Filed 9/17/20 Certified for Publication 10/9/20 (order attached)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re N.S., a Person Coming Under the 

Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND 

HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

C.V.,

Defendant and Appellant.

 D077177

 (Super. Ct. No. NJ14703)

APPEAL from an order of the Superior Court of San Diego County, 

Michael Imhoff, Commissioner. Affirmed. 

Annie Greenleaf, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

Thomas E. Montgomery, County Counsel, Caitlin E. Ray, Chief Deputy 

County Counsel, and Tahra Broderson, Deputy County Counsel, for Plaintiff 

and Respondent. 
2

C.V. (Mother) appeals from an order under Welfare and Institutions 

Code section 366.261 selecting adoption as the permanent plan for her son 

N.S. and terminating her parental rights.2 N.S.’s father is a member of the 

San Pasqual Band of Mission Indians (the Tribe). The Tribe has been 

involved in this case since the juvenile court found that N.S. is an Indian 

child and that the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) 

applies.3

Mother contends (1) the Tribe’s “decree” selecting guardianship as the 

best permanent plan option for N.S. preempts the statutory preference for 

adoption under section 366.26; (2) N.S.’s counsel breached his duties under 

section 317 and provided ineffective assistance of counsel by failing to 

discover what Tribal benefits or membership rights were available to N.S. 

before the termination of parental rights; (3) the court erred in finding that 

1 All further statutory references are to the Welfare and Institutions 

Code unless otherwise specified. 

2 N.S.’s father visited N.S. only once and is not a party to this appeal. 

3 “ICWA, enacted in 1978, was Congress’s response to statistics showing 

a widespread practice of unwarranted removal of Indian children from their 

families by social services agencies. Congress declared that the policy behind 

the Act was ‘to protect the best interests of Indian children and to promote 

the stability and security of Indian tribes and families.’ (25 U.S.C. § 1902.) 

This was to be accomplished in part by the establishment of ‘minimum 

Federal standards’ governing the removal of Indian children from their 

families and the placement of such children according to preferences for 

homes reflecting Indian culture.” (Crystal R. v. Superior Court (1997) 59 

Cal.App.4th 703, 706.) 

“In 2006, to increase compliance with ICWA, the California Legislature 

passed Senate Bill No. 678 (2005-2006 Reg. Sess.), codifying and elaborating 

on ICWA’s requirements through revisions to several provisions of the 

Family, Probate and Welfare and Institutions Codes.” (In re Michael V.

(2016) 3 Cal.App.5th 225, 232, fn. 4.) 
3

the Indian child exception of section 366.26, subdivision (c)(1)(B)(vi)(I) and

(II) does not apply to preclude termination of parental rights; (4) there is 

insufficient evidence to support the court’s finding beyond a reasonable doubt 

that continued custody in Mother’s care would be a substantial risk to N.S.; 

and (5) the court erred in finding that the beneficial parent-child relationship 

exception of section 366.26, subdivision (c)(1)(B)(i) does not apply to preclude 

termination of parental rights. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

In August 2012, when N.S. was 16 months old, the San Diego County 

Health and Human Services (the Agency) detained him and filed a petition 

under section 300, subdivision (b), after Mother’s roommate found Mother

unresponsive, lying in her own vomit with N.S. in his crib in the same room. 

Mother had been using prescription drugs and alcohol since January 1, 2012,

and admitted that she had a history of using illegal drugs that began in 1993 

and a history of alcoholism dating to 2004. She also admitted that she was 

not stable enough to care for N.S. 

The juvenile court assumed jurisdiction over N.S. and removed him 

from Mother’s custody. As noted, the juvenile court found that N.S. was an 

Indian child and that ICWA applied based on the father’s membership in the 

Tribe. N.S. was placed with the maternal grandparents about three weeks 

after he was detained. He was returned to Mother’s care on a trial visit in 

May 2013, but was removed again from Mother in September 2013 and 

placed with the maternal grandparents because Mother admitted to using 

methamphetamines, amphetamines, and alcohol since August 2013, and had 

used synthetic urine to pass a drug test.

In September 2014, the court ordered a permanent plan of legal 

guardianship, appointed the maternal grandparents as legal guardians, and 
4

terminated dependency jurisdiction. The grandparents hoped that Mother 

would reunify with N.S., but they expressed their willingness to adopt him if 

Mother were unable to successfully reunify. The maternal grandfather 

passed away in 2017. N.S. has been with the maternal grandmother 

(Grandmother) without disruption since he was placed in her home in 2013. 

In November 2018, Mother filed a petition under section 388 to change 

the juvenile court’s visitation order. She alleged that Grandmother was not 

allowing her to have contact and visitation with N.S. “as per the order,” and 

that she had not seen N.S. since December 26, 2016. She asked the court to 

allow her to have unsupervised and overnight visits with N.S. The court 

scheduled a hearing on Mother’s petition for December 4, 2018, and on that 

date continued the hearing to January 3, 2019, to allow the Agency social 

worker time to assess Mother’s request and provide a report to the court. 

In its report regarding Mother’s petition, the Agency recommended that 

the court maintain its previous orders. The Agency social worker met with 

Mother on November 29, 2018, at the Family Recovery Center (FRC), where 

Mother had been in residential substance abuse treatment for a month. 

Mother told the social worker that her “clean date” was September 22, 2018. 

She said that she had been struggling to arrange visits with N.S. for the past 

two years and had tried to contact him through regular mail, e-mail, and by 

telephone, but Grandmother had blocked the numbers that Mother called 

from. Mother said that she also tried to send care packages to N.S. with 

letters providing her contact information, but Grandmother never responded. 

Mother claimed that she had frequent visits with N.S. when the dependency 

case was open, but that Grandmother refused to allow visits once the

guardianship was established. 
5

After meeting with Mother, the social worker met with Grandmother 

and N.S. When she was able to speak with Grandmother alone, the social 

worker asked her why Mother’s visitation with N.S. had lapsed. 

Grandmother said that the last visit had occurred in December 2016 and 

explained that she had to get a restraining order against Mother in January 

2016 because Mother had threatened to physically harm her. She continued 

to allow regular visits with the mother that year, but throughout 2017, her 

husband was very ill and was in and out of the hospital. Mother came to the 

hospital to see Grandmother and N.S. and told them, “Don’t worry. I’m just 

here to protect my inheritance.” Grandmother did not think that Mother was 

in a stable place. Mother had been “in and out of different substance abuse 

programs 15 or more times.”

Grandmother told the social worker that telephone messages from 

Mother could be pleasant or abusive and that Mother could “also be 

argumentative and twist words.” Mother would call eight to 10 times a day 

from different and random telephone numbers and although Grandmother 

gave Mother rules regarding phone calls, she was constantly getting calls 

from strangers using different phone numbers in the middle of the night.

The social worker asked about the packages that Mother reportedly sent to 

Grandmother’s residence. Grandmother said that Mother sent packages in 

February 2017, March 2018, and April 2018, and that N.S. “correlates”

Mother to receiving presents. The social worker reminded Grandmother that 

Mother still had parental rights and a right to visit N.S. The social worker 

scheduled a visit at FRC and informed Grandmother that she (the social 

worker) would be supervising visits, initially. 

N.S. was in second grade and was doing well academically and socially 

at school. He enjoyed reading and playing with his friends and was enrolled 
6

in extracurricular activities including soccer, basketball, and a Christian 

scouting group that Grandmother viewed as a way for him to be around 

positive male role models. The social worker asked N.S. about his life in 

Grandmother’s home and he said, “Everything here is awesomely best!”

When the social worker spoke privately with N.S., she asked him whether he 

had any worries. He said “no.” She asked him how he felt about visiting with 

his mother and he said okay, but appeared hesitant. However, he said that 

he would be “okay” with a visit supervised by the social worker the following 

week at Mother’s place. 

The social worker supervised four visits between Mother and N.S. in 

December 2018. N.S. appeared nervous during the first visit. Mother 

greeted him affectionately and had activities planned for each visit. N.S. was 

very well behaved initially, but as he became more comfortable with the

visits, he began to test limits and boundaries with Mother and needed more 

redirecting, reminding, and prompting about his behavior. Grandmother told 

the social worker that Mother had a history of allowing inappropriate 

behavior to continue rather than stopping it. The social worker’s assessment 

was that Mother and N.S. generally enjoyed the visits but that Mother 

allowed some misbehavior without consequences. 

The social worker’s overall assessment was that Mother and 

Grandmother’s relationship was strained and conflicted due to Mother’s 

chronic substance abuse. Grandmother’s position was that Mother had never 

been stable and that it was not beneficial for N.S. to be subjected to Mother’s 

lack of consistency, stability, and sobriety. Mother’s only desire was to build 

a relationship with N.S. Although Mother was in residential treatment and 

expressed a desire to successfully complete it, based on her past failed 

attempts to maintain sobriety, the Agency and Grandmother doubted her
7

ability to succeed. Grandmother was aware that she (Grandmother) had 

violated the court’s orders by not following through on visitation. The Agency 

recommended that the court admonish Grandmother, but noted that N.S. 

was thriving in her care. The Agency recommended that he remain in her 

care and that Mother be allowed supervised visitation.

Grandmother filed a section 388 petition on January 3, 2019,

requesting that the court reinstate dependency jurisdiction, change its order 

making guardianship N.S.’s permanent plan, and set a new section 366.26 

hearing to determine the most appropriate permanent plan for N.S.

Grandmother alleged that the proposed change of order would promote N.S.’s 

best interests and that Grandmother adopting N.S. would “afford [him] the 

greatest degree of permanency and stability.”

At the hearing on January 3, 2019, the court “re-acquire[d] juvenile 

dependency jurisdiction[]” and appointed counsel to represent both Mother 

and N.S. Grandmother was represented by retained counsel. Maya 

Goodblanket, appeared at the hearing as the Tribe’s ICWA representative 

and the court noted the previous finding that ICWA applied. The court 

continued the hearing on Mother’s and Grandmother’s section 388 petitions 

to January 17, 2019 “to allow counsel to provide proper notice to the Indian 

tribe of their respective requests.” 

At the hearing on January 17, 2019, Mother withdrew her section 388 

petition and the court reiterated its order allowing her supervised visitation. 

The court gave the social worker discretion to expand Mother’s supervised 

visits with the concurrence of N.S.’s counsel. The court granted 

Grandmother’s section 388 petition and set a section 366.26 hearing for 

May 16, 2019. 
8

In February 2019, Mother began participating in dependency drug 

court. Her compliance in the program was good until she submitted a diluted 

test in April 2019, which was viewed as a positive result. On May 3, 2019, 

Mother withdrew from the drug court program. 

Agency social worker Steffi Navarro was assigned to the case in 

February 2019 and prepared the Agency’s report for the May 16 section 

366.26 hearing. In the initial report filed in April 2019, the Agency’s 

recommendation was that the court select tribal customary adoption (TCA)4

as N.S.’s permanent plan. When Navarro first met with Mother in February 

2019, Mother told her that she had been sober for five months and said that 

she had learned coping skills and changed her lifestyle while participating in 

therapy and treatment. 

