1

Filed 7/25/22 In re S.R. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

In re S.R., a Person Coming Under 

the Juvenile Court Law.

SONOMA COUNTY DEPARTMENT 

OF HUMAN SERVICES,

Plaintiff and Respondent,

v.

A.R.,

Defendant and Appellant.

 A164102

 (Sonoma County

 Super. Ct. No. DEP6163)

The juvenile court terminated the parental rights of A.R. (mother) over

her now two-year-old daughter S.R. On appeal, mother challenges the 

juvenile court’s (1) denial of her petition under Welfare and Institutions Code 

section 3881 seeking to provide six months of reunification services and 

(2) termination of her parental rights. She also contends the juvenile court 

erred by failing to make findings regarding compliance with the Indian Child 

Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.). The Sonoma County 

Department of Human Services (Department) concedes error regarding the 

1 All statutory references are to the Welfare and Institutions Code 

unless otherwise stated.
2

ICWA issue and requests that the order terminating parental rights be 

conditionally affirmed with directions to comply with ICWA. We affirm the 

order denying mother’s section 388 petition and conditionally affirm the order 

terminating parental rights. However, we remand for the limited purpose of 

determining ICWA compliance.

FACTUAL AND PROCEDURAL BACKGROUND

I. Prior Sacramento County Dependency Proceedings Regarding 

S.R.’s Half Siblings

In 2014, mother’s four other children, S.R.’s half siblings, were removed 

from mother and their father, J.J., due to mother’s substance abuse and

mental health issues and J.J.’s failure to protect them from mother. Mother 

received family reunification services, and J.J. received family maintenance 

services. In June 2015, a psychological evaluation of mother concluded that 

mother was unlikely to benefit from further reunification services within the 

legal time frame for reunification and that she would likely require a 

residential treatment program to address her mental health and substance 

abuse issues. In July 2015, the dependency case was closed and J.J. was 

granted sole physical and legal custody of the children.

In September 2015, S.R.’s half siblings were again removed from their 

parents’ care due to domestic violence and J.J.’s failure to protect the 

children. At the time, mother was living in the home with J.J. and the 

children in violation of a court order. Reunification services were provided to 

mother and J.J. The services were terminated in October 2016 due to their 

failure to comply with their case plans. In March 2017, the Sacramento 

Juvenile Court ordered legal guardianship of the children with maternal 

relatives. The dependency proceeding was dismissed in September 2017.
3

II. Petition Regarding S.R.

On July 14, 2020, the Department filed a dependency petition alleging 

that S.R., who was four months old, came within the jurisdiction of the 

juvenile court under subdivisions (a), (b)(1), (g) and (j) of section 300. The 

petition alleged S.R. was at risk of physical harm due to three incidents of 

domestic violence in May and July 2020 between mother and R.R., whom the 

petition alleged was S.R.’s father.

2 The petition alleged that in May 2020 

R.R. strangled mother and threatened her with a firearm while S.R. was in 

her care. On July 4, 2020, R.R. struck mother on her neck and her eye. 

Further, he dragged mother to her vehicle while she was carrying S.R. On 

July 6, 2020, R.R. smacked mother on the side of her head with both hands 

while she was in their bed. He then grabbed her neck with both hands, 

pinned her against a wall, squeezed her neck for six to eight seconds, and 

threw two frozen water bottles at her head while calling her names. Then he 

squeezed her chin and bit her nose and lips with his dentures. S.R. was in 

the bed with mother at the time of the assault.

The petition further alleged that mother was dishonest with the 

Department about her living conditions and that she continued to live with 

R.R. despite having an emergency protective order. The petition also alleged 

mother had untreated mental health issues, including diagnoses of 

schizophrenia, bipolar disorder, and postpartum depression. Finally, the 

petition summarized the prior dependency proceedings in Sacramento 

2 Mother subsequently informed the court that R.R. was not S.R.’s 

biological father. The petition alleged that he had a substance abuse problem 

and that his whereabouts were unknown. R.R. is not a party to the appeal,

and we limit our discussion of allegations regarding him to those relevant to 

the issues mother raises.
4

County that led to S.R.’s half siblings being placed under the guardianship of 

their maternal grandmother in 2017.

A. Detention Hearing

On July 15, 2020, the juvenile court detained S.R., finding that there 

was no reasonable means to ensure S.R.’s physical and emotional health 

without removing her from mother’s physical custody. Mother told the 

juvenile court that although R.R. was listed on S.R.’s birth certificate, he was 

not her biological father. She provided another name for the biological father 

and said he did not know of S.R.’s existence. Further, mother did not know

his whereabouts. Mother also stated that R.R. did not live with her. 

Mother’s counsel stated that mother was seeking a protective order against 

R.R. and that mother was living in a safe location and was on the waiting list 

for the YWCA shelter. Mother further said that the prior dependency 

proceedings in Sacramento involved domestic violence in her 17-year

marriage but that she was now divorced and the prior proceedings had 

nothing to do with S.R.

B. Jurisdiction Hearing

On August 5, 2020, the Department filed a jurisdiction report 

recommending that the juvenile court bypass reunification services under 

section 361.5, subdivision (b)(10).3 The recommendation was based on the 

3 Section 361.5, subdivision (b)(10)(A) states: “Reunification services 

need not be provided to a parent or guardian described in this subdivision 

when the court finds, by clear and convincing evidence, any of the following:

[¶] . . . [¶] (10)(A) That the court ordered termination of reunification services 

for any siblings or half siblings of the child because the parent or guardian 

failed to reunify with the sibling or half sibling after the sibling or half 

sibling had been removed from that parent or guardian pursuant to Section 

361 and that parent or guardian is the same parent or guardian described in 

subdivision (a) and that, according to the findings of the court, this parent or 

guardian has not subsequently made a reasonable effort to treat the problems 
5

prior Sacramento dependency proceedings, in which mother received 

reunification services but did not reunify.

