Filed 6/30/22 In re A.G. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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 A.G. et al., Persons Coming Under the 

Juvenile Court Law.

MADERA COUNTY DEPARTMENT OF 

SOCIAL SERVICES/CHILD WELFARE 

SERVICES,

Plaintiff and Respondent,

v.

JESSICA C.,

Defendant and Appellant.

F083289

(Super. Ct. Nos. MJP017998, 

MJP018004)

OPINION

APPEAL from a judgment of the Superior Court of Madera County. Thomas L. 

Bender, Judge.

Roni Keller, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Regina A. Garza, County Counsel, and Ann Hanson, Deputy County Counsel, for 

Plaintiff and Respondent.

-ooOoo-
2.

Appellant Jessica C. (mother) is the mother of children A.G. and M.W. 

(collectively, the children), who are subjects of a dependency case. Mother challenges 

the juvenile court’s orders issued at a contested selection and implementation hearing that 

resulted in mother’s parental rights being terminated. Mother contends the juvenile court 

erred by failing to apply the beneficial parent-child relationship exception and 

considering inappropriate factors during its determination on the exception. We reject 

this contention.

Mother also argues that the juvenile court failed to comply with the duty to inquire 

and send notice under the Indian Child Welfare Act (ICWA). The Madera County 

Department of Social Services, Child Welfare Services (department) concedes that a 

conditional reversal is required for an unresolved inquiry of the children’s possible 

Native American heritage. We agree with the parties and conditionally reverse the 

juvenile court’s orders terminating parental rights and remand for proceedings to ensure 

ICWA compliance.

FACTUAL AND PROCEDURAL BACKGROUND

Prior Dependency Proceedings

The present case marks the third round of dependency proceedings for 10-year-old 

A.G. and six-year-old M.W. In February 2013, mother participated in a voluntary family 

maintenance case with Fresno County Department of Social Services due to mother’s 

physical abuse of the children’s three older siblings, D.C. (now 18 years old), J.C. (now 

17 years old), and S.G. (now 15 years old), (collectively, the siblings). The voluntary 

family maintenance case closed in February 2014, after mother met her case plan goals. 

In June 2015, dependency proceedings were initiated in Fresno County Superior 

Court as a result of mother’s physical abuse of J.C. and the risk that the children, D.C., 

and S.G. would be physically abused by mother. Mother and Michael W., the presumed 

father of M.W., both participated in family reunification services and were granted 

custody of their children with dismissal of dependency in February 2017. 
3.

In August 2017, the children and siblings were initially detained by Madera 

County Department of Social Services, Child Welfare Services due to mother’s discipline 

of D.C., J.C., S.G., and A.G. with a belt while intoxicated from alcohol. The department

filed original petitions alleging the children and siblings were described by Welfare and 

Institutions Code section 300, subdivisions (a) and (b)(1).1 The petition regarding D.C., 

J.C., S.G., and A.G. alleged that they were at risk of serious physical harm due to 

mother’s alcohol abuse and use of a belt to discipline while intoxicated. The petition for 

M.W. further alleged that mother tested positive for methamphetamine and mother’s 

struggle with addiction placed M.W. at risk of harm. Mother and Michael both denied 

having any Indian heritage during the juvenile court’s initial inquiry.

The juvenile court sustained the allegations of the original petition with 

amendments and found that the children and siblings fell within section 300, subdivision 

(b) at a contested jurisdiction hearing in September 2017. In October 2017, Michael

informed the juvenile court that M.W.’s paternal great-great grandmother was “full blood 

Choctaw” and her paternal great-grandmother was “Choctaw Blackfoot.” Michael did 

not claim that he was a member of either tribe, and reported he had no idea of the lineage 

until he was notified by his cousin. Mother then explained how she recently discovered 

that the children’s maternal great-great grandmother was Apache.2

Mother’s Parental Notification of Indian Status form (ICWA-020) for A.G. 

indicated that she may have ancestry through the “New Mexico Apache Chiricahua” 

tribe. Michael’s first ICWA-020 form for M.W. indicated his claimed ancestry of 

“Choctaw[ and] Blackfoot” and mother’s claimed ancestry of Apache Chiricahua. The 

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

otherwise stated.

2 The minute order records mother’s reporting of Apache ancestry through the 

child’s maternal great-grandmother.
4.

juvenile court ordered the department to follow up with the information provided by the 

parents and send notice to the tribes. 