Mother had been having weekly one-hour supervised visits with N.S. 

She asked about increasing the frequency of visitation. Visitation had not 

changed because N.S. had repeatedly expressed that he did not want more 

visitation and asked that it remain at one hour per week. At the time she 

wrote her report, Navarro had supervised five visits between Mother and 

N.S. at a family visitation center between February 21 and April 18, 2019.

Mother consistently brought food, toys, games, and activities to the visits, 

although she had been advised by the visitation center staff to limit the 

amount of food and gifts and to focus more on bonding with N.S. Mother 

showed affection to N.S. throughout the visits by frequently kissing, hugging, 

and expressing her love for him. N.S. was observed to be receptive to 

4 The statutory definition of “tribal customary adoption” is “adoption by 

and through the tribal custom, traditions, or law of an Indian child’s tribe. 

Termination of parental rights is not required to effect the tribal customary 

adoption.” (§ 366.24, subdivision (a)(1).) 
9

Mother’s affection but occasionally appeared to be frustrated and resistant to 

it. He sometimes did not respond appropriately to Mother’s attempts to 

redirect him. 

Navarro observed that overall, the comfort level between Mother and 

N.S. had improved over the course of the visits, but she continued to see a 

struggle between Mother’s redirection and N.S.’s compliance. Navarro 

noticed that N.S. had a nervous twitch that occurred mainly during his visits 

with Mother. The psychologist who evaluated N.S. confirmed that he 

appeared to have a twitch when he became anxious.

In addition to the weekly visitation, Mother had two scheduled 

telephone calls with N.S. each week. However, as of April 2, 2019, Mother 

had been calling only once a week, at N.S.’s request. Regarding the phone 

calls, Mother said to Navarro, “I can tell he is not excited. He tells me before 

the phone call that he doesn’t like to talk on the phone.”

N.S. told Navarro that he enjoyed his visits with Mother and that his 

favorite part was the playground and playing soccer. He had been observed 

telling Mother that he loved her, but did not appear distressed at the end of 

visits. When asked whether he wanted more visits or time to visit, N.S. said 

he was okay with one visit and did not want any more. N.S.’s counsel told 

Navarro that N.S. had told her the same thing. 

Regarding telephone calls, N.S. told Navarro that he did not like to talk 

on the phone and preferred one weekly call rather than two. He had not 

expressed that to Mother because he did not want to hurt her feelings, but he 

agreed to let Navarro explain it to her. Navarro asked N.S. if he would like 

Mother to attend his extracurricular activities like karate. He expressed that 

he would not and added, “I don’t like anything different. I want everything to 

stay the same.” Navarro also asked N.S. why he appeared to not listen to 
10

Mother’s redirections during visits. He responded that he just wanted to 

have fun when he visited with Mother. 

Contrary to what N.S. communicated to Navarro, Mother told Navarro

on March 7, 2019 that N.S. had requested more visits with Mother and had 

asked about living with Mother. On March 25, Navarro asked N.S. whether 

he had ever mentioned wanting to move in with Mother. He told Navarro, “I 

never said that. I don’t recall saying that.” Navarro asked N.S. how he felt 

about adoption and N.S. said, “Happy!” She then asked him how he felt 

about being adopted by Grandmother and he said, “Excited! I want her to 

adopt me.” During a psychological evaluation, N.S. said, “I’m not ready to 

live with [Mother].” When asked why, he said, “I would really miss my

grandma.”

Navarro reported that Grandmother and the Tribe were requesting,

and the Agency was recommending, a TCA for N.S. During a child and 

family team (CFT) meeting in April 2019, Goodblanket, the Tribal ICWA 

representative, expressed concern that N.S. was not becoming involved or 

connected with the Tribe and its traditions. At that meeting, Grandmother

inquired about the possibility of receiving a newsletter from the Tribe that 

would provide information about the Tribe’s events. Navarro reported that 

Grandmother understood the responsibilities of a TCA and had a strong 

desire to adopt N.S. and continue to provide him a safe and nurturing home. 

She had shown over the past six years that she was willing and able to meet 

his physical, emotional, and developmental needs. 

N.S.’s court appointed special advocate (CASA) also filed a report for 

the section 366.26 hearing. The CASA believed that N.S. was thriving and 

that all of his needs were being met in Grandmother’s care. While it was 

evident that Mother loved N.S., the CASA thought that Mother’s visits 
11

should remain supervised to ensure N.S.’s safety and well-being. The CASA 

believed that Mother had neglected to acknowledge or take responsibility for 

how her behavior was unsettling and potentially unsafe for N.S., who had 

stated that he did not want his visits with Mother to be expanded. The CASA 

agreed with the Agency’s recommendation for a TCA. 

In an addendum report for the section 366.26 hearing filed on May 14, 

2019, Navarro reported that she had visited N.S. at school on May 9, 2019, 

and asked him if he wanted more visitation with Mother. N.S. said he would 

like to have a second one-hour visit during the week, but he did not want to 

increase the time of the visits to more than one hour. He confirmed that he 

still wanted Grandmother to adopt him, and that although he was requesting 

an additional weekly visit with Mother, he did not want to live with her. 

In addendum reports filed on May 14 and 15, 2019, the Agency 

requested a 90-day continuance of the section 366.26 hearing to complete its 

efforts to locate the father and provide him notice of the hearing. At the 

hearing on May 16, 2020, the court granted the Agency’s request for a 

continuance and set the section 366.26 hearing for August 19, 2019. 

In an addendum report filed on August 16, 2019, Navarro reported that 

the Agency’s recommendation was termination of parental rights and 

adoption instead of TCA. Goodblanket had notified Navarro by e-mail on 

August 13 that the Tribe was selecting guardianship for N.S.’s permanent 

plan. Navarro contacted Goodblanket by phone and asked whether TCA was 

“completely off the table” for the Tribe. Navarro explained that although the 

Tribe’s input and recommendation were valuable to the Agency, the Agency 

would be recommending adoption, but if TCA were an option for the Tribe, 

the Agency would recommend TCA because the Agency believed that 
12

Mother’s involvement in N.S.’s life was important.5 Goodblanket told 

Navarro that the Tribe was currently seeking guardianship, but that TCA 

was not completely off the table. 

The Tribe sent the Agency a letter dated August 13, 2019, stating that 

after careful consideration of N.S.’s best interests, it believed that 

guardianship with Grandmother was the best permanent plan option for N.S. 

The letter stated that the Tribe did not feel that TCA was in N.S.’s best 

interests “due to concerns of the rights and responsibilities that would be 

listed in the TCA Order not being adhered to by [Grandmother]. These 

include but are not limited to: regular visitation and contact with the birth 

mother, informing [N.S.] of his Native American heritage, making reasonable 

efforts to have [N.S.] participate in cultural and/or traditional activities of 

San Pascual, making reasonable efforts to enroll [N.S.] in native language 

classes/programs, meet with the San Pasqual Tribe within 30 days of [N.S.’s] 

eighteenth birthday, and preserving familial and cultural ties to the San 

Pasqual Tribe and extended family residing both on and off the San Pasqual 

Indian Reservation.” 

In its assessment/evaluation for the permanency hearing, the Agency 

explained that it was not opposed to TCA with the Tribe’s concurrence, but 

5 Navarro reported that since the May 16, 2019 hearing, Mother and 

Grandmother had “made great strides to rebuild their relationship, all for the 

best interest of [N.S.]” Grandmother had “expressed that she sees the value 

and importance [Mother] has in [N.S.’s] life and stated she continues to 

encourage their relationship as long as it is in the best interest of [N.S.]. In 

addition, [Grandmother had] willingly supervised and supported an extra 

visit/outing between [Mother and N.S.] while [Grandmother] supervised.” 

Grandmother reported having “more communication with [Mother] via email, 

overall reporting that the relationship between them is growing and 

improving.” 
13

because the Tribe was requesting guardianship, the Agency was changing its 

recommendation to termination of parental rights. Under the circumstances,

adoption appeared to be the best permanent plan for N.S. and the plan that 

he continued to request. 

In June 2019, N.S. told Navarro that he continued to want 

Grandmother to adopt him and did not want to live with Mother, but he 

wanted to continue to have visitation with Mother even after being adopted 

by Grandmother. He said he was confused as to why the adoption was taking 

so long. He wrote the court a letter stating, “Dear judge I REALLY Want to 

get adopted By my grandma Because Shes nice great[.] [I’]ve lived with her a 

long time please let my grandma adopt me. I enjoy the visits with mom. Let 

my grandma adopt me. – [N.S.]”

On August 19, 2019, Mother filed a new section 388 petition requesting

that the court terminate the legal guardianship, reinstate reunification 

services to transition N.S. back to her care, and then offer family 

maintenance services. As changed circumstances, Mother alleged that she 

had addressed the issues that led to the filing of the original dependency 

petition and removal of N.S. from her care. She completed the FRC inpatient 

substance abuse program in January 2019, which included weekly individual 

therapy, and her drug tests were all negative during the program. After 

FRC, she completed an intensive three-month outpatient program followed 

by another three-month outpatient program, during which she had all 

negative drug tests except for one that was too diluted to get an accurate 

reading. All of her subsequent tests were negative and a hair follicle test 
14

from June 5, 2019, was negative for drugs and alcohol.6 Since leaving FRC, 

she had been residing in North County Sober Living and participating in 

various other substance abuse programs and meetings, and had been testing 

negative biweekly. She had also completed a parenting class through the 

Indian Health Council, Inc. 

Mother alleged that returning N.S. to her care would be in his best 

interests because they had developed a strong bond despite several years of 

Grandmother’s not allowing visitation. The Agency’s reports showed that 

Mother’s visits with N.S. had gone well, and that N.S. had asked for more 

visits and wanted to continue his relationship with Mother. Mother alleged 

that she could continue to facilitate contact with Grandmother and other 

maternal relatives and that she was “also dedicated to [N.S.’s] understanding 

his paternal side of this family and his heritage as a child of the San Pasqual 

Band of Mission Indians.” She claimed that she had worked closely with the 

Tribe, which did not endorse adoption by Grandmother, and that she “would 

like to continue to facilitate [N.S.’s] knowledge and connection to his rich 

cultural heritage, which is essential to a Native American child.” She noted 

the Tribe’s concerns that the Grandmother had not allowed Mother visitation 

and had not made efforts to inform N.S. of his Native American heritage and 

involve him with the Tribe. 

At the hearing on August 19, 2019, the juvenile court found that 

Mother had carried her prima facie burden on her section 388 petition. The 

court set the petition for an evidentiary hearing to precede the section 366.26 

hearing on September 27, 2019. On September 19, 2019, Mother advised the 

6 Mother did the hair follicle test to prove that she had not used any 

controlled substances at the time she submitted the diluted urine sample in 

April 2019. 
15

court that the Tribe’s representative was not available on September 27 and 

asked the court to continue the contested hearing. The court granted 

Mother’s request and continued the trial date to November 8 “to allow the 

Tribal representative to be present.”

