kylie. When questioned further, the paternal 

aunt, [L.P.], stated that while she does work full time, she would be 

utilizing the paternal grandmother, Shelly [A.] to provide care of Kylie 

while she is working. The paternal grandmother, Shelly [A.] stated that 

while she wants to provide a permanent plan of care for Kylie, she did 

report that when her son, [father], is released from incarceration, the plan is 

for him to come live in her home. In addition, the Department would note 

that in the Fresno County Criminal Case F22904268 that a Criminal 

Protective Order was issued on this case on June 20, 2022, in which the 

mother, [Ashley A.] and the infant, Kylie are protected for the next three 

(3) years and [father] is not to have contact with either party.” 

5 Section 361.2, subdivision (a) provides, in pertinent part, that when a child is 

removed from a parent, the juvenile court “shall first determine whether there is a parent 

of the child, with whom the child was not residing at the time that the events or condition 

arose that brought the child within the provisions of Section 300, who desires to assume 

custody of the child,” unless the juvenile court find that placement with that parent 

“would be detrimental to the safety, protection, or physical or emotional well-being of the 

child.” 
7.

The report continued, stating that, “as none of the relative/mentors that have applied for 

RFA placement of Kylie have been able to proceed and complete the process, the 

Department has found that it is not appropriate to place Kylie with any of the 

relative/mentor requests as of the writing of this report.” 

The report stated that mother and father had reported on June 16, 2022, that they 

did not have any Native American ancestry; that father had verbally stated at the 

detention hearing June 20, 2022, that he did not have any Native American ancestry; that 

mother reported on September 30, 2022, having no Native American ancestry; and that 

mother, father, Shelly, and L.P. had all been sent letters on October 3, 2022, inquiring 

about Native American ancestry, “all of whom stated that they are not of Native 

American descent,” prompting the department to request that the ICWA be found not 

applicable. 

The report stated Kylie’s caretakers, who wished to adopt her, were meeting all of 

her needs, Kylie was doing well, and a completed mental health assessment determined 

she did not need any services. 

At some point, the disposition hearing scheduled for November 7, 2022, was 

vacated and set for a contested hearing on December 5, 2022. 

Father’s Motion for Placement and Section 388 Petition

On November 18, 2022, father filed a statement of contested issues, requesting 

Kylie be placed with him as the non-offending, non-custodial parent; that she be placed 

with family members until his release from custody, and that reunification services be 

provided him. As alleged by father, the department delayed obtaining a copy of Kylie’s 

birth certificate to prove his presumed father status. He also alleged that, prior to Kylie 

being placed into foster care, the department had determined that L.P. was a likely 

candidate for placement. According to father, L.P. completed the RFA process, 

purchased a crib and car seat and babyproofed her home in anticipation of taking Kylie, 

but a death in the family required her to travel out of state for four days. L.P. had asked 
8.

that Janice keep Kylie while she was gone, but Janice was not able to, prompting the 

department to place Kylie in her current foster home. The new social worker Torres 

assigned to the case was not forwarded this information by social worker Brewer and 

instead asked L.P. to redo her RFA submission. 

Father also alleged that, even though he was in custody, he should be provided 

reunification services pursuant to section 361.5, subdivision (e)(1).6 

On November 21, 2022, father filed a section 388 petition requesting the juvenile 

court change its August 1, 2022, order, which did not make any placement decisions, and 

place Kylie with either L.P. or Shelly. The petition alleged L.P. had promptly complied 

with the request to redo her RFA submission. The petition also alleged L.P. had been 

informed that there was a “ding” on her record that would not prevent her from having 

Kylie placed with her. Shortly thereafter, a CFT meeting was held which L.P. attended 

telephonically. At the meeting, L.P. was informed that the “ding” on her record did 

prevent Kylie from being placed with her. While L.P. was not informed what the “ding” 

was, she admitted to having a “DUI 12 years” earlier with a blood-alcohol level of .09 

percent. L.P. plead no contest to this and had completed all requirements of the court and 

the DMV. While the RFA social worker told her there was paperwork to fill out to take 

care of the “ding,” L.P. was not given the form or told what it was. L.P. then contacted 

the social worker, who stated there was no reason to complete the form as Kylie would 

not be placed with her. 

The petition also alleged that Shelly received a text message from the department 

that they were not seeking to place Kylie with relatives “at this moment - but you are 

more than welcome to complete the resource family approval process,” although the 

process would not guarantee placement of Kylie with her. 

6 Reunification services can be provided a parent in custody unless it is detrimental 

to the child (§ 361.5, subd. (e)(1)). 
9.

Disposition 

At the contested disposition hearing on December 5, 2022, before Commissioner 

Todd Eilers, father was not present but the juvenile court took note that father filed a 

section 388 petition requesting Kylie be placed with a relative. The juvenile court stated 

that, upon a discussion with all parties off the record, disposition would take place that 

day but the issue of placement with the relatives would be reserved for a later date. As 

stated by the juvenile court, when a placement hearing did take place, it would be up to 

the department to establish by clear and convincing evidence why Kylie should not be 

placed with a relative. 

As for disposition, the department stated that it was now recommending father 

receive reunification services, but continued to recommend reunification services for 

mother be bypassed. Father’s counsel voiced father’s request for placement of Kylie, but 

due to his incarceration, requested Kylie be placed with L.P. until he was released from 

custody. 

The juvenile court declared Kylie a dependent of the court and found clear and 

convincing evidence that she would be at a substantial risk of harm if returned to 

mother’s custody. The juvenile court denied father’s request that Kylie be placed with 

him, finding clear and convincing evidence that such placement would be detrimental to 

her, citing his current incarceration for domestic violence, a previous conviction for 

domestic violence, his history of substance abuse, and the criminal protective order in 

place in which father was not to have contact with mother or Kylie. The juvenile court 

reserved the issue of relative placement until a later time. Services for mother were 

bypassed. Father was ordered services and a hearing was set for January 30, 2023, to 

consider relative placement contained in father’s section 388 petition. The department 

was ordered to complete a full assessment of L.P. and Shelly pursuant to section 361.3. 

(request for placement of child with relative). 
10.

Post-Disposition Proceedings

At the request of Kylie’s counsel, an investigator for Fresno Child Advocates 

assessed Shelly and L.P.’s homes on January 17, 2023. Shelly informed the investigator 

that she had participated in a live scan in November of 2022, but her home had not been 

assessed by the department. According to Shelly, father was residing in a trailer on 

paternal grandfather’s property. Shelly reported paternal uncle Richard S. Jr. also lived 

in the home, as well as Richard Jr.’s girlfriend, a friend of the family and a paternal greatgrandparent as well. Shelly reported a conviction for drug and firearm possession 30 

years prior and a DUI in 2018. 

The investigator reported that L.P.’s home, which was clean, had two bedrooms, 

one bathroom, a living room, dining room, and kitchen. L.P. planned to have Kylie sleep 

in her room, which had a bed, a dresser, and a crib. Richard S. Sr., the father of the 

paternal uncle Richard Jr., lived in the home with L.P. L.P. informed him that he would 

have to find a different living arrangement if Kylie continued to be placed with her past

infancy. 

