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Filed 11/3/23 Certified for Publication 11/30/23 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

In re K.B. et al., Persons Coming 

Under the Juvenile Court Law.

SOLANO COUNTY HEALTH AND 

SOCIAL SERVICES DEPARTMENT,

Plaintiff and Respondent,

v.

D.B.,

Defendant and Appellant.

 A167385

 (Solano County Super. Ct.

 Nos. J45625 & J45626)

D.B. (Mother) appeals from the juvenile court’s jurisdiction and 

disposition orders in the dependency proceedings regarding her two sons,

K.B. and K. (Minors). Specifically, Mother challenges the court’s 

dispositional findings that the Solano County Department of Health and 

Social Services (Department) exercised due diligence to identify, locate, and 

contact Minors’ relatives. We agree that there was insufficient evidence to 

support the due diligence findings and so we reverse them. We affirm the 

orders in all other respects.
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BACKGROUND

A. Petition and Detention

Mother gave birth to K.B. in August 2022. Both she and K.B. tested 

positive for amphetamines, methamphetamines, and marijuana at the 

hospital, triggering a referral to the Department. The hospital admitted K.B.

to the neonatal intensive care unit and the Department placed him in 

temporary protective custody. Mother left the hospital. Law enforcement 

subsequently found Mother and Minors’ father (Father) at the family home 

and arrested both of them on out of county warrants. Law enforcement took 

one-year-old K. into protective custody with the Department. 

The Department filed a dependency petition alleging Minors were

within the jurisdiction of the juvenile court because they were at substantial 

risk of serious harm due to their parents’ ongoing substance abuse. (Welf. & 

Inst. Code, § 300, subds. (b), (j).)1 The August 16, 2022 detention report 

indicated that Minors’ parents had moved to Arkansas the year before “with 

support from the paternal family members” so Mother “could get away from 

Vallejo and her addiction.” In the intervening months, Minors’ parents 

returned to California “to obtain housing.”

The report indicated that the social worker had contacted the maternal 

grandmother as part of the Department’s inquiry into Minors’ Native 

American ancestry under the Indian Child Welfare Act (ICWA) (25 U.S.C. 

§ 1901 et seq.). Maternal grandmother stated she was not aware of any such

ancestry. The report does not indicate that the social worker discussed 

anything else with the maternal grandmother. A later section of the report 

1 Undesignated statutory references are to the Welfare and Institutions 

Code.
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regarding relative placement information contained a single sentence:

“There are relatives to consider for placement at time of detention.” 

At the August 17, 2022 uncontested detention hearing, the juvenile 

court found the Department had made a prima facie case that Minors came 

within section 300 and that returning them to parental custody was contrary 

to their welfare. The court found the parents presented a substantial danger 

to Minors’ physical or emotional health, and there were no reasonable means 

to protect their health absent removal. The court ordered Minors detained.

It ordered “suitable licensed” placement for Minors because “a relative who is 

able, approved, and willing to care for the children is not available.” The 

court noted: “This is a temporary finding. It does not preclude later 

placement with a relative, pursuant to section 361.3.” 

B. Jurisdiction and Disposition

In its September 22, 2022 jurisdiction and disposition report, the 

Department recommended that the juvenile court sustain the allegations

against both parents, order the continued detention of Minors, and order

reunification services for the parents. The Department placed Minors in a 

non-relative foster home. 

According to the report, the social worker discussed relative placement 

with each parent on September 1, 2022. It stated that Mother “was unable to 

identify any relatives to be considered for placement,” but “reported that the 

maternal grandmother, and other relatives reside in Mississippi.” Father 

stated that “he has relatives in the state of Arkansas that may be placements 

[sic] options in the future” but “at this time, he was unable to identify any 

relatives in California for placement.” 

