Filed 9/14/22 In re O.E. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re O.E., a Person Coming Under 

the Juvenile Court Law.

 B314713

 

 (Los Angeles County

 Super. Ct. No. DK23763)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

KIMBERLY M. et al.,

Defendants and Appellants.

APPEAL from orders of the Superior Court of Los Angeles 

County, Susan Ser, Judge; Steven Ipson, Juvenile Court Referee. 

Reversed with directions.
2

Jacques Alexander Love, under appointment by the Court 

of Appeal, for Defendant and Appellant Kimberly M.

Elizabeth Klippi, under appointment by the Court of 

Appeal, for Defendant and Appellant Orlando E.

Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, 

Assistant County Counsel, and Tracey Dodds, Principal Deputy 

County Counsel, for Plaintiff and Respondent. 

____________________________________

INTRODUCTION

Kimberly M. and Orlando E., mother and father of fiveyear-old O.E., appeal from the juvenile court’s orders terminating 

their parental rights under Welfare and Institutions Code section 

366.26.

1 They contend the court erred in ruling the parentalbenefit exception to adoption in section 366.26, 

subdivision (C)(1)(b)(i), did not apply. They also contend the Los 

Angeles County Department of Children and Family Services 

failed to comply with the inquiry requirements of the Indian 

Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and related 

California law.

Because the juvenile court did not follow the analysis the 

Supreme Court prescribed in In re Caden C. (2021) 11 Cal.5th 

614 for determining whether the parental-benefit exception

applies, we agree with Kimberly and Orlando the court erred in 

ruling it did not apply. We also agree with Kimberly, Orlando, 

and the Department that neither the Department nor the 

juvenile court complied with ICWA’s inquiry requirements. 

1 Undesignated statutory references are to the Welfare and 

Institutions Code. 
3

Therefore, we reverse the orders terminating parental rights, 

remand for a new hearing under section 366.26, and direct the 

juvenile court to ensure the Department complies fully with the 

inquiry and, if necessary, notice provisions of ICWA and related 

California law.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Juvenile Court Sustains a Petition Under 

Section 300 and Removes O.E. 

In August 2017, when O.E. was not quite two months old, 

the Department detained him from Kimberly and Orlando and 

filed a petition asserting juvenile court jurisdiction under 

section 300, subdivision (b)(1). The Department alleged O.E. was 

at substantial risk of serious physical harm as a result of, among 

other things, his positive toxicology screen for marijuana after his

birth, Kimberly’s history of substance abuse, her current use of 

marijuana that rendered her incapable of providing regular care 

and supervision of O.E., Orlando’s history of illicit drug use, and 

Orlando’s current use of amphetamine and methamphetamine 

that rendered him, too, incapable of providing regular care and 

supervision of O.E. 

At the detention hearing, the juvenile court found the 

Department made a prima facie showing O.E. was a person 

described by section 300 and ordered him to remain detained. 

The court ordered monitored visits for Kimberly and Orlando

with O.E. a minimum of three times a week for three hours each 

visit. The court also ordered weekly random and on-demand 

drug testing for Kimberly and Orlando. 
4

In a jurisdiction and disposition report filed in September 

2017, the Department indicated that since the detention hearing 

Kimberly had missed two drug tests and on one occasion tested 

positive for amphetamine, methamphetamine, and cannabinoids. 

Orlando had also missed two drug tests. The Department stated

that on September 21, 2017 Kimberly and Orlando reported they 

“had weekly monitored visits with [O.E.] . . . each Tuesday, 

Thursday, and Friday from 9am to 12pm.” 

 In October 2017 the juvenile court held a combined 

jurisdiction and disposition hearing. The court sustained all 

allegations in the petition, found O.E. came within its jurisdiction 

under section 300, subdivision (b)(1), declared him a dependent 

child of the court, and removed him from Kimberly and Orlando. 

The court ordered reunification services for both parents that 

included a drug and alcohol program and continued weekly drug 

testing. The court also ordered that both parents could have 

monitored visits with O.E. three times a week for three hours 

each visit. 