L.P. told the investigator that she had been having supervised once a month visits 

with Kylie, who enjoyed the visits once she warmed up to L.P. 

L.P. worked full time as a dental assistant and planned on enrolling Kylie in 

daycare and on utilizing Shelly for daycare. If the department did not want her to use 

Shelly for daycare, L.P. stated she would enroll Kylie in daycare and she also had two 

aunts who could provide care. L.P. stated that she was willing to abide by all court orders

and keep proper boundaries with the parents. She was willing to be protective of Kylie 

and would call law enforcement or the department if mother or father ever attempted 

unauthorized contact with Kylie. 

Addendum Report

On January 27, 2023, the department filed an addendum report objecting to the 

section 388 petition requesting Kylie be placed with L.P. or Shelly as it alleged removing 
11.

Kylie from her current caretakers would be detrimental. According to the department, it 

had attempted to obtain information from the paternal relatives from the inception of the 

proceedings, that the paternal relatives were given multiple opportunities to be assessed 

as far back as June of 2022, but that they had been uncooperative, inappropriate, and 

untruthful regarding their living situation by withholding information from the 

department. 

The report claimed that, as of the date of the report, “none” of the paternal 

relatives were approved for placement, and even if they were approved, the department 

recommended that Kylie remain in her current placement as it would cause unnecessary 

trauma to remove her. Kylie had been in her current placement since July 8, 2022. 

The report gave consideration to the factors listed in section 361.3, for assessing 

preferential relative placement. With respect to the wishes of the parents and relatives 

regarding placement (§ 361.3, subd. (a)(2)), while father wanted Kylie placed with either 

Shelly or L.P., mother had asked in August of 2022 that Kylie not be placed with L.P. or 

Shelly, as Shelly had been violent with mother in the past and she had criminal history. 

At that time, mother alleged father would be living with Shelly when he was released, 

and she did not think either Shelly or L.P. would protect Kylie from him. 

The report stated that, when L.P. informed the department that she was interested 

in placement of Kylie on July 15, 2022, she said that she had attempted to complete the 

RFA application by following a You Tube video orientation, but was unable to complete 

the process because it stated she needed to complete the Live Scan fingerprinting prior to 

submitting the application. According to the report, when social worker Brewer spoke to 

L.P. on June 22, 2022, and requested she be present at the CFT scheduled for June 27, 

2022, L.P. told Brewer she needed to first have a discussion with her partner, who was 

not in agreement with the idea of the placement. On July 18, 2022, Brewer attempted to

obtain L.P.’s information via email in order to begin a background check, but L.P. did not 

provide this information to social worker Torres until August 11, 2022. At that time, the 
12.

RFA unit reported that all of the adults on the placement application had criminal history, 

which would require exemptions. At the subsequent CFT on August 26, 2022, Shelly 

and L.P. were informed that they needed to follow up for instructions to obtain 

exemptions. L.P. denied having any criminal history. 

On December 1, 2022, L.P. and housemate Richard Sr. completed their Live 

Scans. The department alleged L.P. had not disclosed Richard Sr.’s name, but it was 

provided to the department via father’s attorney. On January 3, 2023, the department 

informed L.P. and Richard Sr. that both needed “a [s]implified exemption,” which were 

pending at the time of the report. L.P.’s home inspection was completed January 17, 

2023, and her home met the requirements. 

With respect to the good moral character of applicants, whether any individual 

residing in the home had a prior history of violent criminal acts (§ 361.2, subd. (a)(5)), 

the department claimed L.P. had not been fully truthful or forthcoming during the 

process. The department noted that, in August 2022, L.P. informed the department no 

other adult was living in her home, although she had initially said an unnamed adult lived 

with her and then refused to provide the social worker with that information. L.P. had 

also claimed in August 2022 that she did not have any criminal history. L.P. was 

observed by the department during a CFT to belittle and make inappropriate comments to 

mother, causing the department concern that her behavior “would not support family 

reunification or visitation with mother.” 

As for Shelly, the report concluded that it could not move forward on her request 

for placement as she had yet to provide the department with needed information. 

The report concluded that the department was unable to establish or determine that 

placement with either Shelly or L.P. would be appropriate “as there continues to be 

concern for protective capacity, appropriate boundaries with the parents, and withholding 

information that could potentially pose a risk to the safety of [Kylie].” 
13.

Hearing on Father’s Section 388 Petition

The hearing scheduled for January 30, 2023, was continued to March 2, 2023. At 

the contested hearing before Judge Freeman, the initial social worker, Brewer, testified 

L.P. had contacted him after Kylie was placed into protective custody. According to 

L.P., she was a traveling nurse and had been unsure she could take placement of Kylie 

until she spoke with her partner. While placement had been made with Janice, Brewer 

told L.P. he would be in touch if anything “f[e]ll through.” Brewer did not hear back 

from L.P. When L.P. left town, Brewer assumed it was for her work as a traveling nurse, 

as she had said she was going “back East for work.” Brewer did not recall if he had been 

the individual who sent L.P. the original RFA approval link. 

According to social worker Brewer, Janice, the maternal grandmother, was the 

first option for placement because he spoke to her first. He considered L.P. a second 

choice, because he had spoken to Janice first. As a result, Kylie was placed with Janice. 

Father testified that he had been present at Kylie’s birth and signed paternity 

paperwork in the hospital. He had been in custody at the time of the detention hearing 

and was released on December 16, 2022. The department sent him a few packets of 

paperwork while he was in jail, but he had not received any visitation with Kylie while in 

custody. Since his release, he had been living at his father’s home and participating in 

reunification services. Father wanted to reunify with Kylie. He had three other children, 

ages 16, 10, and six, who resided with their mother and with whom he had unsupervised 

visitation. 

Shelly testified that she requested placement of Kylie, with whom she was having 

monthly supervised visits. Shelly testified that she would be able to provide a permanent 

plan of adoption for Kylie if father did not reunify with her. Shelly had not yet been 

approved for RFA, claiming that, when she went to complete the “enhanced screening,” 

she was told only L.P. or she could go through the process, not both of them. Shelly 

lived about six miles from L.P. and could help out with childcare. Shelly had been a 
14.

retail manager for 23 years. Her home had not yet been approved, which included 

another son, two grandchildren, her daughter-in-law, a 15-year-old friend of the family, 

and her mother. 

L.P. testified that she visited Kylie within a few days of her birth, when mother 

and father brought her to Shelly’s home. L.P. claimed no one contacted her when Kylie 

was placed into protective custody, but she was informed by Shelly. L.P. contacted 

social worker Brewer soon after. 

L.P. said she was not a traveling nurse and she did not know where social worker 

Brewer came up with that information. She informed Brewer she had worked in a dental 

office for 17 years and did not travel for work, but had gone to Oregon for a few days for 

a death in the family. She had never been to the “East Coast.” 

L.P. testified that, in order to have Kylie placed with her, social worker Brewer 

sent her the link to complete the RFA process, but the link required that she be 

fingerprinted in order to complete the application. L.P. informed Brewer she had recently 

been fingerprinted for her employment, but was told she needed to complete a Live Scan. 

