1

Filed 12/29/21 In re A.L. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not 

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

been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

In re A.L., et al., a Person Coming 

Under the Juvenile Court Law.

SONOMA COUNTY HUMAN 

SERVICES DEPARTMENT,

Petitioner and Respondent,

v.

M.H.,

Objector and Appellant.

 A162200

 (Sonoma County

Super. Ct. Nos. DEP 5728, 

DEP 5729)

M.H. (Mother), the mother of Al. and An., appeals after the 

juvenile court denied her oral motion for modification seeking 

return of the children to her care (Welf. & Inst. Code1, § 388), 

terminated her parental rights, and selected adoption as the 

children’s permanent plan (§ 366.26). On appeal, Mother argues 

that the court erred by denying her section 388 motion, finding 

that she failed to establish the beneficial relationship exception 

to termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)), and 

failing to ensure proper compliance with the Indian Child 

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

1 All further statutory references are to the Welfare and 

Institutions Code unless otherwise indicated.
2

County Human Services Department (the Department) concedes 

error with respect to the latter two issues. 

We reject Mother’s contention that the juvenile court erred 

in denying her section 388 motion. However, after the court 

issued its section 366.26 order, the California Supreme Court 

decided In re Caden C. (2021) 11 Cal.5th 614 (Caden C.), which 

provided new guidance on how the beneficial relationship 

exception should be applied. We cannot determine on the record 

before us that the juvenile court’s ruling complied with the 

principles announced in Caden C. We also agree with the parties 

that the record does not support the juvenile court’s ICWA 

findings. Accordingly, we affirm the order denying the section 

388 petition, but reverse the section 366.26 order and remand 

with directions.

BACKGROUND

The Initial Dependency Proceeding

In December 2018, the Department filed a petition under 

section 300 for Al. and An., then six and three years old, 

respectively. The petition alleged the children were at risk of 

serious harm because Mother and Father engaged in physical 

violence with Al. in the zone of danger (§ 300, subd. (a)), and 

Mother and Father exposed the children to domestic violence on 

at least eight occasions (§ 300, subd. (b)). Under section 300, 

subdivision (g), the petition stated Father was incarcerated and 

unable to provide care and support. The petition also alleged 

that Mother received a criminal protective order (the protective 
3

order) against Father in November 2018, and police arrested 

Father for violations of this order numerous times. 

The Department’s report in support of the petition 

summarized nine reports of domestic violence between Mother 

and Father or violations of domestic violence protective orders, 

dating back to August 2016. When confronted with the 

seriousness of the situation, Mother said she would be willing to 

move to another home or into a domestic violence shelter to 

protect the children. The children were detained.

The Department filed an amended section 300 petition in 

January 2019 including an allegation under subdivision (c) that 

the children were at risk of suffering serious emotional damage 

based on domestic violence. The subdivision (a) and subdivision 

(b) allegations were amended to state there had been nine 

incidents of serious domestic violence in the prior two and a half 

years, there was a chronic pattern of violence, and Mother failed 

to protect the children by continuing to allow Father to visit the 

children and not pressing charges. 

In its jurisdiction/disposition report, the Department 

recommended the court take jurisdiction, declare the children 

dependents, and order family reunification services for the 

parents. The children had been placed with Mother’s cousin and 

were doing well. Mother denied being in a relationship with 

Father and said Father was repeatedly violent with her in the 

children’s presence. Mother had always been a stay-at-home 

mother. She had adult children with whom she had no child 

protective history. Mother had anxiety and ADHD. She was 
4

willing to participate in services, “expressed a strong desire to 

reunify,” and spoke passionately about her love for her children. 

Father denied harming anyone and accused Mother of hurting 

the children and using drugs.

At the February 2019 contested jurisdiction/disposition 

hearing, the court found the allegations of the amended petition 

to be true and removed the children. Father was declared the 

presumed father, and Mother and Father were offered 

reunification services. Mother’s case plan included parenting 

education, domestic violence support groups, intake assessment 

with DAAC (Drug Abuse Alternatives Center), completing an 

inpatient or outpatient program as assessed, and submitting to 

random drug tests.

The Department’s August 2019 six-month status report 

recommended an additional six months of services for Mother, 

and termination of services for Father, who had not made efforts 

to contact the Department since January 2019. Al. was “very 

happy, resilient, and well-adjusted,” with no behavioral issues. 

An. was very quiet and reserved, but had normal development. 

Al. wanted to be back home with Mother, and An. 

“enthusiastically agreed.” Al. and An. felt safe with Mother, 

spoke highly of their time with her, and could not wait to spend 

time with her again.