B. The Juvenile Court Returns O.E. to Kimberly

For the six-month review hearing in April 2018, the 

Department reported that Kimberly and Orlando had monitored 

visits with O.E. three days a week for three hours each visit, that 

both parents were consistent with their visitation, and that the 

visits were “going well.” At the hearing, the juvenile court found 

that Kimberly and Orlando were in partial compliance with their 

case plans and that returning O.E. to his parents’ physical 

custody would create a substantial risk of detriment to his safety, 

protection, or physical or emotional well-being. The court ordered 

family reunification services to continue. 
5

For the 12-month review hearing in October 2018, the 

Department reported that Kimberly was “progressing well with 

her Court ordered services,” including her drug treatment 

program, and that on September 1, 2018 the Department had 

liberalized her visits with O.E. so that they were unmonitored 

and occurred an additional day each week. Orlando had

monitored visits two days a week for three hours each visit. At 

the hearing the juvenile court found that Kimberly’s compliance 

with her case plan was “substantial, but not absolutely complete,”

that Orlando’s was “partial,” and that returning O.E. to his 

parents’ physical custody would create a substantial risk of 

detriment to his safety, protection, or physical or emotional wellbeing. The court ordered family reunification services to continue 

for both parents and granted the Department discretion to 

liberalize both parents’ visits with O.E., as well as discretion to 

return O.E. to either parent.

For the 18-month review hearing in April 2019, the 

Department reported that Kimberly was living in a sober living 

home where she had “had six unmonitored overnight weekend 

visits with” O.E., which went well. The Department stated that 

Kimberly “demonstrate[d] the parenting skills she [had] learned 

effectively” and that O.E. appeared “to have a healthy 

attachment” to her. The Department recommended placing O.E. 

with Kimberly at the sober living home and providing her family 

preservation services. The Department recommended against 

returning O.E. to Orlando because, though Orlando was visiting 

O.E. consistently, he had only partially complied with his case 

plan. At the hearing the juvenile court returned O.E. to 
6

Kimberly and ordered family maintenance services for Kimberly 

and enhancement services for Orlando.2

C. The Department Files a Supplemental Petition Under 

Section 387, and the Juvenile Court Detains O.E. 

from Kimberly

For a section 364 review hearing in October 2019, the 

Department reported Kimberly had “struggled with her sobriety 

and relapsed twice,” testing positive for methamphetamine in 

May and June 2019. Kimberly admitted she had “‘used’ again” 

and stated, “I just wanted to numb myself because I have been 

having some problems with [O.E.’s] dad.” Kimberly had moved 

out of the sober living home and was “disconnected from her 

recovery supports.” She and O.E. were living in the home of 

Orlando’s father. At a meeting with the Department, Kimberly

agreed to participate in family preservation services to avoid 

having O.E. removed from her again. The Department reported 

that Orlando was not in compliance with his case plan and was 

not cooperating with the Department, but that, according to 

Kimberly, he visited O.E. weekly. At the hearing the juvenile 

court found Kimberly and Orlando were in partial compliance 

with their case plans and ordered O.E. to remain placed with 

Kimberly. 

2 “Enhancement services” are “‘child welfare services offered 

to the parent not retaining custody, designed to enhance the 

child’s relationship with that parent.’” (In re Destiny D. (2017) 

15 Cal.App.5th 197, 212; see In re A.C. (2008) 169 Cal.App.4th 

636, 642, fn. 5 [“‘enhancement’ services are ‘not designed to 

reunify the child with that parent, but instead to enhance the 

child's relationship with that parent by requiring that parent to 

address the issues that brought the child before the court’”].)
7

In July 2020 (after the juvenile court continued a second 

section 364 review hearing) the Department filed a supplemental

petition under section 387, asking the court to place O.E. with a 

foster caregiver. The Department alleged Kimberly was 

incapable of providing regular care and supervision of O.E. 

because, among other things, she was currently abusing

marijuana, methamphetamine, and alcohol; was not participating 

in a drug program with weekly testing, as ordered by the court;

and in June 2020 was arrested for bringing controlled substances 

into a prison, in violation of Penal Code section 4573. 