The Department reported that when mother was interviewed about the 

allegations in the current petition, she was “emotionally labile,” veering 

between being cooperative and defensive. At times she raised her voice,

cried, and asked to be excused because she needed to vomit. Mother told the 

social worker that she had a traumatic brain injury in 2018 that caused her 

memory problems, but she also said she had fully recovered. She denied that 

her brain injury was from a domestic violence relationship, but mother’s 

friend told the social worker that the injury was from a domestic violence 

incident that occurred with another man after mother divorced J.J. The 

report also attached police reports regarding the 2018 domestic violence 

incident, in which witnesses stated mother’s then-boyfriend, Shamal R., 

punched mother’s head with his fist and stomped on her head with his foot.

Mother admitted the recent domestic violence incidents described in 

the petition, but she denied that S.R. had been in the zone of danger. The 

police reports regarding the incidents in May 2020 and July 2020 state that 

mother told the police that S.R. was near her when R.R. assaulted her. 

Mother denied having mental health issues that prevented her from caring 

for S.R. She acknowledged that she had been diagnosed with postpartum 

depression, fibromyalgia, and bipolar disorder. Mother reported that she was 

no longer employed due to her disabilities and that she received Social 

Security disability benefits. Mother declined to sign a release to allow the 

Department to speak with her physician about whether she was taking her 

prescribed medications.

that led to removal of the sibling or half sibling of that child from that parent 

or guardian.”
6

The Department reported that S.R. was doing well in her foster 

placement. Due to concerns about COVID-19 exposure, the Department 

recommended virtual visitation with mother.

On October 23, 2020, the Department filed an amended petition,

adding an additional allegation under section 300, subdivision (b)(3)

regarding mother’s alleged substance abuse. The new allegation stated that 

mother tested positive for methamphetamine on September 11, 2020, and 

that in June 2019 mother asked a cousin to bring methamphetamine to her 

apartment and they both snorted several lines. Mother then began having 

paranoid thoughts and had a psychotic episode over the next few days in 

June 2019, during which she believed neighbors were “ ‘out to get her,’ ” and 

she wanted to hurt her neighbors. Law enforcement was summoned, it was 

determined that mother was a danger to herself and others, and she was 

transported to a hospital under section 5150.

On October 23, 2020, the Department filed an addendum report, which 

continued to recommend that mother be bypassed for reunification services. 

The Department reported that throughout the prior dependency cases

regarding S.R.’s half siblings, mother tested positive for various substances 

and, ultimately, did not complete the substance abuse treatment she was

offered. Since the detention hearing in the current case, the Department 

asked mother to submit to a drug test eight times. On four occasions, she did 

not test. On September 11, 2020, she tested positive for methamphetamine,

and on other dates she tested positive for benzodiazepine and amphetamine. 

The Department noted that mother had a current prescription for alprazolam

and Adderall. When mother was informed of her positive methamphetamine 

test, she insisted that it was a false positive and that she only uses the drugs 

prescribed by her physician. The Department reported that mother similarly 
7

denied abusing drugs in her prior dependency proceedings regarding S.R.’s 

half siblings despite testing positive for cocaine.

The jurisdiction hearing was held on January 4, 2021. Mother’s 

support person, S.B., testified that S.R. was not with mother during the 

May 13, 2020 domestic violence incident. S.B. saw mother on May 13, 2020, 

and observed bruises on mother’s neck, face and arms, and marks in her 

mouth. S.B. further testified that mother previously had a substance abuse 

problem, five or six years earlier, but S.B. did not believe mother was 

currently abusing drugs. Social worker Melissa Tice testified consistently

with the Department’s reports. Tice also testified that in her experience 

Adderall does not produce a positive test result for methamphetamine.

At the conclusion of the hearing, the juvenile court struck the language 

in the amended petition alleging that S.R. was in the mother’s care during

the May 13, 2020, domestic violence incident. The juvenile court sustained 

the rest of the petition and found S.R. to be a person described in section 300, 

subdivisions (a), (b), (g) and (j). Mother was ordered to complete a 

psychological evaluation and submit to a hair follicle drug test.

C. Disposition Hearing

In advance of the disposition hearing, the Department submitted an 

update reporting that mother’s hair follicle test taken on January 11, 2021,

was positive for amphetamine and methamphetamine. The Department also 

reported that the prior September 11, 2020 toxicology screening was 

confirmed to be positive for both amphetamine and methamphetamine. The 

Department referred mother for an assessment for substance abuse 

treatment, and mother responded in writing, denying that she had a 

substance abuse problem and insisting that she only uses prescribed drugs. 

Mother did not complete a substance abuse assessment.
8

Mother submitted a psychological evaluation report prepared by 

Dr. Weedn, which was admitted into evidence at the disposition hearing. 

Dr. Weedn reviewed the records regarding the dependency proceedings,

interviewed mother, and conducted various psychological assessments.

Dr. Weeden also interviewed mother’s close friend S.B., her personal 

physician, and her mother. Dr. Weeden stated that although mother 

appeared to want to cooperate, she was defensive and refused to talk about 

her past involvement with law enforcement and Child Protective Services. 

