Filed 12/30/22 In re A.S. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

In re A.S., a Person Coming Under 

the Juvenile Court Law.

B320026

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

ASHLEY S.,

Defendant and Appellant.

(Los Angeles County

Super. Ct. No.

19CCJP02108A)

APPEAL from an order of the Superior Court of 

Los Angeles County, Jean M. Nelson, Judge. Affirmed.

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

Defendant and Appellant.

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

Assistant County Counsel, and Kimberly Roura, Senior Deputy 

County Counsel, for Plaintiff and Respondent.
2

Ashley S. (Mother) appeals a court order terminating her 

parental rights to her child, A.S. (Welf. & Inst. Code, § 366.26.)1

Mother contends that her rights should not have been terminated 

because (1) she regularly visited A.S., who would benefit from 

continuing the relationship (id., subd. (c)(1)(B)(i)), and (2) the 

requirements of the Indian Child Welfare Act (ICWA) are unmet. 

(25 U.S.C.S. § 1901 et seq.; Welf. & Inst. Code, § 224 et seq.) We 

find no error.

Mother consistently visited; however, substantial evidence 

shows that A.S. is upset by the visits and does not want to see 

Mother more often. After years of services, Mother’s visits are 

still monitored, owing to her mental health and drug issues. To 

A.S.’s detriment, Mother “sought to undermine” the foster home 

where A.S. has lived since she was 10 weeks old. (In re Caden C. 

(2021) 11 Cal.5th 614, 637–638 (Caden).) There was no showing 

that A.S. would be harmed by severing their relationship.

Any deficiency in the ICWA inquiry did not cause a 

miscarriage of justice. (Cal. Const., art. VI, § 13.) Mother denied 

Indian ancestry; no evidence shows that her denials are incorrect 

or that A.S. has Indian ancestry. Because there is no reason to 

believe A.S. is Indian, any failure to inquire of extended family 

members was harmless. We affirm.

1 Undesignated statutory references are to the Welfare and 

Institutions Code.
3

FACTS AND PROCEDURAL HISTORY

Prior Appeals2

A.S. was born in January 2019. Two months later, Mother 

was hospitalized under section 5150. Disturbed by A.S.’s crying, 

she “was screaming at the child to ‘shut up’ and observed [A.S.] 

stiffen up in fear.” She did not want to harm A.S. and “called for 

help before things ‘escalated.’ ” Mother yelled obscenities at a 

social worker (CSW) from respondent Los Angeles County 

Department of Children and Family Services (DCFS), who took 

A.S. into protective custody. (In re A.S., supra, B298229.)

Mother has a history of mental illness and attempted 

suicide. She is estranged from family and smokes marijuana to 

calm herself. She took A.S. to the hospital a month after birth; 

the baby was dehydrated and so underweight that her ribs were 

showing. Mother “had thoughts of hurting” A.S. but did not act 

on them. She was filled with anxiety and had yelled at A.S., who 

would not stop crying. Before police came to take her to the 

hospital, Mother was on the phone with psychiatric emergency 

services for over seven hours. (In re A.S., supra, B298229.)

After A.S. was returned to her care, Mother called DCFS 

incessantly to threaten any CSW who might come to her home to 

assess A.S.’s welfare. Concerned, DCFS obtained a removal order 

2 In this section, we summarize facts from Mother’s prior 

appeals: In re A.S. (May 1, 2020, B298229 [nonpub. opn.] 

(addressing jurisdiction and disposition); In re A.S. (Oct. 30, 

2020, B304450 [nonpub. opn.] (from an order declining to give 

Mother custody at the six-month review hearing); and 

In re A.S. (May 17, 2021, B308364 [nonpub. opn.] (from an order 

declining to return A.S. to Mother’s custody at the 12-month 

review hearing).
4

for A.S.; Mother cursed and threatened the CSW who carried out 

the order. DCFS filed a petition alleging that A.S. is at risk of 

serious harm because Mother cannot provide regular care or 

protect or supervise A.S. owing to mental illness, postpartum 

depression, and use of marijuana. The court detained A.S.

because Mother posed a substantial threat to her and ordered 

monitored visits at the DCFS office because Mother made threats 

against A.S.’s caregivers. (In re A.S., supra, B298229.)

Mother did not understand why she was involuntarily 

hospitalized when she felt overwhelmed and needs parenting 

help. At age 12, she was depressed from being bullied and 

attempted suicide. She said, “I do not have any family member 

or friend for support.” A.S.’s father did not visit or provide care 

or financial support. (In re A.S., supra, B298229.)

Mother became “tense and nervous” during visits with A.S.

She felt safe and supported by DCFS staff in the visiting room 

and was frustrated that A.S. is bonding with the caregivers. 

Mother did not disclose her marijuana use to her psychiatrist, 

who “highly does NOT recommend for mother to mix her current 

psychotropic medications with marijuana since that will prevent 

her having effective outcome from her medications to address her 

current mental health needs.” She continued to panic when A.S. 

cried during visits. (In re A.S., supra, B298229.)