L.P. had gone to several locations to complete the Live Scan but was told they could not 

complete the process because they needed a specific number in order to forward the 

results. After Brewer was reassigned, L.P. had to contact the next social worker on her 

own initiative and no one from the department reached out to her. 

The subsequent social worker, Torres, had tried to help L.P. get rapid placement. 

The information L.P. had provided Brewer was not forwarded to Torres. L.P. did not 

find out where to go for her Live Scan until after the court proceedings in December of 

2022. L.P. claimed the department informed her in July of 2022 that, even if everything 

went through and her house approved, it did not mean Kylie would be placed with her. 

She claimed she was now approved for placement. 

L.P. was having supervised visits with Kylie one hour each month and the visits 

went well. She had requested unsupervised visits with Kylie, but her request was denied. 
15.

L.P. claimed no child welfare history. She had to get an exemption as part of the RFA 

process due to a “DUI in 2011” for being “.1 over the legal limit.” L.P. continued to seek 

placement of Kylie, believing it would benefit her to be placed with a family member so 

that she could be around her siblings, grandparents, aunts, and uncles. L.P. was willing 

to abide by any court order in case father did not reunify with Kylie, and she was also 

willing to adopt Kylie. L.P. testified she received an RFA certificate for her home. Her 

housemate Richard Sr. had completed his request for an exemption but had not received 

his exemption certificate yet. If he was unable to get an exemption, L.P. claimed she 

would require him to move out. 

L.P. testified that she did not hesitate about requesting placement of Kylie when 

she initially spoke to social worker Brewer, but simply wanted to inform her partner first. 

She insisted that she provided Brewer with all necessary information about herself the 

very first time she had contact with him. 

Christina Mares, the current social worker, had been assigned the case on August 

10, 2022. Mares testified that, at the time, Kylie was doing well in her placement. It had 

been reported to her that, before and after visits with father, Kylie would become quiet 

and a mental health assessment was scheduled for her. L.P. told Mares in late August of 

2022 that she was okay with Kylie staying at the caretaker. Mares believed it would be 

detrimental to move Kylie to another placement. Both L.P. and Shelly began visiting 

with Kylie in October 2022 and there were no reports of Kylie having any issues with the 

visits. 

L.P. was recalled to the stand and testified that she never informed social worker 

Mares that she did not want placement of Kylie. Instead, L.P. claimed the department 

informed her that Kylie was not going to be placed with any parental relatives and would 

be staying with her current caregivers. L.P. stated that she told Mares, “I want what is 

best for my niece.” 
16.

At the conclusion of testimony, the juvenile court stated it was father’s burden to 

establish the section 388 petition. Following a discussion off the record, the juvenile 

court stated it had reviewed the minute order from December 5, 2022, which stated that a 

contested disposition hearing took place and father’s request for placement was denied at 

that time, with another hearing set for the section 388 petition on January 30, 2023. The 

juvenile court then reiterated that it was father’s burden of proof. 

Father’s counsel argued the issue of relative placement preference and that the 

department knew of L.P.’s request for placement since the inception of the case. Counsel 

pointed out that Kylie had many siblings whom she had visited and she would be able to 

maintain those relationships if placed with L.P. 

The department argued that it had assessed the relatives and any delays were 

attributable to the paternal relatives. Since the proceedings now involved disposition and 

no placement change was necessary, the department claimed it was not required to place 

Kylie with a relative. The department argued it had no documentation of Richard Sr.’s 

exemption and, as such, L.P.’s home was not yet approved. 

Kylie’s counsel argued that there had been a change in circumstances, that of L.P.

obtaining an exemption. Counsel argued that the record clearly showed that L.P.

expressed an interest in Kylie early on in the proceedings and she had been visiting Kylie. 

While counsel acknowledged that there was not a great bond between L.P. and Kylie, the 

one hour a month visitation did not allow for such. Counsel felt that it was a close call 

and could see the case “going either way.” She believed L.P. had established enough to 

show she could care for Kylie. 

Mother’s counsel argued in support of the department’s position. 

The matter was continued to again allow the juvenile court time to review the 

transcript of the December 5, 2022, hearing before making its ruling, “[b]ecause there’s 

confusion about the procedure in which this hearing came about.” 
17.

On March 15, 2023, the matter resumed. Judge Freeman stated the court had been 

unable to review the transcript of the December 5, 2022, hearing but, since Commissioner

Eilers made all the disposition rulings at the disposition hearing, Judge Freeman 

concluded that this was a hearing on father’s section 388 petition and it was his burden to 

establish a change in circumstances or new evidence and that the petition was in the best 

interests of the child. 

According to the juvenile court:

“Being as though Commissioner Eilers made all the findings and 

orders required for a disposition hearing, I am treating this ruling as the JV180 only, not as disposition. And even with Commissioner Eilers’s note 

that that issue was reserved for 1/30/2023, I am interpreting that as the JV180 was being continued to be heard on that date.

“Being such, it is father's counsel’s burden to prove that there’s a 

change of circumstances or new evidence, and that the request made in the 

JV-180 is in the best interests of the child.

“In this case, the evidence that was presented to the Court at this 

point doesn't even meet the first burden of a change of circumstances --

which could be different today, because both aunt and grandma were in the 

process of being approved and they could be approved as of today. But 

even if there is the changed circumstance of approval for the RFA, in order 

to have a placement change of the child I need to find that it is in the best 

interests of the child.

“And that’s where I believe that the evidence is lacking. Kylie is 

one-year-old, and is in a placement that is providing her stability at this 

time. Moving her to another placement -- even if it’s a relative, I do not 

find that it is in her best interests.

“She has been in her current placement for nine months. She has a 

strong relationship with her care providers, and they continue to meet all of 

her physical, psychological, educational, developmental, medical and 

emotional needs. 

“That being said, it is this Court’s goal -- it is this Court’s 

responsibility to do everything possible to reunify children with their 

parents. And from my review of all the prior hearings in this case, it would 

seem that there is a six-month review hearing on June 5, 2023.
18.

“[My goal] would need to see [father] progressing, doing well, and 

not continue to move Kylie around from placement to placement, and to not 

focus on those things as much as focus on the long-term goal of getting her 

reunified with her parents.

“So the JV-180 is denied today ....” 

The juvenile court then asked mother if she had any Native American ancestry, 

stating that it knew mother had been asked before, “but never by me.” Mother replied 

that she had “Cherokee,” but was not sure which location but had been speaking with her 

elderly mother about it. When asked if it would be beneficial for someone to talk to her 

mother and see if they could get some information, mother replied “it was Oklahoma, 

Arizona – there was blood on both sides.” She stated that her mother’s great-grandfather 

was “100 percent Cherokee” but she was not certain which side. Mother provided the 

juvenile court, when asked, with her mother’s maiden name and grandfather’s name. 