The Department reported that on June 29, 2020 Orlando’s 

father informed the Department that law enforcement had 

executed a search warrant at his home that morning and 

arrested Kimberly. The search warrant was for 

methamphetamine and related paraphernalia. O.E. was not with 

Kimberly at the time, but with his previous foster parents, 

Jessica and Malia R. The Department spoke with Kimberly’s 

roommate, Connie, who said Kimberly had “not been honest” 

about her drug use and knew “how to manipulate the system,” for 

example by getting high only immediately after her drug tests. 

Connie stated that Kimberly’s drug of choice was 

methamphetamine and that when Kimberly used drugs she 

would keep O.E. in the room with her all day and not let him out,

though O.E. cried and said, “I want out.” Asked about the search 

warrant and Kimberly’s arrest, Connie said Kimberly had been 

smuggling drugs to Orlando, who was in jail after having been 

arrested in January 2020 for drug-related offenses. The 

Department confirmed Kimberly had been arrested for violating 

Penal Code section 4573. 
8

On July 22, 2020 the juvenile court held a detention 

hearing on the supplemental petition. Kimberly and Orlando 

were incarcerated and not present. Finding O.E.’s continued 

placement with Kimberly would create a substantial risk of 

detriment to his safety, protection, or physical or emotional wellbeing, the court detained O.E. from Kimberly and ordered family 

reunification services for her and Orlando.

D. The Juvenile Court Sustains the Supplemental 

Petition and (Again) Removes O.E.

In a September 2020 jurisdiction and disposition report, the 

Department indicated O.E. was again living in the home of

Jessica and Malia R., where he appeared happy, comfortable, and 

affectionate toward his caregivers. Kimberly and Orlando 

remained incarcerated. The Department reported that, in 

searching the home of Orlando’s father, law enforcement found 

methamphetamine, scales, and baggies, which resulted in 

Kimberly’s arrest. A Los Angeles County Sheriff’s Department 

report reflected that Kimberly admitted smuggling 

methamphetamine into a jail facility for Orlando. Kimberly was 

released shortly after her June 29, 2020 arrest, but she was 

arrested again on July 22, 2020, this time for violating probation 

conditions related to a previous offense. She was now serving a 

three-year sentence, with a scheduled release date of (as the 

Department later reported) October 2021. Orlando was 

scheduled for release on March 6, 2021. 

In March 2021 the juvenile court held a jurisdiction 

hearing on the supplemental petition and sustained it, finding all 

allegations true. The court continued the disposition hearing for 

the Department to file a last minute information regarding 
9

Kimberly’s and Orlando’s progress in their programs. The 

Department did so, reporting that Kimberly was participating in 

several programs at her place of incarceration. The Department

also reported that, after Orlando was released from incarceration 

on March 6, 2021, the Department monitored a visit between him 

and O.E., during which both appeared “very happy.” Three days 

after the visit, Orlando tested positive for amphetamine and 

methamphetamine. 

At the disposition hearing, held later in March 2021, the 

juvenile court removed O.E. from Kimberly, declined under 

section 361.5, subdivision (a)(3)(A), to order family reunification 

services for her or Orlando, and ordered monitored visitation for 

both parents. The court set the matter for a selection and 

implementation hearing under section 366.26. 

E. The Juvenile Court Terminates Kimberly’s and 

Orlando’s Parental Rights

In a July 2021 report for the section 366.26 hearing, the 

Department indicated O.E. was having weekly monitored visits 

with Orlando and weekly monitored telephone visits with 

Kimberly. The Department reported that Orlando’s visits with 

O.E. were “appropriate and productive,” with O.E. appearing 

“happy and comfortable around” Orlando. In the one telephone 

visit between Kimberly and O.E. the Department described, O.E. 

appeared reluctant to talk with his mother. When his caregivers 

prompted him to speak with her on the telephone, he answered, 

“I don’t want to. Do I have to?” When they answered yes, O.E. 

and Kimberly had a short conversation in which Kimberly 

“inquired as to his wellbeing.” O.E. answered her questions with 

“yes” or “no” and did not appear “engaged” in the conversation.
10

The Department recommended the court terminate Kimberly’s 

and Orlando’s parental rights. 

Orlando, for his part, filed a section 388 petition, seeking to 

have the court return O.E. to his care or, in the alternative, to 

have the court reinstate Orlando’s family reunification services 

or, as another alternative, to have his visits with O.E. liberalized. 