Mother brought a stroller containing cat feces to a visit. 

A.S.’s maternal grandfather (MGF), who has a minimal 

relationship with Mother, told DCFS he found cat feces all 

around her home and asked DCFS to assess whether the home is 

safe for a baby. MGF voiced concern about Mother’s history of 

substance abuse. (In re A.S., supra, B298229.)
5

The court sustained the petition on May 23, 2019, citing 

Mother’s mental health problems and marijuana use, which

interferes with prescribed medication. The unsanitary condition 

of her home “reflects a problem with [her] mental health” and is 

unsafe for an infant. The court declared A.S. a dependent, 

removed her from parental custody, and ordered Mother to take 

prescribed medications and participate in random drug testing, a 

parenting program, and counseling. Visits with A.S. were 

monitored. Mother appealed. We affirmed the jurisdictional 

findings and disposition. (In re A.S., supra, B298229.)

After disposition, Mother received assistance during visits.

She was upset that A.S. slept during visits. She blamed DCFS 

for her problems. During a visit, Mother was upset when A.S. 

cried and kicked away a bottle of formula. Despite being told 

that A.S. did not want to eat, Mother “ ‘attempted to force the 

bottle into [A.S.’s] mouth when she was crying extremely loud.’ ” 

The monitor told Mother not to “ ‘force feed’ ” the baby; Mother 

objected that she was not forcing A.S. A.S. stopped crying when 

Mother laid her down, then resumed when Mother picked her up. 

(In re A.S., supra, B304450.)

Mother tested positive for marijuana and amphetamine. 

She denied marijuana use, attributed the amphetamine result to 

her Adderall medication, and failed to appear for the next four 

drug tests. Mother tried to feed A.S. pureed food while she cried; 

the baby gagged. Mother then tried a bottle until the monitor 

told her that A.S. did not want to eat. Mother had to be coached 

how to calm A.S. (In re A.S., supra, B304450.)

Mother had assistance to keep a safe home but gave “lots of 

excuses to postpone the cleaning and sanitizing [of] her home.” 

There was cat litter strewn about. Mother did not understand 
6

the gravity of the situation or do basic cleaning, and the home 

was unsafe for A.S. CSW saw a sewing needle on the floor and an 

unclean carpet. Mother said she spreads a blanket on the floor to 

cover everything. (In re A.S., supra, B304450.)

In August 2019, the court ordered DCFS to assess if Mother 

can have unmonitored visits or custody of A.S. Though she was 

taking medication and attending psychiatric appointments,

Mother’s psychologist stated that she “made very little progress” 

and cannot complete tasks. (In re A.S., supra, B304450.)

Police responded to a violent dispute in Mother’s home. 

Her roommate Christina Z. threatened the lives of Mother, 

Mother’s cat, and A.S.; while armed with a knife, she bit and 

scratched Mother. Christina said Mother photographed the 

foster parents’ license plate to locate their home, with plans to 

kidnap A.S. and murder the caregivers. Mother allegedly bound,

injured, and threatened to kill Christina, who escaped and called 

police. She accused Mother of using drugs, prostitution, and 

wanting custody of A.S. so she could receive welfare benefits to 

buy drugs. (In re A.S., supra, B304450.)

Mother said she picked up Christina in the streets to live in 

her home. DCFS was concerned that Mother lives with, in her 

words, a “convicted felon” and “psychotic.” Mother did not advise 

DCFS that Christina was in her home. Their altercation showed 

Mother’s poor judgment and reflects on her mental stability. In 

October 2019, the court denied Mother’s request for unmonitored 

visits. (In re A.S., supra, B304450.)

Mother blamed DCFS for her shortcomings. She did not 

“take [A.S.’s] cues.” When A.S. spat out food, Mother insisted she 

finish the jar. Mother told A.S., “I would appreciate it if you 

didn’t look at [foster father] like he’s your mother; it really hurt 
7

my feelings.” At a visit, Mother stared at A.S. for five or six 

minutes in silence, until the monitor directed her to read to A.S. 

Mother fed the baby in a rush with large spoonfuls, then objected 

when told to slow down and reduce the portion so that A.S. would 

not spit it out. (In re A.S., supra, B304450.)

The agency monitoring Mother’s visits said she is “more 

confident and less anxious.” Her relationship with the foster 

family was strained after she photographed their car and license 

plate. She tested positive for amphetamine, due to her Adderall

prescription, which her psychiatrist believes helps her focus. She 

participated in services but her mental stability and limited 

support system continued to be a concern. She visited A.S. twice 

a week and wished to see her more often, but still needed

coaching with A.S., especially with food. She also needed 

coaching to clean her house. (In re A.S., supra, B304450.)

At a contested review hearing in December 2019, the court 

noted Mother’s efforts and progress but found that returning A.S. 

posed a substantial risk of detriment to the child’s safety, 

protection, or well-being; Mother “is not yet in substantial 

compliance with the case plan” despite some progress toward 

alleviating the causes necessitating placement. Mother appealed 

the denial of her request for custody. This court affirmed, 

concluding that Mother had not eliminated the conditions leading 

to A.S.’s removal, and taking “an incremental approach” was not 

an abuse of discretion. (In re A.S., supra, B304450.)