Mother explained them away as “ ‘in the past’ ” and not relevant. Mother 

was unable to reflect on her own past behaviors and instead blamed others, 

including social workers and abusive men. She believed that the police and 

social workers misrepresented her words and actions. She stated she 

completed all classes and services offered to her in the past but could not 

recall the names of them or produce certificates of completion. Mother 

contradicted herself regarding her brain injury, which her physician 

explained was the result of a skull fracture she suffered in a domestic 

violence incident that left her in a coma for several weeks. Mother 

acknowledged at one point that she had difficulty with cognition due to the 

injury but then said she was completely recovered.

Dr. Weedn diagnosed mother with generalized anxiety disorder, 

postconcussive syndrome, posttraumatic stress disorder, unspecified 

personality disorder (turbulent) style, and compulsive personality style. 

Dr. Weedn concluded mother’s denial, minimization, and projection lead to 

impaired judgment. She believed that mother may need substance abuse 

treatment, based on her recent positive test for methamphetamine, and that 

mother also requires long-term psychiatric and psychological treatment, 

including trauma-informed care, for her personality disorders.
9

The juvenile court held the disposition hearing on February 8–9, 2021. 

S.B. and mother’s adult daughter K.J. testified on behalf of mother. S.B.

testified that mother’s mental health had improved significantly in the past 

five years and that she was a good mother to S.R. K.J. also testified to 

positive changes in mother, including that mother held herself accountable 

for things she may have done wrong. K.J. lived with her grandmother but 

visited mother on weekends, and observed mother caring for S.R. and 

believed mother was able to meet S.R.’s needs.

The juvenile court found the Department met its burden to show that 

mother had not made reasonable efforts to address her substance abuse or 

domestic violence problems, which continued to exist. It denied family 

reunification services under section 361.5, subdivision (b)(10) and (13), and 

set a section 366.26 hearing for June 3, 2021.

D. Section 388 Petition and Visitation

In May 2021, mother filed a petition under section 388 asking the 

juvenile court to continue the section 366.26 hearing and order six months of 

reunification services. In support of the petition, mother provided 

documentation that since February 2021, she had participated in multiple 

classes and programs regarding parenting, drug abuse and domestic violence, 

as well as joined a counseling group. Mother began weekly mental health 

therapy in April 2021. She alleged that she was maintaining her weekly 

virtual visits with S.R. and that they were close. S.R. knew mother’s voice 

and called her “ ‘mommy’ ” during their visits. The juvenile court found 

mother made a prima facie showing of changed circumstances and granted 

her a hearing on her section 388 petition to be held in conjunction with the 

section 366.26 hearing. The hearings were continued to September 16, 2021.
10

In the interim, the Department filed a motion for a bonding study to 

aid in assessing the bond between mother and S.R. At the hearing on the 

motion, mother’s counsel objected to the bonding study as untimely because it 

had been over 30 days since the bypass order. There was discussion on the 

record regarding the number of in-person visits that would be needed to 

complete a bonding study. S.R.’s counsel and the social worker voiced 

concerns that more than two to three weekly in-person visits would be very 

hard on S.R., and the Department then withdrew its motion for the bonding 

study. Mother’s counsel requested that in-person visits resume in advance of 

the section 366.26 hearing. S.R.’s counsel objected to weekly in-person visits 

on the basis that S.R. had severe reactions to visits. The social worker stated 

that S.R. had severe separation anxiety, and she was concerned about inperson visits without the presence of S.R.’s foster parents. The juvenile court 

ordered one in-person visit for one hour, to be supervised by the Department, 

after which the parties were to return to court for a further hearing.

The Department also requested that the juvenile court order mother to 

sign a release so the Department could speak with her physician regarding 

her medications. The juvenile court stated it would not order mother to sign 

a release; however, it urged her to do so and noted that refusal to do so would 

be considered at the section 366.26 hearing. Mother refused to sign the 

release, but she agreed to another drug test.

On September 1, 2021, the Department filed a report from a social 

worker regarding the in-person visit on August 26, 2021. One social worker 

observed the visit in person, and a second social worker supervised the visit 

virtually. The report stated the social worker met with mother, S.R., and 

S.R.’s foster parents outside. As mother carried S.R. toward the visitation 

room, S.R. looked at her foster parents and began whining. When she 
11

entered the visitation room, S.R. cried and called out for “ ‘mama’ ” multiple 

times.4 Mother brought S.R. toys, a blanket she made, a snack, and a drink. 

Mother attempted to comfort S.R. but was unable to console her or engage 

her in play. S.R. cycled through episodes of whimpering, crying, calling for 

“ ‘mama,’ ” looking at the social worker, then shutting down and becoming 

flat in affect. She looked at mother once briefly as mother tried to play 

peekaboo and then began crying. After 25 minutes, S.R. became inconsolable 

and the visit ended. S.R. stopped crying when she was returned to her foster 

parents. Following the visit, S.R. reportedly remained quieter than usual 

and stayed in very close contact with her foster parents. She had difficulty 

falling and staying asleep through the next day, and she was more easily 

upset and more difficult to console. The social worker reported that although 

mother loved S.R., the Department did not believe in-person visitation was in 

S.R.’s best interests. The Department recommended that visits revert to 

virtual only pending the section 366.26 hearing.

At the September 1, 2021, interim hearing, S.R.’s counsel also 

requested that visitation return to virtual only. Mother stated that the 

Department’s report did not accurately describe the visit and that she was 

able to soothe S.R. The juvenile court considered whether to permit further 

in-person visits but ultimately decided to revert to virtual visits.