On November 7, 2019, Agency social worker Lisa Olimpio filed an 

addendum report recommending that the court deny Mother’s section 388 

petition, proceed with the section 366.26 hearing, and order adoption as 

N.S.’s permanent plan. Addressing whether granting Mother’s petition 

would be in N.S.’s best interests, Olimpio noted that N.S. was an “incredibly 

articulate” eight-year-old boy who read at a fifth grade level and “appear[ed] 

to have cognitive understanding way above his chronological age.” N.S. had 

consistently expressed to his Grandmother, the Agency social workers, his 

attorney, the Tribal representative, and his psychological evaluator that he 

wanted to be adopted and that he did not want to live with Mother, although 

he wanted to continue to visit her. 

Olimpio noted that the Tribal representative had told Navarro that the 

Tribe had “little to no” contact with Grandmother during the period of her 

guardianship. Grandmother told Olimpio that the Tribe had not reached out 

to her, and that even when she requested information during a CFT meeting 

about Tribal activities that N.S. could attend, the Tribe had not responded to 

her. Olimpio reported that “the Tribe equates this apparent lack of contact 

with lack of interest, which the grandmother states is not true.” 

Olimpio’s report emphasized that the Agency strongly favored TCA as 

the best plan for adoption because it would facilitate the Tribe’s involvement 

in N.S.’s life. Olimpio stated, “A permanent plan of [TCA] makes the most 

sense in this case, whereby the Tribe would have on-going input into 

promoting [N.S.’s] Native American heritage and a TCA would provide for 
16

contact with [Mother].” Olimpio noted that the Tribe’s letter requesting 

guardianship rather than TCA stated that the Tribe had “ ‘concerns’ that the 

rights and responsibilities that would be listed in a TCA would not be 

adhered to by [Grandmother], yet they cite no evidence for their concerns.” 

The Agency’s position was that if the Tribe was concerned, it was

encouraged to “to take a stance of offering support and encouragement to 

[Grandmother] so that they might have more input into helping 

[Grandmother] include more Native American culture into their daily lives. 

The plans of Guardianship or standard adoption do not leave [the Tribe] in 

much of a position to interact with [N.S.] and [Grandmother] while TCA 

would, in many ways. TCA would include the 3 varied positions in this case: 

[Mother] would be able to continue contact [with N.S.], the Tribe would have 

some input into encouraging and strengthening Native American culture and 

TCA would provide the permanence of adoption for [N.S.], which he is asking 

for.” Olimpio noted: “The Tribe has apparently stated that they do not have 

the staff to monitor a TCA, yet this Tribe continues to promote TCA’s with 

this Agency in other cases; I have personal experience with other cases I have 

worked, that have TCA as a permanent plan with this Tribe.”

Olimpio reported that she had been referred to an out-of-county Indian 

expert, Richard England, to provide a declaration assessing the Agency’s 

proposed plan of adoption. She stated that the section 366.26 hearing would 

have to be continued because England had informed her that he needed 10 

more working days to review various materials that he had requested in 

order to make his assessment. 

In her overall assessment and evaluation, Olimpio reiterated that the 

Agency recommended that Mother’s section 388 petition be denied based on 

N.S.’s best interests. She reiterated that the permanent plan of TCA would 
17

best “incorporate everyone’s interest: the Tribe, [N.S.] and [Grandmother].” 

She asserted that “[t]he Agency would support this wholeheartedly. 

However, the Tribe is not open to TCA and instead, recommended keeping 

the permanent plan of Guardianship.” Consequently, the Agency’s 

recommendation was adoption with termination of parental rights. 

Goodblanket filed the Tribe’s report and recommendations for the 

November 8, 2019 hearing. The Tribe did not support Mother’s section 388 

petition but continued to recommend guardianship as N.S.’s permanent plan. 

The Tribe believed that guardianship was in N.S.’s best interests because he 

had stability in Grandmother’s home. However, the Tribe also believed that 

Mother was capable of maintaining sobriety and the Tribe “would be 

supportive of a [section] 388 [petition] with a minimum of 6 more months of 

sobriety.”

Responding to Olimpio’s promotion of TCA as the best plan, the Tribe 

acknowledged that although an explicit visitation schedule could be written 

into a TCA, guardianship would also allow Mother visitation, which the Tribe 

would recommend. And although TCA would allow the Tribe to have some 

input into encouraging and strengthening Native American culture with 

N.S., the Tribe had “reason to believe this would not be followed” because of 

Grandmother’s lack of initiative since the beginning of the case. The Tribe 

stated that “there [were] no known efforts of [Grandmother] reaching out to 

the Tribe to encourage or strengthen [N.S.’s] ties to his Native American 

culture.” Goodblanket noted that when she spoke with Grandmother in May 

2019 about what would be included in a TCA order, Grandmother stated that 

she did not understand the amount of the Tribe’s involvement and hesitated 

about N.S.’s being able to attend Tribal events and classes. She also 

expressed unwillingness to be responsible for visitation between N.S. and 
18

Mother. Regarding permanency, the Tribe agreed that a TCA would provide 

the permanence that N.S. was asking for, but the Tribe was “comfortable 

with the level of stability and permanency [N.S.] has through Guardianship.” 

The Tribe stated that it had remained consistent with its preference for 

guardianship and had “not been in support of, nor in agreement of adoption 

of [N.S.], dating to 5/15/19.” 

On November 8, 2019, the court held the evidentiary hearing on 

Mother’s section 388 petition and continued the section 366.26 hearing to 

December 13, 2019. The court received in evidence the Agency’s reports that 

it had prepared for the May, August, and November hearings and heard 

testimony from Mother and several witnesses whom Mother called to testify 

in support of her petition. After hearing argument from counsel for Mother, 

Grandmother, N.S., and the Agency, the court found that Mother had met her 

burden of showing changed circumstances, but that she had not met her 

burden of showing that it would be in N.S.’s best interests to place him with 

Mother. Accordingly, the court denied Mother’s petition, but gave the social 

worker discretion to allow Mother to have short unsupervised daytime visits 

with N.S. with the concurrence of N.S.’s counsel. 

On December 12, 2019, Olimpio filed the Agency’s addendum report for 

the section 366.26 hearing on December 13. The Agency continued to 

recommend adoption for N.S. 

Grandmother was reluctant to move to unsupervised visitation. 

Olimpio told Grandmother that she (Olimpio) would have to ask N.S. how he 

felt about unsupervised visits before they would begin. Olimpio met with 

N.S. alone and reported that he was enthusiastic about having unsupervised 

visits with Mother and had no fears about being alone with her. N.S.’s 

counsel concurred in allowing the unsupervised visits. The next day, 
19

November 26, 2019, N.S. and Mother had an unsupervised visit during which 

they had lunch together at the restaurant where Mother worked and then 

walked to nearby stores for the rest of the visit. Mother reported that the 

visit was “wonderful.” Mother had additional unsupervised visits with N.S. 

on December 8 and December 10, 2019. When Olimpio met with N.S. on 

December 12, he reported with a smile that the unsupervised visits were 

going well and that he enjoyed them. 

Olimpio asked N.S. about his understanding of the difference between 

adoption and guardianship. N.S. understood that with adoption he would 

stay with Grandmother and Mother could not try to get him back and with 

guardianship he would still be with Grandmother but Mother could try to get 

him back with her. Olimpio reminded N.S. that with adoption Grandmother 

could stop all visits with Mother. N.S. said, “But I know she would never do 

that.” Olimpio told N.S. that Grandmother had stopped visits in the past and 

obtained a restraining order against Mother to stop visits. N.S. responded, 

“No she didn’t.” 

Olimpio asked N.S. what his future would look like if he were a 

magician and could make it any way he wanted. N.S. said he would be 

adopted and Mother would keep visiting him and he would like her to spend 

the night at his house but he did not want to spend the night at her house. 

Olimpio asked whether he ever thought about living with Mother in the 

future or spending the night at her house and told N.S. that she knew that 

Mother wanted that. N.S. continued to say “no.” 

Olimpio also asked N.S. about his Tribal heritage and whether he knew 

which tribe he was connected to. He said he could not recall. Olimpio told 

him the name of the Tribe but he had no memory of having heard it before. 

He had never been to the reservation or to an American Indian museum in 
20

San Diego County but he had books about Native Americans. Olimpio asked 

whether he had any questions about his Tribal heritage and he said “no.”

The Agency’s report included, as an attachment, the declaration of 

ICWA expert England. England’s knowledge of this case was based on his 

review of the Agency’s reports for the May 16 and August 19, 2019 hearings. 

England believed that it was important to respect the Tribe’s 

recommendations regarding permanency plans of Indian children and that 

supporting the Tribe’s recommendation of guardianship as N.S.’s long-term 

plan was in N.S.’s best interests and would provide Mother the opportunity to 

reunify with him at some point. He noted the Tribe’s concern that if N.S. 

were adopted by Grandmother through a TCA, he could be cut off from his 

Tribal family and extended Tribal family. Although Mother is not Native 

American, England averred that she is familiar with the Tribe and can access 

available resources and support to ensure that N.S. maintains his connection 

to the Tribe. England opined that termination of parental rights “will impact

[N.S.’s] ability to have a connection to his Tribe and to learn about this part

of who he is.” 

The Agency also attached to its report a declaration prepared by 

Mother’s Indian expert Halona Alexander. Alexander had reviewed the 

Agency’s reports and the Tribe’s letter recommending guardianship, spoken

with Goodblanket and Mother’s counsel, and met with Mother. Her opinion 

was that a state adoption and termination of parental rights would be 

detrimental to N.S. Although Grandmother provided N.S. a stable home, 

which the Tribe highly valued, adoption by a non-Native family member who 

had not demonstrated a commitment to exposing N.S. to his tribal culture 

would substantially interfere with N.S.’s connection to the Tribe, his 

understanding of his identity and culture, and potentially his “ability to make 
21

future choices regarding his relationship to his Tribe that would provide him 

with a cultural identity and sense of belonging.” Alexander concluded: 

“Given the history that led to the enactment of the ICWA and the realization 

by Congress that children are essential to tribes’ survival, I believe honoring 

the San Pasqual Tribe’s selection of guardianship in this case is necessary 

under the ICWA.” 

In the Agency’s report, Olimpio noted that Grandmother had been 

criticized for not placing a stronger emphasis on N.S.’s Tribal heritage and 

educating him about it. However, Olimpio further noted that Grandmother 

had stated that she was presently willing to do this and had requested 

guidance on the issue. Olimpio reiterated that “the best fit for this case at 

this time seems to be TCA, but this is not the preference of the Tribe.” 

Consequently, the Agency continued to support N.S.’s request that he be 

adopted by Grandmother. 

At the contested section 366.26 hearing on December 13, 2019, the 

court proceeded with Mother’s case-in-chief but suspended the Agency’s casein-chief and continued that portion of the hearing to January 14, 2020,

because England was not available to testify on December 13. On December 

13, the court received in evidence the Agency’s reports that it prepared for

May, August, November, and December 2019 hearings; Olimpio’s curriculum 

vitae; and Alexander’s curriculum vitae. The court heard testimony from

Olimpio, Alexander, and Goodblanket. 