The report indicated that the social worker had contacted the paternal 

grandmother on September 12, 2022, as part of the Department’s ICWA 
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inquiry. The paternal grandmother reported that she lives in Arkansas. She 

has cared for Minors’ eight-year-old half sister since she was a baby. The 

paternal grandmother confirmed that Minors’ parents live together in 

Vallejo, and reportedly stated that Father is a “ ‘weed head’ ” who is “ ‘loyal to 

his women,’ ” and Mother “ ‘comes and goes’ ” while Father cares for the 

Minors. The paternal grandmother did not know if Father used other 

substances and did not believe that he knew of Mother’s substance abuse. 

The paternal grandmother indicated that Father had two other children 

whose mother also “abuses substances.” The report does not indicate that the 

social worker discussed anything else with the paternal grandmother.

The report also detailed a meeting with the parents on September 20, 

2022 to identify permanency options and a concurrent plan for Minors should 

reunification not occur. It states: “The parents identified several concurrent 

options with the maternal grandmother, paternal grandmother, maternal 

aunt, and a family friend. It is noted the grandmothers reside out of state in 

Arkansas and Mississippi. The Department will continue to work with the 

family in concurrent planning.” 

At the contested January 20, 2023 jurisdiction and disposition hearing, 

the parties stipulated to the reading of written statements by the parents 

into evidence and otherwise submitted on the documents. Mother’s

statement indicated that she sought the opportunity to show she was a “fit 

parent,” and wanted to get involved in drug court to find “guidance and 

support” to reunify with Minors. Father stated his belief that “these issues 

can be addressed without the removal and continued deprivation of family 

quality and ability to work on our family issues with our children home with 

us.” Mother’s counsel objected to jurisdiction and requested family 

maintenance, while counsel for Father stated that he was “willing to accept”
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family reunification. The Department’s investigation regarding relatives was 

not raised by any of the parties or the court.

The juvenile court sustained the Department’s allegations under 

section 300, subdivisions (b) and (j). The court declared Minors dependents. 

It ordered that the Department offer reunification services to both parents. 

The court stated that it would “set this matter for interim review in three 

months. And we can revisit placement on that day.” During the hearing, 

neither parent voiced concern or raised an objection regarding the 

Department’s investigation of Minors’ relatives.

In its written dispositional findings and orders dated January 23, 2023, 

the court checked the box: “The county agency has exercised due diligence to 

identify, locate, and contact the child’s relatives.” The written orders also 

authorized placement of Minors in a foster home, relative home, or 

nonrelative extended family member home.

This appeal followed.

DISCUSSION

Mother’s appeal presents a narrow challenge to the juvenile court’s

dispositional findings that the Department exercised due diligence to 

identify, locate, and contact Minors’ relatives. The Department offers three 

alternative arguments in response: (1) Mother has forfeited her challenge; 

(2) the due diligence findings are supported by substantial evidence; and 

(3) any error in making the findings was harmless. We address, and reject,

each argument in turn.

I. No Forfeiture

The Department contends that Mother forfeited her challenge to the 

juvenile court’s due diligence findings. “It is true that, as the Department 

contends, a reviewing court ordinarily will not consider a challenge to a 
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ruling if an objection could have been but was not made in the trial court.” 

(In re S.B. (2004) 32 Cal.4th 1287, 1293.) But application of this general rule

is not reasonable under the circumstances reflected in the record here.2 

Mother had no notice of the due diligence findings, either before or at 

the time they were entered. The juvenile court made no due diligence finding 

at detention. Then, in its jurisdictional/dispositional report, the Department

asked the court to “accept the proposed Findings and Orders that are 

submitted with this report.” But, as the Department concedes, there is 

nothing attached to that report (or otherwise in the record before us) that 

includes any proposed due diligence findings. Neither the parties nor the 

court discussed the due diligence findings at the jurisdictional and 

dispositional hearing. Instead, it appears that these findings were reflected

for the first time in the written orders after the hearing.