Michael’s second ICWA-020 form, filed six days later, detailed his possible 

membership in the Choctaw and “Blackfoot” tribes, M.W.’s potential membership in the 

Choctaw tribe, and the membership of M.W.’s lineal ancestor in the Choctaw tribe. At a 

later date, Michael reported that he had an enrollment number with the Blackfeet tribe, 

which resulted in a continuance of the disposition hearing. 

On November 2, 2017, the department sent formal notice, pursuant to ICWA, to 

the eight bands of the Apache tribe regarding A.G. and the siblings. The ICWA notice 

detailed mother’s claim of Apache ancestry through her family. A separate ICWA notice 

was sent on the same date to the eight bands of the Apache tribe, three bands of the 

Choctaw tribe, and Blackfeet tribe regarding M.W. The ICWA notice included mother’s 

claimed Apache ancestry along with Michael’s claim of Choctaw and Blackfeet ancestry. 

The notice included a Choctaw registry number of “525” for the child’s paternal greatgreat grandmother.

At the disposition hearing held in January 2018, the children and siblings were 

returned home and mother and Michael were ordered family maintenance services. An 

addendum submitted by the department indicated that all tribes except Jicarilla Apache, 

Tonto Apache, White Mountain Apache, and Blackfeet responded within 60 days that the 

children and siblings were neither members nor eligible for membership in their tribe.

The juvenile court found that the department gave proper notice pursuant to ICWA, and it 

found that ICWA was not applicable. 

The report prepared for the section 364 review hearing detailed mother’s 

completion of parenting, anger management, and substance abuse courses with consistent 

negative drug test results. On July 10, 2018, the juvenile court terminated its jurisdiction 

over the children and siblings with mother having sole legal and physical custody of A.G. 

and the siblings. 
5.

Current Dependency Proceedings

Initial Removal

On August 16, 2019, the department responded to the police station after A.G., at 

seven years of age, and her siblings J.C. and S.G., at 14 and 12 years of age respectively, 

went to the police station to report abuse by mother. J.C. claimed her mother bit her and 

banged her head on the floor. S.G. indicated mother “ ‘whoops’ ” the children with a 

belt, hanger, or cord, and mother and Michael were always arguing. Law enforcement 

believed mother had trouble with alcohol, and an officer regularly responded to the home 

due to multiple runaway reports regarding J.C. Mother also appeared to be intoxicated 

when she engaged in a physical altercation with J.C. 

Shortly after midnight on the following day, the investigating social worker and a 

police officer informed mother that J.C., S.G., and A.G. were taken into protective 

custody. In her interview with the investigating social worker and law enforcement, 

mother denied regular use of alcohol and blamed J.C., who was on probation, for 

problems in the home. Michael stated, “things have gotten worse since the last CPS 

case,” and it was a “ ‘hassle’ ” to get the children to listen to him and mother. Mother 

claimed the children did not respect her because of her prior dependency case and their 

knowledge that she is unable to “ ‘whoop’ ” them.

Based on the information obtained during the investigation, law enforcement 

placed five-year-old M.W. and her 15-year-old brother D.C. into protective custody. 

D.C. admitted to fighting often with J.C., but he denied that there were drugs or alcohol 

in the home. A.G. explained how her mother gets drunk, “drinks alcohol every single 

night,” and fights with J.C. and Michael. A.G. only got in trouble when her mother drank 

alcohol, and she was disciplined by getting whooped with a belt or hanger, put in a 

corner, or grounded. M.W. reported her mother and Michael fight, but they did not hit 

each other. 
6.

The department filed an original petition alleging the children and siblings were 

described by section 300, subdivisions (a) and (b)(1). The petition alleged that the 

children were at substantial risk of suffering serious physical harm as a result of mother’s 

alcohol abuse and discipline with a belt or hanger. Mother and Michael each completed 

ICWA-020 forms indicating that they were or may have been members of federally 

recognized Indian tribes. Mother claimed possible membership in the Apache tribe while 

Michael claimed possible membership in the “Blackfoot” tribe. 

The report prepared for the detention hearing explained how ICWA “may apply” 

due to mother’s claim of Apache heritage and Michael’s claim of Blackfeet heritage. The 

notice from the previous dependency proceeding was described as being sent to the 

Apache, Choctaw, Blackfeet, Cherokee, and Navajo tribes. However, the notice itself did 

not include the Cherokee and Navajo tribes, and there was no indication that mother and 

Michael claimed such ancestry in the prior proceedings. 

At the detention hearing held August 22, 2019, mother and Michael were both 

present and represented by counsel. Mother reported that her family claims to be “part 

Apache” in response to the juvenile court’s initial inquiry. Michael responded to the 

juvenile court’s inquiry regarding Indian ancestry by stating, “Yes, Blackfoot and 

Choctaw, and -- Choctaw registry No. BM525 for my great grandmother. [¶] . . . [¶] . . .