When asked if she had any living relatives who could provide detailed information, 

mother stated she had an aunt D.T., who lived in Lindsay, she was “trying to reach out 

to” but she had not located her number yet. The juvenile court asked that mother put her 

aunt in contact with the department when she got her number. Mother also provided the 

court with the name of a cousin, C.C., and the name and number of her mother, M.H. 

DISCUSSION

I. DENIAL OF FATHER’S SECTION 388 PETITION

Father contends the juvenile court failed to apply the relative placement preference 

pursuant to section 361.3 when it denied his section 388 petition requesting placement of 

Kylie with L.P.

7

 As argued by father, the department failed to timely follow through on 

L.P.’s request for placement of Kylie, and when the juvenile court “finally considered 

L.P.’s request,” via father’s section 388 petition, “it applied the wrong standard in 

evaluating the request.” Father contends, “Instead of independently assessing the request 

7 While father’s section 388 petition argues for placement of Kylie with either L.P.

or Shelly, his argument on appeal centers around his request for placement with L.P. 
19.

pursuant to the relevant statutory criteria under section 361.3, the court imposed a false 

standard by requiring [him] to meet the requirements of a section 388 petition.” Father 

contends the court’s failure to consider the section 361.3 factors in its decision was 

reversible error. In the alternative, father argues the juvenile court abused its discretion 

when it found no changed circumstance as required by section 388. We reject both of 

father’s claims. 

Applicable Law

At a hearing on a section 388 petition seeking to change a child’s placement, the 

moving party must show a change of circumstances or new evidence and that a change in 

placement is in the child’s best interests. (In re Stephanie M. (1994) 7 Cal.4th 295, 317 

(Stephanie M.).) A modification petition is addressed to the sound discretion of the 

juvenile court and its decision will not be disturbed on appeal in the absence of a clear 

abuse of discretion. (Id. at p. 318.) A proper exercise of discretion is “ ‘not a capricious 

or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by 

fixed legal principles ... to be exercised in conformity with the spirit of the law[,] and in a 

manner to subserve and not to impede or defeat the ends of substantial justice.’ ” (In re 

Robert L. (1993) 21 Cal.App.4th 1057, 1066.) Exercises of discretion must be 

“ ‘grounded in reasoned judgment and guided by legal principles and policies appropriate 

to the particular matter at issue.’ ” (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 15.) “ ‘The 

denial of a section 388 motion rarely merits reversal as an abuse of discretion.’ ” (In re 

Daniel C. (2006) 141 Cal.App.4th 1438, 1445, quoting In re Amber M. (2002) 103 

Cal.App.4th 681, 685–686.) 

The section 361.3 relative placement preference requires “preferential 

consideration” be given to a relative’s request for placement of a dependent child. 

(§ 361.3, subd. (a).) “ ‘Preferential consideration’ means that the relative seeking 

placement shall be the first placement to be considered and investigated.” (§ 361.3, subd. 

(c)(1).) “Preferential consideration ‘does not create an evidentiary presumption in favor 
20.

of a relative, but merely places the relative at the head of the line when the court is 

determining which placement is in the child's best interests.’ ” (In re Antonio G. (2007) 

159 Cal.App.4th 369, 376.) “[T]he statute expresse[s] a command that relatives be 

assessed and considered favorably, subject to the juvenile court’s consideration of the 

suitability of the relative’s home and the best interests of the child.” (Stephanie M., 

supra, 7 Cal.4th at p. 320.) But this command is not a guarantee of relative placement. 

(In re Joseph T., Jr. (2008) 163 Cal.App.4th 787, 798.) 

The preferential consideration rule applies “[a]t the outset of the case and during 

the reunification period.” (In re Maria Q. (2018) 28 Cal.App.5th 577, 591.) “ ‘Appellate 

court decisions have consistently held that the relative placement preference applies at 

least through the family reunification period. [Citations.] During the reunification 

period, the preference applies regardless of whether a new placement is required or is 

otherwise being considered by the dependency court.’ ” (Id. at p. 592.)

“When considering whether to place the child with a relative, the juvenile court 

must apply the placement factors, and any other relevant factors, and exercise its 

independent judgment concerning the relative’s request for placement.” (In re Isabella 

G. (2016) 246 Cal.App.4th 708, 719 (Isabella G.).) Factors to consider in evaluating a 

placement include, but are not limited to, (1) the best interest of the child, (2) the wishes 

of the parents, (3) proximity of the placement for visitation and reunification with the 

parents, (4) placement of any siblings and half siblings in the same home, (5) the good 

moral character of the relative, (6) the nature and duration of the relationship between the 

child and relative, (7) the relative’s ability to provide appropriate and safe care of the 

child and facilitate visitation with the child’s other relatives, and (8) the safety of the 

home. (§ 361.3, subd (a)(1)–(8).) “The linchpin of a section 361.3 analysis is whether 

placement with a relative is in the best interests of the minor.” (Alicia B. v. Superior 

Court (2004) 116 Cal.App.4th 856, 862–863.)
21.

Analysis

Father relies on In re R.T. (2015) 232 Cal.App.4th 1284, to argue the juvenile 

court abused its discretion in refusing to change Kylie’s placement. The appellate court 

in R.T. reversed the lower court’s decision to deny a relative’s section 388 petition which 

sought placement after reunification services had either been bypassed or terminated. (Id. 

at pp. 1299–1301.) The father in R.T. identified relatives early in the case, and the 

relatives responded promptly, despite agency inaction. The father had identified two 

paternal aunts who wished to be considered for placement, but the newborn minor was 

placed with a nonrelated extended family member instead. At the disposition hearing, the 

court denied reunification services, set the matter for a permanency hearing, rejected both 

parents’ requests to place the infant with one of his paternal aunts, and instead ordered 

the infant to remain with the nonrelated extended family member. The agency was aware 

of the aunts’ interest in placement before the minor was even one month old, and their 

home inspections were completed before he was three months old. (Id. at p. 1293.) A 

month later, one of the aunts filed a section 388 petition expressing her desire to adopt 

the minor, claiming she had been denied preferential consideration for placement. (Id. at 

pp. 1293–1294.) The court took eight months to conduct a hearing on the aunt’s section 

388 motion. A caseworker testified that the agency never considered the aunts for 

placement, despite having conducted a home assessment. (Id. at p. 1294.) The appellate 

court acknowledged that it was “presently unsettled” whether a relative is entitled to 

preference under section 361.3 when the request is made after reunification services have 

been terminated. (Id. at p. 1300.) Because both the agency and the court erroneously 

failed to give the relatives preferential consideration earlier in the case, when the error 

was subsequently raised by a section 388 motion, “the court should have directed the 

agency to evaluate the relatives for placement under the relevant standards [citation] and, 

upon receipt of the evaluation and the agency’s placement recommendation, exercised its 

independent judgment to consider if relative placement was appropriate.” (Ibid.) 
22.