We agree that the parents’ collective failure to mention, let alone object 

to, the due diligence findings is troubling. It is also telling that, despite the 

passage of time, even in her appellate briefing, Mother does not suggest any 

potential placement for Minors with any particular relative. That said, as 

discussed below, section 309 is not conditioned on parents’ cooperation and its 

impact is not limited to placement. It requires that the Department conduct 

an investigation into relatives with due diligence, and that the court find the 

Department has fulfilled its mandate. Imposing forfeiture to bar Mother’s 

appeal would not be in Minors’ best interests.

2 Given this conclusion, we need not and do not address Mother’s 

alternative arguments that (1) forfeiture is not applicable to challenges 

regarding the sufficiency of evidence at disposition, or (2) even if forfeited, we 

should exercise our discretion to decide the issue. 
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II. No Substantial Evidence for Due Diligence Findings

A. Standard of Review

The question of whether the Department exercised due diligence to 

identify, locate, and contact Minors’ relatives is “primarily a factual matter” 

that considers the Department’s efforts. (In re S.K. (2018) 22 Cal.App.5th 29, 

36 (S.K.).) We therefore review the trial court’s due diligence findings for 

substantial evidence. (Ibid.) “[W]e examine the whole record and ask 

whether any substantial evidence, contradicted or uncontradicted, supports 

the court’s finding[s], indulging all reasonable inferences in support of it.” 

(Id. at p. 37.) Substantial evidence “means evidence that is ‘reasonable, 

credible and of solid value; it must actually be substantial proof of the 

essentials that the law requires in a particular case.’ ” (In re E.D. (2013) 217 

Cal.App.4th 960, 966.)

B. Relevant Law

Section 309, subdivision (e)(1) provides that, if a child is removed from 

parental custody, the social worker must conduct an investigation in order to 

identify and locate all adult relatives of the child. The social worker must use

“due diligence” in investigating the names and locations of these relatives.

(Id., subd. (e)(3).) “[A]dult relatives” include all grandparents, adult relatives 

who are “suggested by the parents,” and other adults who are “related to the 

identified child by blood, adoption, or affinity” “within the fifth degree of 

kinship, including stepparents, stepsiblings, and all relatives whose status is 

preceded by the words ‘great,’ ‘great-great,’ or ‘grand,’ or the spouse of any of 

these persons.” (Id., subd. (e)(1), § 319, subd. (h)(2).) 

Section 309, subdivision (e)(1)(A) requires the social worker to provide 

written notification within 30 days of removal to all adult relatives who are 

located (with certain exceptions not applicable here) that the child has been 
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removed from parental custody. Section 309, subdivision (e)(1)(B) requires 

that the notice include “[a]n explanation of the various options to participate 

in the care and placement of the child and support for the child’s family, 

including any options that may be lost by failing to respond.” The social 

worker must provide written notification as well as “oral notification, in 

person or by telephone,” whenever appropriate. (Id., subd. (e)(1).)

In addition to the notice set forth in Welfare and Institutions Code 

section 309, California Rules of Court, rule 5.534(b)(3) (rule 5.534(b)(3)) 

requires the social worker to give any located relative a copy of the 

“Important Information for Relatives” document as distributed in the 

Department of Social Services All County Letter No. 09-86, as well as

Judicial Council Forms, form JV-285 (Relative Information) and form JV-287 

(Confidential Information). Among other things, form JV-285 asks relatives

to identify ways in which they may want to help the child, parents, or social 

worker, and to provide contact information for other relatives who might be 

able to help the child.

Section 358, subdivision (b)(2) provides that, if the child is removed

from parental custody at the time of disposition, the court “shall make a 

finding as to whether the social worker has exercised due diligence in 

conducting the investigation, as required pursuant to paragraph (1) of 

subdivision (e) of Section 309, to identify, locate, and notify the child’s 

relatives.” When making this finding, the court may consider examples of 

due diligence that include, among other things, whether the social worker has 

(1) obtained information about the location of relatives; (2) reviewed the case 

file for any information regarding relatives; (3) telephoned, emailed, or 

visited all identified relatives; (4) asked located relatives for the names and 

locations of others; and (5) used online search tools. (§ 358, subd. (b)(3)(B)–
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(F); Cal. Rules of Court, rule 5.695(f)(2)–(6).) When the court finds the social 

worker has not used due diligence, the court may order the social worker “to 

exercise due diligence in conducting an investigation to identify, locate, and 

notify the child’s relatives” and “may require a written or oral report to the 

court.” (Cal. Rules of Court, rule 5.695(e)(2).)