And we have no information on the Choctaw [sic] ancestry.” Michael reported that he 

would try to find paperwork documenting the enrollment number. 

The juvenile court found that ICWA may apply based on the statements of mother 

and Michael, and it informed county counsel of the need to research the issue. 

Furthermore, the juvenile court wanted to compare the information from the prior case to 

determine whether additional notices were necessary after mother’s counsel informed the 

juvenile court that ICWA was previously found inapplicable while verification was 

pending for Jicarilla Apache, Tonto Apache, and Blackfeet. 
7.

After the parties submitted on the detention report, the juvenile court ordered the 

children and siblings detained from the home of mother and Michael, reasonable 

supervised visitation between the mother, Michael, and their children as determined by 

the department, and the setting of a jurisdiction hearing for September 19, 2019. 

Jurisdiction and Disposition

After multiple continuances, a combined jurisdiction and disposition hearing was 

scheduled for February 24, 2020. The disposition report filed February 20, 2020, 

recommended that the children remain in out-of-home care with family reunification 

services provided to mother and Michael. It was also recommended that the juvenile 

court find ICWA not applicable based upon the findings related to ICWA notice in the 

prior proceedings for both Apache and Blackfeet heritage. 

The social study detailed mother’s criminal history of two prior convictions for 

driving under the influence, and she was arrested for driving under the influence in 

November 2019. Mother began using methamphetamine at 14 years of age, but she 

claimed that she stopped using methamphetamine five years earlier. The children and 

siblings were in her car when she was arrested for driving under the influence (DUI), and 

she was not attending weekly alcoholism recovery meetings due to her work schedule. 

She also reported that Michael was “100% Blackfoot.”

Mother was attending her supervised visitations twice per week, which were said 

to be going well. Her recommended case plan included objectives of remaining sober 

and refraining from physical punishment on her children. The responsibilities of her case 

plan included a parenting program, any recommended substance abuse and mental health 

treatment, and random drug and alcohol testing. 

On the date of the combined jurisdiction and disposition hearing, the department 

filed a first amended petition as part of a resolution between the parties, which provided 

more specific allegations regarding mother’s alcohol abuse and inappropriate discipline, 

J.C.’s engagement in risky behaviors, and mother and J.C.’s physical altercations.
8.

Mother and Michael both submitted on the reports, and the juvenile court found the 

allegations in the amended petition true, ordered reunification services to both mother 

and Michael, and set a six-month review hearing for August 13, 2020. The juvenile court 

also found that ICWA was not applicable because mother and Michael did not claim any 

Indian heritage through filed ICWA-020 forms. 

Family Reunification Period

The department prepared a report for the six-month review hearing, which 

recommended that family reunification services be continued for mother and Michael. 

The children were placed together in a resource family home while the siblings were 

either placed in separate homes or on runaway status. Mother had failed to complete her 

mental health assessment because she missed multiple appointments, and she once 

attempted to complete an assessment while under the influence. Mother completed her 

parenting program in November 2019. She was discharged from one substance abuse 

program for lack of attendance, and she failed to make any progress in her nine-month 

DUI program for her criminal matter. Mother admitted to continually drinking alcohol 

on a regular basis while refusing to participate in drug testing. 

The supervised visitation schedule changed to weekly for two hours at a time. In 

October 2019, supervised visitation increased from a weekly two-hour visit to twice 

weekly for three hours total each week. The children enjoyed the food that mother made 

for their visit, but there were many concerns noted during visits. Visitation notes detailed 

inappropriate conversations, use of profanity, and a chaotic environment. Mother 

questioned the children about sexual abuse allegations during one visit. Multiple care 

providers reported that mother was loud, disrespectful, aggressive, and used profanity 

when supervised telephone visits replaced in-person visits as a result of the COVID-19 

pandemic. The children expressed their desire to remain with their current care 

providers, who were willing to provide a permanent plan, because they did not feel safe 

in their mother’s home. 
9.

The juvenile court continued the six-month review hearing and set the matter for a 

12-month review hearing in October 2020 due to the rapidly approaching 12-month 

review period. In an addendum report for a 12-month review hearing, the department 

recommended that reunification services be terminated for mother and Michael with the 

setting of a section 366.26 hearing for the children based upon their failure to meet the 

objectives of their case plan and demonstrate the necessary behavior changes to provide a 

safe home for their children. 