Olimpio testified that Grandmother seemed receptive to engaging in 

activities with N.S. that would promote his Indian heritage, such as taking 

N.S. to Native American museums. However, Grandmother was confused 

about how often she had to engage N.S. in such activities and was concerned 

about how she would fit them into her busy schedule of other activities with 
22

N.S. Grandmother told Olimpio that the Tribe had not attempted to contact 

her during the guardianship until Mother filed her section 388 petition.

Goodblanket testified that when she spoke with Grandmother at the 

April 2019 CFT meeting and in a telephone conversation in May 2019, she 

told Grandmother that she (Goodblanket) could be a point of contact for 

Grandmother to find out about upcoming Tribal events. Grandmother had 

asked to receive a newsletter. In December 2019, Goodblanket discussed 

with Grandmother ideas about involving N.S. in Tribal activities and taking 

him to museums. Grandmother mentioned that N.S. was reading what 

sounded to Goodblanket like a fictional book about the relationship between a 

pioneer and Indian boy. Goodblanket got Grandmother’s e-mail address and 

told her that she would speak with the Tribe and see if there was a way for 

Grandmother to get on a mailing list for the Tribe’s activities. The Tribe did 

not have a mailing list but they gave Goodblanket their website address and 

told her about a Christmas party that Grandmother was invited to attend. 

Goodblanket passed that information on to Grandmother. 

Goodblanket further testified that if N.S. were adopted, the Tribe 

would no longer recognize him as an Indian child because a state adoption 

would sever all of his biological ties to the Tribe. Consequently, he would not 

be eligible for enrollment in the Tribe if the enrollment criteria would at some 

point otherwise make him eligible.7 To her knowledge, N.S. was not 

presently eligible for enrollment in the Tribe; there would have to be a 

change in the Tribe’s rules regarding enrollment for him to be eligible to 

enroll. 

7 Goodblanket testified that the Tribe has enrolled members and nonenrolled members, and that N.S. is considered a member of the Tribe but is 

not an enrolled member. 
23

On January 14, 2020, the court heard testimony from England and 

received in evidence Mother’s section 388 petition and a handwritten letter 

from N.S. as an offer of proof of his anticipated testimony, as stipulated to by 

all counsel. The parties also stipulated that if Olimpio were called to testify 

at that hearing, she would testify that during her last in-person meeting with 

N.S., he asked for overnight visitation with Mother. However, in the same 

conversation, N.S. reiterated that he wanted Grandmother to adopt him. 

After hearing argument from counsel for the Agency, Mother, 

Grandmother, and N.S., the juvenile court issued its ruling. The court began 

by noting that “this case does illustrate the tension that exists between two 

sovereign states: the Indian tribe, which is a separate sovereign, and the 

state of California, which is a separate sovereign.”8 The court observed that 

Grandmother “has shown that she is well oriented towards what’s in the best 

interests of this child. If he has Indian heritage, then [Grandmother], I 

think, will recognize that and assist him. Certainly, the family could rally 

around him and let him know that.”

Regarding the Tribe’s role in fostering N.S.’s involvement with the 

Tribe, the court felt that “it [had] to be stated” that “up until the time the 

Tribe utilized Ms. Goodblanket to come in and address these issues, the Tribe 

had its own responsibilities to reach out to [N.S.] and see how he was doing. 

I don’t mean that as criticism of the Tribe, but I can’t ignore the fact that if 

we’re looking at the competing tensions of the culture, that the court should 

be gauging not just the best intentions and motivations of the respective 

parties, but also the concrete actions that they took in order to advance what 

8 The reporter’s transcript is printed in all capital letters. We have 

modified all quotations from that transcript to reflect conventional 

capitalization. 
24

they are sincerely asking the court to recognize.” In other words, the court 

considered not only the Tribe’s stated interest in having a connection with 

N.S., but the extent to which the Tribe had taken, or failed to take, concrete 

actions to foster that connection. 

The court found that N.S. was specifically adoptable, and also found, by 

clear and convincing evidence, that none of the circumstances listed in 

section 366.26, subdivision (c)(1)(B) that would make termination of parental 

rights detrimental to N.S. exist. Regarding the beneficial parent-child 

relationship exception to adoption, the court found that the stability in N.S.’s 

placement with Grandmother outweighed the benefits that he had gained 

from his contact with Mother and, therefore, “it would not be in his best 

interests to promote or facilitate a mother-child relationship.” 

The court noted the following two Indian child exceptions to adoption 

specified in section 366.26, subdivision (c)(1)(B)(vi)(I) and (II): “(I) 

Termination of parental rights would substantially interfere with the child’s 

connection to his or her tribal community or the child’s tribal membership 

rights[;]” and “(II) The child’s tribe has identified guardianship . . . [as a]

planned permanent living arrangement for the child.”

Regarding substantial interference with N.S.’s connection to the Tribe, 

the court found that “once [Grandmother] is properly informed, once the 

expectations are concretely articulated, . . . she will encourage [N.S.] to learn 

about his heritage.” The court further found that given N.S.’s development, 

maturity, and curiosity, he would not “permit anybody [to] dissuad[e] him 

from making up his own mind as to not just his Indian heritage, but how it 

fits into his life.” Thus, the court concluded that there was not a compelling 

reason not to terminate parental rights based on a substantial interference 

with N.S.’s connection to the Tribe. 
25

Regarding the Tribe’s identification of guardianship as the best 

permanent plan for N.S., the court believed that N.S.’s “guardianship was a 

very vital tool and opportunity for him to get to this point.” However, the 

court asserted that, “merely identifying guardianship to maintain the status 

quo would not recognize the increasing, the deep, the published connection 

[that N.S.] has with his grandmother.” The court found that in light of N.S.’s 

“current developmental progression and attachment to the grandmother,”

guardianship was not in his best interests; therefore, the Tribe’s 

identification of guardianship as N.S.’s permanent plan had not “been 

established as a compelling reason not to terminate parental rights.” 

The court then found beyond a reasonable doubt that “under 

25USC1912(f),” continued custody by Mother would likely result in serious 

emotional or physical damage to N.S. The court terminated parental rights 

and referred N.S. to the Agency for adoptive placement. 

DISCUSSION

I. 

The Tribe’s Preference for Guardianship Does not Preempt the Preference for 

Adoption Under section 366.26

Mother contends that the Tribe’s “decree” selecting guardianship as the 

best permanent plan option for N.S. preempts the statutory preference for 

adoption under section 366.26. What Mother refers to as the Tribe’s “decree”

is the letter dated August 13, 2019 from the Chairman of the Tribe to the

Agency stating that the Tribe believed that guardianship with Grandmother 

was the best permanent plan option for N.S. Mother argues that because the 

Tribe’s decree directly conflicts with California’s statutory preference for 

termination of parental rights and adoption over other permanent plan 
26

options under section 366.26, subdivision (b), it preempts California’s 

preference for adoption. 

In support of this contention, Mother cites authority that Native 

American tribes are sovereign nations (Campo Band of Mission Indians v. 

Superior Court (2006) 137 Cal.App.4th 175, 181) and, as such, they have 

higher status and authority than states. (In re M.M. (2007) 154 Cal.App.4th 

897, 908-909). She notes that the United States Supreme Court has held 

that “ ‘ “absent governing Acts of Congress,” a State may not act in a manner 

that “infringe[s] on the right of reservation Indians to make their own laws 

and be ruled by them.” ’ ” (Three Affiliated Tribes of Ft. Berthold Reservation 

v. Wold Engineering, P.C. (1986) 476 U.S. 877, 890.) She maintains that this 

principle is exemplified in 25 United States Code section 1915(c) of ICWA, 

which provides that “if the Indian child’s tribe shall establish a different 

order of [adoptive, preadoptive, or foster care placement] preference by 

resolution, the agency or court effecting the placement shall follow such 

order . . . .”9 Mother argues that this provision recognizes the inherent 

authority that the Tribe possesses in determining what is best for the Tribe’s 

children. Mother further argues that federal preemption under the 

supremacy clause of the United States Constitution applies in this case 

because there is a conflict between state law and federal law (conflict 

preemption), and the state law frustrates the purpose of the federal law

9 25 United States Code section 1915(a) and (b) list options for adoptive 

placement and foster care or preadoptive placement in order of statutory 

preference. 25 United States Code section 1915(c) addresses an Indian tribe’s 

ability to establish a different order of preference by resolution. In the 

present case, the Tribe did not establish an order of preference for placement 

by resolution.
27

(obstacle preemption), citing Akopyan v. Wells Fargo Home Mortgage, Inc. 

(2013) 215 Cal.App.4th 120, 138. 

Although Mother’s federal preemption argument is necessarily based 

on conflict or inconsistency between ICWA (federal law) and California’s 

juvenile dependency statutes (state law), the direct conflict that she 

addresses is the conflict between the Tribe’s preference for guardianship as 

N.S.’s permanent plan and the state law preference for termination of 

parental rights and adoption. Mother argues that the state’s legislative 

preference for adoption as a child’s permanent plan, unless a specific 

statutory exception applies, “frustrates the purpose of the tribal cultural 

tenet that parental rights should remain intact.” She maintains that 

termination of parental rights is antithetical to the cultural beliefs of the 

Tribe and many other Native American tribes, and that the Tribe has stated 

that its selection of guardianship as the best plan for N.S. is based on its on 

its cultural policy that it is in the best interests of children to provide parents 

with additional opportunities for reunification even when it is outside the 

state statutory timeframes.10 She asserts that because the state’s statutory 

preferences for permanent plans conflict with “the Tribe’s laws and tenets,”

the doctrine of preemption applies, and the state court is barred from 

overriding the Tribal decree. In other words, Mother contends that the court 

10 In support of that representation, Mother cites the statement in the 

Tribe’s written report that “[t]he Tribe is committed to the reunification of 

their families, even when that is outside of the legal timeline of the Court.” 

She also cites Goodblanket’s testimony that “this tribal council believes in 

second chances. This tribal council believes in Mother’s—all of her efforts in 

the last year of maintaining sobriety and all of those things are part of the 

reason why they wanted to leave it in guardianship, to give her an 

opportunity to potentially become [N.S.’s] full parent again.” 
28

lacked the authority to order any permanent plan other than the one that the 

Tribe selected for N.S. 

We disagree that the Tribe’s letter selecting guardianship as the best 

permanent plan option for N.S. precludes the court from ordering a different 

plan. The Agency contends that Mother waived the right to raise this 

contention on appeal because she conceded the issue at the section 366.26 

hearing. The Agency’s contention has merit. At the section 366.26 hearing, 

the court raised the issue as follows: “I think the legal issue was whether or 

not the tribe had an unquestioned, unfettered position to demand a legal 

guardianship, or whether, under state law, it comes under the natural 

statutory scheme where the court would have to consider it within the 

context of a compelling reason.”