In February 2020, DCFS suspected Mother was using 

drugs. She did not comply with directions to resume drug 

testing. She consistently visited A.S. but forgot necessities, 

including food, and once stuffed A.S.’s diapers with paper towels 

after forgetting diapers and refusing the ones provided by A.S.’s 
8

caregivers. She had trouble when A.S. was fussy and said odd 

things such as “your grandfather is basically dead to us,” which 

A.S. did not understand. Her house had piles of cat litter and 

“stuff,” which prevented visits from taking place there. (In re 

A.S., supra, B308364.)

Mother did not consent to services recommended by A.S.’s 

doctor in 2019 because she did not want A.S.’s caregivers to 

participate. At uncoached visits, she was “observed to have 

difficulty with the child.” The court denied Mother’s request for 

unmonitored visits in June 2020 because she “often and recently 

acted in erratic ways,” tested positive for marijuana and missed 

tests. She accused the drug lab of using “dirty pee” and faking 

her failure to test; she accused DCFS of instructing the lab to 

alter her urine samples; and accused the caregivers of trying to 

“steal” A.S. She stopped attending psychotherapy. (In re A.S., 

supra, B308364.)

At the 12-month hearing in October 2020, Mother asked 

the court to return A.S. to her care. The court denied Mother’s 

request because of her positive drug tests. Over the objections of 

DCFS, the court ordered unmonitored visits. On appeal, we 

affirmed the court’s order. (In re A.S., supra, B308364.)

Subsequent Reports and Proceedings

In November 2020, DCFS asked the court to reinstate visit 

monitoring. Mother yelled at CSW, who was trying to arrange 

visits; CSW had to hang up the phone. At an unmonitored visit, 

A.S. hit her head and sustained an abraded, swollen lip. Two 

weeks later, she returned from Mother’s home with abrasions on 

her spine and shoulder. Mother said the caregivers caused the 

injuries. She twice tested positive for methamphetamine, and

accused CSW, the drug testing lab, and A.S.’s doctors of bias. 
9

Mother prevented A.S. from seeing development experts. DCFS 

felt Mother’s mental health issues persisted. She uses drugs and 

believes DCFS plans “to sell” A.S.

The court reinstated visit monitoring and ordered Mother 

to test for drugs weekly and undergo a psychological evaluation.

It transferred educational rights to A.S.’s caregivers. In

February 2021, a USC mental health evaluator reported that 

Mother has a personality disorder, trauma and stress disorder, 

cannabis use disorder, substance abuse disorder with presumed 

stimulant use, and attention deficit/hyperactivity disorder

(ADHD). Her mental conditions could interfere with her ability 

to safely parent A.S.

The report details the course of DCFS proceedings. It notes 

that Mother’s positive tests for methamphetamine resulted from 

use of the drug, not from any over-the-counter medication. 

Mother blamed her positive results for cannabis on her proximity 

to someone who uses it, and attributed her methamphetamine

results to Nyquil, Adderall, or alteration of her urine sample by 

the drug testing lab.

The evaluation states that Mother was diagnosed with 

ADHD in childhood; she reported long-standing “issues with 

mood” and a suicide attempt at age 12. She did not medicate for 

her conditions for over a decade, until the DCFS case began. Her 

toxicology test results suggest that she does not take Adderall 

consistently. Mother had no idea why this case is still underway. 

She said she responded to DCFS “bullying” with anger. Now, she 

tries to compliment DCFS staff, though she doubts they are 

trying to help her.

The evaluator opined that Mother’s mental conditions could 

impair parenting by affecting bonding or her ability to monitor or 
10

supervise A.S. It could cause distress to the child and result in 

missed appointments and limited care, treatment, and education. 

Lack of family support is a concern. A.S.’s developmental delays 

demand a high level of parental attention, patience, and care. 

Mother has low tolerance of frustration, high emotional 

reactivity, and lacks empathy. This affects her interactions with 

DCFS and willingness to secure recommended care for A.S. 

Substance abuse significantly impacts parenting. A.S. is at risk 

of inconsistent care and supervision from Mother’s functional 

deficits, if they remain untreated.

The evaluator recommended that Mother have weekly 

psychotherapy with someone trained in personality disorders, 

trauma, and substance abuse; a long-term substance abuse 

treatment program; psychiatric medication with monitoring for 

adherence; parenting programs; and supervised visitation with 

A.S. Future reunification would depend on Mother’s adherence 

with court orders and treatment, and demonstration of effective 

parenting skills.

In a status review, DCFS reported that on April 4, 2019, 

Mother signed a Parental Notification of Indian Status 

(ICWA-020) form, and the court found no reason to know A.S. is 

an Indian Child; she was ordered to keep DCFS, the court, and 

her attorney aware of any new information relating to ICWA 

status. The court also determined that Steven R. is A.S.’s alleged 

father.