Father also relies on Isabella G., supra, 246 Cal.App.4th 708, in which the child’s 

paternal grandparents sought custody immediately after detention. The agency failed to 

assess their home and compounded its error by falsely informing the grandparents there 

was a mandatory one-year waiting period before the child could be moved from the foster 

family with whom she had been placed. (Id. at pp. 713–714.) After being repeatedly 

rebuffed in their efforts to obtain custody, the grandparents hired a lawyer, who filed a 

section 388 petition after reunification services had been terminated. (Id. at p. 715.) The 

appellate court followed R.T., reasoning that the grandparents had “requested placement 

prior to the detention, jurisdictional and dispositional hearings,” “before the 12–month 

review hearing,” and “after the case was referred for a section 366.26 hearing,” and the 

agency refused to comply with its obligation to conduct a home assessment on any of 

those occasions, “disregard[ing] the legislative preference for relative placement 

throughout [the] dependency case.” (Id. at pp. 722–723.) The court reversed the order 

denying the grandparents’ section 388 petition and directed the court to consider relative 

placement under section 361.3, as it should have done earlier in the case. (Id. at pp. 724–

725.) 

In both R.T. and Isabella G., the relatives were known to the social services 

agencies but were not considered as placement options during the early stages of the case, 

as required under section 361.3. Here, in contrast, the record contains evidence of the 

department’s efforts to locate and assess potential relative placement for Kylie from the 

inception of the case. When Kylie was first removed from mother and father’s care in 

June of 2022, the social worker located and placed Kylie with maternal grandmother 

Janice later that same day, pending the RFA evaluation. 

L.P. was contacted promptly by the department two days after the detention 

hearing. She was provided information about the RFA process, but stated she needed to 

confer with her partner, and she did not, at that time, provide the requested necessary 

information. 
23.

When Kylie was in need of a new placement in early July 2022 (maternal 

grandmother elected not to take placement due to being afraid of father threatening her 

family’s safety), Kylie was placed with the current care providers because no other 

relative had provided the necessary information for emergency placement. 

The department made additional attempts to place Kylie with other maternal 

family members, but they declined placement. 

When L.P. requested placement of Kylie on July 14, 2022, she represented that 

there was one other adult living in her home. On July 18, 2022, the department attempted 

to request information necessary for background checks. On August 5, 2022, Sally 

requested placement of Kylie, but only if L.P. was not able to. Sally reported six adults 

living with her, but did not provide the necessary information for assessments and 

clearances. On August 11, 2022, L.P. provided information for backgrounds checks. 

Sally and L.P. attended the CFT meeting on August 26, 2022, and were informed 

by the department that L.P. had a criminal conviction which would require an exemption 

in order to be approved for placement. L.P. denied the conviction existed. It was further

discovered that all of the other adults on the application required exemptions. L.P.

reported that Sally would be the primary care giver for Kylie due to L.P.’s work schedule. 

Sally informed the department that father was going to continue to reside in her home 

once he was released. The department came to find out that there was an active criminal 

protective order against father protecting mother and Kylie until 2025. 

In October of 2022, Sally informed the department that she wanted to begin the 

RFA process. L.P. testified at the section 388 hearing that she did not get the proper 

instructions on how to complete the RFA process until November of 2022. The 

department never did receive the information of the individual residing with L.P. as 

requested, and instead learned of his identity, Richard Sr., through father. It was reported 

that both L.P. and Richard Sr. needed exemptions for their past criminal convictions to 

receive RFA approval. 
24.

By the time of the contested disposition hearing, held December 5, 2022, neither 

L.P. nor Sally had been RFA approved or had exemptions granted by the department. 

When the juvenile court ordered the department assess Sally and L.P. for placement 

under section 361.3, father’s counsel informed the juvenile court that Sally only wanted 

placement if L.P. could not. Despite the department’s efforts in the six months leading 

up to the disposition hearing, neither Sally nor L.P. promptly or diligently made efforts 

for placement approval. 

Prior to disposition, father made a motion to change a court order under section 

388 to request placement of Kylie with L.P. However, the hearing was continued without 

objection to March 2, 2023, likely to allow Sally and L.P. to complete the RFA process 

and receive approval. 

After disposition, the department continued to assist L.P. and Sally in completing 

the RFA process. Sally had wanted to complete the process under L.P.’s “home,” but 

was informed that she could not. At the end of December 2022, the department received 

information from Sally that she had only the paternal great grandmother living in her 

home. This was contrary to her August 2022 statement that there were six adults in her 

home. In January of 2023, Sally represented that there were four other people living in 

her home; one other adult informed the department that there were three other adults in 

the home. 

At the hearing on the section 388 petition, it was reported that L.P.’s home met the 

“Health and Safety Assessment required for the RFA,” but the exemptions were still 

pending. Sally’s home had not yet been approved. 

Thus, the juvenile court found, pursuant to section 388, that there had been no 

change in circumstances, as neither L.P. nor Sally were considered approved by the 

department, and therefore did not meet the “first burden of a change of circumstances.” 

The juvenile court further stated that, “even if there is the changed circumstance of 

approval for the RFA, in order to have a placement change of the child I need to find that 
25.

it is in the best interests of the child” “[a]nd that’s where I believe that the evidence is 

lacking.” 

However, whether consideration of placement with L.P. in this case is properly 

determined in accordance with section 388 or the relative placement preference in section 

361.3 is of no moment here. Section 361.3 requires that the juvenile court consider a 

number of factors, the first of which is “[t]he best interest of the child.” (§ 361.3, subd. 

(a)(1).) Section 388 similarly requires consideration of the child’s best interests. (§ 388, 

subd. (d).) 

While the juvenile court cited section 388 rather than 361.3 in its ruling on father’s 

request, it is evident it nonetheless considered the pertinent statutory factors in making its 

decision. The juvenile court impliedly addressed the statutory factors of section 361.3 

when it specifically recognized the special needs of Kylie in considering her young age, 

“one-year-old,” and her need for constant care and stability, something the juvenile court 

found she had with her current care provider. (§ 361.3, subd. (a)(1).) The juvenile court 

also took the wishes of both mother and father into consideration. (§ 361.3, subd. (a)(2).) 

It was obviously aware of father’s request that Kylie be placed with L.P. In an addendum 

report before the juvenile court, mother stated that she did not want Kylie placed with 

Sally or L.P. because Sally had a tendency to be violent and neither would protect Kylie 

from father. Neither L.P. nor Sally’s homes had been approved, nor had all the 

inhabitants received exemptions, and therefore neither placement met the requirement 

that they be able to prove “[t]he good moral character of the relative and any other adult 

living in the home, including whether any individual residing in the home has a prior 

history of violent criminal acts or has been responsible for acts of child abuse or neglect” 

(§ 361.3, subd. (a)(5)) or whether the home could provide a “safe, secure, and stable 

environment for the child” (§ 361.3, subd. (a)(7)(A)). The department had observed that 

during a CFT, L.P. had belittled and made inappropriate comments to mother, causing the 

department concern that her behavior “would not support family reunification or 
26.

visitation with mother.” (§ 361.3, subd. (a)(7).) The focus of the argument advocating 

placement of Kylie with L.P. was the fact that she was family and L.P. would be able to 

help Kylie maintain relationships with her half siblings. While this is an important factor, 

it is not dispositive. 