Orlando cited, among other things, his completion of parenting 

classes and a 12-step recovery program, and argued O.E. had 

“developed a close bond with” him and loved to spend time with 

him. In an attached declaration, Orlando described his progress 

in programs relating to parenting and substance abuse and his 

current weekly visits with O.E. Orlando stated: “Our weekly 

monitored visits are great and productive. The social worke[r] 

has observed that my son and I have a strong bond and that we 

enjoy spending time together. My son demonstrates how much 

he wants me in his life, as well as how much he looks up to me.”

Orlando also requested a bonding study for him and O.E., which 

the juvenile court denied. 

On August 31, 2021 the juvenile court held an evidentiary 

hearing on Orlando’s section 388 petition and the hearing under 

section 366.26. Orlando was present, and Kimberly, who 

remained incarcerated, appeared telephonically. The court began 

by addressing the section 388 petition, admitting into evidence, 

among other items, Orlando’s petition and attachments. Orlando

testified, summarizing his progress in programs relating to 

parenting and substance abuse and describing his recent weekly 

visits with O.E. He testified that at the start of these visits O.E. 

would smile and run to him, give him a hug, and then remain by 

him, not letting Orlando out of his sight. During the visits O.E. 

also invited Orlando to his house and wanted to show him “things 
11

in his room.” Orlando stated O.E. looked up to him “as a strong 

male role model.” The court denied Orlando’s petition. 

Turning to the section 366.26 hearing, the juvenile court 

received into evidence Orlando’s section 388 petition and his 

testimony from the hearing on the petition and heard testimony 

from Kimberly. Kimberly testified she was scheduled for release 

on September 12, 2021. She stated that, before she was 

incarcerated, O.E. lived with her for “about a year and a half.” 

She also testified that, while incarcerated, she visited with O.E. 

twice each week by telephone and that, during these visits, O.E. 

would tell her that he loved her and missed her. Counsel for 

Kimberly and counsel for Orlando argued the court should not 

terminate their clients’ parental rights because of the parentalbenefit exception under section 366.26, subdivision (c)(1)(B)(i). 

The juvenile court terminated Kimberly’s and Orlando’s 

parental rights, finding no exception to adoption applied. The 

court stated: “The court notes that mother and father’s visitation 

has been seemingly appropriate and pleasant. No issues with the 

visitation. But the court also finds that, as to father, he has not 

served a parental role in this minor’s life. . . . Since the minor 

was two months old, when this case started, the father has not 

been, really, a father to the minor. But the court does note that 

recently father’s visits have been appropriate. But the court 

cannot find that the father’s bond with the child is more than just 

an emotional bond. The court cannot find that he serves [a] 

parental role in this child’s life.” 

The juvenile court continued: “As to mother, the court is 

very concerned with what happened when the child was in the 

mother’s care. Mother had an opportunity, a very great 

opportunity, to keep the child in her care when child was 
12

returned to her. But she squandered that when she diced by 

bringing narcotics to the father while in custody while the child 

was in her care. I think that decision is revealing as to how 

committed she is to the child’s welfare.”3

The juvenile court concluded: “The court cannot find that 

terminating parental rights would be detrimental to the child, 

when the child is in a safe home with caregivers that love him 

and want to give him stability. And the court cannot find that 

the child would be greatly harmed by terminating parental 

rights. . . . Court finds that any benefit to the child from the 

relationship with mother and father is outweighed by the 

physical and emotional benefit of adoption and stability and 

permanency of the adoption and that adoption is in the best 

interests of the child.” Kimberly and Orlando timely appealed.4

3 The juvenile court appeared to use the word “diced” to 

mean “gambled” or “gambled away.”