During a recent supervised visit, M.W. began crying inconsolably after mother 

discussed her boyfriend, and M.W. stated, “ ‘I don’t think my mom loves us.’ ” Mother 

was arrested after a domestic violence dispute with her boyfriend, who was a sex 

offender and drug user. In a meeting with the department, mother reported she was 

participating in mental health services and DUI classes to reinstate her driver’s license. 

The juvenile court eventually held a contested 18-month review hearing on 

January 27, 2021, after multiple continuances. Family reunification services were 

terminated for mother and Michael, and a section 366.26 hearing was set for May 13, 

2021. The juvenile court also found that there was information provided concerning the 

child’s possible Indian ancestry, but the information was too speculative and did not 

provide it with a reason to believe or know the child is an Indian child. Therefore, the 

juvenile court again found ICWA was not applicable. Mother filed a notice of intent to 

file a writ petition and writ proceedings were initiated in our case No. F082337.

However, mother did not file a writ petition and her case was dismissed as abandoned.

Section 366.26 Hearing

The department’s section 366.26 report, filed May 5, 2021, recommended that the 

juvenile court terminate the parental rights of mother, Michael, and the biological father 

of A.G. and order a permanent plan of adoption for the children. The siblings remained 

in separate placements with different permanent plans recommended for each. The 

children remained placed with their only care providers since removal, who were willing 
10.

to provide a permanent plan of adoption. No developmental or medical concerns were 

noted for the children. 

A.G. (now nine years old) and M.W. (now six years old) were observed to be 

thriving in all areas during their time in the care provider’s home. In March 2021, 

mother’s visits were reduced to twice per month. During one of the video visits, A.G. 

complained about mother’s repeated use of profanity, and she also wondered why mother 

was drunk during the visit. Visits were reduced to once per month in April 2021. 

The department acknowledged mother’s consistent visitation before noting her 

inability to address the issues that brought the children to the attention of the court.

According to the department, the benefits of continuing the parent-child relationship were 

not found to outweigh the benefits of an adoptive home for each child. Based upon its 

determination that no exceptions to adoption were applicable, the department concluded 

that the most appropriate plan for the children was adoption. 

Section 388 petitions were filed by mother’s counsel on June 25, 2021, requesting 

additional family reunification services as to each of the children. The petition alleged 

mother “started an outpatient program, anger management classes, celebrate recovery, 

and drug testing. She also has signed up for parenting classes, and has gained 

employment.” Mother’s request for additional reunification services was alleged to serve 

the children’s best interest because the children were, “young and would benefit from 

having a relationship with [their] mother.”

The department recommended against granting mother’s section 388 petitions, 

citing a lack of changed circumstances in an addendum report filed July 16, 2021. The 

report noted mother’s attempt to commit suicide while she was intoxicated in February 

2021. Although mother was currently in an outpatient program and going to classes, the 

department did not believe mother made significant changes to address the reasons the 

children came to the juvenile court’s attention. 
11.

On July 22, 2021, mother’s petitions were heard in combination with the contested 

section 366.26 hearing, which concluded on August 25, 2021. Mother’s father-in-law 

testified that mother had not appeared under the influence in his presence during the last 

three to four months. Mother testified about her recent efforts in the programs described 

in her section 388 petitions. Mother began attending a faith-based support group called 

“Celebrate Recovery” two months prior, an outpatient drug treatment program one month 

prior, and individual therapy one day prior. Mother participated in anger management 

classes and worked fulltime as a caregiver for in-home supportive services. 

Mother testified that she had not used alcohol or marijuana since May 26, 2021, 

but she continued to test positive for marijuana during her weekly drug testing through 

the outpatient program. After her suicide attempt, she wanted to change her life and feel 

differently about herself. Mother denied being under the influence during video calls 

with the children, but she acknowledged her habit of using profanity in the presence of 

the children. The director of mother’s faith-based support group testified that mother was 

“very secure in her recovery.” The director also acknowledged having limited 

information regarding mother’s history of alcohol use, and she spoke to mother privately 

only a “few times.”

The juvenile court denied mother’s section 388 petitions, and it proceeded to allow 

argument from counsel on the section 366.26 phase of the hearing. Mother’s counsel 

argued the beneficial parent-child relationship and substantial interference with a sibling 

relationship exception to termination of parental rights applied. (§ 366.26, subd. 

(c)(1)(B)(i), (v).) County counsel acknowledged that mother visited consistently, but she 

argued the evidence demonstrated that the children’s relationship with mother was not 

beneficial.

After hearing argument from all counsel, the juvenile court proceeded to its ruling 

as follows:
12.