E. Section 366.26 Report and Hearing

The Department’s report in advance of the section 366.26 hearing 

recommended termination of parental rights and a plan of adoption. S.R.’s 

foster parents, with whom she had lived since July 2020, when she was five 

months old, wished to adopt her. The Department stated its continuing 

4 Based on the context described in the report, we understand that 

S.R.’s cries for “ ‘mama’ ” referred to her foster mother.
12

significant concerns regarding mother’s parental fitness despite her 

commendable recent progress in programs and classes addressing domestic 

violence, substance abuse, and parenting skills. It noted that due to mother’s 

refusal to sign releases that would allow the Department to speak with her 

health care providers, the Department was unable to determine whether 

mother’s August and September 2021 positive drug tests for benzodiazepine, 

amphetamine and THC were attributable to prescription drugs in the 

prescribed dosages. The Department was also concerned that mother was not 

working with a psychiatrist despite her significant mental health history. 

Mother continued to be emotionally labile, alternating between being 

cooperative and hostile.

The Department further stated that although mother recently 

completed parenting classes, she continued to show a lack of understanding 

regarding S.R.’s emotional cues, as evidenced by the in-person visit in August 

2021. During a telephone conversation between the social worker and 

mother, the social worker attempted to discuss S.R.’s distress and trauma 

response. Mother became defensive and hung up on the social worker. The 

Department did not believe there was a significant change in mother’s 

behavior to warrant continuing the section 366.26 hearing or delaying 

permanency for S.R.

The Department reported that due to public health orders regarding 

COVID-19, the visits were primarily virtual throughout the proceeding. 

Mother consistently attended visits. During the virtual visits, mother was 

excited and happy to see S.R. and talked to her in “ ‘baby talk,’ ” told her she 

loved her, sang to her, and read her books. S.R. often held the phone and ran 

around. She generally did not respond to mother but engaged for short 

periods with the encouragement of her foster parent. The virtual visits often 
13

ended early at mother’s request based on her belief that S.R. needed a nap. 

In addition to the August 2021 in-person visit, the Department reported that 

there were two in-person visits in November 2020 and two in February 2021. 

According to notes from the in-person visits, the Department reported that 

S.R. had difficulty transitioning to the visits and often cried for significant 

periods of time. Mother held S.R., sang to her, and told her she loved her, but 

was not able to engage S.R. in play. S.R. appeared to “zone out” while mother 

held her and sang to her.

S.R. was happy and well cared for in her foster home, where she had 

spent the majority of her life. She identified her foster parents as her parents 

and looked to them to meet her needs. S.R. had substantial emotional ties to 

her foster family, and the Department opined that removing her from their 

care would be detrimental.

The combined section 388 and section 366.26 hearing was held on 

November 19, 2021. Mother testified that she had been participating in the 

Drug Abuse Alternatives Center (DAAC) program for nine months and 

admitted she had been using methamphetamine. The DAAC program 

included relapse prevention, anger management, parenting recovery,

triggers, domestic violence, life skills, and coping skills. She also attended 

domestic violence classes at the YWCA and the Center for Domestic Peace. 

She learned to identify “red flags” for domestic violence and how to protect 

herself. She had a safety plan to guard against domestic violence in the 

future, which included the support of her mother, her “sober sisters,” and the 

YWCA. She also took several parenting classes, where she learned how to 

create a safe environment and establish routines and stability for her 

children. She testified that virtual visits were challenging with a five-monthold, but she did the best she could and became creative by using music boxes 
14

and books. Once, she sang S.R. to sleep. Mother testified that the visits went 

well and denied that S.R. was ever traumatized by them. Regarding her 

medications, mother said her doctor wrote a letter confirming that she had 

valid prescriptions for the medications she took, but she was not able to pick 

it up before the hearing. She acknowledged that she would not allow the 

Department to speak with her doctor. She explained she believed the 

Department would use information from her doctor to attack her. Mother 

believed it was in S.R.’s best interests to be with her biological family.

Grandmother testified that mother had regained her self-esteem, was 

off drugs, and had a good relationship with her older children, who were 

under grandmother’s care. Mother’s older daughter K.J. testified that after 

participating in services, mother’s demeanor improved. She was more 

thoughtful and focused. K.J. believed mother’s issues with domestic violence 

and substance abuse were behind her and that she could provide for S.R.

financially and emotionally.

The Department social worker acknowledged that mother had made 

progress and should be commended for her efforts at seeking services on her 

own. However, she believed that S.R.’s reaction to mother did not evidence 

an emotional attachment. Mother still had difficulty recognizing S.R.’s cues

and was unable to engage her. S.R. did not seem to look forward to the visits,

and she was usually exhausted afterward. S.R. was very comfortable in her 

foster home and was attached to her foster parents. The social worker 

testified that delaying permanency for reunification efforts would be 

detrimental to S.R. S.R. had a stable environment in her foster home, where 

she had lived for the majority of her life. It would not be detrimental to S.R.

to terminate parental rights. S.R. was specifically adoptable, and her need 
15

for stability and permanency outweighed any relationship she had with 

mother.