4 In addition to appealing from the juvenile court’s order 

terminating his parental rights, Orlando appealed from the order 

denying his section 388 petition. Because he raises no arguments 

in his briefs concerning the latter order, however, he has 

abandoned that aspect of his appeal. (See In re M.B. (2022) 80 

Cal.App.5th 617, 620, fn. 1.) 
13

DISCUSSION

A. The Juvenile Court Erred in Determining Whether the 

Parental-benefit Exception Under Section 366.26, 

Subdivision (c)(1)(B)(i), Applied

1. Applicable Law and Standard of Review

“To guide the court in selecting the most suitable 

permanent arrangement” for a dependent child “who cannot be 

returned to a parent’s care,” section 366.26 “lists plans in order of 

preference and provides a detailed procedure for choosing among 

them.” (In re Caden C., supra, 11 Cal.5th at p. 630; see § 366.26, 

subd. (b); In re A.L. (2022) 73 Cal.App.5th 1131, 1149.) If the 

court finds that the child “is likely to be adopted” and that “there 

has been a previous determination that reunification services be 

terminated, then the court shall terminate parental rights to 

allow for adoption.” (Caden C., at p. 630; see § 366.26, subd. 

(c)(1); In re Katherine J. (2022) 75 Cal.App.5th 303, 316.) “But if 

the parent shows that termination would be detrimental to the 

child for at least one specifically enumerated reason, the court 

should decline to terminate parental rights and select another 

permanent plan.” (Caden C., at pp. 630-631; see § 366.26, subd. 

(c)(1)(B)(i)-(vi), (4)(A); In re B.D. (2021) 66 Cal.App.5th 1218, 

1225.)

One of those reasons, the parental-benefit exception, 

requires the parent to establish by a preponderance of the 

evidence (1) “the parent has regularly visited with the child,” 

(2) “the child would benefit from continuing the relationship,” 

and (3) “terminating the relationship would be detrimental to the 

child.” (In re Caden C., supra, 11 Cal.5th at p. 629; see § 366.26, 
14

subd. (c)(1)(B)(i); In re L.A.-O. (2021) 73 Cal.App.5th 197, 206.) 

“The first element—regular visitation and contact—is 

straightforward. The question is just whether ‘parents visit 

consistently,’ taking into account ‘the extent permitted by court 

orders.’” (Caden C., at p. 632; see In re Katherine J., supra, 

75 Cal.App.5th at p. 316.)

To establish the second element, that the child would 

benefit from continuing the parental relationship, the parent 

must show the child has a “substantial, positive, emotional 

attachment to the parent—the kind of attachment implying that 

the child would benefit from continuing the relationship.” (In re 

Caden C., supra, 11 Cal.5th at p. 636; see In re J.D. (2021) 

70 Cal.App.5th 833, 854.) The “focus is the child,” and “the 

relationship may be shaped by a slew of factors, such as ‘[t]he age 

of the child, the portion of the child’s life spent in the parent’s 

custody, the “positive” or “negative” effect of interaction between 

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

p. 632; see J.D., at p. 854.) “[C]ourts often consider how children 

feel about, interact with, look to, or talk about their parents.” 

(Caden C., at p. 632; see J.D., at p. 854.)

“Concerning the third element—whether ‘termination 

would be detrimental to the child due to’ the relationship—the 

court must decide whether it would be harmful to the child to 

sever the relationship and choose adoption.” (In re Caden C., 

supra, 11 Cal.5th at p. 633; see In re Katherine J., supra, 

75 Cal.App.5th at p. 317.) “When it weighs whether termination 

would be detrimental, the court is not comparing the parent’s 

attributes as custodial caregiver relative to those of any potential 

adoptive parent(s) . . . . Accordingly, courts should not look to 

whether the parent can provide a home for the child.” (Caden C., 
15

at p. 634; see Katherine J., at p. 317.) “When the relationship 

with a parent is so important to the child that the security and 

stability of a new home wouldn’t outweigh its loss, termination 

would be ‘detrimental to the child due to’ the child’s beneficial 

relationship with a parent.” (Caden C., at pp. 633-634; see 

Katherine J., at p. 317.)

A “substantial evidence standard of review applies to the 

first two elements. The determination that the parent has visited 

and maintained contact with the child ‘consistently,’ taking into 

account ‘the extent permitted by the court’s orders’ [citation] is 

essentially a factual determination. It’s likewise essentially a 

factual determination whether the relationship is such that the 

child would benefit from continuing it.” (In re Caden C., supra, 

11 Cal.5th at pp. 639-640; see In re Katherine J., supra, 

75 Cal.App.5th at p. 317; In re L.A.-O., supra, 73 Cal.App.5th at 

p. 206.)