“Well, regarding continuing relationship with Mom, there have been 

ongoing visits, but not all of them have been appropriate. Mom 

acknowledges that she’s working on it, but, still, that’s the case. I don’t 

think there’s evidence of the kind of bond between Mom and these two 

younger ones to the extent that it’s in the best interest of these kids to keep 

that bond.

“I think the kids have been out of home for quite some time, and 

they need a permanent place, and the permanent place is being offered by 

their current care provider. So I don’t think that -- that exception has been 

established by Mom.” 

The juvenile court followed the department’s recommendation and terminated the 

parental rights of mother and the children’s fathers and selected a plan of adoption. 

Mother filed a timely notice of appeal on September 10, 2021. 

DISCUSSION

I. Beneficial Parent-Child Relationship Exception

Mother contends the juvenile court erred when it did not apply the beneficial 

parent-child relationship exception to adoption. Mother argues the uncontested evidence 

established that the exception was applicable. She further asserts that the juvenile court 

erred by considering improper factors and failing to “engage in the subtle and casespecific analysis” in determining that the exception did not apply. 

A. Legal Principles

At a section 366.26 hearing, when the juvenile court finds by clear and convincing 

evidence the child is adoptable, it is generally required to terminate parental rights and 

order the child be placed for adoption unless a statutory exception applies. (§ 366.26, 

subd. (c)(1).) One of the statutory exceptions is the beneficial parent-child relationship 

exception, which applies when “[t]he court finds a compelling reason for determining 

that termination would be detrimental to the child” where “[t]he parents have maintained 

regular visitation and contact with the child and the child would benefit from continuing 

the relationship.” (Id., subd. (c)(1)(B)(i).)
13.

A parent claiming an exception to adoption has the burden of proof to establish by 

a preponderance of evidence that the exception applies. (In re Melvin A. (2000) 82 

Cal.App.4th 1243, 1252.) Thus, the parent must prove three elements in order to prevail 

under the beneficial relationship 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.” (In re Caden C. (2021) 

11 Cal.5th 614, 631 (Caden C.).)

The first element of the beneficial relationship determination asks the 

“straightforward” question of whether the parent visited consistently, considering the 

extent permitted by court orders. (Caden C., supra, 11 Cal.5th at p. 632.) The focus is 

on the best interest of the child as opposed to punishing or rewarding parents for good 

behavior in maintaining contact. (Ibid.)

The second element of the exception asks whether the child would benefit from 

continuing the relationship. (Caden C., supra, 11 Cal.5th at p. 629.) The parent-child 

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.’ ” (Id. at p. 632, 

quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) The juvenile court’s focus 

should again be on the child, and it “must remain mindful that rarely do ‘[p]arent-child 

relationships’ conform to an entirely consistent pattern.” (Caden C., supra, at p. 632.)

When considering the third element, courts must determine “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.) Potential negative effects from severance of the relationship might 

include “emotional instability and preoccupation leading to acting out, difficulties in 

school, insomnia, anxiety, or depression.” (Ibid.) While an adoptive home might provide 

a new source of stability that alleviates emotional instability and preoccupation leading to 
14.

those problems, making the loss “not, at least on balance, detrimental.” (Ibid.) Under 

this element, the court is again guided by the child’s best interest, but in a “specific way: 

it decides whether the harm of severing the relationship outweighs ‘the security and the 

sense of belonging a new family would confer.’ ” (Ibid.)

In Caden C., the Court of Appeal held “that because the parent continued to 

struggle with substance abuse and mental health issues and because of the risks of foster 

care and benefits of the potential adoptive home, no reasonable court could find the 

child’s relationship with his parent outweighed the benefits of adoption.” (Caden C.,

supra, 11 Cal.5th at pp. 625-626.) Rejecting that conclusion, our Supreme Court found 

“[t]he Court of Appeal did not explain how the parent’s struggles related to the specific 

elements of the statutory exception: the importance of the child’s relationship with the 

parent or the detriment of losing that relationship.” (Id. at p. 626.) A parent’s struggles 

with issues that led to dependency were determined to be relevant only to the extent they 

inform whether the child would “benefit from continuing the relationship and be harmed, 

on balance, by losing it.” (Id. at p. 638.)

B. Standard of Review

Appellate courts review a juvenile court’s ruling on the application of the 

beneficial parent-child relationship exception using a “hybrid” standard. (Caden C., 

supra, 11 Cal.5th at p. 641.) The substantial evidence standard applies to the first two 

elements of regular visitation and existence of a beneficial relationship. (Id. at pp. 639-

640.) The juvenile court’s decision as to the third element – whether termination of 

parental rights would be detrimental to the child – is reviewed for an abuse of discretion. 