A.S., age two, is well cared for; her caregivers take her to

medical visits and arranged for development services once they 

obtained educational rights. A.S.’s speech is progressing; she can 

now put words together. She receives services to address selfharming behavior at bedtime.
11

Mother lives with a friend and is reconnecting with MGF. 

She participates in services, takes prescribed medications, and

insists that she never used methamphetamine. DCFS agreed to 

monitor longer visits and Mother agreed to have positive 

communications with DCFS. Her coached visits with A.S. are 

consistent and go well. Mother said she saw “drugs” between 

A.S.’s toes, which CSW observed was lint from the child’s socks. 

The whereabouts of A.S.’s alleged father are unknown. Mother 

has a tense relationship with the caregivers, who said she made 

false accusations about them. They asked that Mother’s virtual

visits with A.S. be monitored. Mother was angry that A.S. called 

her caregiver “daddy.”

DCFS wrote that Mother genuinely loves A.S., visited 

consistently, and improved her parenting skills. However, “it 

appears that mother continues to struggle with mental health 

issues and drug use, which [affect] behavior and instability.” 

DCFS reported that in April to May 2021, Mother tested positive 

for marijuana four times and failed to test once. DCFS asked the 

court to terminate reunification services.

At the hearing on May 17, 2021, DCFS argued that Mother 

has not progressed after more than two years of services. The

sustained petition relates to her mental health and marijuana 

use, yet she continues to use marijuana, in high amounts, and 

has not seen her therapist since June 2020. Mother believes she 

reached her treatment goals, but her mental health evaluation 

recommends weekly therapy to address personality disorders and 

substance abuse. Mother is self-medicating and creating 

impediments to reunification.

Counsel for A.S. asked the court to terminate Mother’s 

services. After acknowledging Mother’s love for A.S., counsel 
12

argued she has not made substantial progress. She recently used

marijuana and is not adherent with prescribed medication. She

“is not grounded in reality which poses a risk to the child,” 

fabricated accusations against the caregivers and her therapist, 

and harmed A.S. by refusing developmental services.

Mother addressed the court. She denied ever taking 

methamphetamine and said she uses marijuana to help cope with 

the “meth accusations” and the dependency proceeding.

Mother’s counsel argued that DCFS did not provide 

reasonable services. Mother participated in the case plan and 

had meaningful visitation. She denied using methamphetamine. 

Even if her positive drug tests are correct, DCFS failed to show 

that Mother’s drug use affects her ability to parent or poses a risk 

to A.S. The mental health report ruled out psychotic disorders. 

Her thinking is logical and any conflict she has with DCFS is 

caused by stress. She and A.S. have a strong bond. Mother was

not assisted in finding a therapist who specializes in personality 

disorders.

The court terminated services because “the problems that 

brought the case in persist with little or no change over time.” 

Mother is using a “really high” amount of marijuana “as a crutch 

and to self-medicate,” though it interferes with her prescribed 

medication. She does not regularly take Adderall. The court 

cited Mother’s conflicts with the caregivers, the visitation 

monitor, and DCFS as showing a mental health problem. She 

“elevates quickly” when confronted or challenged, and children 

present daily challenges as they become independent. A.S. “is a 

very young child, so Mother’s mental health must be more stable 

than it has been.”
13

The court praised Mother for seeking help when she had an 

aggressive response to her newborn, but “she has not been able to 

progress further.” The mental health evaluation showed the 

same problems that were present when the case started. 

Mother’s “overreaction to basic things and people” affect “her 

judgment and ability to parent.” Her refusal to obtain 

developmental services for A.S. “because she was angry and 

frustrated that the caregivers have developed a bond” with A.S. 

“was not in the best interest of her child.”

The court concluded that returning A.S. to Mother’s 

physical custody would create a substantial risk of detriment, 

DCFS made reasonable efforts to offer Mother services, and her 

progress was not substantial. It set a hearing to select a 

permanent plan. Mother’s visits must be monitored.

After the hearing, DCFS attempted to locate alleged father 

Steven R., but was unsuccessful without having his birthdate. 

He never visited A.S. or contacted DCFS. The court ordered 

notice by publication.

DCFS submitted a report for the section 366.26 hearing. 

A.S. had a “steady weight gain” and growth, despite Mother’s 

insistence that she is underweight. Mother threatened to sue the 

pediatrician and DCFS. A.S. developed language skills with

speech therapy and receives services for self-harming behavior.

A.S. is adoptable. Her caregivers are approved for adoption 

and wish to provide a permanent and loving home. She has lived 

with them since she was 10 weeks old and they are bonded. 

DCFS recommended adoption as the permanent plan. Mother 

and A.S. enjoy each other’s company during monitored visits. 

She still panics when A.S. cries. The court continued the section 
14

366.26 hearing, at Mother’s request, and ordered a bonding 

study.

While awaiting the bonding study, DCFS reported that A.S. 

refers to the caregivers as her parents. Her language skills have 

increased, with use of multiword sentences and good enunciation. 