The Agency’s counsel told the court that the following two cases he had 

cited to the court addressed that issue: In re H.R. (2012) 208 Cal.App.4th 751 

(H.R.) and In re T.S. (2009) 175 Cal.App.4th 1031 (T.S.). The court stated 

that it had read those cases but believed that Mother’s counsel “wanted to 

argue otherwise.” Mother’s counsel stated, “No, your honor. I believe that 

the Tribe doesn’t have automatic veto power.” The court then asked counsel 

for the other parties to weigh in. Grandmother’s counsel stated, “I agree. 

I’ve read those cases, as well, your honor, and I think the court has the 

authority to review what the permanent plan ought to be, and it’s not 

automatically got to be a guardianship because the [T]ribe says they want 

guardianship.” N.S.’s counsel concurred and said that he thought that H.R. 

was “directly on point.” Thus, Mother’s counsel expressly agreed that the 

Tribe did not have “automatic veto power” over whatever permanent plan the 

court ordered. 
29

It is settled that an appellant waives or forfeits the right to challenge a 

ruling on appeal by agreeing with or acquiescing to the ruling at trial. (Hood 

v. Gonzales (2019) 43 Cal.App.5th 57, 70; In re A.S. (2018) 28 Cal.App.5th 

131, 151 [acquiescence to the scope of the section 366.26 hearing forfeited 

parents’ right to claim on appeal that the court improperly limited the scope 

of the hearing].) Because Mother expressly agreed at trial that the juvenile 

court was not required to order the permanent plan that the Tribe selected, 

she has forfeited the right to claim on appeal that the court was required to 

order guardianship as N.S.’s permanent plan because the Tribe selected that 

plan. 

In any event, Mother’s argument that the Tribe’s permanent plan 

choice “preempts” the state law permanent plan preference for adoption and 

termination of parental rights is without merit. There is no conflict between 

state and federal law that raises federal preemption concerns because under 

both ICWA and the state statutory dependency scheme, the state court has

jurisdiction to select N.S.’s permanent plan and is not required to order 

whatever plan the Tribe selects. 

Under 25 U.S.C. section 1911(b), a dependency case that involves an 

Indian child not domiciled or residing within the reservation of the child’s 

tribe remains in state court unless a parent, the tribe, or the Indian 

custodian petitions to transfer the proceeding to the jurisdiction of the tribe;

the court does not find good cause not to transfer the case; neither parent 
30

objects to the transfer; and the tribe does not decline the transfer.11 Welfare 

and Institutions Code section 305.5, subdivision (d) similarly provides that 

“[i]n the case of an Indian child who is not a ward of a tribal court or subject 

to the exclusive jurisdiction of an Indian tribe, . . . the state court shall 

transfer the proceeding to the jurisdiction of the child’s tribe upon petition of 

either parent, the Indian custodian, or the child’s tribe, unless the state court 

finds good cause not to transfer.” Thus, under both federal and state law, 

jurisdiction remained with the state juvenile court in this case because no one 

petitioned to transfer the case to the jurisdiction of the Tribe. 

Under California’s dependency scheme TCA is the preferred permanent 

plan for an Indian child if the child’s tribe recommends TCA. (H.R., supra,

208 Cal.App.4th at pp. 761-764.) “Absent some evidence of countervailing 

detriment to the minor that the [juvenile] court, in its discretion, concludes 

would result from this form of adoption, the default in the case of an Indian 

child is [TCA].” (Id. at p. 764.) However, even when a tribe has selected 

TCA, the court may exercise its discretion to reject TCA as the child’s 

permanent plan and order a different plan, including traditional adoption 

with termination of parental rights. (Ibid.) “[N]othing in the [statutory 

provisions regarding TCA] suggests that the Legislature intended to alter the 

long-standing rule that the selection of a permanent plan is vested in the 

11 25 U.S.C. section 1911(b) states: “In any State court proceeding for the 

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

not domiciled or residing within the reservation of the Indian child’s tribe, 

the court, in the absence of good cause to the contrary, shall transfer such 

proceeding to the jurisdiction of the tribe, absent objection by either parent, 

upon the petition of either parent or the Indian custodian or the Indian 

child’s tribe: Provided, that such transfer shall be subject to declination by 

the tribal court of such tribe.” 
31

sound discretion of the trial court. [Citation.] Whether there is a compelling 

reason not to terminate parental rights has been described as a 

‘quintessentially discretionary determination.’ [Citation.] Nothing in Section 

366.24 removes that discretion.” (Ibid.) 

Thus, in the present case, where the Tribe did not even recommend 

TCA, the court unquestionably had discretion to order a permanent plan 

other than the Tribe’s recommended plan of guardianship. There is no 

statutory preference for guardianship when recommended by an Indian 

child’s tribe as there is for TCA. The juvenile court had the discretion to 

order traditional adoption with termination of parental rights as N.S.’s 

permanent plan absent a compelling reason not to terminate parental rights. 

(H.R., supra, 208 Cal.App.4th at p. 764.) 

In T.S., as in the present case, the dependent Indian child’s tribe 

selected guardianship as the child’s permanent plan that would meet the 

tribe’s social and cultural standards and protect the child’s best interests as 

an Indian child. (T.S., supra, 175 Cal.App.4th at p. 1037.) The child’s 

mother, joined by the appellant father, argued that the tribe’s choice was an 

exception to the statutory preference for adoption. (Ibid.) The juvenile court 

concluded that it had the discretion to find that adoption was in the child’s 

best interests notwithstanding the tribe’s preference and terminated parental 

rights and ordered adoption as the child’s permanent plan. (Id. at pp. 1037-

1038.) On appeal, the father argued that the juvenile court was required to 

order a permanent plan of guardianship because that was the tribe’s 

recommendation. (Id. at pp. 1038, 1039.) 

The T.S. court disagreed, concluding that, “a juvenile court is not 

obligated to adopt the permanent plan designated by a child’s tribe without 

conducting an independent assessment of detriment. The exceptions to 
32

adoption relating to Indian children, like the other enumerated exceptions to 

adoption, are contained in section 366.26, subdivision (c)(1)(B), and, 

therefore, apply only if the described circumstances are present and there is a 

compelling reason for determining that termination of parental rights would 

be detrimental to the child as a result of such circumstances. . . . Had the 

Legislature intended to preclude the court from ordering a permanent plan of 

adoption when a tribe has identified another permanent plan, it could have 

placed this provision in the next subdivision of section 366.26, subdivision 

(c)(2), which enumerates circumstances under which the juvenile court ‘shall 

not terminate parental rights,’ and includes other provisions involving Indian 

children . . . . Instead, the provision was added to a subdivision that contains 

plain, unambiguous language conferring discretion upon the juvenile court to 

reject the exceptions in the absence of compelling evidence of detriment.” 

(T.S., supra, 175 Cal.App.4th at p. 1040, fn. omitted.) 

H.R. and T.S. make it clear that in ordering a permanent plan for an 

Indian child subject to ICWA, the juvenile court is not restricted to ordering 

the permanent plan that the child’s tribe selects. The permanent plan of 

adoption ordered in this case may have conflicted with the Tribe’s preference 

and the Tribe’s “laws and tenets,” but it did not conflict with or frustrate the 

purpose of ICWA and it was not “preempted” by the Tribe’s letter 

recommending guardianship as N.S.’s permanent plan. 
33

II. 

Mother Has not Established That N.S.’s Counsel Was Prejudicially Ineffective

Mother contends that N.S.’s counsel12 breached his duties under 

section 317 and provided ineffective assistance of counsel by failing to 

investigate and determine what benefits or membership rights N.S. was 

entitled to receive from the Tribe before the court terminated parental 

rights.13 Mother specifically faults N.S.’s counsel for not being aware that 

the Tribe would no longer recognize N.S. as an Indian child if he were 

adopted with termination of parental rights until counsel cross-examined 

Goodblanket at the section 366.26 hearing. Mother argues that N.S. was 

prejudiced by counsel’s lack of knowledge regarding how state adoption would 

affect N.S.’s potential status as a member of the Tribe because the lack of 

that information caused the court, in considering whether termination of 

parental rights would substantially interfere with N.S.’s connection to the 

Tribal community or his membership rights, to conclude that “his 

membership rights are not defined.”14 

12 Two different attorneys from Children’s Legal Services appeared on 

behalf of N.S. in the relevant proceedings, Julia Schooler and Steve Wedel. 

Wedel appeared at the hearing on Mother’s section 388 petition and the 

section 366.26 hearing. 

13 The Agency does not challenge Mother’s standing to raise this issue. 

14 After making this statement, the court added, “And no one is indicating 

that [N.S.] is an enrolled member of the Tribe. But he does have a connection 

to the Tribe.” The court presumably was referring to Goodblanket’s 

testimony that N.S. is not an enrolled member of the Tribe and is not eligible 

for enrollment, and that the Tribe would have to change its rules regarding 

enrollment in order for N.S. to become eligible in the future. 
34

“To succeed on a claim of ineffective assistance of counsel, the appellant 

must show: (1) counsel’s representation fell below an objective standard of 

reasonableness; and (2) the deficiency resulted in demonstrable prejudice. 

[Citations.] Unless the record affirmatively establishes counsel had no 

rational tactical purpose for the challenged act or omission, we must affirm 

the judgment.” (In re Kristen B. (2008) 163 Cal.App.4th 1535, 1540-1541.) “A 

violation of the right to effective counsel is reviewed under the test of 

harmless error. [Citation.] ‘Thus the parent must demonstrate that it is 

“reasonably probable that a result more favorable to the appealing party 

would have been reached in the absence of the error” ’ [Citation.] It is not 

necessary to examine whether counsel’s performance was deficient before 

examining the issue of prejudice. [Citation.] A court may reject a claim of 

ineffective counsel if the party fails to show the result would have been more 

favorable but for trial counsel’s failings.” (In re N.M. (2008) 161 Cal.App.4th 

253, 270.) 

Section 317 provides that a primary responsibility of counsel appointed 

to represent a child is “to advocate for the protection, safety, and physical and 

emotional well-being of the child . . . .” (§ 317, subd. (c)(2).) Counsel is also 

required to “investigate the interests of the child beyond the scope of the 

juvenile proceeding, and report to the court other interests of the child that 

may need to be protected by the institution of other administrative or judicial 

proceedings.” (§ 317, subd. (e)(3).) 

The Agency argues that it is Mother’s burden to establish that N.S.’s 

counsel failed to adequately investigate whether N.S. was eligible for Tribal 

benefits, and because counsel’s confidential attorney work product is not part 

of the record, under Evidence Code section 664 we must presume that counsel 

performed all necessary investigation to adequately represent N.S. in the 
35

contested section 366.26 hearing, including the facts relevant to whether the 

Indian child exception to adoption should be applied. We agree with the 

Agency, but even assuming that N.S.’s counsel did not sufficiently investigate 

whether termination of parental rights would cause N.S. to lose Tribal 

benefits, we conclude that Mother has not met her burden of showing that 

she was prejudiced by counsel’s allegedly deficient performance. 