Mother’s counsel argued that it was in S.R.’s best interests for the 

juvenile court to grant mother’s section 388 petition to allow for six months of 

reunification services. Alternatively, counsel argued for the application of the 

parental benefit exception to termination of parental rights. Counsel for S.R.

and counsel for the Department each argued that although mother’s 

circumstances were in the process of changing, mother did not meet her 

burden of establishing changed circumstances because her programs and 

treatment were not yet completed. They further argued that it was in S.R.’s 

best interest to provide stability and permanency for her. Regarding the 

parental benefit exception, the Department’s counsel argued that mother 

failed to demonstrate S.R. had a significant emotional attachment to mother 

or that termination of parental rights would be detrimental to S.R. Although 

mother loved S.R., she failed to show that their relationship was so strong 

that it outweighed the permanency and stability S.R. would gain from 

adoption.

The juvenile court denied mother’s section 388 petition, finding that 

although mother met her burden of proving a change in circumstances, she 

did not prove that her request for reunification services was in S.R.’s best 

interests. Regarding the section 366.26 hearing, the juvenile court noted it 

was undisputed that S.R. was adoptable. It further found mother failed to 

meet her burden to show the parental benefit exception applied. The court 

noted S.R.’s young age and that she had spent less than one-third of her life 

in mother’s care. It reviewed the factors identified by the Supreme Court in 

In re Caden C. (2021) 11 Cal.5th 614 (Caden C.) and found that mother 

established that there was regular visitation but not that S.R. benefited from 
16

the visits. Instead, there was evidence of negative effects on S.R., which 

mother did not recognize. Finally, the juvenile court explained that the 

exception applies only where there is evidence of a significant, positive 

emotional attachment, which there was not. The court terminated parental 

rights and ordered adoption as S.R.’s permanent plan.

DISCUSSION

I. Section 388 Petition

Section 388 permits a parent to petition the juvenile court for a hearing 

to modify an earlier order based on a change of circumstances or new 

evidence. (§ 388, subd. (a)(1).) To prevail, a parent must show by a 

preponderance of the evidence that (1) there has been a change in 

circumstances or new evidence and (2) the proposed modification would be in 

the best interests of the dependent child. (In re J.M. (2020) 50 Cal.App.5th 

833, 845 (J.M.).) Establishing that the modification is in the child’s best 

interests is a difficult burden in cases where reunification services have been 

terminated or bypassed because after termination of reunification services, 

the focus of a dependency proceeding shifts from the parents’ interest in the 

care, custody, and control of the child to the child’s need for permanency and 

stability. (In re Angel B. (2002) 97 Cal.App.4th 454, 464.) There is a 

rebuttable presumption that continued foster care is in the child’s best 

interest, and that presumption “applies with even greater strength when the 

permanent plan is adoption rather than foster care.” (Ibid.) We review 

orders on section 388 petitions for abuse of discretion. (In re Stephanie M. 

(1994) 7 Cal.4th 295, 318.)

Mother argues the juvenile court abused its discretion when it denied 

her section 388 petition. Specifically, she contends the juvenile court erred 

when it found mother did not meet her burden to show the proposed 
17

modification was in S.R.’s best interest. According to mother, the juvenile 

court erroneously made a simplistic comparison between the care S.R. would 

possibly receive with mother and the care she received in her foster home. 

She relies on J.M., supra, 50 Cal.App.5th 833, and In re I.B. (2020) 53 

Cal.App.5th 133 (I.B.), and argues that these authorities require a more 

nuanced analysis of the child’s best interest than a comparison of the parent’s 

home to the home of the longtime caregivers.

J.M., supra, found that mother’s completion of all required domestic 

violence training and lack of contact with the abusing father for over a year 

constituted changed circumstances where domestic violence was the sole 

basis for dependency jurisdiction. (50 Cal.App.5th at pp. 836–837, 846, 849.) 

It further found that the trial court abused its discretion when it determined 

that placement with mother would not be in the child’s best interest. (Id. at 

p. 851.) One of the factors to consider in determining the child’s best interest 

is the relative strength of the child’s relationship with his or her parent

compared to his or her relationship with his or her caregivers. (Id. at p. 849.) 

J.M. explained that the child’s strong bond with his caregivers was not 

“ ‘dispositive . . . lest it create its own self-fulfilling prophecy.’ ” (Ibid.) In 

J.M. the agency reported that the relationship between mother and her child 

was “blossoming” despite their having only weekly visits. (Ibid.) J.M.’s 

counsel joined in mother’s petition arguing in favor of returning J.M. to 

mother. (Id. at p. 843.) There was evidence from the social worker that 

mother soothed J.M. when he was upset and that J.M. was pleased to see 

mother, which he expressed by smiling and reaching out. (Ibid.) Here, there 

is no similar evidence of a strong bond between mother and S.R.

J.M., supra, is also distinguishable because there, domestic violence 

was the only basis for the dependency petition. (50 Cal.App.5th at pp. 836–
18

837, 846, 849.) Here, mother’s substance abuse and mental health are also at 

issue. Although mother provided evidence that she was participating in the 

DAAC program, she did not permit the Department to speak with her 

physician regarding her prescription medications. Further, Dr. Weedn 

concluded mother needs long-term psychiatric and psychological treatment 

for her personality disorders.

I.B., supra, also involved a mother who overcame domestic violence 

issues and filed a section 388 petition requesting return of her three-year-old

son to her care. (53 Cal.App.5th at pp. 135–136.) The juvenile court granted 

the petition, finding that mother demonstrated changed circumstances and 

that it was in I.B.’s best interests to be returned to her care. (Id. at p. 150.) 

There was evidence that I.B. was bonded with mother, who was a constant 

and positive presence in his life. (Id. at p. 159.) The Court of Appeal 

explained that even the evidence of bonding may not be enough to rebut the 

presumption that adoption by the foster family was in I.B.’s best interests.