During a visit, Mother became upset when A.S. referred to the 

caregiver as “mom.” Mother told A.S. that the caregiver “is a 

thief. She wants to steal you from me.” CSW reprimanded

Mother, who would not listen. She was “angry and loud.” CSW 

warned Mother not to “badmouth” the caregivers in front of A.S. 

Mother replied that if A.S. refers to the caregivers as her parents, 

she “will continue to let [A.S.] know that they are thieves.” She 

feels they are “lying to the child saying they are her family.” 

Mother complained that A.S. used the word “vagina,” saying the 

caregivers “must be exposing her to inappropriate sexual 

behavior and must be raping her.” The monitor did not hear A.S. 

use that word. Mother threatened to “sue everyone.” DCFS 

received a referral alleging child abuse by the caregivers but

rejected it as Mother’s effort to jeopardize A.S.’s placement. CSW 

fears Mother has a negative impact on A.S., who is closely bonded 

to the caregivers.

At a hearing, the court said it was “very concerned [Mother] 

is trying to sabotage the placement” and instructed the visitation 

monitor to end visits when Mother says anything inappropriate.

In February 2022, DCFS reported that it took A.S. to 

monitored visits, twice a week, for three years. Mother said the 

caregivers are teaching A.S. to be prejudiced against “fat people,” 

which they denied. Mother asked CSW, “Is that why they lie and 

try to steal from me? Because they are also illegally prejudiced?” 

CSW tried to discuss this with Mother but she screamed and 
15

yelled, and CSW had to end the call. After seeing Mother, A.S.

tells her dolls, “no, no, that is not your mom.” She stops herself 

when she calls the caregiver “mom” and seems confused. A.S.’s 

teacher wrote that when A.S. returns to school after visiting

Mother, she is “teary-eyed” and “really upset” when asked what 

is wrong. The bonding study was delayed because Mother did not 

make an appointment for four months.

The psychologist’s bonding study was filed in March 2022. 

Mother admitted marijuana use but denied methamphetamine

use. She blamed DCFS and her lawyer for A.S. being in foster 

care. After watching three visits, the evaluator observed that 

A.S. has “a strong attachment” to the caregivers; she was 

reluctant to leave them and ran to them, suddenly animated and

happy, when visits end. A.S. did not try to sit near Mother, 

climbed off Mother’s lap, shook her head “no” when Mother asked 

if she would like to see Mother more often, and did not reply

when Mother said, “I love you,” at the end of a visit. A.S. was 

hungry, but Mother did not bring food to the visit. A.S. was not 

upset when visits end. The caregivers reported that before visits 

with Mother, A.S. had nightmares and “peed in her pants, though 

she was fully potty trained.”

The evaluator “was struck” that A.S. “did not make 

affectionate moves” toward Mother, turning her face away three 

times when Mother tried to kiss her cheek and resisting getting 

in Mother’s lap. A.S. asked if she could take a treat from Mother 

“home,” i.e., to the caregivers. The visitation monitor said that 

after visits A.S. says she wants to “go home” or see “Muti and 

Papa” (the caregivers). A.S. regressed when her usual monitor 

was on vacation, suggesting that she may not feel safe with 

Mother without the monitor present.
16

The study concludes that A.S.’s “primary attachments or 

bonds are with the caregivers, since she has been with them since 

she was 10 weeks old. . . . In her mind, they are her parents. Her 

relationship with [Mother] appears to be one of a playmate or 

now-familiar adult who cares about her and gives her rewards 

and treats.”

DCFS reported that Mother recorded visits with A.S. in 

violation of a court order, but refused to stop when asked to do so. 

She told the monitor to “call your bitch off,” referring to CSW. 

Mother was upset when A.S. said, “I am going to home to see my 

family,” and told the child, “I am your family.” She demanded 

that A.S. be removed from the caregivers. DCFS wrote that 

Mother’s visits “upset and confuse” A.S. The maternal 

grandmother (MGM) spoke to CSW and asked to care for A.S. 

MGM never visited A.S. in three years, saying “there were too 

many cooks in the kitchen.” CSW called MGM when A.S. was 

detained in 2019, but MGM did not return the call.

The section 366.26 hearing was conducted in April 2022. 

The court granted the caregivers de facto parent status, over 

Mother’s objection. Mother testified that she has visited A.S. 

twice a week, for two hours, for three years. They read, watch 

television, play games, and paint A.S.’s nails. The relationship is 

very affectionate and A.S. says, “I love you.”

After initially stating that her relationship with DCFS is 

“friendly,” Mother next said it is “contentious.” She tried to get 

along but DCFS had no interest and would not help with 

reunification unless the court pushed it. CSW “gaslit” Mother 

when MGM called to express interest in adopting A.S. Mother 

admitted having a bad relationship with the foster parents 
17

because they are dishonest, kept her away from A.S. for no 

reason, and interfered with reunification.