(Id. at p. 640.) “Review for abuse of discretion is subtly different, 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.’ ” ’ ” (Id. at p. 641.)
15.

The standard of review of a court’s determination that a parent did not meet his or 

her burden to prove an exception to termination of parental rights, is “whether the 

evidence compels a finding in favor of the appellant as a matter of law.” (In re I.W.

(2009) 180 Cal.App.4th 1517, 1528, disapproved on other grounds by Conservatorship of 

O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.) Specifically, the question is “whether the 

appellant’s evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of such a 

character and weight as to leave no room for a judicial determination that it was 

insufficient to support a finding.’ ” (In re I.W., at p. 1528.)

C. Analysis

In the present case, the juvenile court determined that mother did not meet her 

burden of proof as to the application of the beneficial parent-child relationship exception. 

The parties acknowledge the juvenile court’s finding that mother visited regularly. 

However, the juvenile court did not find that there was sufficient evidence of a 

substantial, positive relationship or that any such relationship outweighed the benefits of 

adoption to establish the exception.

Mother initially contends that the uncontested evidence established that the 

exception was applicable in this matter. In support of this contention mother cites to 

evidence that “visitation apparently went well the majority of the time” because there 

were only a few instances of negative interactions described by the department’s reports. 

Mother then attempts to characterize those negative interactions in a positive light, and 

she claims the department failed to provide all relevant evidence of mother’s interactions 

with the children. 

Based on the present record, we cannot find that the evidence compels a finding of 

the parent-child exception as a matter of law. Mother’s suggestion that sufficient 

reporting by the department would have described the details of “many positive visits” 

between mother and the children ignores the fact that it was her burden to prove the 

exception. Even if we were to accept that mother often enjoyed pleasant visits with her 
16.

children, such evidence is not enough to preserve parental rights. (See In re Derek W.

(1999) 73 Cal.App.4th 823, 827 [“The parent must do more than demonstrate ‘frequent 

and loving contact[,]’ [citation] an emotional bond with the child, or that parent and child 

find their visits pleasant.”) 

Mother’s insistence that the relationship she maintained with the children was of 

such significance that the children would be greatly harmed by its severance was not 

supported by the record. There was simply no evidence that the children were suffering 

any type of emotional harm as a result of the limited interaction with their mother over 

the last two years. The children were well-adjusted after lacking stability and 

permanency during several years as dependent children. 

In sum, this is not a case in which “the undisputed facts established the existence 

of a beneficial parental . . . relationship.” (In re Bailey J. (2010) 189 Cal.App.4th 1308,

1314.) For these reasons, we conclude that the juvenile court acted well within its 

discretion in deciding that this was not one of the extraordinary cases where the 

preservation of parental rights outweighed the preference for adoption. (In re G.B. 

(2014) 227 Cal.App.4th 1147, 1166.) 

Next, mother cites to the recent cases of In re B.D. (2021) 66 Cal.App.5th 1218 

and In re J.D. (2021) 70 Cal.App.5th 833, in support of her contention that the juvenile 

court’s orders must be reversed for improper consideration of certain factors. 

In In re B.D., supra, 66 Cal.App.5th 1218, a juvenile court noted that “the social 

worker’s report stated that the paternal grandmother met the children’s daily needs and 

opined that the parents were ‘currently not in a position where they are able to take on the 

parental role.’ ” (Id. at p. 1229.) The juvenile court also emphasized the parents’ failure 

to complete the reunification plan and their continued untreated substance abuse issues. 

(Id. at pp. 1229-1230.) The In re B.D. court found the juvenile court’s reliance on the 

fact that the parents had not completed their reunification plan and were unable to meet 

the children’s needs to be “concerning because it is unclear what weight the juvenile 
17.

court placed on these conclusions when balancing the harm of severing the natural 

parent-child relationship to the benefits of a new adoptive home in the crucial third step 

of the analysis.” (Id. at p. 1230.) The appellate court reversed, without conducting a 

harmless error analysis, so the juvenile court could conduct a new parent-child bond 

exception analysis in light of Caden C. (Id. at p. 1231.)

Similarly, in In re J.D., the appellate court concluded that it was unclear to what 

extent the juvenile court—there, acting before Caden C.—considered improper factors at 

the second step of analyzing the parent-child beneficial relationship exception, and it

reversed and remanded for a new section 366.26 hearing in accordance with Caden C.