C. Analysis

The record here does not reflect substantial evidence that the 

Department used due diligence to identify, locate, contact, and notify Minors’ 

adult relatives pursuant to section 309, subdivision (e) and rule 5.534(b)(3). 

The Department’s detention and jurisdictional/dispositional reports

indicate that the social worker contacted the maternal and paternal 

grandmothers as part of the ICWA inquiry. The record does not reflect any 

actual discussion of Minors’ placement or the grandmothers’ interest in

otherwise participating in the case. Minors’ parents also identified a 

maternal aunt, as well as other relatives in Mississippi and Arkansas, but 

there is nothing in the record to show that the social worker attempted to 

locate or contact these relatives. 

It appears that most, if not all, of these relatives live outside of 

California—be it in Mississippi or Arkansas. It is also entirely possible that 

geography would present a bar to relative placement in either of those states, 

since doing so could make reunification with Mother and/or Father extremely 

difficult and might be contrary to Minors’ best interests. But nothing in the 

language of section 309, subdivision (e) excludes out-of-state relatives from 

the investigation the Department was required to perform. The Department 

does not contend otherwise.

The parties dispute whether the Department’s investigation efforts can 

be appropriately analogized to those found adequate in the S.K. decision. In 
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that case, the mother challenged the juvenile court’s due diligence finding 

based on the social worker’s alleged failure to (1) obtain contact information 

for a maternal great-aunt, and (2) search records in any other dependency 

case involving the father to locate information about his relatives. (S.K., 

supra, 22 Cal.App.5th at p. 38.) The appellate court concluded that the 

finding was supported by substantial evidence because the juvenile court had 

repeatedly ordered mother to disclose all known contact information for 

relatives, the social worker had repeatedly called the mother and maternal 

grandmother to get the maternal great-aunt’s contact information without 

response, and the mother had limited the social worker’s ability to search for 

the maternal great-aunt’s contact information by providing the wrong last 

name. (Ibid.) The social worker had also searched multiple databases for the 

father, but had come up with no results. (Ibid.)

Here, even accepting the Department’s representation that the parents 

have been generally “elusive” and “evasive” in this matter, S.K. is 

distinguishable. Unlike in S.K., the social worker here made contact with 

certain relatives. But the record fails to show that the social worker acted 

with due diligence in providing located relatives with the necessary 

information, asking them about other relatives. Nor does it show that the 

social worker investigated other relatives identified by Minors’ parents. It is 

possible that the social worker did not develop the record because they had 

rejected the possibility of any placement based on geography, but that is 

speculation and is not reflected in the record.

In addition to the lack of due diligence in identifying, locating, and 

contacting adult relatives, there is no evidence that the social worker 

provided any relatives (grandmothers or otherwise) with written notice of 

Minors’ removal and an explanation of the various options to participate in 
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Minors’ care, placement, and support as required by section 309, 

subdivision (e). Nor is there any evidence that the social worker provided any 

adult relatives with the documents required by rule 5.534(b)(3).

We are not persuaded by the Department’s suggestion that there is 

sufficient evidence of notice because “the social worker was able to contact 

each grandmother to discuss the case.” As a preliminary matter, the extent 

of any such discussion is not reflected anywhere in the record. Further, oral 

notice by phone does not dispel the requirement for written notice under 

section 309, subdivision (e) and rule 5.534(b)(3). (See In re R.T. (2015) 232 

Cal.App.4th 1284, 1296 [explaining oral advisement of the “placement 

process” was insufficient, as “[t]here is little reason to believe that the oral 

advisements sufficiently informed the relatives of the many aspects of the 

placement process that the statute requires be conveyed in writing”].) No 

written notice was provided here.