A.S.’s attorney asked the court to terminate parental 

rights. A.S. would not benefit from continuing the relationship, 

and “visits have had an ongoing negative effect” on her. Ending 

the relationship would not be detrimental to A.S. Mother 

asserted that A.S. sees Mother as her parent and is relaxed in 

her presence, if not overly affectionate. DCFS focused too much 

on Mother’s mental health, conflicts with CSW, and lack of 

progress in treatment. Mother has been a constant presence in 

A.S.’s life. DCFS argued that the focus should be on the best 

interest of the child, not Mother’s interests. At Mother’s 

monitored visits, A.S. sees her as a playmate or familiar adult. 

A.S. views the caregivers’ home as her home, is bonded with 

them, and it would not be detrimental to end visits or her 

relationship with Mother.

The court acknowledged Mother’s diligence in visiting A.S.; 

however, their bond is not a substantial and positive attachment

that would significantly benefit A.S. from its continuation. 

Mother is limited to structured monitored visits. A.S. clearly 

views the caregivers as her primary parents, a bond that Mother 

has tried to sabotage. Mother’s disruptive behavior would 

continue, to A.S.’s detriment, if parental rights are not 

terminated. Continued contact with A.S. “will confuse the child 

more and more as she ages, as Mother tries to drive a wedge 

between herself and the caregivers,” which will cause A.S. to feel 

guilty and could disrupt her relationship with the caregivers 

entirely. MGM and MGF have no bond with A.S., so it is too late 

for them to be interested in adoption.
18

The court concluded that the benefit of adoption outweighs 

any detriment from ending A.S.’s relationship with Mother. A.S. 

is adoptable and thriving with her caregivers. The parental bond 

exception to adoption was not proven by a preponderance of the 

evidence. The court terminated parental rights and identified 

the permanent plan as adoption. It ended Mother’s visits.

DISCUSSION

1. Termination of Parental Rights

At the selection and implementation hearing, the court 

“shall terminate parental rights” if a child is likely to be adopted. 

(§ 366.26, subd. (c)(1); In re Celine R. (2003) 31 Cal.4th 45, 49; In 

re S.B. (2009) 46 Cal.4th 529, 532.)3 Adoption is the permanent 

plan preferred by the Legislature. (In re Autumn H. (1994) 27

Cal.App.4th 567, 574.) “But if the parent shows that termination 

would be detrimental to the child . . . the court should decline to 

terminate parental rights and select another permanent plan. . . .

‘[T]he statutory exceptions merely permit the court, in 

exceptional circumstances [citation], to choose an option other 

than the norm, which remains adoption.’ ” (Caden, supra, 11 

Cal.5th at pp. 630–631.)

Mother asserts that parental rights cannot be terminated 

because the “parental benefit exception” to the policy favoring 

adoption applies. (§ 366.26, subd. (c)(1)(B)(i).) As discussed 

below, the record does not support her claim.

The parental benefit exception requires a parent to show

that (1) the parent regularly visited the child, (2) the child would 

benefit from continuing the relationship, and (3) terminating the 

relationship would be detrimental to the child. “[T]he exception 

applies in situations where a child cannot be in a parent’s custody 

3 Mother does not dispute that A.S. is likely to be adopted.
19

but where severing the child’s relationship with the parent, even 

when balanced against the benefits of a new adoptive home, 

would be harmful for the child.” (Caden, supra, 11 Cal.5th at pp.

629–630.) It “rests on a variety of factual determinations 

properly reviewed for substantial evidence [but] the ultimate 

decision that termination would be harmful is subject to review 

for abuse of discretion.” (Id. at p. 630.)

The first element is satisfied. The record shows, and the 

parties agree, that Mother regularly visited A.S. to the extent 

permitted by court orders. Consistent visits allow a parent and 

child to develop a significant, positive emotional attachment. 

(Caden, supra, 11 Cal.5th at p. 632.)

Next, we focus on A.S.’s best interest to assess if she would 

benefit from continuing the relationship. This element is affected 

by “ ‘[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, supra, 11 Cal.5th at p. 632.) Third party 

witnesses, including psychologists, can provide relevant evidence 

about the parent/child bond. (Id. at pp. 632–633.)

Substantial evidence supports the court’s finding that A.S. 

does not benefit from her relationship with Mother. The record 

generated over three years shows that A.S. was only briefly in 

Mother’s care. A month after birth, she was dehydrated and so 

underweight that her ribs were showing; soon after, A.S. was 

endangered by Mother’s extreme reactions to her cries. She was 

detained and has spent the rest of her life out of Mother’s 

custody. Mother’s visits are monitored for A.S.’s safety. A.S.’s

development was adversely impacted by Mother, who heedlessly 

thwarted recommended special needs services for petty reasons.

Witnesses provided insight into Mother’s bond with A.S. 

The USC psychiatrist opined that Mother’s mental conditions 
20

affect her ability to bond with and safely supervise A.S. Mother

needs weekly psychotherapy and to avoid drug use. However, 

she ceased psychological care in June 2020 and continues to use 

marijuana; it interferes with her prescribed medication, which 

she does not consistently take.