Mother’s visitation had been consistent, visitation became 

unsupervised, and overnight visits began in July 2019. The 

interactions between Mother and the children were consistently 

appropriate and positive. Mother was engaged in her case plan, 
5

including the requirement that she learn to build and maintain 

safe and healthy relationships free of violence. Mother 

successfully completed a six-week YWCA domestic violence 

program, continued to attend group meetings, and engaged in 

therapy. Mother completed an assessment with DAAC in May 

2019 which determined there was no need for inpatient or 

outpatient services. Mother’s drug tests were negative, although 

she missed several tests. The social worker noted that Mother 

never appeared to be under the influence, and she did not suspect 

that Mother was actively using substances. Father was 

incarcerated during much of the review period, and, to the social 

worker’s knowledge, Mother had not had contact with him. The 

social worker reported growth in Mother’s confidence, and that 

Mother was loving and attentive during visits and made the 

children feel “confident, comfortable, and safe.” 

At the six-month review hearing, the juvenile court 

authorized a trial home visit, and Mother submitted to the 

Department’s recommendation. Mother’s updated case plan 

included refraining from contact with Father and adhering to the 

protective order, developing a written safety plan specifying 

whom she would contact in the event she or the girls were in a 

violent or threatening situation with Father, and ensuring that 

all relationships to which the children were exposed were safe 

and free of violence. At the subsequent November 2019 contested 

six-month review hearing set by Father, the court terminated his 

reunification services. 
6

As of the Department’s January 2020 12-month status 

report, the children had been on a trial home visit with Mother 

for several months. Al. was happy and had no concerns living 

with Mother, and An. appeared happy and well-adjusted. Mother 

had made significant progress creating healthy relationships, but 

there were still serious concerns about her ability to follow 

through with some of her children’s needs. Al. had missed forty 

percent of the school year since being on the home trial visit, and 

Mother failed to maintain adequate contact with services 

providers, the social worker, and Al.’s school. Mother’s case plan 

continued to require her to provide a safe and violence-free home 

by, among other things, refraining from contact with Father, 

abiding by the protective order, and ensuring that all 

relationships to which the children were exposed were safe and 

free of violence. The Department recommended family 

maintenance services for Mother, and, at the March 2020 twelvemonth review hearing, the court accepted this recommendation. 

The Section 387 Motion and Setting of the Section 366.26 Hearing 

On June 11, 2020, the Department filed a section 387 

petition alleging that Mother had engaged in verbal and physical 

altercations in the home with her boyfriend in the children’s 

presence, and she had been arrested for felony aggravated 

assault. Mother also allowed the children to be in Father’s care, 

despite the fact that he was allowed only Department-supervised 

visits, and she coached the children not to tell the Department. 

The children were placed back in the care of Mother’s cousin.
7

The Department reported the children knew about the 

violent incident with Mother and her boyfriend, but said they did 

not see it; they said Mother and her boyfriend argued, screamed, 

and yelled in the home, daily. Al. seemed to believe that verbal 

and physical arguments were normal. The police had been called 

to the home multiple times in the preceding months for concerns 

of violence, including for an incident in April 2020 where Father 

and Mother were outside the home arguing. The Department 

reported concern that Mother had been falsifying drug tests, and 

Mother’s then-current appearance indicated substance abuse. 

The court found a prima facie case had been made, and, 

after a subsequent contested hearing, sustained the section 387 

petition. The court approved the children’s placement with the 

maternal cousin. Because there was not a substantial probability 

of return within the next six months or the time that remained in 

the 18-month maximum reunification period, the court 

terminated Mother’s reunification services. The matter was set 

for a section 366.26 hearing. 

Proceedings After Setting of the Section 366.26 Hearing

The Department’s November 2020 section 366.26 report 

recommended parental rights be terminated, and a plan of 

adoption be ordered. 

Mother’s visits with the children initially went well after 

the June 2020 removal, at which time Mother had been approved 

for three visits a week, supervised by the caregiver. When visits 

began, the children had a hard time leaving Mother. In July 

2020, the caregiver reported some difficulty in contacting Mother, 
8

visits the following month occurred only when the caregiver could 

pick Mother up, and visits became more infrequent when the 

caregiver started having car problems. In October 2020, Mother 

went car shopping and then missed visits after obtaining a car. 

The caregiver did not tell the children about visits so they would 

not be disappointed if Mother did not show, and she reported the 

children no longer struggled at the end of visits. They did not ask 

to see or visit with Mother when she did not visit.

Al. and An. had lived in the potential adoptive home, the 

home of the maternal cousin, for thirteen months in total during 

the dependency, and neither child had developmental, 

behavioral, or health concerns. Al. called the maternal cousin her 

“Aunt.” Al. responded positively when asked whether she could 

see herself growing up with her aunt, and she demonstrated an 

understanding of adoption and a desire to grow up with her aunt. 

The social worker reported that Al. perceived her potential 

adoptive mother as her primary caregiver, and the caregiver was 

meeting Al.’s physical and emotional needs. An. was too young to 

be interviewed, but the social worker observed that An. saw her 

caregivers, and in some ways her older sister, as her primary 

caregivers, and they were meeting her physical and emotional 

needs.

