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Filed 6/29/22 In re K.O. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION THREE

In re K.O., a Person Coming 

Under the Juvenile Court Law.

SONOMA COUNTY 

DEPARTMENT OF HUMAN 

SERVICES,

Plaintiff and Respondent,

v.

M.O. et al.,

Defendants and Appellants.

 A162198, A162415, A163649

 (Sonoma County Sup. Ct. 

 No. DEP-5836)

C.R. (Mother) and M.O. (Father) appeal the juvenile court’s order 

terminating their parental rights. They argue the court prejudicially failed to 

rule on a modification petition and improperly declined to apply the parental

benefit exception. We disagree. We do, however, agree with their final 

contention — they argue the court failed to comply with its duty of inquiry 

under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA).

We conditionally reverse the order terminating parental rights and remand 

the matter for the court to comply with its duty of inquiry under ICWA.
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BACKGROUND

The history of this dependency proceeding is set forth in this court’s 

prior opinion, which we incorporate here by reference. (Sonoma Cty. Dep’t of 

Human Servs. v. C.R. (In re K.O.) (May 5, 2020, A158039) [nonpub. opn.].) In 

that case, this court affirmed a July 2019 dispositional order sustaining 

Sonoma County Department of Human Services’ (Department’s) allegations 

that K.O. came within Welfare and Institutions Code1 section 300 due to 

Mother’s ongoing substance abuse problem — she tested positive for 

methamphetamine, benzodiazepine, and opiates throughout her pregnancy. 

(In re K.O., supra, A158039; § 300, subd. (b) [child has suffered or there is 

substantial risk the child will suffer serious physical harm or illness resulting 

from parent’s failure or inability to supervise or protect the child].) The 

juvenile court further found true allegations that Father had a substance 

abuse problem, and he knew of Mother’s substance abuse but failed to 

intervene to protect the child. (In re K.O., supra, A158039.) The court

declared K.O. a dependent, removed her from her parents’ custody and placed 

her in foster care the same day K.O. was discharged from the hospital after 

her birth, and ordered reunification services for both parents. (Ibid.)

After a six-month review hearing, the juvenile court extended 

reunification services for both Mother and Father and ordered in-person 

supervised visitation. Yet Father did not participate, showed little interest or 

acknowledgement of K.O., and would often wander to his car and back. By

October 2020, the Department’s status review report recommended 

terminating reunification services and setting a hearing to select and 

implement a permanent plan for K.O. (§ 366.26.) In its report, the 

1 Undesignated statutory references are to the Welfare and Institutions 

Code.
3

Department noted Mother and Father were being evicted from their home, 

which had severe cleanliness and safety issues. Mother and Father further 

declined to sign a case plan, which among other things, required them to

abstain from using illegal drugs or alcohol, to comply with required drug 

tests, and to express anger appropriately. Although Mother stated she 

complied with the case plan by attending weekly Alcoholics Anonymous 

meetings, participating in individual therapy, creating a network of sober 

friends and extended family, she refused to sign a release of information that 

would allow the Department to verify her case plan progress. Mother also 

failed to provide the Department with any verifiable substance testing 

results. Moreover, the Department could not verify Father’s progress on the 

case plan since Father refused to sign a release of information, and he 

refused any referrals or services offered by the Department, such as

parenting classes, substance testing, and counseling.

Father later filed a petition to modify the juvenile court’s 2019 order

removing K.O. (§ 388.) He sought overnight and unsupervised visitation, 

and the return of K.O. to his custody within 30 days. Father alleged he 

developed a positive support system and addressed the elements in his case 

plan, both changed circumstances. According to Father, a modification was 

in K.O.’s best interests because she had no opportunity to attach to him, and 

he had a proven track record of parenting his other children.

After a hearing on Mother and Father’s 18-month status review and 

Father’s modification petition, the juvenile court concluded returning K.O. to 

their physical custody created a substantial risk of detriment to her safety, 

protection, or physical or emotional well-being. It found by clear and 

convincing evidence reasonable services were offered, but there was no 

substantial probability K.O. would be returned to her parents because of 
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their failure to make significant and consistent progress in any court-ordered 

services. The court terminated reunification services and scheduled 

a hearing to determine K.O.’s permanent plan — whether to terminate 

parental rights that would then allow for adoption, or maintain parental 

rights and select a different permanent plan. (§ 366.26.) The court did not 

rule on the modification petition.