(In re J.D., supra, 70 Cal.App.5th at pp. 865, 870.) Specifically, it observed that the 

juvenile court had appeared to improperly consider “the mere fact [that the mother] had 

been unable to succeed in overcoming her parenting struggles” (id. at p. 864), “the 

suitability of [the minor’s] current placement” (ibid.), the minor’s attachment to his 

current caregiver, and the court’s determination that the mother did not occupy a 

“ ‘parental’ ” role—all factors improper under Caden C. (In re J.D., at pp. 864-865).

The cases cited by mother are distinguishable because the juvenile court in this 

case did not refuse to apply the beneficial parent-child relationship exception based solely 

on the mother’s failure to make “sufficient progress in addressing the problems that led to 

dependency.” (Caden C., supra, 11 Cal.5th at p. 637.) A parent’s “continued struggles” 

with the issues that led to dependency cannot, “standing alone,” be a bar to the parentalbenefit exception. (Ibid.) However, a parent’s struggles with the issues that led to the 

dependency are “relevant to the application of the [parental-benefit] exception” because it 

may be probative of whether interaction between parent and child has a negative effect on 

the child. (Ibid.) “A parent’s struggles may mean that interaction between parent and 

child at least sometimes has a ‘ “negative” effect’ on the child” (ibid.), while 

“[c]onversely, a parent who gains greater understanding of herself and her children’s 
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needs through treatment may be in a better position to ensure that her interactions with 

the children have a ‘ “positive” . . . effect’ on them” (id. at pp. 637-638).

In considering the parent-child relationship exception here, the juvenile court 

rejected mother’s argument at trial by discussing negative interactions during visits, 

mother’s lack of a significant bond with the children, and the children’s need for stability. 

It then reasoned that the evidence did not establish that maintaining the children’s bond 

with mother outweighed their need for permanency. 

We do not find that, in making its determination, the juvenile court abused its 

discretion by relying on impermissible factors. The department’s report does contain 

statements that mother failed to make progress on the issues leading to removal, and it 

includes descriptions of the suitability of the children’s foster placement. However, the 

juvenile court’s ruling on the exception did not consider mother’s inability to provide a 

home in comparison to the suitability of their current placement, and there is no 

indication that the juvenile court relied on mother’s “continued struggles” to bar the 

parent-child relationship exception. Viewed in its context, the juvenile court considered 

the proper factors of the children’s need for permanency and stability, the effect of 

interactions with mother, and the nature of the parent-child relationship. On balance, it 

concluded that continuing the children’s relationship with mother was not as beneficial as 

their need for stability. 

Finally, mother argues that the juvenile court erred by failing to engage in a casespecific analysis to determine whether a “ ‘substantial, positive emotional attachment’ ” 

existed between the children and mother that would benefit the children by continuing the 

relationship. However, the juvenile court was not required to recite specific findings 

relative to its conclusions regarding the elements of the exception when it declined to 

apply the exception. (In re A.L. (2022) 73 Cal.App.5th 1131, 1156.) Although a trial 

court’s statement of its findings or an explanation of the reasons for its decision may be 
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helpful in conducting appellate review, it is not a legal requirement. (Ibid.) Thus, the 

juvenile court did not err in failing to further explain the basis for its decision.

Under these circumstances, the juvenile court’s ruling is entitled to a presumption 

of correctness, and remand is unwarranted. (Caden C., supra, 11 Cal.5th at p. 640.)

Therefore, the juvenile court did not err in declining to apply the beneficial parent-child 

relationship exception, and its orders terminating mother’s parental rights were proper.

II. ICWA Inquiry and Notice

Mother also contends the duties of inquiry and notice were not diligently 

discharged such that reversal is necessary to ensure compliance with ICWA. Mother 

cites to inconsistent identification of tribes in social worker reports, lack of a report on 

inquiries of the parents’ claims of ancestry, and lack of evidence that the parents denied 

having Indian ancestry. The department acknowledges that “some deficit may have 

existed” in relation to ICWA compliance, and it claims that there is an unresolved inquiry 

to a federally recognized tribe. However, the department argues that the matter need only 

be remanded for the limited purpose of ICWA compliance. 

A. Legal Principles

ICWA reflects a congressional determination to protect Indian children and to 

promote the stability and security of Indian tribes and families by establishing minimum 

federal standards that a state court, except in emergencies, must follow before removing 

an Indian child from his or her family. (25 U.S.C. § 1902; see In re Isaiah W. (2016) 

1 Cal.5th 1, 7-8.) In any “proceeding for the foster care placement of, or termination of 

parental rights to, an Indian child,” the Indian custodian and the Indian child’s tribe have 

the right to intervene (25 U.S.C. § 1911(c)) and may petition the court to invalidate any 

foster care placement of an Indian child made in violation of ICWA (25 U.S.C. § 1914; 

see § 224, subd. (e)). An “Indian child” is defined in ICWA as an unmarried individual 

under 18 years of age who is either (1) a member of a federally recognized Indian tribe or 

(2) is eligible for membership in a federally recognized tribe and is the biological child of 
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a member of a federally recognized tribe. (25 U.S.C. § 1903(4), (8); see § 224.1, 

subd. (a) [adopting federal definitions].)