Again, while the section 361.3 statutory factors are important, the “linchpin” is 

always the best interests of the child. (In re Robert L., supra, 21 Cal.App.4th at p. 1068.) 

Here, the juvenile court noted Kylie’s needs were being met in her current placement –

“She has a strong relationship with her care providers, and they continue to meet all of 

her physical, psychological, educational, developmental, medical and emotional needs,” 

and moving her to another placement would not be in her “best interests.” The juvenile 

court stated that its long-term goal was to reunify Kylie with father and “not continue to 

move Kylie around from placement to placement ....” 

“The overriding concern of dependency proceedings ... is not the interest of 

extended family members but the interest of the child. ‘[R]egardless of the relative 

placement preference, the fundamental duty of the court is to assure the best interests of 

the child, whose bond with a foster parent may require that placement with a relative be 

rejected.’ [Citation.] Section 361.3 does not create an evidentiary presumption that 

relative placement is in a child's best interests. [Citation.] The passage of time is a 

significant factor in a child's life; the longer a successful placement continues, the more 

important the child's need for continuity and stability becomes in the evaluation of [his 

or] her best interests.” (In re Lauren R. (2007) 148 Cal.App.4th 841, 855.) 

Thus, even assuming the juvenile court erred in not applying the relative 

placement preference in evaluating whether to move Kylie into L.P.’s care, we 

nevertheless conclude the error was harmless as the record establishes the juvenile court’s 

analysis very closely tracked what it would have done if it had explicitly evaluated the 

request for placement directly under section 361.3, and it is not reasonably probable 

conducting its analysis explicitly under the rubric of section 361.3 would produce a more 
27.

favorable ruling for father. As noted above, the focus on the inquiry remains on the best 

interest of the child, and in this case the record strongly supports finding Kylie would be 

best served by leaving her in the care of her life-long caregivers. 

We find no abuse of discretion.

II. ICWA 

Father also contends the section 388 petition must be reversed because the juvenile 

court and department failed to comply with the initial inquiry requirements of the ICWA. 

We agree that ICWA error occurred, necessitating a conditional reversal of the court’s 

finding that ICWA does not apply. 

Background

Before the detention hearing, mother indicated that she did not have any Indian 

heritage. During the detention hearing June 20, 2022, an oral ICWA-020 inquiry was 

conducted, where father verbally denied Indian heritage and mother did so via her 

counsel. 

The addendum report filed prior to disposition stated that the ICWA did not apply, 

as mother and father both denied Native American heritage prior to the detention hearing 

on June 16, 2022; that father stated verbally in court at the detention hearing June 20, 

2022, that he did not have any Native American heritage; that on September 30, 2022, 

mother reported having no Native American heritage on both her maternal and paternal 

sides of her family; and that a letter inquiring as to Native American ancestry was sent to 

father, to Shelly, and to L.P. on October 3, 2022, inquiring as to Native American 

heritage. The report concluded that the department:

“has made the ICWA inquiry of the parents, and family members, all of 

whom have stated that they are not of Native American descent, the 

Department of Social Services would respectfully request that the Court 

make the finding that ICWA is not applicable to this case according to [25 

USC §1903].” 

Copies of the letter sent to father, Shelly and L.P. are included in the record. 
28.

In the December 5, 2022, orders after disposition, the juvenile court found that 

Kylie did not come within the provisions of the ICWA. 

On March 15, 2023, at the end of the contested section 388 hearing, the juvenile 

court asked mother about her Native American heritage, stating “I know you have been 

asked these questions before, but never by me.” Mother then said one of her mother’s 

great grandfather was “100 percent Cherokee — full-blooded” located in Oklahoma or 

Arizona. Mother further provided her mother’s maiden name and phone number and the 

grandfather’s name. Mother said she was trying to obtain the phone number for an aunt, 

who lived in Lindsay, and she had a cousin who might have information. Mother was 

asked to have the aunt get in touch with the department. 

Legal Principles

“ ‘ICWA is a federal law giving Indian tribes concurrent jurisdiction over state 

court child custody proceedings that involve Indian children living off of a reservation’ 

[citations], in furtherance of ‘federal policy “ ‘that, where possible, an Indian child should 

remain in the Indian community’ ” ’ [citations]. ‘ICWA establishes minimum federal 

standards, both procedural and substantive, governing the removal of Indian children 

from their families’ [citations], and ‘[w]hen ICWA applies, the Indian tribe has a right to 

intervene in or exercise jurisdiction over the proceeding.’ ” (In re K.H. (2022) 84 

Cal.App.5th 566, 594, fn. omitted (K.H.); accord, In re E.C. (2022) 85 Cal.App.5th 123, 

138, fn. omitted (E.C.).)

“ ‘In 2006, California adopted various procedural and substantive provisions 

of ICWA.’ [Citations.] The Legislature’s ‘primary objective ... was to increase 

compliance with ICWA. California Indian Legal Services (CILS), a proponent of the 

bill, observed that courts and county agencies still had difficulty complying with 

ICWA 25 years after its enactment, and CILS believed codification of [ICWA’s] 

requirements into state law would help alleviate the problem.’ ” (K.H., supra, 84 

Cal.App.5th at p. 595; accord, E.C., supra, 85 Cal.App.5th at pp. 138–139.) 
29.

“ ‘In 2016, new federal regulations were adopted concerning ICWA 

compliance. [Citation.] Following the enactment of the federal regulations, California 

made conforming amendments to its statutes, including portions of the Welfare and 

Institutions Code related to ICWA notice and inquiry requirements. [Citations.] Those 

changes became effective January 1, 2019 ....’ [Citation.] Subsequently, the Legislature 

amended section 224.2, subdivision (e), to define ‘reason to believe,’ effective September 

18, 2020.” (K.H., supra, 84 Cal.App.5th at pp. 595–596, fn. omitted; accord, E.C., supra, 

85 Cal.App.5th at p. 139.) 

“[W]hether a child is a member, or is eligible for membership, in a particular tribe 

is a determination that rests exclusively with the tribe, and neither the agency nor the 

court plays any role in making that determination. [Citations.] ‘ “Because it typically is 

not self-evident whether a child is an Indian child, both federal and state law mandate 

certain inquiries to be made in each case.” ’ ” (K.H., supra, 84 Cal.App.5th at p. 596; 

accord E.C., supra, 85 Cal.App.5th at pp. 139–140.) 

“In California, section 224.2 ‘codifies and elaborates on ICWA’s requirements of 

notice to a child’s parents or legal guardian, Indian custodian, and Indian tribe, and to the 

[Bureau of Indian Affairs].’ ” (In re A.R. (2022) 77 Cal.App.5th 197, 204.) California 

law imposes “an affirmative and continuing duty [on the court and the county welfare 

agency] to inquire whether a child for whom a petition under [s]ection 300, ... may be or 

has been filed, is or may be an Indian child.” (§ 224.2, subd. (a).)