Visits have a negative impact on A.S. She has nightmares 

and urinary incontinence before visits. A.S.’s teacher wrote that 

after A.S. sees Mother, she is “teary-eyed” and “upset.” A.S. acts

out her distress with dolls, saying “no, no, that is not your mom.” 

Mother says derogative things to A.S. about the caregivers, 

calling them “thieves” trying to “steal” her; she is playing mental 

games with a three-year-old to sabotage her placement. Mother 

said she intends to continue telling A.S. that the caregivers are 

not her family. The bonding study shows A.S. is primarily 

attached to her caregivers. The court justifiably found that 

Mother’s cruel conduct is “very damaging” to A.S. Mother feels a 

positive emotional attachment but A.S. “does not.”

Finally, the court must decide if “it would be harmful to the 

child to sever the relationship and choose adoption.” (Caden, 

supra, 11 Cal.5th at p. 633.) The question “is how the child 

would be affected by losing the parental relationship—in effect, 

what life would be like for the child in an adoptive home without 

the parent in the child’s life.” (Ibid.) A bonding expert may opine 

whether the child would suffer from losing the biological parent 

or benefit from alleviating the emotional instability and anxiety 

associated with facing an uncertain future home. (Ibid.)

Acting in the child’s best interest, the court determines

“whether the harm of severing the relationship outweighs ‘the 

security and the sense of belonging a new family would confer.’ 

[Citation.] ‘If severing the natural parent/child relationship 

would deprive the child of a substantial, positive emotional 

attachment such that,’ even considering the benefits of a new 
21

adoptive home, termination would ‘harm[]’ the child, the court 

should not terminate parental rights. . . . 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, supra, 11 Cal.5th at pp. 

633–634.)

The record shows that the benefit of a permanent adoptive 

home outweighs any possible detriment posed by severing A.S.’s

relationship with Mother. The bonding study indicates that A.S. 

would not be harmed: She has lived with the caregivers since 

infancy and “[i]n her mind, they are her parents,” not Mother. 

Mother upsets A.S. by reprimanding her when she refers to the 

caregivers as her parents. A.S. repeatedly turned away when 

Mother tried to kiss her. The study states that Mother’s 

relationship is “one of a playmate or now-familiar adult who 

cares about [A.S.] and gives her rewards or treats.” The study 

offers firsthand observations; it was not terse or conclusory. 

(In re M.G. (2022) 80 Cal.App.5th 836, 850 [bonding study briefly 

described a parent-child video visit].)

A playmate or friend does not represent the type of 

substantial, positive emotional attachment that outweighs the 

security of belonging to the family who has cared for A.S. nearly 

her entire life. There is no showing, in the bonding study or 

elsewhere, that A.S. would be harmed by severing the natural 

parent/child relationship. A.S.’s attorney asserted that Mother

has “an ongoing negative effect” on the child. The court’s 

determination that A.S. would not be harmed was not arbitrary, 

capricious, or patently absurd. (In re Stephanie M. (1994) 7 

Cal.4th 295, 318 [abuse of discretion standard].)

In sum, the court did not err by selecting termination of 

parental rights and implementing a plan of adoption. Mother 
22

was appropriately credited for her consistent visitation. But the 

problems leading to A.S.’s 2019 detention—Mother’s mental 

health and drug use—were never resolved. As a result, she is 

limited to monitored visits despite years of services. “[A] parent’s 

inability to overcome the issues that led to the dependency is not 

a categorical bar to applying the exception,” though it is relevant 

to the inquiry. (In re J.D. (2021) 70 Cal.App.5th 833, 852–853.) 

A parent who gains “understanding of herself and her children’s 

needs” with mental health treatment may be able to ensure 

“positive” interactions, which is relevant to whether the child 

would benefit from continuing the relationship or be harmed from 

losing it. (Caden, supra, 11 Cal.5th at pp. 637–638.)

A.S. has no significant attachment to Mother, whom she 

sees as a friend, not as a parent. Mother still panics when A.S. 

cries, despite one-on-one coaching. A guardianship is untenable, 

especially when the evidence shows that A.S. is upset before and 

after visits; Mother is hostile to the caregivers; and visits require 

monitors. (Compare In re J.D., supra, 70 Cal.App.5th at pp. 855–

856 [child lived with his mother for three years before detention, 

a therapist noted their positive affectionate relationship, and he 

was happy after visits].)

If parental rights are not terminated, A.S. would be 

damaged by Mother’s increasingly desperate efforts to drive a 

wedge between A.S. and her caregivers: Mother denigrates them 

in front of A.S. and fabricates reports of child abuse. A.S. could 

lose her placement with the only family she recognizes. Under 

the circumstances, A.S.’s interests are best served by severing the 

parental relationship and providing her with permanence and 

stability in the adoptive home.
23

2. ICWA Does Not Require Conditional Reversal

Mother argues that no one questioned her relatives about 

Indian ancestry. The record shows she denied knowing that A.S. 

has any Indian ancestry in March 2019; in April 2019, she signed 

an ICWA-020 form declaring, “I have no Indian ancestry as far as 

I know.” She described alleged father Steven R. as a white 

supremacist; he never visited A.S. and cannot be located. Mother 

was raised by MGM and is in contact with MGF. She has no 

other living relatives—siblings, cousins, aunts, or uncles. At the 

outset of the case, DCFS left a message for MGM, who never 

called back. MGF spoke to DCFS in 2019 but it is unclear if he 

was asked about Indian ancestry. At the section 366.26 hearing, 

the court asked if ICWA was investigated; no one objected when 

DCFS said it was.