(Id. at p. 160.) However, there was also overwhelming evidence that I.B. was 

being abused in his foster placement by his older brother, who had extreme 

emotional and behavioral issues. (Id. at pp. 160–161.) Under those

circumstances, the Court of Appeal found no abuse of discretion in granting 

mother’s petition to return I.B. to her care. (Id. at p. 162.) In contrast, here 

there was no evidence S.R. was bonded with mother; nor was there any 

evidence that her foster placement was detrimental. Rather, the evidence 

showed that S.R. was happy and well cared for by her foster parents and that 

she had substantial emotional ties to them.

Mother further argues that her petition should have been granted to 

“rectify two years of errors in failing to provide her with meaningful 

visitation with her infant turned toddler.” Citing In re Hunter S. (2006) 142 
19

Cal.App.4th 1497 (Hunter S.), mother claims that her visitation was 

“ ‘illusory’ ” given that most of the visits were virtual, which even the juvenile 

court stated was “basically worthless” with a child S.R.’s age. The 

Department argues that mother has forfeited this argument because she did 

not raise it below as part of her section 388 petition. (See In re Malick T. 

(2022) 73 Cal.App.5th 1109, 1127 [forfeiture rules apply in dependency 

cases].)

In her reply brief, mother argues that she complained about visitation 

at “every opportunity . . . .” However, the record citation she provides is to 

the June 3, 2021 hearing at which the juvenile court agreed to grant a 

hearing on mother’s section 388 petition.5 At that hearing, mother’s counsel 

requested visitation be increased to weekly visits and the court agreed. 

There was no discussion as to whether the visits would be virtual or in 

person. Mother’s section 388 petition, filed prior to the June 3, 2021 hearing,

stated she was maintaining her relationship with S.R. through virtual visits. 

Neither in mother’s written section 388 petition nor at the June 3, 2021 

5 Mother’s reply brief also cites to the January 4, 2021, jurisdiction 

hearing but does not provide the correct reporter’s transcript page number. 

Our own review of the transcript for the January 4, 2021, hearing reveals 

that mother’s counsel noted mother was receiving only virtual visits but did 

not request a change in visitation. The Department social worker clarified 

that the visits were initially virtual and then beginning in November 2021 

there were several in-person visits and then after a shelter-in-place order the 

virtual weekly visits resumed. The social worker stated mother missed one of 

the in-person visits without notice and she often ended the virtual visits 

early. At this point, the juvenile court questioned how much an infant 

benefits from a virtual visit but stated virtual visits are better than no visits. 

It was in this context that the court stated, “[T]here is a lot of information 

that says that these visits are basically worthless,” before commenting that it 

may be best for the infant if the virtual visits ended early, as mother often 

requested. The juvenile court then proceeded with the contested jurisdiction 

hearing.
20

hearing did she specifically request in-person visitation. It was not until the 

August 11, 2021 hearing to consider the Department’s request for a bonding 

study that mother requested in-person visitation, which she was granted on a 

trial basis. At the combined section 366.26/section 388 hearing, mother’s 

counsel argued both that virtual visits “hugely impacted” mother’s ability to 

bond with S.R. and that her visits and interactions with S.R., including the 

in-person visit in August 2021, went well and were beneficial to S.R. On this 

record, we agree with the Department that mother has forfeited the

argument that her section 388 petition should have been granted as a remedy 

for a lack of meaningful visitation because she failed to raise this issue below. 

(In re Malick T., supra, 73 Cal.App.5th at p. 1127.)

However, even if we did not find the argument forfeited, we would 

reject it. Mother’s reliance on Hunter S. is inapposite. There, the juvenile 

court ordered visitation “ ‘as can be arranged,’ ” but the child refused to visit 

despite efforts by a social worker, relatives, and his therapist. (Hunter S., 

supra, 142 Cal.App.4th at p. 1501.) The Court of Appeal found that the order 

was improper because it essentially gave the minor complete discretion to 

veto visitation. (Id. at p. 1505.) Here, visitation was permitted, albeit 

virtually for most of the proceedings due to shelter-in-place orders and 

COVID-19 health concerns. When mother requested in-person visitation in 

August 2021, the juvenile court granted the request for an initial visit. The 

record does not show that mother requested in-person visits prior to August 

2021. (See In re Sofia M. (2018) 24 Cal.App.5th 1038, 1046 [stating that it is 

the parent’s burden to initiate motions to modify visitation orders and that 

“[t]he court does not err by failing to do that which it is not requested to do”].) 

After receiving a report from the Department social worker that the August 

26, 2021, in-person visit was detrimental to S.R., the juvenile court acted 
21

within its discretion by discontinuing in-person visitation and resuming 

virtual visits. (§ 366.21, subd. (h) [after family reunification has been 

bypassed, visitation must continue unless the court finds it would be 

detrimental to the child].)

II. Termination of Parental Rights

Mother contends the juvenile court erred in terminating her parental 

rights because it (1) improperly relied upon the lack of a “ ‘parental 

relationship’ ” (boldface omitted), (2) failed to consider the parent–child

relationship in the context of the visitation allowed, and (3) improperly 

considered a possible promise of postadoption contact between mother and 

S.R. Mother argues these aspects of the juvenile court’s reasoning violate the 

criteria for determining the applicability of the parental benefit exception, 

which was recently clarified by the Supreme Court in Caden C., supra, 11 

Cal.5th 614. We find no error.