“The third element—whether termination of parental 

rights would be detrimental to the child—is somewhat different. 

As in assessing visitation and the relationship between parent 

and child, the court must make a series of factual 

determinations. . . . [¶] Yet the court must also engage in a 

delicate balancing of these determinations as part of assessing 

the likely course of a future situation that’s inherently 

uncertain. . . . The court makes the assessment by weighing the 

harm of losing the relationship against the benefits of placement 

in a new, adoptive home. And so, the ultimate decision—whether 

termination of parental rights would be detrimental to the child 

due to the child’s relationship with his parent—is discretionary 

and properly reviewed for abuse of discretion.” (In re Caden C., 

supra, 11 Cal.5th at p. 640; see In re Katherine J., supra, 
16

75 Cal.App.5th at p. 318; In re L.A.-O., supra, 73 Cal.App.5th at 

p. 206.)

2. The Juvenile Court Failed To Consider the 

Second Element of the In re Caden C. Analysis

The first element of the parental-benefit exception 

identified in In re Caden C.—that the parent regularly visited 

with the child—is not in dispute; the juvenile court appears to 

have ruled Kimberly and Orlando met their burden on that 

element. What the parties dispute is whether the court properly 

analyzed the second element: that the child would benefit from 

continuing the parental relationship. And we agree with 

Kimberly and Orlando the court erred in analyzing that element. 

More accurately: The court skipped the second-element analysis 

for Kimberly, and to the extent it conducted the analysis for 

Orlando, the court’s analysis was not consistent with In re 

Caden C. 

As the Supreme Court in Caden C. emphasized, “when 

examining whether the parent-child relationship exception 

applies it is critical for the juvenile court at the second step of the 

analysis to consider the evidence showing whether the parent’s 

actions or inactions ‘continued or developed a significant, 

positive, emotional attachment from child to parent.’” (In re B.D., 

supra, 66 Cal.App.5th at p. 1230.) And evaluating whether such 

an attachment existed between the parent and the child is, in 

turn, “crucial to the third step of the analysis, weighing the harm 

of severing the natural parent/child relationship to the benefits of 

a new adoptive home.” (Id. at p. 1228.) 

Here, the juvenile court’s statements at the selection and 

implementation hearing under section 366.26 suggest the court 
17

wholly neglected to examine the nature of the relationship 

between Kimberly and O.E., as required in the second step of the 

analysis prescribed by In re Caden C. The court made no 

comment whatsoever on the existence or nature of O.E.’s 

attachment to Kimberly. Instead, the court expressed concern 

about Kimberly’s smuggling drugs to Orlando, which the court 

suggested reflected her lack of commitment to O.E.’s welfare. 

But even assuming that suggestion was well taken, it established

nothing about O.E.’s attachment to Kimberly. (See In re D.M.

(2021) 71 Cal.App.5th 261, 270 [the Supreme Court in In re 

Caden C. “made clear the beneficial relationship exception is not 

focused on a parent’s ability to care for a child”].) 

Similarly, the juvenile court did not properly examine 

O.E.’s attachment to Orlando. Again, the court made no 

comment on the existence or nature of such an attachment. 

Rather, without indicating what it meant by the phrase, the court

found Orlando had not “served a parental role” in O.E.’s life. 

“Unfortunately, the words ‘parental role’ standing alone, can 

have several different meanings. . . . [¶] They can mean being a 

good parent—nurturing, supportive, and guiding. Caden C., 

however, tells us that the parental-benefit exception does not

require being a good parent . . . .” (In re L.A.-O., supra, 

73 Cal.App.5th at p. 210; see In re Caden C., supra, 11 Cal.5th at 

p. 634; In re Katherine J., supra, 75 Cal.App.5th at p. 319 [In re 

Caden C. “requires juvenile courts to do more than summarily 

state that a parent has not occupied a parental role in his child’s 

life”]; In re D.M., supra, 71 Cal.App.5th at p. 270 [juvenile court’s 

decision that parental-benefit exception did not apply was based 

on improper factors where, “[w]hile focusing on whether father 

occupied a ‘parental role’ in the children's lives, . . . the court said 
18

nothing about the attachment between father and his children”].) 