We review ICWA findings under a substantial evidence 

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

If undisputed facts show the initial inquiry into Indian heritage 

was deficient, we determine whether the deficiency invalidates 

findings that ICWA does not apply. (In re Dezi C. (2022) 79 

Cal.App.5th 769, 777, review granted Sept. 21, 2022, S275578, 

(Dezi).) DCFS contends that any failure to ask MGM or MGF

about A.S.’s ancestry is harmless. We agree.

ICWA establishes standards to follow before an Indian 

child is removed from parental custody. (In re Austin J. (2020) 47 

Cal.App.5th 870, 881–882.) An “Indian child” 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.” (25 U.S.C.S. § 1903(4); Welf. & Inst. Code, § 224.1, subd. 

(a).) From “the initial contact” with a family, DCFS and the court 

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

child “is or may be an Indian child.” (Welf. & Inst. Code, § 224.2, 
24

subd. (a).) This means “asking the child, parents, legal guardian, 

Indian custodian, extended family members, and others who have 

an interest in the child . . . whether the child is, or may be, an 

Indian child.” (Id., subd. (b).) At initial appearances, the court 

must ask if a participant knows whether the child is Indian. (Id., 

subd. (c).) Additional inquiry and notice to tribes is required only 

if there is “reason to believe” or “reason to know” that the child is 

Indian. (Id., subds. (d), (e) & (f).)

Mother does not claim membership in a federally 

recognized tribe or assert that A.S. is eligible for membership as 

the child of a member of an Indian tribe. (25 U.S.C.S. § 1903(4).) 

She was questioned by DCFS and denied Indian ancestry. DCFS 

spoke to MGF, then briefly to MGM but apparently did not 

inquire about Indian ancestry. Mother argues that this lapse 

mandates reversal.4

Some courts have held that failure to question extended 

family members requires automatic reversal “no matter how 

‘slim’ the odds are that further inquiry on remand might lead to a 

different ICWA finding by the juvenile court.” (Dezi, supra, 79 

Cal.App.5th at p. 777, rev.gr.) We do not follow the automatic 

reversal rule. (Id. at pp. 782–785.) “In our view, an agency’s 

failure to conduct a proper initial inquiry into a dependent child’s 

American Indian heritage is harmless unless the record contains 

information suggesting a reason to believe that the child may be 

an ‘Indian child’ within the meaning of ICWA, such that the 

absence of further inquiry was prejudicial to the juvenile court’s 

4 Mother does not argue that DCFS improperly failed to 

determine if A.S.’s alleged father is Indian. He could not be 

interviewed because he never contacted DCFS, could not be found

with a due diligence search, and had to be served by publication.
25

ICWA finding. For this purpose, the ‘record’ includes both the 

record of proceedings in the juvenile court and any proffer the 

appealing parent makes on appeal.” (Id. at p. 779, fn. omitted.)

The record shows no reason to believe A.S. is an Indian 

child. Mother denied Indian heritage. She was raised by MGM

and was in contact with MGF. When parental rights were 

terminated, Mother was living with MGM. Unlike the mother in 

In re Y.W. (2021) 70 Cal.App.5th 542, 548, who was adopted at 

age two and lacked information about her biological family, there 

is no concern that Mother does not know her heritage. Though 

Mother has a history of mental illness, there is no indication that 

she is too ill to know who she is. In short, Mother points to 

nothing in the record indicating possible Indian heritage nor does 

she make a proffer on appeal of such heritage. (Dezi, supra, 79 

Cal.App.5th at p. 786, rev.gr.)

A judgment cannot be set aside unless it has resulted in a 

miscarriage of justice, meaning “it is reasonably probable that a 

result more favorable to the appealing party would have been 

reached in the absence of the error.” (People v. Watson (1956) 46 

Cal.2d 818, 836; Dezi, supra, 79 Cal.App.5th at p. 779, rev.gr.)

Mother has not shown a miscarriage of justice. She denied 

Indian heritage to DCFS, and never said anything to the contrary 

to the court. Her attorney did not object to the adequacy of the 

ICWA inquiry, or to the court’s ICWA findings, or suggest that 

Mother has Indian ancestry. (In re Ezequiel G. (2022) 81 

Cal.App.5th 984, 1013.)
26

DISPOSITION

The order terminating parental rights is affirmed.

NOT TO BE PUBLISHED.

LUI, P. J.

We concur:

ASHMANN-GERST, J.

HOFFSTADT, J.