III. Error Not Harmless

The Department argues that, even if there was insufficient evidence to 

support the juvenile court’s due diligence findings, any error was harmless. 

We “typically apply a harmless-error analysis when a statutory mandate is 

disobeyed,” where error “ ‘is reversible only if it is reasonably probable the 

result would have been more favorable to [appellant] absent the error.’ ” (In 

re Jesusa V. (2004) 32 Cal.4th 588, 624–625.) Here, the Department contends 

that any error on the due diligence findings is harmless because Mother had 

“various opportunities” to “raise the issue of relative assessment and/or 

placement,” but failed to do so. 

The Department’s harmless error argument ignores the purposes of 

relative investigation beyond assessment and placement. (See In re R.T., 

supra, 232 Cal.App.4th at p. 1296 [explaining that written notice of “many 
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aspects” of placement process is required].) As explained above, section 309, 

subdivision (e)(1)(B) requires written notice to located relatives that includes

“explanation of the various options to participate in the care and placement of 

the child and support for the child’s family.” Among the documents required 

to be sent under rule 5.534(b)(3), form JV-285 lists options for relative 

participation beyond assessment and placement, including visits with the 

child, contact with the child by telephone or letter, and assistance to the 

social worker on the case plan for the child. The form also allows located 

relatives to identify other relatives who might be able to help the child. 

In sum, there is no evidence that the Department exercised due 

diligence in identifying and investigating Minors’ adult relatives, or that any 

relatives (including the identified and contacted grandmothers) received the 

required notice detailing various options for participation. We cannot 

conclude that the error on the due diligence findings was harmless.

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DISPOSITION

The juvenile court’s January 20, 2023 dispositional findings that the 

Department exercised due diligence in identifying, locating, and contacting 

Minors’ relatives are reversed. We remand the matter with directions for the 

juvenile court to (1) order the Department to exercise due diligence to 

identify, locate, contact, and notify Minors’ relatives pursuant to section 309, 

subdivision (e) and rule 5.534(b)(3); (2) direct the Department to prepare a 

supplemental jurisdictional/dispositional report describing its additional 

efforts; and (3) set a continued dispositional hearing at the earliest 

convenient time, for the purpose of considering whether the Department

3 Given this conclusion, we deem Mother’s arguments related to 

potential future relative assessment(s) and placement to be premature.
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has since exercised due diligence. The January 20, 2023 jurisdictional and 

dispositional orders are affirmed in all other respects.
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_________________________

Markman, J.*

We concur:

_________________________

Stewart, P.J.

_________________________

Miller, J.

In re K.B. et al. (A167385)

* Judge of the Alameda Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.
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Filed 11/30/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

In re K.B. et al., Persons Coming 

Under the Juvenile Court Law.

SOLANO COUNTY HEALTH AND 

SOCIAL SERVICES DEPARTMENT,

Plaintiff and Respondent,

v.

D.B.,

Defendant and Appellant.

 A167385

 (Solano County Super. Ct.

 Nos. J45625 & J45626)

 ORDER CERTIFYING OPINION

 FOR PUBLICATION

The opinion in the above-entitled matter, filed on November 3, 2023, 

was not certified for publication. For good cause, appellant’s request for 

publication is granted.

Pursuant to California Rules of Court, rule 8.1105, the opinion is 

ordered certified for publication in the Official Reports.

Dated: ___________________ _________________________

Stewart, P.J.
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Trial Court: Solano County Superior Court

Trial Judge: Hon. Dora M. Rios

Attorney for Defendant

and Appellant: By Appointment of the Court of Appeal

Under the First District Appellate Project 

Mara L. Bernstein

Attorneys for Plaintiff and 

Respondent: Office of Solano County Counsel

Bernadette S. Curry

Carrie Blacklock

Ana Oldwin