“The [state law] duty to inquire begins with the initial contact, including, but not 

limited to, asking the party reporting child abuse or neglect whether the party has any 

information that the child may be an Indian child.” (§ 224.2, subd. (a).) “If a child is 

placed into the temporary custody of a county welfare department pursuant to [s]ection 

306 ... the county welfare department ... has a duty to inquire whether that child is an 

Indian child. Inquiry includes, but is not limited to, asking the child, parents, legal 

guardian, Indian custodian, extended family members, others who have an interest in the 
30.

child, and the party reporting child abuse or neglect, whether the child is, or may be, an 

Indian child and where the child, the parents, or Indian custodian is domiciled.” (§ 224.2, 

subd. (b).) Additionally, “[a]t the first appearance in court of each party, the court shall 

ask each participant present in the hearing whether the participant knows or has reason to 

know that the child is an Indian child. The court shall instruct the parties to inform the 

court if they subsequently receive information that provides reason to know the child is 

an Indian child.” (§ 224.2, subd. (c).)

“If the initial inquiry provides ‘reason to believe’ that an Indian child is involved 

in a proceeding—that is, if the court or social 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’—then the court or social worker ‘shall make further inquiry’ regarding 

the child's possible Indian status as soon as practicable.” (In re Ezequiel G. (2022) 81 

Cal.App.5th 984, 999 (Ezequiel G.), citing § 224.2, subd. (e).) “Further inquiry 

‘includes, but is not limited to, all of the following: [¶] (A) Interviewing the parents, 

Indian custodian, and extended family members[;] [¶] (B) Contacting the Bureau of 

Indian Affairs and the State Department of Social Services[; and] [¶] (C) 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.’ ” (Ezequiel G., at p. 

999.)

“If there is ‘reason to know’ a child is an Indian child, the agency shall provide 

notice to the relevant tribes and agencies in accordance with section 224.3, subdivision 

(a)(5).” (Ezequiel G., supra, 81 Cal.App.5th at p. 999, citing § 224.2, subd. (f).) “There 

is ‘reason to know’ a child is an Indian child if any one of six statutory criteria is met—

i.e., if the court is advised that the child ‘is an Indian child,’ the child's or parent's 

residence is on a reservation, the child is or has been a ward of a tribal court, or either 

parent or the child possess an identification card indicating membership or citizenship in 

an Indian tribe.” (Ezequiel G., at p. 999, citing § 224.2, subd. (d).) 
31.

County welfare departments “must on an ongoing basis include in its filings a 

detailed description of all inquiries, and further inquiries it has undertaken, and all 

information received pertaining to the child's Indian status, as well as evidence of how 

and when this information was provided to the relevant tribes. Whenever new 

information is received, that information must be expeditiously provided to the tribes.” 

(Cal. Rules of Court, rule 5.481(a)(5).)8 

Standard of Review

“The juvenile court's finding that ICWA does not apply to the proceeding rests on 

two elemental determinations, ‘subject to reversal based on sufficiency of the 

evidence.’ ” (K.H., supra, 84 Cal.App.5th at p. 601, quoting § 224.2, subd. (i)(2); accord, 

E.C., supra, 85 Cal.App.5th at pp. 142–143.) First, “[t]he court must find there is ‘no 

reason to know whether the child is an Indian child,’ which is dependent upon whether 

any of the six circumstances set forth in subdivision (d) of section 224.2 apply.” (K.H., at 

p. 601, quoting § 224.2, subd. (i)(2); accord, E.C., supra, at p. 143.) Second, “[t]he 

juvenile court must ... find a ‘proper and adequate further inquiry and due diligence ....’ ” 

(Ibid.)

Under the substantial evidence standard, “ ‘a reviewing court should “not reweigh 

the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts.” 

[Citation.] The determinations should “be upheld if ... supported by substantial evidence, 

even though substantial evidence to the contrary also exists and the trial court might have 

reached a different result had it believed other evidence.” ’ [Citations.] The standard 

recognizes that ‘[t]rial courts “generally are in a better position to evaluate and weigh the 

evidence” than appellate courts’ [citation], and ‘an appellate court should accept a trial 

court's factual findings if they are reasonable and supported by substantial evidence in the 

record’ [citation]. ‘[I]f a court holds an evidentiary hearing, it may make credibility 

8 All further references to rules are to the California Rules of Court. 
32.

determinations, to which an appellate court would generally defer.’ ” (K.H., supra, 84 

Cal.App.5th at p. 601; accord, E.C., supra, 85 Cal.App.5th at p. 143.) 

The juvenile court’s finding on the second element, however, “is ultimately 

discretionary because it requires the juvenile court to ‘engage in a delicate balancing of’ 

various factors in assessing whether the agency’s inquiry was proper and adequate within 

the context of ICWA and California law, and whether the agency acted with due 

diligence.” (K.H., supra, 84 Cal.App.5th at p. 601, quoting Caden C. (2021) 11 Cal.5th

614, 640; accord, E.C., supra, 85 Cal.App.5th at p. 143; Ezequiel G., supra, 81 

Cal.App.5th at pp. 1004–1005.) Therefore, we employ a hybrid standard and review the 

court’s determination for substantial evidence and abuse of discretion. (K.H., at p. 601; 

accord, E.C., at pp. 143–144; Ezequiel G., at pp. 1004–1005.)

“ ‘Review for abuse of discretion is subtly different [from review for substantial 

evidence], focused not primarily on the evidence but the application of a legal 

standard. 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[.]” ’ ” [Citations.] [¶] While each standard here fits a distinct type 

of determination under review, the practical difference between the standards is not likely 

to be very pronounced.’ ” (K.H., supra, 84 Cal.App.5th at p. 602; accord, E.C., supra, 85 

Cal.App.5th at pp. 143–144.) 

“Review of the juvenile court's findings under the foregoing standards is 

deferential, but ‘ “an appellate court [nevertheless] exercises its independent judgment to 

determine whether the facts satisfy the rule of law.” ’ [Citations.] Where the material 

facts are undisputed, courts have applied independent review to determine whether 

ICWA’s requirements were satisfied.” (K.H., supra, 84 Cal.App.5th at p. 602; accord 

E.C., supra, 85 Cal.App.5th at p. 144.) 
33.

Analysis

In the present case, mother and father initially both denied having Indian ancestry. 

Mother’s denial was represented by the social worker and then by counsel at the initial

detention hearing when she was not present. Father’s mother and aunt were both asked

and denied any Indian heritage. At the disposition hearing, the juvenile court found

ICWA did not apply. However, when mother was asked at the section 388 hearing, she

represented that she did have Indian heritage and provided information to that effect. Up

until that time, however, no other maternal relatives had been asked about possible Indian

heritage, although the department placed Kylie with maternal grandmother and numerous

other relatives were contacted regarding placement. 

In K.H. and E.C., we addressed ICWA error at the inquiry stage. There, we 

explained our decision not to follow the approaches articulated by other appellate courts 

for determining whether ICWA error requires reversal and concluded that the Supreme 

Court’s decision in In re A.R. (2021) 11 Cal.5th 234, supplies the appropriate framework 

for assessing prejudice in this context. (K.H., supra, 84 Cal.App.5th at pp. 607–608, 

citing A.R., supra, 11 Cal.5th at pp. 252–254; accord, E.C., supra, 85 Cal.App.5th at p. 