In 2021, the Department filed a report, again recommending Mother 

and Father’s parental rights be terminated and adoption for K.O. K.O.’s

foster parents expressed the desire to adopt K.O., who had been in their care 

since birth and regarded them as her parents. Mother regularly attended inperson visits with K.O., who responded well to her affection and appropriate 

play. Father also began participating more during visits that took place 

outdoors. But at the end of visits, K.O. sought her foster mother and easily 

transitioned back into her care.

In May 2021, relying on an April 2019 drug test result, Mother filed 

a petition to modify the juvenile court’s order terminating reunification 

services. (§ 388.) She also alleged she had safe, stable housing — a new 

apartment. She requested additional reunification services and K.O.’s return 

to her custody. At a combined contested permanency hearing and a hearing 

on Mother’s modification petition, a social worker testified K.O. had 

developed a very secure attachment to her foster parents, who meet her daily 

needs. According to the social worker, removing K.O. from her foster parents 

would be traumatic.

The juvenile court found Mother and Father had shown a change of 

circumstances, but modification was not in K.O.’s best interests since it 

would be harmful to return her to their custody. It also found under the 

totality of the circumstances that it was in K.O.’s best interests to be adopted 
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by her foster family and to terminate parental rights. The court determined 

Mother had not established termination would be detrimental to the child 

under the parental benefit exception — applicable where the parent has 

maintained regular visitation and contact with the child, the child would 

benefit from the continued relationship, and termination of the relationship 

would be detrimental to the child. The court terminated parental rights, 

selected adoption as K.O.’s permanent plan, and designated her current 

caregivers as the prospective parents.

DISCUSSION

Mother and Father advance a series of challenges to the juvenile court 

order terminating their parental rights.2 Father argues the court committed 

reversible error when it failed to rule on his modification petition. Mother 

also argues the court improperly assessed the parental benefit exception. 

Finally, they argue conditional reversal is warranted because the 

Department and court failed to comply with the statutory requirements for 

an adequate inquiry into whether K.O. may be an Indian child under ICWA. 

We address each argument in turn.

First, Father contends the juvenile court order terminating parental 

rights must be reversed due to the court’s failure to rule on his modification 

petition seeking additional visitation and returning K.O. to his custody. 

Father forfeited this argument on appeal.

During the hearing on Mother and Father’s 18-month status review, 

the juvenile court acknowledged Father’s modification petition, proceeded to 

hear argument on both the petition and the review, and issued its findings 

and orders concerning the review. But Father, who was represented by 

2 Mother and Father filed separate appeals which we later

consolidated.
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counsel, did nothing to secure a ruling on his modification petition. (In re 

Malick T. (2022) 73 Cal.App.5th 1109, 1127 [forfeiture applies “when a party 

did not alert the juvenile court that he or she objected to an order being made 

or when a party failed to ask in the juvenile court for relief being sought on 

appeal”].) The lack of a ruling was thus based on Father’s failure to alert the 

court to its oversight, not on an erroneous interpretation of law, contrary to 

Father’s assertions. (Compare with ibid [lower court “denied a party’s 

request for an order on a legally incorrect ground”].)

Even assuming the failure to rule on Father’s petition was error, it was 

harmless. (In re J.F. (2011) 196 Cal.App.4th 321, 336.) The record 

demonstrates there is no reasonable probability the juvenile court would 

have granted Father’s requested modification had it issued a ruling. (In re 

Cristian I. (2014) 224 Cal.App.4th 1088, 1098–1099 [reversal justified only 

where the party would obtain a more favorable result in the absence of the 

error].) Under section 388, a court may modify an order if a parent 

establishes, by a preponderance of the evidence, that changed circumstances 

exist and the proposed modification would promote the child’s best interests. 

(§ 388; In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) Father failed to 

demonstrate either element.

The juvenile court found Father’s progress toward mitigating the issues 

necessitating removal — Father’s substance abuse problem as demonstrated 

by seven convictions for substance abuse related crimes — was nonexistent. 