Mother cannot show that she was demonstrably prejudiced by N.S.’s 

counsel’s alleged failure to conduct an investigation to determine what Tribal 

benefits would be available to N.S. if parental rights were not terminated 

because there is no indication in the record that any such undiscovered 

benefits were available. The record indicates that the Tribe took little 

interest in N.S. or this case during the period of Grandmother’s guardianship 

until Grandmother filed her section 388 petition seeking adoption in January 

2019.15 Goodblanket became involved in the case as the Tribe’s 

representative in 2019 and testified at the section 366.26 hearing that N.S. is 

not eligible for membership in the Tribe and would lose his Indian child 

status with the Tribe if the court terminated parental rights.16 However, 

she did not testify or provide any information to the Agency or Grandmother 

before the hearing that there were Tribal benefits, other than his Indian child 

status, that N.S. would lose if the court terminated parental rights and 

15 As noted, the Tribal representative, presumably Goodblanket, told 

Navarro that the Tribe had “little to no” contact with Grandmother during 

the period of her guardianship. 

16 Mother’s Indian expert Alexander testified that the Tribe recognized 

descendants of members of the Tribe in ICWA cases and considered them 

“members under ICWA,” but that did not mean that they are eligible to be 

enrolled members of the Tribe. 
36

ordered adoption. The juvenile court could reasonably infer from the record 

that there were no such undisclosed benefits and Mother has not shown that 

there were such benefits.17 

In asking us to conclude that N.S.’s counsel was prejudicially 

ineffective for not determining whether such benefits exist and to reverse the 

order terminating parental rights on that basis, Mother is essentially asking 

us to conclusively presume that such benefits are available to N.S. and that 

they are of such magnitude that the court would have found them to be a 

compelling reason not to terminate parental rights. However, any potential 

loss of Tribal benefits to N.S. as a result of adoption is speculative, 

particularly in light of Goodblanket’s testimony that he is not eligible for 

enrollment in the Tribe. “We will not reverse . . . on the basis of speculation 

regarding theoretical possibilities . . . .” (People v. Ayala (2000) 24 Cal.4th 

243, 267.) 

In sum, Mother has not met her burden of showing that a proper 

investigation into N.S.’s Tribal benefits would have tipped the scales in favor 

of guardianship by revealing benefits that the court would have found to 

constitute a compelling reason to determine that termination of parental 

rights would be detrimental to N.S. Mother may be able to make such a 

showing in a future proceeding, but in this appeal, she has not shown that 

she was prejudiced by N.S.’s counsel’s alleged ineffective assistance—i.e., 

17 England testified generally that if a “child is not allowed to be enrolled 

because they’ve been adopted, they wouldn’t be able to be afforded things we 

are able to access as Native Americans, very basic things, which is health 

care, medical care, dental and vision, mental health services.” England’s 

testimony about basic benefits that generally would be available to enrolled

members of an Indian tribe is not evidence that such benefits were available 

to N.S., who is not eligible for enrollment in the Tribe. 
37

that but for counsel’s deficient investigation into N.S.’s available Tribal 

benefits, it is reasonably probable that she would have obtained a more 

favorable result at the section 366.26 hearing. 

III. 

The Court Did Not Err in Finding That the Indian Child 

Exception to Adoption Does Not Apply

Mother contends that the court erred in finding that the Indian child 

exception of section 366.26, subdivision (c)(1)(B)(vi)(I) and (II) did not apply 

to preclude the termination of parental rights. In addition to renewing her 

argument that “the statutory exceptions are preempted by the Tribe’s 

decree,” she contends that the evidence does not support the juvenile court’s 

conclusion that adoption would not interfere with N.S.’s connection to the 

Tribe. Additionally, Mother argues that the court should have deferred to the 

Tribe’s selection of guardianship as N.S.’s permanent plan because 

guardianship served N.S.’s best interests as an Indian child. The essential 

basis for both arguments is Mother’s contention that Grandmother will not 

make efforts to foster N.S.’s connection to the Tribe if she adopts N.S. and 

parental rights are terminated, whereas Mother would foster N.S.’s 

connection with the Tribe if his permanent plan were guardianship. 

“ ‘ “At the selection and implementation hearing held pursuant to 

section 366.26, a juvenile court must make one of four possible alternative 

permanent plans for a minor child. . . . The permanent plan preferred by the 

Legislature is adoption. [Citation.]” [Citations.] If the court finds the child is 

adoptable, it must terminate parental rights absent circumstances under 

which it would be detrimental to the child.’ ” (T.S., supra, 175 Cal.App.4th at 

p. 1038.) 
38

“Before the juvenile court may find an exception to adoption for an 

otherwise adoptable child, a parent must establish a ‘compelling reason for 

determining that termination would be detrimental to the child’ due to one of 

several specified circumstances. (§ 366.26, subd. (c)(1)(B).)” (T.S., supra, 175

Cal.App.4th at p. 1038.) “The parent has the burden of establishing the 

existence of any circumstance that constitutes an exception to termination of 

parental rights. [Citation.] ‘Because a section 366.26 hearing occurs only 

after the court has repeatedly found the parent unable to meet the child’s 

needs, it is only in an extraordinary case that preservation of the parent’s 

rights will prevail over the Legislature’s preference for adoptive placement.’ ” 

(Id. at p. 1039.)

Section 366.26, subdivision (c)(1)(B)(vi), referred to in case law as the 

Indian child exception, actually specifies two exceptions to the termination of 

parental rights that apply to an Indian child as follows: “The child is an 

Indian child and there is a compelling reason for determining that 

termination of parental rights would not be in the best interest of the child, 

including, but not limited to: [¶] (I) Termination of parental rights would 

substantially interfere with the child’s connection to his or her tribal 

community or the child’s tribal membership rights. [¶] (II) The child’s tribe 

has identified guardianship, foster care with a fit and willing relative, tribal 

customary adoption, or another planned permanent living arrangement for 

the child.” (§ 366.26, subd. (c)(1)(B)(vi).) 

“[W]hether a compelling reason exists under the Indian Child 

Exception is an issue committed to the trial court as the trier of fact and its 

discretion to resolve whether, on any statutory grounds, that termination 

would be detrimental to an otherwise adoptable child. (§ 366.26, subd. 

(c)(1)(B).)” (In re A.A. (2008) 167 Cal.App.4th 1292, 1322 (A.A.), italics 
39

added.)18 Accordingly, we apply the substantial evidence standard of review 

to the juvenile court’s relevant factual findings, and the abuse of discretion 

standard to the court’s determination of whether, based on its factual 

findings, there was a compelling reason under the Indian child exception to 

not terminate parental rights. (See In re Anthony B. (2015) 239 Cal.App.4th 

389, 395 (Anthony B.).) 

Under the substantial evidence standard, we do not pass on the 

credibility of witnesses, attempt to resolve conflicts in the evidence, or 

reweigh the evidence. Instead, we draw all reasonable inferences in support 

of the findings, view the record favorably to the juvenile court’s order and 

affirm the order even if there is other evidence to the contrary. (In re Casey 

D. (1999) 70 Cal.App.4th 38, 52-53.) The appellant has the burden of 

showing that there is no evidence of a sufficiently substantial nature to 

support the court’s finding. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) 

We conclude that the juvenile court reasonably determined that 

termination of parental rights would not substantially interfere with N.S.’s 

connection to the Tribe. There was no evidence that N.S. actually had any 

connection to the Tribe at the time of the section 366.26 hearing. Rather, the 

evidence showed that Tribe had “little to no” contact with Grandmother 

during the period of her guardianship, and that in December 2019, N.S. did 

not know which tribe he was connected to and did not recall having heard the 

Tribe’s name when he was told what it was. 

18 The Agency correctly notes that the three major published opinions 

that have addressed the Indian child exception to adoption have reviewed the 

juvenile court’s decision as to whether the exception applies under an abuse 

of discretion standard. (A.A., supra, 167 Cal.App.4th at pp. 1322-1323; T.S.,

supra, 175 Cal.App.4th at p. 1038; H.R., supra, 208 Cal.App.4th at p. 764.)
40

The juvenile court found that “Grandmother, once she is properly 

informed, once the expectations are concretely articulated, that she will 

encourage [N.S.] to learn about his [Native American] heritage. Obviously, 

the Tribe is a wonderful resource for that if, in fact, there are bridges or 

common ground that can be established for that.” The court also believed 

that as N.S. grew older, he would become curious about his Native American

heritage and would pursue connections with members of the Tribe to learn 

about it on his own. Thus, the court concluded, “I cannot find there would be 

a compelling reason [not to order termination of parental rights and adoption 

as N.S.’s permanent plan] based on a substantial interference with his 

connection [to the Tribe].”

The court’s finding that Grandmother would encourage N.S. to learn 

about his heritage going forward is supported by substantial evidence. When 

Goodblanket, at a CFT meeting in April 2019, expressed concern that N.S. 

was not becoming involved with the Tribe, Grandmother asked about the 

possibility of receiving a newsletter from the Tribe that would provide 

information about the Tribe’s events. Navarro reported that Grandmother 

understood the responsibilities of a TCA when Grandmother and the Tribe 

were both requesting that plan with the Agency’s support. When Olimpio 

asked Grandmother about Goodblanket’s concern that the Tribe had “little to 

no” contact with Grandmother during the period of her guardianship, 

Grandmother told Olimpio that the Tribe had not reached out to her, and 

that even when she requested information at a CFT meeting about Tribal 

activities that N.S. could attend, the Tribe had not responded to her. Olimpio 

reported that “the Tribe equates this apparent lack of contact with lack of 

interest, which the grandmother states is not true.” Regarding the Tribe’s 

letter requesting guardianship, in which the Tribe expressed concern that 
41

Grandmother would not adhere to the “rights and responsibilities that would 

be listed in a TCA,” Olimpio noted that the Tribe “cite[d] no evidence for their 

concerns.” 

Goodblanket testified that she met with Tribe, informed it that 

Grandmother was willing to engage N.S. in Tribal activities and asked 

whether there was a mailing list that Grandmother could be on. The Tribe 

responded that it did not have a mailing list but they gave Goodblanket the 

address for their website and told her about a Christmas party that 

Grandmother was invited to attend. Goodblanket testified that the Tribe’s 

not having a mailing list made it “a little bit harder” for the Tribe to facilitate 

a relationship with Grandmother or to facilitate Grandmother’s “ability to 

know what’s going on in the community.” Given Grandmother’s record of 

excellent care, the fact that Grandmother had been made aware of the 

expectation that she would foster a connection between N.S. and the Tribe, 

and the evidence that she was willing to involve N.S. with the Tribe if she 

were made aware of relevant Tribal activities, the court could reasonably find 

that Grandmother would make an effort to foster a connection between N.S. 

and the Tribe in the future. 