152.) Applying the standards we articulated in K.H. and E.C., as we discuss below, we 

agree the department’s error is prejudicial and remand for the department to conduct a 

proper, adequate, and duly diligent inquiry is necessary.

As previously mentioned, when “a child is placed into the temporary custody of a 

county welfare department ..., the county welfare department ... has a duty to inquire 

whether [the] child is an Indian child. Inquiry includes, but is not limited to, asking the 

child, parents, legal guardian, Indian custodian, extended family members, others who 

have an interest in the child, and the party reporting child abuse or neglect, whether the 

child is, or may be, an Indian child and where the child, the parents, or Indian custodian 

is domiciled.” (§ 224.2, subd. (b).) Extended family members include adult 
34.

grandparents, siblings, brothers- or sisters-in-law, aunts, uncles, nieces, nephews, and 

first or second cousins. (25 U.S.C., § 1903(2); § 224.1, subd. (c).)

Here, the department did not inquire of mother’s family, which fell short of 

complying with the plain language of section 224.2, subdivision (b). Accordingly, the 

juvenile court’s finding that ICWA did not apply was not supported by substantial 

evidence, and its contrary conclusion was an abuse of discretion. (§ 224.2, subd. (i)(2).) 

Where, as here, the deficiency lies with the department’s duty of inquiry and a 

juvenile court’s related finding of “proper and adequate further inquiry and due 

diligence” (§ 224.2, subd. (i)(2)), the error is one of state law. (In re Benjamin M. (2021) 

70 Cal.App.5th 735, 742.) “Under the California Constitution, ‘[n]o judgment shall be 

set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or 

of the improper admission or rejection of evidence, or for any error as to any matter of 

pleading, or for any error as to any matter of procedure, unless, after an examination of 

the entire cause, including the evidence, the court shall be of the opinion that the error 

complained of has resulted in a miscarriage of justice.’ (Cal. Const., art. VI, § 13.)” 

(K.H., supra, 84 Cal.App.5th at p. 606; accord, E.C., supra, 85 Cal.App.5th at p. 151.) 

“ ‘[T]o be entitled to relief on appeal from an alleged abuse of discretion, it must 

clearly appear the resulting injury is sufficiently grave to manifest a miscarriage of 

justice’ [citations], and California law generally interprets its constitutional miscarriage 

of justice requirement ‘as permitting reversal only if the reviewing court finds it 

reasonably probable the result would have been more favorable to the appealing party but 

for the error.’ ” (K.H., supra, 84 Cal.App.5th at pp. 606–607; accord, E.C., supra, 85 

Cal.App.5th at pp. 151–152.) 

However, in In re A.R., supra, 11 Cal.5th at pages 252–253, the Supreme Court 

“recognized that while we generally apply a Watson9likelihood-of-success test to assess 

9 People v. Watson (1956) 46 Cal.2d 818, 836. 
35.

prejudice, a merits-based outcome-focused test is not always appropriate because it 

cannot always adequately measure the relevant harm. [Citation.] In other words, where 

the injury caused by the error is unrelated to an outcome on the merits, tethering the 

showing of prejudice to such an outcome misplaces the measure, at the expense of the 

rights the law in question was designed to protect.” (K.H., supra, 84 Cal.App.5th at p. 

609, italics omitted.)

As we explained in K.H., “ ‘ICWA compliance presents a unique situation ....’ ” 

(K.H., supra, 84 Cal.App.5th at p. 608.) “ICWA is not directed at reaching, or 

protecting, a specific outcome on the merits.” (Id. at p. 609; accord, E.C., supra, 85 

Cal.App.5th at p. 154.) Rather, “ ‘[t]he purpose of ICWA and related California statutes 

is to provide notice to the tribe sufficient to allow it to determine whether the child is an 

Indian child, and whether the tribe wishes to intervene in the proceedings’ [citation], and 

an adequate initial inquiry facilitates the information gathering upon which the court’s 

ICWA determination will rest.” (K.H., at p. 608; accord, E.C., at pp. 152–153.) Yet, 

“while the appealing party is usually a parent, parents do not bear the burden of gathering 

information in compliance with ICWA [citations], and parents may raise the claim of 

error for the first time on appeal.” (K.H., at p. 608; accord, E.C., at p. 153.) Further, the 

ultimate determination whether a child is an Indian child rests with the tribe, not with a 

parent, the agency, or the juvenile court. (K.H., at p. 590; accord, E.C., at pp. 139–

140.) “[W]here the opportunity to gather the relevant information critical to determining 

whether the child is or may be an Indian child is lost because there has not been adequate 

inquiry and due diligence, reversal for correction is generally the only effective 

safeguard.” (K.H., at p. 610, citing A.R., supra, 11 Cal.5th at pp. 252–254; accord, E.C., 

at p. 155.)

Here, the department’s inquiry, “ ‘fell well short of that required to gather the 

information needed to meaningfully safeguard the rights of the tribes, as intended under 

ICWA and California law’ ” (E.C., supra, 85 Cal.App.5th at p. 156, quoting K.H., supra, 
36.

84 Cal.App.5th at p. 620), and “[a] finding of harmlessness on this record would 

necessarily require speculation and ‘is at odds with the statutory protections that ICWA 

and California law intend to afford Indian children and Indian tribes.’ ” (E.C., at p. 155, 

quoting K.H., at p. 611.) Therefore, the error is prejudicial and reversal is required.

Accordingly, the juvenile court’s finding that ICWA does not apply is 

conditionally reversed and the matter is remanded. The court is instructed to ensure the 

department conducts “ ‘a proper, adequate, and duly diligent inquiry under section 224.2, 

subdivision[s] (b) [and (e)], and document its inquiry in the record in compliance with 

rule 5.481(a)(5).’ ” (E.C., supra, 85 Cal.App.5th at p. 157, quoting K.H., supra, 84 

Cal.App.5th at p. 621.) “ ‘This should not be interpreted as requiring an exhaustive 

search for and questioning of every living relative of [Kylie]’ but ‘[w]e leave that 

determination for the juvenile court in the first instance because it is better positioned to 

evaluate the evidence provided by the Department. So long as the court ensures 

the inquiry is reasonable and of sufficient reach to accomplish the legislative purpose 

underlying ICWA and related California law, the court will have an adequate factual 

foundation upon which to make its ICWA finding. (§ 224.2, subd. (i)(2).)’ ” (Ibid.)

DISPOSITION

The juvenile court’s finding that ICWA does not apply is conditionally reversed, 

and the matter is remanded to the juvenile court with directions to order the department 

to comply with the inquiry and documentation provisions set forth in section 224.2, 

subdivisions (b) and (e), and California Rules of Court, rule 5.481(a)(5). If, after 

determining that an adequate inquiry was made consistent with the reasoning in this 

opinion, the court finds that ICWA applies, the court shall vacate its existing order and 

proceed in compliance with ICWA and related California law. If the court instead finds 

that ICWA does not apply, its ICWA finding shall be reinstated. In all other respects, the 

juvenile court’s order is affirmed.