(In re A.A. (2012) 203 Cal.App.4th 597, 612 [“The change in circumstances 

must relate to the purpose of the order and be such that the modification of 

the prior order is appropriate”].) While Father insisted he did not have 

a substance abuse problem, he refused to sign releases of information that 

would allow the Department to verify progress on his case plan. (In re 
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Anthony W. (2001) 87 Cal.App.4th 246, 251 [finding allegations regarding 

participation in substance abuse classes conclusory when made without 

dates, certificates, or drug test results].) He consistently refused the 

Department’s referrals for services, including substance testing and 

counseling. In addition, Father acknowledged smoking a marijuana joint one

month or several weeks before the 18-month status review hearing. He 

further admitted to difficulties in identifying whether Mother was under the 

influence, a factor that could impact Father’s ability to protect K.O. To the 

extent Father cites his ability to care for his other children as evidence of 

changed circumstances, we disagree. The dependency petition was not based 

on Father’s ability, or lack thereof, to care for his other children. (See In re 

A.A., at p. 612.)

Nor was there evidence demonstrating that increased visitation and 

transitioning K.O. back to Father’s custody would be in her best interests. 

The juvenile court expressly found returning K.O. to her parents would result 

in a substantial risk of harm to K.O.’s safety and emotional well-being. K.O. 

had lived with her foster parents since birth, identified them as her parents, 

and looked to them to satisfy all her needs. After visits with Mother and 

Father, K.O. easily transitioned back to her foster mother’s care. Due to 

K.O.’s substantial ties to her foster parents, the Department reported her 

removal from their home would be traumatic and detrimental to her wellbeing. Father himself testified it would be difficult to transition K.O. back to 

his care because she had bonded with her foster parents. (In re Kimberly F.

(1997) 56 Cal.App.4th 519, 532 [“strength of relative bonds between the 

dependent children to both parent and caretakers” a factor to consider when 

deciding whether granting a section 388 petition is in the child’s best 
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interests].) There is no reasonable probability the court would have granted 

Father’s request to modify the order removing K.O.

Next, Mother contends both that the juvenile court relied on improper 

factors when assessing whether the parental benefit relationship exception

applied, and the Department’s report did not provide adequate information 

regarding Mother’s relationship with K.O. or the benefits of continuing that 

relationship. We disagree.

At a permanency plan hearing, the juvenile court selects and 

implements a permanent plan for a dependent child, such as adoption, 

guardianship, or long-term foster care. (§ 366.26, subd. (b); In re Fernando 

M. (2006) 138 Cal.App.4th 529, 534.) If the court finds a child is adoptable, it 

must terminate parental rights and order the child placed for adoption unless 

termination would be detrimental under an enumerated statutory exception, 

such as the parental benefit exception. (§ 366.26, subd. (c)(1); In re Mary G.

(2007) 151 Cal.App.4th 184, 206–207.) A parent establishes this exception by 

demonstrating by a preponderance of the evidence “(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.).) We review 

the factual determinations underlying the court’s evaluation of the first two 

elements for substantial evidence, but the “the ultimate decision—whether 

termination of parental rights would be detrimental to the child due to the 

child’s relationship with [the] parent—is discretionary and properly reviewed 

for abuse of discretion.” (Id. at pp. 640–641.) An arbitrary, capricious, or 

patently absurd determination is an abuse of discretion. (Id. at p. 641.)

Evaluating whether Mother established the parental benefit exception, 

the juvenile court acknowledged Mother’s regular and consistent visitation
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with K.O. It recited the factors for assessing the existence of a beneficial 

relationship, such as the “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 

the parent and the child, and the child’s particular needs.” (Caden C., supra, 

11 Cal.5th at p. 632.) The court noted that if “severing the natural parentchild relationship would deprive the child of a substantial positive emotional 

attachment” that would greatly harm the child, Mother overcomes the 

preference for adoption. (Id. at p. 633 [“court must decide whether it would 

be harmful to the child to sever the relationship and choose adoption”].) 

Finally, it stated the need to “balance the strength and quality of the natural 

parent-child relationship” “against the security and sense of belonging a new 

family would confer.” (Ibid.) It then concluded, “It’s been two years and four 

months, and at this point, and based on the circumstances of the totality of 

this case, it is [K.O.’s] best interest that she be adopted by her resource 

family.”