A. Legal Framework

At a section 366.26 hearing, the juvenile court selects a permanency 

plan for the dependent child. (§ 366.26, subd. (b).) At this stage of the 

proceedings, if the juvenile court finds by clear and convincing evidence that 

the child is likely to be adopted, “the court shall terminate parental rights 

and order the child placed for adoption.” (§ 366.26, subd. (c)(1).) However, 

section 366.26, subdivision (c) provides certain enumerated exceptions which

permit the juvenile court, “ ‘in exceptional circumstances [citation], to choose 

an option other than the norm, which remains adoption.’ ” (Caden C., supra, 

11 Cal.5th at p. 631.) The exception relevant here is the parental benefit

exception. (§ 366.26, subd. (c)(1)(B)(i).) To prove this exception applies, the 

parent must establish “(1) regular visitation and contact, (2) a relationship, 

the continuance of which would benefit the child such that (3) the termination 
22

of parental rights would be detrimental to the child.” (Caden C., at p. 631, 

original italics.) As to the first element, the juvenile court considers whether 

the parent visits consistently, “taking into account ‘the extent permitted by 

court orders.’ ” (Id. at p. 632.) As to the second element, the court assesses

whether the child has a “substantial, positive, emotional attachment to the 

parent . . . .” (Id. at p. 636.) In making this determination, the proper focus 

is on the child, and the court may consider 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.)

Regarding the third element, the juvenile court decides “whether the 

harm of severing the parental relationship outweighs ‘the security and the 

sense of belonging a new family would confer.’ ” (Caden C., supra, 11 Cal.5th

at p. 633.) As explained by the Supreme Court, the juvenile court is not 

comparing the parent’s attributes as custodial caregiver to those of the 

potential adoptive parents. Instead, “the question is just whether losing the 

relationship with the parent would harm the child to an extent not 

outweighed, on balance, by the security of a new, adoptive home.” (Id. at p. 

634.)

B. Standard of Review

Caden C., supra, clarified that determinations regarding the parental 

benefit exception are reviewed under a hybrid standard of review. (11 

Cal.5th at pp. 639–640.) As to the first two elements, which are factual 

determinations, the reviewing court applies a substantial evidence standard 

of review. (Ibid.) The third element—whether termination of parental rights 

would be detrimental to the child—is reviewed for abuse of discretion. (Id. at 

pp. 640–641.) An abuse of discretion occurs only when “ ‘ “ ‘the trial court has 
23

exceeded the limits of legal discretion by making an arbitrary, capricious, or 

patently absurd determination.’ ” ’ ” (Id. at p. 641.) If two or more inferences 

can reasonably be deduced from the facts, the reviewing court may not 

substitute its judgment as to what is in the child’s best interests. (Ibid.)

C. Analysis

Mother contends the juvenile court’s statement that during mother’s 

visits she “had not in effect been a parent . . . because the child was too 

young” was improper because Caden C. does not use the “ ‘parental role’ ” 

label and post-Caden C. decisions do not use the label and, instead, examine 

the relationship on a case-by-case basis. (See In re L.A.-O. (2021) 73 

Cal.App.5th 197, 210–212.) We find no error. The juvenile court carefully 

considered the criteria discussed in Caden C. and determined the evidence 

did not support a finding of a “significant, positive emotional attachment.” 

(Caden C., supra, 11 Cal.5th at p. 636.) The juvenile court first determined 

there had been regular visitation. (Caden C., at p. 632.) It then considered 

S.R.’s young age and the fact that she spent less than one-third of her life 

with mother. (Ibid.) Most significantly, the juvenile court considered the

impact of the visits on S.R. and found that there was evidence the visits had a 

negative effect on S.R. and that mother did not recognize the negative 

impact. In discussing the visits, the juvenile court commented that mother 

“has not been a parent” during the visits. The juvenile court then concluded,

“[T]he [parental benefit] exception applies only where the visits have resulted 

in a significant, positive emotional attachment. [¶] The evidence does not 

support that. In fact, the evidence suggests there is not a significant, positive 

emotional attachment.”

We recognize that Caden C. does not use the words “ ‘parental role’ ” in 

its analysis of the parental benefit exception (In re L.A.-O., supra, 73 
24

Cal.App.5th at p. 210 & fn. 3), and that other courts have found it improper 

for a juvenile court to rely primarily on a parent’s failure to act in a parental 

role in determining whether the parental benefit exception applies. (E.g., In 

re D.M. (2021) 71 Cal.App.5th 261, 270–271 [holding court erred in equating 

“parental role” with attendance at medical appointments and understanding 

medical needs, and remanding for determination of whether there is a 

“substantial, positive emotional attachment”]; In re J.D. (2021) 70 

Cal.App.5th 833, 864, 870 [finding “parental” descriptor to be vague and 

unhelpful and remanding to determine whether child had substantial, 

positive emotional attachment to the parent as discussed in Caden C.]; In re 

L.A.-O., supra, at pp. 211–212 [same].) However, here, we find no error 

because the record establishes that the juvenile court properly focused its 

determination on whether there was evidence of a “significant, positive 

emotional attachment,” and its finding that there was not is supported by the 

social worker’s testimony regarding S.R.’s reactions to the visits. (See In re 

Katherine J. (2022) 75 Cal.App.5th 303, 319–320 [affirming juvenile court’s 

determination that parental benefit exception did not apply where court 

found father did not occupy a “ ‘significant parental role’ ” and there was a 

lack of a strong, positive attachment, which was supported by substantial 

evidence].)