In every dependency proceeding, the agency and the juvenile court have an 

“affirmative and continuing duty to inquire whether a child is or may be an Indian 

child . . . .” (Cal. Rules of Court, rule 5.481(a); see § 224.2, subd. (a); In re W.B. (2012) 

55 Cal.4th 30, 53; In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1165.) “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 . . . .”

(§ 224.2, subd. (b).)

“There is reason to believe a child involved in a proceeding is an Indian child 

whenever the court, social worker, or probation officer has information suggesting that 

either the parent of the child or the child is a member or may be eligible for membership 

in an Indian tribe. Information suggesting membership or eligibility for membership 

includes, but is not limited to, information that indicates, but does not establish, the

existence of one or more of the grounds for reason to know enumerated in paragraphs 

(1) to (6), inclusive, of subdivision (d).” (§ 224.2, subd. (e)(1).)

“When there is reason to believe the child is an Indian child, further inquiry is 

necessary to help the court, social worker, or probation officer determine whether there is 

reason to know a child is an Indian child.” (§ 224.2, subd. (e)(2).) Further inquiry 

includes, but is not limited to, interviewing the parents and extended family members to 

obtain the name, birth date and birthplace of the Indian child, the name of the Indian tribe 

in which the child is a member or may be eligible for membership, all names known of 

the Indian child’s biological parents, grandparents, and great-grandparents, including 

maiden, married, and former names or aliases, as well as current and former addresses, 

birth dates, places of birth and death, tribal enrollment information of direct lineal 
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ancestors of the child and any other identifying information if known. (§§ 224.2, 

subd. (e)(2)(A), 224.3, subd. (a)(5)(A)-(C).)

B. Standard of Review

A juvenile court’s finding that the ICWA is inapplicable is reviewed under the 

substantial evidence standard. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.) 

Thus, we must uphold the juvenile court’s orders and findings if any substantial evidence, 

contradicted or uncontradicted, supports them, and we must indulge all legitimate 

inferences in favor of affirmance. (In re John V. (1992) 5 Cal.App.4th 1201, 1212.)

C. Analysis

In the present case, mother and Michael both claimed Indian ancestry at the 

detention hearing. Mother claimed possible ancestry through the Apache tribe while 

Michael indicated that the child’s paternal great-great grandmother was a member of the 

Choctaw tribe. Michael initially provided an enrollment number that was either for 

himself or the great-great grandmother. 

The juvenile court acknowledged that ICWA may apply based on this information, 

and it requested that the department compare the information provided from the ICWA 

notice for the prior dependency proceedings. However, at disposition, the department 

merely recommended that ICWA be found inapplicable based upon the fact that proper 

ICWA notice was provided in the prior dependency proceedings in 2017. The juvenile 

court found that ICWA was not applicable after incorrectly finding that mother and 

Michael did not claim any Indian heritage through filed ICWA-020 forms. 

There is no evidence in the record that either the department or the juvenile court 

followed up with further inquiry regarding the parents’ claims of ancestry from the 

detention hearing. As a result of the failure to further inquire into the parents’ repeated 

claims of ancestry to determine if new information had been uncovered since the prior 

proceedings, we cannot say that the juvenile court and department adequately discharged 

their duty of further inquiry. (See § 224.2, subd. (j).) Because nothing in the record 
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shows the department completed the minimum further inquiry required by section 224.2, 

we will accept the parties’ concession and remand the matter for the limited purpose of 

compliance with the directives of ICWA and of section 224.2.

DISPOSITION

The finding that ICWA does not apply is conditionally reversed, and the matter is 

remanded to the juvenile court with directions to order the agency to comply with the 

inquiry provisions set forth in section 224.2. 

If, after the court finds adequate inquiry has been made consistent with the 

reasoning in this opinion, the court finds ICWA applies, the court shall vacate its existing 

order and proceed in compliance with ICWA and related California law. If the court 

finds ICWA does not apply, the finding that ICWA does not apply to the case shall be 

reinstated.

In all other respects, the court’s orders terminating parental rights are affirmed.

SMITH, J.

WE CONCUR:

FRANSON, Acting P. J.

PEÑA, J.