The Agency analogizes the Indian child exception to adoption to the 

sibling relationship exception set forth in section 366.26, subdivision 

(c)(1)(B)(v), and notes that in In re D.O. (2016) 247 Cal.App.4th 166 (D.O.), 

this court concluded that the juvenile court could properly consider a 

grandmother caregiver’s assurances that she would continue to allow

visitation between the dependent minor and her half siblings as a factor in

determining whether termination of parental rights would substantially 

interfere with the sibling relationship. (Id. at pp. 175-176.) The appellants 

in D.O. (mother and siblings) argued that that “ ‘no evidence supported the 
42

juvenile court’s finding that the sibling relationship would remain intact, 

except for speculation that the caregivers would continue to allow it.’ ” (Id. at 

p. 176.) The D.O. court observed: “This argument ignores that it was 

appellants’ burden to establish there would be substantial interference, not 

the Agency’s burden to establish there would not.” (Ibid.; see A.A., supra, 167 

Cal.App.4th at p. 1324 [argument that caregivers failed to take steps to 

promote children’s connection to the tribal community overlooked that it was 

appellants’ evidentiary burden to establish termination of parental rights 

would substantially interfere with the children’s connection to the tribe].) 

The juvenile court in D.O. had found that there was no evidence that there 

would be interference with the sibling relationships, and the D.O. court 

viewed the appellants “assertion on appeal that ‘many things can happen 

over the next 16 years’ [as] speculative.” (D.O., at p. 176.) 

The analogy between assurances of future sibling visitation and 

assurances of future efforts to foster an Indian child’s connection to his or her 

tribe is valid. Based on the evidence that Grandmother expressed 

willingness to involve N.S. with the Tribe after she adopted him, the court

could reasonably find that termination of parental rights and adoption by 

Grandmother would not substantially interfere with N.S.’s connection to the 

Tribe.

In addition to the evidence that Grandmother would make efforts in the 

future to foster N.S.’s connection with Tribe, the court could also reasonably 

find that termination of parental rights would not substantially interfere 

with N.S.’s connection to the Tribe based on evidence that there was very 

little connection to interfere with. Mother faults Grandmother for not 
43

fostering a connection,19 but there are two other circumstances that factor 

into N.S.’s lack of connection with the tribe: the lack of any evidence of a 

connection between N.S. and his paternal Indian relatives, and the lack of 

interest in N.S. by the Tribe itself during the period of Grandmother’s 

guardianship.20 This is not a case where a significant connection to a tribe 

through the dependent minor’s Indian relatives stood to be severed or 

severely limited through termination of parental rights and adoption by a 

non-Indian family. The record does not indicate the existence of any 

connection between N.S. and his paternal relatives or any indication that any

paternal relative has ever attempted to connect with him in any way. The 

record is silent on this point, except for the testimony of Mother’s Indian 

expert Alexandra that, to her knowledge, none of N.S.’s father’s family 

members, who “would be his ancestors that are San Pasqual Indian,” had 

“been involved with N.S. at all[.]” The Indian child exception to adoption

concerning interference with the child’s connection to his or her tribal 

community is unlikely to be a compelling reason for determining that 

termination of parental rights would not be in the best interests of the child

19 Olimpio asked N.S. about his Tribal heritage in December 2019, after 

he had been having regular visits with Mother the entire year. As noted, 

N.S. did not know which tribe he was connected to, and when Olimpio told 

him the name of the Tribe, he had no memory of having previously heard it. 

A reasonable inference from this evidence is that neither Grandmother nor 

Mother at that point had made significant efforts to foster a connection 

between N.S. and the Tribe. 

20 As noted, at the section 366.26 hearing the court felt compelled to state 

that “up until the time the Tribe utilized Ms. Goodblanket to come in and 

address these issues, the Tribe had its own responsibilities to reach out to 

[N.S.] and see how he was doing[,]” suggesting that the Tribe had not met 

those responsibilities. 
44

where, as here, the child has no connection to the tribe through his or her 

relatives who are members of the tribal community. 

It may be that the Tribe’s apparent lack of interest in N.S. during the

period of Grandmother’s guardianship and the lack of any connection 

between N.S. and his paternal relatives are related—i.e., that the main 

reason that N.S. had no connection with the Tribe in his early childhood was 

because none of his Indian relatives were involved in his life. However,

regardless of the cause, the reality at the time of the section 366.26 hearing 

was that any substantial interference with N.S.’s connection to the Tribe for 

the court to consider would be interference with a potential future connection,

because there was no significant past or present connection. As discussed, 

the juvenile court reasonably found that Grandmother would make efforts to 

foster a connection in the future. Accordingly, we conclude that the court 

reasonably found that termination of parental rights would not substantially 

interfere with N.S.’s connection to the Tribe. 

We further conclude that the juvenile court acted well within its 

discretion in determining that the Tribe’s recommendation of guardianship 

as N.S.’s permanent plan was not a compelling reason to find that 

termination of parental rights would not be in N.S.’s best interests. As we 
45

discussed ante, the juvenile court was not required to order the permanent 

plan that the Tribe preferred.21 

The evidence amply supports a finding that termination of parental 

rights and not applying the Indian child exception would not be detrimental 

to N.S. N.S. had spent nearly his entire childhood in Grandmother’s care and 

it was undisputed that she met all of his needs and that he had thrived in her 

care. He repeatedly expressed that he wanted Grandmother to adopt him, 

even though he wanted to continue to have visitation with Mother. He had 

been in Grandmother’s care under guardianship since he was three years old

and, at age eight, he understood the difference between guardianship and 

adoption. He recognized that with adoption, he would remain with 

Grandmother and Mother could not try to regain custody of him, and with 

guardianship, he would still be with Grandmother but Mother could request

that he be returned to her care. When asked what his future would look like 

if he could make it any way he wanted, he said he would be adopted and 

Mother would keep visiting him. He would like Mother to spend the night at 

his house but did not want to spend the night at her house. He expressed his 

desire to be adopted by Grandmother but to continue to visit Mother to the 

Agency social workers, his attorney, the Tribal representative, and his 

psychological evaluator.

21 Mother acknowledges that under case law, the juvenile court conducts 

an independent assessment of detriment in determining whether a statutory 

exception to adoption is a compelling reason not to terminate parental rights. 

(T.S., supra, 175 Cal.App.4th at p. 1040.) However, she argues that this 

principle “recognizes the Tribe only as a mere participant rather than a 

sovereign nation.” Her criticism of case law on this point reflects her position 

that a tribe’s selection of a permanent plan preempts any statutory 

preference for a different plan and must be followed by the court. We rejected 

that position in part I of this opinion.
46

N.S.’s statements evidence his need and desire for the stability and 

permanency of adoption. Whether or not N.S. was an Indian child, he “ had a 

fundamental interest in stability and permanency. [Citation.] Adoption 

gives a child the best chance at a full emotional commitment from a 

responsible caretaker. [Citation.] Guardianship, while a more stable 

placement than foster care, is not irrevocable and falls short of the secure and 

permanent future the Legislature had in mind for a dependent child.” (A.A.,

supra, 167 Cal.App.4th at p. 1325; In re Priscilla D. (2015) 234 Cal.App.4th 

1207, 1215-1216 [“Continuity in a legal guardianship is not equivalent to the 

security and stability of a permanent caretaker.”].) “ ‘While the ICWA 

focuses on preserving Indian culture, it does not do so at the expense of a 

child’s right to security and stability.’ ” (In re Collin E. (2018) 25 Cal.App.5th 

647, 660, fn. 4.) 

The Tribe supported guardianship in large part because it would give 

Mother a future opportunity to have N.S. returned to her care. The Tribe 

stated that it would support another section 388 petition by Mother if she 

had a minimum of six more months of sobriety, and that it was “committed to 

the reunification of their families, even when that is outside of the legal 

timeline of the Court.” Goodblanket testified that the reason the Tribe 

wanted to maintain N.S.’s guardianship was to give Mother “an opportunity 

to potentially become [N.S.’s] full parent again.” Thus, in recommending 

guardianship as N.S.’s permanent plan, the Tribe’s focus was on Mother’s

interest and the Tribe’s general cultural preference to not terminate parental 

rights. However, in the words of the A.A. court, “although guardianship may 

have served the Tribe’s interests, the court, in assessing [N.S.’s] best 

interests, was not compelled to agree with the Tribe.” (A.A., supra, 167 

Cal.App.4th at p. 1325.) 
47

The evidence regarding the benefit that N.S. would gain from being 

adopted by Grandmother versus continuing in his guardianship supports the 

juvenile court’s determination that guardianship was not in N.S.’s best 

interests and, therefore, the Tribe’s identification of guardianship as N.S.’s 

permanent plan was not a compelling reason to preserve parental rights.

The juvenile court did not abuse its discretion in determining that the Indian 

child exception to adoption did not preclude termination of parental rights 

based on either substantial interference with N.S.’s connection to the Tribe or 

the Tribe’s identification of guardianship as N.S.’s permanent plan. 

IV. 

There is Sufficient Evidence to Support the Court’s Finding Beyond a 

Reasonable Doubt That Continued Custody in Mother’s Care Would Be a 

Substantial Risk to N.S.

Mother contends that there was insufficient evidence to support the 

juvenile court’s finding beyond a reasonable doubt that continued custody in 

Mother’s care would likely result in serious emotional or physical damage to 

N.S.

“ICWA protects the interests of Indian children and promotes the 

stability and security of Indian tribes and families by establishing minimum 

federal standards in juvenile dependency cases. [Citations.] Those standards 

require the juvenile court to make certain findings affecting an Indian child 

before ordering foster care or terminating parental rights. Before the court 

can terminate parental rights it must make a finding, ‘supported by evidence 

beyond a reasonable doubt, including testimony of qualified expert witnesses, 

that the continued custody of the child by the parent or Indian custodian is 

likely to result in serious emotional or physical damage to the child.’ (25 

U.S.C. § 1912(f); see also § 366.26, subd. (c)(2)(B)(ii).) This finding is 

commonly referred to as the ICWA detriment finding.” (In re M.B. (2010) 182 
48

Cal.App.4th 1496, 1502 (M.B.).) We review the court’s ICWA detriment 

finding for substantial evidence. . . . The appellant has the burden of 

showing there is no evidence of a sufficiently substantial nature to support 

the court’s finding.” (Id. at p. 1506.) 