The court’s comment that Orlando’s bond with O.E. was “just an 

emotional bond” further suggests the court did not apply the 

proper legal standard: It is precisely a substantial and positive

“emotional attachment to the parent” (In re Caden C., at p. 636)

that a court must look for. 

Thus, the juvenile court did not apply the correct legal 

standard, as set forth in In re Caden C., when the court evaluated 

(or failed to evaluate) the second element of the parental-benefit 

exception. In some cases, such an error might be harmless: 

“[W]hen a juvenile court applies the wrong legal standard in 

rejecting the beneficial relationship exception, reversal is not 

warranted if the parent did not introduce evidence that would 

permit a finding in their favor under the correct legal standard.” 

(In re J.R. (Aug. 22, 2022, A164334) __ Cal.App.5th __, __ [2022 

WL 3582652, at p. 1].) But not here. 

The record shows that, at various points in the case, the 

Department observed O.E. had developed “a healthy attachment”

to, “a strong bond” with, and “a strong attachment” to Kimberly. 

Kimberly testified at the section 366.26 hearing that, at the 

conclusion of her telephone visits with O.E. while she was 

incarcerated, O.E. would say, “I love you. I miss you.” (See In re 

Caden C., supra, 11 Cal.5th at p. 632 [“courts often consider how 

children feel about, interact with, look to, or talk about their 

parents”].) Similarly, at the section 366.26 hearing, Orlando 

testified that, during his visits with O.E., O.E. greeted him 

enthusiastically and wanted Orlando to come to his house and 

that O.E. looked to him as a role model. Orlando also presented 

evidence a social worker had observed that he and O.E. had “a 

strong bond” and that O.E. demonstrated he wanted Orlando in 
19

his life.

5 Given this evidence, the juvenile court’s error in

analyzing the second element of the parental-benefit exception 

was not harmless. 

Nor was the juvenile court’s error harmless because the 

court recited, in conclusory fashion, that “any benefit to the child 

from the relationship with mother and father is outweighed by 

the physical and emotional benefit of adoption and stability and 

permanency of the adoption.” (Italics added.) As the Supreme 

Court explained in In re Caden C., a determination on the third 

element of the parental-benefit exception rests on “a series of 

factual determinations” and requires “a delicate balancing of 

these determinations,” “weighing the harm of losing the 

[parental] relationship against the benefits of placement in a 

new, adoptive home.” (In re Caden C., supra, 11 Cal.5th at 

p. 640.) A court cannot accurately weigh the harm to a child of 

losing a parental relationship without first evaluating the nature 

of that relationship—in particular, the nature of the child’s 

attachment, if any, to the parent. 

5 As stated, Orlando requested—and the juvenile court 

denied—a bonding study. Orlando does not argue the court erred 

in denying his request. As the Supreme Court observed, 

however, “often expert psychologists who have observed the child 

and parent and can synthesize others’ observations will be an 

important source of information about the psychological 

importance of the relationship for the child.” (In re Caden, supra, 

11 Cal.5th at pp. 632-633.) Consequently, “[t]rial courts should 

seriously consider, where requested and appropriate, allowing for 

a bonding study or other relevant expert testimony.” (Id. at 

p. 633, fn. 4.) 
20

B. The Juvenile Court and the Department Failed To 

Comply with the Inquiry Requirements Under ICWA 

and Related California Law

ICWA provides that, “where the court knows or has reason 

to know that an Indian child is involved, the party seeking the 

foster care placement of, or termination of parental rights to, an 

Indian child shall notify the parent or Indian custodian and the 

Indian child’s tribe . . . of the pending proceedings and of their 

right of intervention.”6 (25 U.S.C. § 1912(a); see In re Isaiah W. 

(2016) 1 Cal.5th 1, 5; In re J.C. (2022) 77 Cal.App.5th 70, 76.) 

“This notice requirement, which is also codified in California law 

[citation], enables a tribe to determine whether the child is an 

Indian child and, if so, whether to intervene in or exercise 

jurisdiction over the proceeding.” (Isaiah W., at p. 5; see § 224.3; 

In re Y.W. (2021) 70 Cal.App.5th 542, 551; In re T.G. (2020) 58 

Cal.App.5th 275, 288.)