The record suggests Mother regularly visited K.O., and that Mother 

had an affectionate and playful relationship with K.O., the continuation of 

which would benefit K.O. to some degree.3 But the juvenile court did not err 

in declining to apply the parental benefit exception as substantial evidence 

supports an implied finding that Mother failed to establish terminating the 

relationship would harm K.O. to an extent not outweighed by the benefits of 

adoption. (Caden C., supra, 11 Cal.5th at pp. 634, 636; In re Zacharia D.

3 Even though Mother had the burden of establishing K.O. had 

a substantial, positive emotional attachment to her, she challenges the 

adequacy of the Department’s permanency report regarding her relationship 

with K.O. Mother forfeited this argument by failing to raise it in the 

juvenile court. (In re S.B. (2004) 32 Cal.4th 1287, 1293; In re G.C. (2013) 

216 Cal.App.4th 1391, 1399.)
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(1993) 6 Cal.4th 435, 456 [appellate courts infer the trial court made all 

factual findings necessary to support a judgment in juvenile dependency].) 

K.O., who was approximately two years old by the time of the permanency 

hearing, had never been in Mother’s care. She was placed in foster care 

almost immediately after her birth and had developed a secure attachment to 

her foster parents such that being removed from their care would be 

traumatic. (Caden C., at p. 632; In re Eli B. (2022) 73 Cal.App.5th 1061, 

1074–1076 [child spent minimal time in parents’ care and “had barely ever 

known mother as a parental figure”].) On this record, the court was within 

its discretion to conclude the benefits of permanence outweighed the 

maintenance of K.O.’s relationship with Mother. (Id. at pp. 1075–1076.)

Nothing in the juvenile court’s ruling demonstrates it gave improper 

weight to Mother’s ongoing substance abuse when assessing the parental

benefit exception. (In re A.L. (2022) 73 Cal.App.5th 1131, 1161 [indulging 

every presumption to uphold juvenile court judgment, and appellant must 

affirmatively demonstrate error].) “Parents need not show that they are 

‘actively involved in maintaining their sobriety or complying substantially 

with their case plan’ ” to establish the exception. (Caden C., supra, 

11 Cal.5th at p. 637.) It only applies “when the parent has presumptively 

not made sufficient progress in addressing the problems that led to 

dependency.” (Ibid. [section 366.26 hearing is held when “the parent has not 

been successful in maintaining the reunification plan meant to address the 

problems leading to dependency”].) But the record does not indicate the court 

used Mother’s problems “to deprive [K.O.] of the chance to continue 

a substantial, positive relationship with” Mother. (Caden C., at p. 643.) The 

court simply complimented Mother’s progress with maintaining sobriety and 

a support network as they related to K.O.’s adoptability assessment and 
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Mother’s section 388 modification petition. (Compare with In re B.D., supra,

66 Cal.App.5th at p. 1228 [juvenile court improperly relied heavily on 

parents’ failure to complete reunification plans and were unable to care for 

children based on continued substance abuse].) It made no mention of 

Mother’s lack of progress regarding her substance abuse issues when 

assessing the parental benefit exception.

Nor did the juvenile court impermissibly rely on the fact that K.O.’s 

primary bond is with her foster parents or the possibility of post-adoption 

contact between Mother, Father and K.O., contrary to Mother’s assertions.

(In re J.D. (2021) 70 Cal.App.5th 833, 864, 866–867 [court may not consider 

the possibility of any post-adoption contact between parent and child or 

compare the child’s attachment to the custodial care giver to the child’s 

attachment to the parents when assessing the beneficial-relation exception].) 

True, the Department’s report and K.O.’s counsel noted K.O.’s foster parents 

were informed they could agree to continued contact between Mother, Father, 

and K.O. Similarly, the Department’s report and the social worker testimony 

noted K.O. was comfortable with her foster parents. But Mother fails to 

identify any statement or ruling by the court that it was relying on either 

factor to determine whether Mother established the existence of a beneficial 

relationship.4 (In re A.L., supra, 73 Cal.App.5th at p. 1161.)

In sum, the juvenile court properly assessed the parental benefit 

exception.