We conclude that the juvenile court’s ICWA detriment finding is 

supported by substantial evidence. Although Mother had been doing well in 

maintaining her sobriety at the time of the section 366.26 hearing, she had a 

long history of repeatedly attaining sobriety through treatment and then 

relapsing into substance abuse. According to Grandmother, Mother had been 

“in and out of different substance abuse programs 15 or more times.” The 

Agency’s initial report for the section 366.26 hearing filed in April 2019 noted 

Mother’s chronic substance abuse history dating back to when she was 

approximately 15 years of age, and her inability to maintain sobriety. After 

the case was closed in 2014, Mother “would sober up for approximately 6 

months and then relapse.” The Agency noted that Mother cited the lack of 

visits with N.S. as a contributing cause of her relapses, but further noted that 

between 2012 and 2014, Mother had episodes of relapse despite receiving 

services and even after she reunified with N.S. at one point. The Agency 

reported that Mother had “been unable to demonstrate substantial progress 

to address her substance abuse, which does not decrease the protective 

issue.” The Tribe did not support Mother’s section 388 petition requesting 

termination of the guardianship and reunification services to transition N.S. 

back into her care, stating it “would be supportive of a [section] 388 with a 

minimum of 6 more months of sobriety.” The Tribe believed that it was in 

N.S.’s best interests to remain in Grandmother’s home where he had 

stability. The court could reasonably view Mother’s history of substance 

abuse as a risk factor in returning N.S. to Mother’s custody. 
49

ICWA expert England, who had been an Indian expert for over 20 years 

and had testified in more than 2,000 cases in 22 states, stated in his 

declaration that, based on the information provided to him, including the 

Agency’s reports, it was his “opinion that a causal relationship exists between 

the conditions in [Mother’s] home and the likelihood that continued custody 

of [N.S.] by [Mother] or [the father] is likely to result in serious emotional or

physical damage to [N.S.].” 

It was undisputed that Grandmother took excellent care of N.S., that 

he thrived in her care, and was happy living with her, as reflected in his 

statement that “[e]verything here is awesomely best!” As noted, N.S. 

repeatedly made it clear that he wanted to be adopted by Grandmother and 

did not want to live with Mother, although he wanted to continue to visit her. 

In finding beyond a reasonable doubt that custody with Mother would 

likely to result in serious emotional or physical damage to N.S., the court 

noted England’s opinion to that effect and focused on the fact that N.S.’s 

primary attachment was to Grandmother and that his clear preference was 

to remain in her care. The court stated that the “emotional difficulty” N.S. 

would experience if he were returned to Mother’s care “would stem primarily 

from the fact that his entire world and environment would be disrupted. And 

this is a young man who has relied very heavily on his environment. So I do 

believe, by evidence beyond a reasonable doubt, that there would be 

emotional damage to him with respect to continued custody [by Mother].”22

The court added that “[N.S.] enjoys being with his mother. He knows his 

mother is his mother. But he also knows that someone else occupies an even 

22 The court clarified that it was referring to physical custody rather than 

legal custody. 
50

more hallowed position in his life, and that is his Grandmother. His 

Grandmother’s been there through thick and thin. When he’s had a cold, she 

has assisted him. When he’s had a headache, she’s been there to alleviate the 

pain. When he’s had the flu, she’s put that cold compress on his forehead and 

had him bend over the commode. [¶] Those types of activities, that type of 

experience, really does forge the attachment and bond he has with his 

grandmother. There is no similar forging of an attachment or bond with the 

mother because of the practical aspects of being out of his mother’s care for 

two-thirds of his life.” 

The evidence overwhelmingly supports the court’s view that N.S.’s 

primary attachment is to his Grandmother and that his “entire world” would 

be disrupted if he were removed from her care against his express and 

repeated wishes. Accordingly, the court reasonably found beyond a 

reasonable doubt that returning N.S. to Mother’s custody would likely result 

in serious emotional damage to N.S. 

V. 

The Court Did Not Err in Finding That the Beneficial Parent-Child 

Relationship Exception to Adoption Does Not Apply

Mother contends that the juvenile court erred in finding that the 

beneficial parent-child relationship exception of section 366.26, subdivision 

(c)(1)(B)(i) does not apply to preclude termination of parental rights. We 

disagree. 

At a permanency hearing, under section 366.26, subdivision (b), the 

court must select the dependent child’s permanent plan from a number of 

statutory alternatives, including adoption, TCA, guardianship and long-term 

foster care. “ ‘If the dependent child is adoptable, there is a strong preference 

for adoption over the alternative permanency plans.’ [Citation.] ‘Once the 
51

court determines the child is likely to be adopted, the burden shifts to the 

parent to show [a compelling reason to determine] that termination of 

parental rights would be detrimental to the child under one of the exceptions 

listed in section 366.26, subdivision (c)(1). [Citations.] Section 366.26, 

subdivision (c)(1)(B)(i), provides an exception to termination of parental 

rights when “[t]he parents have maintained regular visitation and contact 

with the child and the child would benefit from continuing the 

relationship.” ’ ” (In re G.B. (2014) 227 Cal.App.4th 1147, 1165 (G.B.).) 

This court has interpreted “the ‘benefit from continuing the [parent[-

]child] relationship’ exception to mean the relationship promotes the wellbeing of the child to such a degree as to outweigh the well-being the child 

would gain in a permanent home with new, adoptive parents. In other words, 

the court balances the strength and quality of the natural parent[-]child 

relationship in a tenuous placement against the security and the sense of 

belonging a new family would confer. If severing the natural parent[-]child 

relationship would deprive the child of a substantial, positive emotional 

attachment such that the child would be greatly harmed, the preference for 

adoption is overcome and the natural parent’s rights are not terminated.” (In 

re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).) 

“A parent asserting the parental benefit exception has the burden of 

establishing that exception by a preponderance of the evidence. [Citation.] It 

is not enough to show that the parent and child have a friendly and loving 

relationship. [Citation.] ‘ “Interaction between [a] natural parent and child 

will always confer some incidental benefit to the child . . . .” ’ [Citation.] For 

the exception to apply, ‘a parental relationship is necessary[.]’ 

[Citation.] ‘ “While friendships are important, a child needs at least one 

parent. Where a biological parent . . . is incapable of functioning in that role, 
52

the child should be given every opportunity to bond with an individual who 

will assume the role of a parent.” ’ ” (In re J.C. (2014) 226 Cal.App.4th 503, 

529 (J.C.).) 

“We apply the substantial evidence standard of review to the factual 

issue of the existence of a beneficial parental relationship, and the abuse of 

discretion standard to the determination of whether there is a compelling 

reason for finding that termination would be detrimental to the child.” 

(Anthony B., supra, 239 Cal.App.4th at p. 395.) 

Regarding the existence of a parental relationship, substantial evidence 

supported the juvenile court’s determination that although N.S. enjoyed his 

visitation with Mother and wanted it to continue, the relationship between 

Mother and N.S. was not a parent-child relationship; N.S.’s parental bond 

was with Grandmother. In the Agency’s initial report for the section 366.26 

hearing, Navarro noted that although Mother had been consistent and loving 

in her visitation with N.S., “due to the fact that [N.S.] has only resided with 

his mother for approximately 20 months of his seven years of life, their 

relationship can be described as a loving and friendly relationship. 

Furthermore, [N.S.] shows no signs of grief when separating from the mother 

at the end of each visit. Moreover, [N.S.] has expressed his needs to multiple 

professional identities that increasing visitation is not something he desires 

or appears to need. [N.S.] has also voiced not wanting to keep the scheduled 

two phone calls a week and requested to decrease it to one. Additionally, 

when [N.S.] was asked about his mother’s involvement and attendance to his 

[extracurricular] activities, Noah specified he did not want his mother 

present as he does not want anything to change.” Navarro reported that N.S. 

had a great love for Grandmother and that he had “developed a parental 
53

relationship and bond with [Grandmother] as he had lived with her for the 

majority of his life.”

Although N.S. increasingly enjoyed visitation with Mother and 

progressed to wanting to have overnight visits with her, he never wavered in 

his wish to be adopted by Grandmother. Thus, at the section 366.26 hearing, 

the juvenile court reasonably found that N.S.’s primary attachment was with 

Grandmother and that his clear preference was to remain in her care. The 

court observed that “[N.S.’s] established connection to his grandmother, who 

he regards as a mother figure, is the most powerful and persuasive aspect of 

this case.” 

Even assuming that there is sufficient evidence to support a finding of 

a beneficial parent-child relationship between Mother and N.S., we conclude 

that Mother has not met her burden of showing that the juvenile court 

abused its discretion in determining that termination of parental rights 

would not be detrimental to N.S. Although the court recognized at the 

section 366.26 hearing that N.S. enjoyed being with Mother, and that both 

Mother and N.S. described their visits, in the court’s words, “as appropriate 

and enjoyable[ and] loving,” the court found that “the benefits that the 

mother confers upon [N.S. are] greatly outweighed by his need for stability in 

placement, which can only be achieved by adoptive placement.” Noting N.S.’s 

stability and developmental progress in Grandmother’s care and reiterating

that the stability of N.S.’s placement with Grandmother outweighed the 

benefits that he received from his contact with Mother, the court concluded

that “it would not be in [N.S.]’s best interests to promote or facilitate a 

mother-child relationship.” In connection with its ICWA detriment finding, 

the court acknowledged that it was important for N.S. to have a connection 

with Mother. The court added, “But that does not mean that the connection, 
54

if it is disrupted . . . would be so detrimental to him[] that termination of 

parental rights should not occur.” 

The evidence discussed ante that supports the juvenile court’s rejection 

of the Indian child exception to adoption and the court’s finding beyond a 

reasonable doubt that custody with Mother would likely result in serious 

emotional or physical damage to N.S. also supports the court’s determination 

that terminating parental rights would not be detrimental to N.S. under the 

beneficial parent-child relationship exception to adoption. In particular, the 

evidence that N.S. is happy and thriving in Grandmother’s care and that he

has consistently and unequivocally expressed the desire to be adopted by 

Grandmother sufficiently supports the court’s determination that 

terminating parental rights would not cause N.S. to be greatly harmed. 

Accordingly, we conclude that the court did not abuse its discretion in 

determining that there is no compelling reason to find that termination of 

parental rights would be detrimental to N.S. Substantial evidence in the 

record supports the court’s finding that, notwithstanding the positive aspects 

of the relationship between Mother and N.S., the benefit that N.S. would gain 

from adoption by Grandmother outweighs any detriment to him that would 

result from termination of parental rights. Mother has not met her burden of 

showing that the juvenile court erred in finding that the beneficial parentchild relationship exception of section 366.26, subdivision (c)(1)(B)(i) did not 

apply to preclude termination of her parental rights. 
55

DISPOSITION

The order terminating parental rights and selecting adoption as N.S.’s 

permanent plan is affirmed. 

AARON, J.

WE CONCUR:

BENKE, Acting P. J.

HUFFMAN, J.

 
Filed 10/9/20

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re N.S., a Person Coming Under the 

Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND 

HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

C.V.,

Defendant and Appellant.

 D077177

 (Super. Ct. No. NJ14703)

 ORDER CERTIFYING 

 OPINION FOR PUBLICATION

THE COURT:

The opinion in this case filed on September 17, 2020, was not certified for 

publication. It appearing the opinion meets the standards for publication specified in 

California Rules of Court, rule 8.1105(c), the request pursuant to rule 8.1120(a) for 

publication is GRANTED.

IT IS HEREBY CERTIFIED that the opinion meets the standards for publication 

specified in California Rules of Court, rule 8.1105(c); and

ORDERED that the words "Not to Be Published in the Official Reports" appearing 

on page one of said opinion be deleted and the opinion herein be published in the Official 

Reports. 

BENKE, Acting P. J.

Copies to: All parties