“[J]ust as proper notice to Indian tribes is central to 

effectuating ICWA’s purpose, an adequate investigation of a 

family member’s belief a child may have Indian ancestry is 

essential to ensuring a tribe entitled to ICWA notice will receive 

it.” (In re T.G., supra, 58 Cal.App.5th at p. 289.) Section 224.2, 

subdivision (a), provides that courts and child protective agencies 

“‘have an affirmative and continuing duty to inquire whether a 

6 “‘ICWA defines an “Indian child” as “any unmarried person 

who is under age eighteen and is either (a) a member of an 

Indian tribe or (b) is eligible for membership in an Indian tribe 

and is the biological child of a member of an Indian tribe.”’” (In 

re H.V. (2022) 75 Cal.App.5th 433, 437; see 25 U.S.C. § 1903(4); 

§ 224.1, subd. (a).)
21

child for whom a petition under Section 300 . . . is to be, or has 

been, filed is or may be an Indian child.’”7 (See In re Isaiah W., 

supra, 1 Cal.5th at p. 9; In re H.V. (2022) 75 Cal.App.5th 433, 

437.) Section 224.2, subdivision (b), requires the child protective 

agency to ask the child, parents, legal guardian, and “extended 

family members,” among others, “whether the child is, or may be,

an Indian child.” (In re J.C., supra, 77 Cal.App.5th at p. 77; see 

In re Antonio R. (2022) 76 Cal.App.5th 421, 429-430; In re Y.W., 

supra, 70 Cal.App.5th at p. 552; Cal. Rules of Court, rule 

5.481(a)(1).) “Thus, a juvenile court errs in making a finding

ICWA does not apply to the proceedings without first ensuring 

that the Department has made an adequate inquiry under ICWA 

and California law, and if necessary, the court must continue the 

proceedings and order the Department to fulfill its

responsibilities.” (Antonio R., at p. 431; see § 224.2, subd. (i)(2).)

The record reflects that early in this case Kimberly and 

Orlando reported to the Department and the juvenile court that 

neither they nor O.E. had any Indian ancestry.

8 Thereafter, at 

the August 2017 detention hearing, the juvenile court found it did 

not have a reason to know O.E. was an Indian child. In August 

2021, at the section 366.26 hearing, the court found it had no 

7 Federal regulations implementing ICWA also require the 

court to “‘“ask each participant in an emergency or voluntary or 

involuntary child-custody proceeding whether the participant 

knows or has reason to know that the child is an Indian child”’” 

and to “‘“instruct the parties to inform the court if they 

subsequently receive information that provides reason to know 

the child is an Indian child.”’” (In re Y.W., supra, 70 Cal.App.5th 

at p. 551; see 25 C.F.R. § 23.107(a).)

8 They also denied having “any Native American Heritage.”
22

reason to believe O.E. was an Indian child and no reason to know 

ICWA applied. 

But Kimberly and Orlando contend, the Department 

concedes, and we agree the Department did not comply with its 

duty of inquiry because it failed to ask known and readily 

available members of O.E.’s extended family about whether O.E.

was or might be an Indian child. Those family members include 

O.E.’s paternal grandfather, a paternal aunt, and two maternal 

aunts. Therefore, the juvenile court erred in finding ICWA did 

not apply, and we direct the court to ensure the Department 

conducts a proper inquiry. (See In re J.C., supra, 77 Cal.App.5th

at p. 74; In re Antonio R., supra, 76 Cal.App.5th at p. 426.)

DISPOSITION

The juvenile court’s orders terminating Kimberly’s and 

Orlando’s parental rights under section 366.26 are reversed. The

juvenile court is directed to conduct a new section 366.26 hearing 

and a proper analysis of the parental-benefit exception consistent 

with In re Caden C., supra, 11 Cal.5th 614. The juvenile court is 

also directed to ensure the Department complies fully with the 

inquiry and, if necessary, notice provisions of ICWA and related 

California law.

 SEGAL, J. 

We concur: 

PERLUSS, P. J. FEUER, J.