Next, mother argues the juvenile court erred by failing to evaluate the 

visitation and contact between mother and S.R. in terms of “ ‘the extent 

permitted by court orders’ ” as stated in Caden C. (Caden C., supra, 11 

Cal.5th at pp. 639–640.) The record does not support mother’s position. The 

juvenile court, in fact, found that mother established regular visitation, 

which satisfied the first portion of the parental benefit exception. (Caden C., 

at p. 632.) Mother again argues that the visitation was ineffective and 
25

prevented her from establishing a bond with S.R. As discussed ante, mother 

argued the opposite below when she asserted that she and S.R. had 

established a bond through their weekly visitation, most of which was 

virtual. Further, although Caden C. discussed visitation in the context of 

what is permitted by court orders, the overriding focus of the parental benefit

exception is whether there is evidence of a “ ‘significant, positive, emotional 

attachment from child to parent.’ ” (Caden C., at p. 632.) Nothing in 

Caden C. suggests that this standard should be altered depending upon the 

type of visitation offered to the parent.

Mother further argues the juvenile court improperly relied on the 

promise of the prospective adoptive parents to allow contact and “attempted 

to induce [mother] to accept the adoption of her daughter . . . [based] on 

expectations that she would be allowed to continue to be a second mother to 

[S.R.].” She relies on In re S.B. (2008) 164 Cal.App.4th 289, which found the 

juvenile court erred when it found the parental benefit exception did not 

apply. (Id. at p. 300.) The juvenile court in S.B. recognized that S.B. would 

benefit from continuing her relationship with her father but based its 

decision to terminate parental rights in part on the grandparent caregivers’ 

willingness to allow the father to continue to visit S.B. The Court of Appeal 

reversed, finding “a parent should not be deprived of a legal relationship with 

his or her child on the basis of an unenforceable promise of future visitation 

by the child’s prospective adoptive parents.” (Id. at pp. 298–300, 303; see In 

re C.B. (2010) 190 Cal.App.4th 102, 128 [finding that in determining whether 

beneficial relationship exception applies, it is improper to consider 

prospective adoptive parents’ willingness to allow the children to continue 

contact with birth parent].)
26

The record does not support mother’s contention that the juvenile court 

improperly relied on any “unenforceable promise of future visitation” by the 

prospective adoptive parents. The Department reported that it informed both 

the prospective adoptive parents and mother about the possibility of entering 

into a written agreement pursuant to Family Code section 8165.5, to arrange 

for continued contact between mother and S.R. after adoption, and that it

made a referral to the Consortium for Children. The Department further 

reported that mother was not interested in exploring a plan for postadoption

contact and was focused only on having S.R. returned to her care. Unlike in 

In re S.B. and In re C.B., the juvenile court here found that S.R. did not have 

a strong emotional attachment to mother, and it then “suggest[ed]” that 

mother “change [her] mindset” and “[e]xplore” the opportunity to plan for 

future contact with S.R. Nothing in the record suggests that the juvenile 

court based its ruling on “an unenforceable promise of future visitation” to 

which mother had not even agreed. Instead, the juvenile court simply 

suggested that mother might wish to reconsider exploring the possibility of 

postadoption contact with S.R.

III. ICWA

Mother argues that the juvenile court never made a definitive ICWA 

finding as to S.R. or determined if the Department complied with its duties

under ICWA. The Department concedes, and the record reflects, that 

although mother initially denied Native American heritage, on July 23, 2020, 

she informed the Department that she had Apache ancestry “ ‘out of San 

Antonio, Texas.’ ” She identified an uncle, L.R., as having a family tree but 

said he refused to provide information to the family. The Department sent

notices to eight Apache tribes, which included information about some of 

mother’s relatives, but did not reference her uncle, L.R.
27

At the initial hearing on July 15, 2020, the court stated that ICWA may 

apply and reserved the issue. The Department’s September 16, 2021, section 

366.26 report stated that two of the tribes it notified did not respond and that 

the other tribes responded that S.R. was ineligible for membership. The 

report recommended that the juvenile court find that ICWA does not apply. 

At the combined section 388/section 366.26 hearing, neither party raised the 

ICWA issue and the juvenile court did not make any findings regarding 

ICWA.

The juvenile court must decide whether ICWA applies in every 

dependency proceeding. (In re D.S. (2020) 46 Cal.App.5th 1041, 1048.) 

Sections 224.2 and 224.3 specify the steps the Department and the juvenile 

court are required to take in determining a child’s possible status as an 

Indian child and in providing ICWA notices. (In re D.S., at pp. 1048–1049.) 

Here, as the Department concedes, the juvenile court failed to make any 

ICWA findings prior to terminating parental rights. Accordingly, we will 

remand for the juvenile court to ensure compliance with ICWA and the 

related directives of sections 224.2 and 224.3.

DISPOSITION

The order denying mother’s section 388 petition is affirmed. The order 

terminating parental rights is conditionally affirmed and remanded to the 

juvenile court for the limited purpose of determining whether the 

Department discharged its duty of inquiry and notice under sections 224.2 

and 224.3, and whether ICWA applies. If the juvenile court determines that 

ICWA does not apply, the order terminating parental rights shall remain in 

effect. If the court determines ICWA applies, it shall vacate its order 

terminating parental rights and proceed in accordance with ICWA and 

related state law.
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_________________________

Jackson, P. J.

WE CONCUR:

_________________________

Simons, J.

_________________________

Wiseman, J.*

A164102/Sonoma County Dept. of Human Services v. A.R.

* Retired Associate Justice of the Court of Appeal, Fifth Appellate 

District, assigned by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.