4 These portions of the Department’s report and the social worker’s 

testimony were presented at a combined section 366.26 permanency and 

section 388 modification petition hearing. “Regardless of their significance to 

the court’s determination of whether the parental-benefit exception applied, 

these were all issues of high relevance to the court’s decision on the 388 

petition.” (In re A.L., supra, 73 Cal.App.5th at p. 1160, fn. 13.)
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Finally, Mother and Father contend the Department failed to fulfill its 

obligation to conduct an adequate inquiry under ICWA. We accept the 

Department’s concession on this issue.

ICWA establishes minimum federal standards that a state court must 

follow before removing an Indian child — a member of an Indian tribe or 

eligible for membership in an Indian tribe and biological child of a member —

from his or her family. (25 U.S.C. § 1903(4); § 224.1, subds. (a)–(b); In re T.G.

(2020) 58 Cal.App.5th 275, 287.) The court and county welfare department 

have “an affirmative and continuing duty to inquire whether a child” who is 

the subject of a juvenile dependency petition “is or may be an Indian child.” 

(§ 224.2, subd. (a); Cal. Rules of Court, rule 5.481(a).)5 An initial inquiry 

includes asking parents and extended family members whether the child is or 

may be an Indian child. (§ 224.2, subd. (b); In re J.S. (2021) 62 Cal.App.5th 

678, 686.) If the court or department “has reason to believe that an Indian 

child is involved in a proceeding, but does not have sufficient information to 

determine that there is reason to know that the child is an Indian child,” they

must further inquire about the child’s possible Indian status as soon as 

practicable. (§ 224.2, subd. (e); see rule 5.481(a)(4); J.S., at p. 686.) A further 

inquiry requires interviewing extended family members to obtain current and 

former addresses, birth date, place of birth and death, and tribal enrollment 

information of the child’s parents, grandparents, and great-grandparents or 

Indian custodian. (§§ 224.2, subd. (e)(2)(A), 224.3, subd. (a)(5).)

Here, the Department failed to fulfill its duty to engage in this further 

inquiry. Although Mother reported she had no Indian ancestry, K.O.’s 

paternal grandmother reported there may be Cherokee ancestry through 

5 Subsequent undesignated rule references are to the California Rules 

of Court.
13

her mother — K.O.’s great-grandmother. This provided reason to believe 

Indian children might be involved in this dependency proceeding and 

triggered the Department’s duty to make a further inquiry. (In re T.G. (2020) 

58 Cal.App.5th 275, 292.) Nothing in the record indicates the Department 

contacted K.O.’s paternal great-grandmother or other extended family who 

could have provided different information regarding K.O.’s potential Indian

heritage. (In re Michael V. (2016) 3 Cal.App.5th 225, 235–236 [social services 

agency must contact family members who may have relevant information 

about possible Indian ancestry].)

The parties dispute the appropriate remedy — conditionally affirming 

or conditionally reversing the order terminating parental rights. We 

conclude conditional reversal for failure to comply with ICWA is appropriate 

where parental rights have been terminated. (In re Veronica G. (2007) 

157 Cal.App.4th 179, 187 [noting that affirming juvenile court orders is 

proper where parental rights have not been terminated and ICWA 

compliance is the only challenge to the juvenile courts’ orders]; In re Justin S.

(2007) 150 Cal.App.4th 1426, 1437 [conditionally reversing order terminating 

parental rights to allow parent’s participation in limited remand proceedings

ensuring ICWA compliance].) The order terminating parental rights is 

subject to automatic reinstatement if, after the Department engages in 

a further inquiry, it is ultimately determined that K.O. is not an Indian child 

within the meaning of the ICWA. (In re Elizabeth W. (2004) 120 Cal.App.4th 

900, 908.)

DISPOSITION

The order terminating parental rights is conditionally reversed. The 

matter is remanded to permit the Department and the juvenile court to 

comply with the inquiry and notice provisions of ICWA and California law. If 
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the court finds K.O. is an Indian child, it shall conduct a new section 366.26 

hearing, as well as all further proceedings, in compliance with ICWA and 

related California law. If the court concludes ICWA does not apply, the 

section 366.26 order shall be immediately reinstated.
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_________________________

Rodríguez, J.

WE CONCUR:

_________________________

Tucher, P. J.

_________________________

Petrou, J.

A162198/A162415/A163649