The relative caregivers were committed to the children and 

willing to provide permanency through adoption. They were

experienced parents who had demonstrated good parenting 

practices and the ability to meet the children’s needs. The girls 

had always had the caregivers in their lives, and they were 
9

comfortable with the family. Both children demonstrated strong 

emotional ties to the potential adoptive family. The social worker 

also reported that the potential adoptive parents and Mother 

were committed to maintaining the relationship between Mother 

and the children if it was in the children’s best interests, and the 

potential adoptive family had been referred to services to mediate 

a possible agreement for contact under the Family Code. 

The section 366.26 report concluded that both children 

would benefit from a permanent plan of adoption. The report 

documented an assessment by Sonoma County Family, Youth & 

Children’s Services (FY&C), stating, “Although interaction 

between the children and the birth parents may have some 

incidental benefit, such benefit does not outweigh the benefit that 

will be gained through the permanence of adoption. FY&C 

assesses that termination of parental rights would not be 

detrimental to the [children].”

In advance of the section 366.26 hearing, the Department 

provided the court with a copy of a police report from a December 

26, 2020 incident involving domestic violence between Mother 

and Father. In the report, Mother said Father broke into her 

home and was standing over her when she awoke; her son, who 

heard Mother screaming, reported that she told him to call the 

police. Father told police Mother battered him, and he visited the 

house every once in a while. Father was arrested for domestic 

battery and violation of the protective order. The police report 

also included a statement from Mother’s son that Father “comes 
10

to the house about once a week and stays for about an hour at a 

time.”

The court held a virtual contested section 366.26 hearing 

on January 8, 2021 that concluded on January 11, 2021. The 

Department’s section 366.26 report and witness disclosure, which 

included the December 26, 2020 police report, were moved into 

evidence. The court stated it had read and reviewed the entire 

file, including the protective order from November 2018, and it 

took judicial notice of its file.2

Mother’s counsel made an oral motion under section 388 

asking for return of the children because Mother had maintained 

suitable housing, she was not in a relationship with her prior 

boyfriend, she enjoyed frequent visits with the children, she 

believed the girls wanted to return to her care, and she had a 

close relationship with the girls. The court stated it would take 

the motion under submission, and then heard testimony from 

Mother and a social worker. 

Mother testified that she could provide a safe home for her 

daughters. She had lived in a three-bedroom house with her 

adult son since February 2019. Mother said that she called the 

police in December 2020 after Father came to her house in 

violation of the protective order. Father appeared at her house 

2 The day before the section 366.26 hearing, Father filed a 

section 388 petition asking that the children be returned to him 

or for additional reunification services, and Father testified at the 

hearing regarding the services he had completed. The court’s 

denial of Father’s section 388 petition is not at issue in this 

appeal.
11

with presents for the kids around Christmas, and she told him to 

leave. He appeared again the next morning, this time in her 

home, and she called the police because she had learned no 

tolerance. Mother testified that the statement in the police 

report indicating Father had been coming over to her home about 

once a week was false. She then qualified that Father had been 

there “a few times” prior. Mother testified that she had 

participated in parenting classes, was engaging in counseling to 

address her ADHD and PTSD, and was taking prescribed 

medications. Mother was willing to check in with the social 

worker and to be monitored.

Regarding visitation, Mother stated she visited with the 

girls “a few times a week for a few hours and one day on the 

weekend.” Mother testified that she had a “really close” 

relationship with Al., that they were “best friends,” and Al. “most 

definitely” viewed her as her mother. Mother had the closest 

relationship with An., who was her “sidekick and [ ] shadow.” 

Mother said she had not missed visits with Al. and An.; some 

visits had been rescheduled, but not missed. Mother believed 

terminating her parental rights would have a “devastating effect” 

on her children, and they would be “traumatized severely.” She 

said that the “absence of a mother is just not being complete 

ever,” and there would “always be something missing from their 

lives.” Mother testified that An. was hurting without Mother, she 

had begun peeing in her pants after the June 2020 removal, and 

Al. told her An. cries for Mother at night. 
12

The social worker testified that the caregiver stated that 

visitation had been difficult. The caregiver brought the children 

to visits, and if the caregiver’s car was not working, visits did not 

occur. However, the social worker conceded that, in the weeks 

prior to the hearing, visits had resumed at multiple times per 

week. The social worker stated that the children “respond fine 

for the most part” after visits; they did not cry or ask for Mother. 

The caregiver reported that the children do not ask about 

Mother, and if the caregiver did not talk about visits, the children 

did not ask for visits. The caregiver supervised the visits 

between the children and Mother, and the social worker had not 

observed any visit. An.’s enuresis had resumed at visits or 

immediately after visits with Mother.

The social worker testified that Al., who was old enough to 

be asked about the prospects of adoption, told the social worker 

that she wanted to grow up with her caregiver, and she liked 

where she was living. Al. did not say she wanted to live with 

Mother. The social worker opined that termination of parental 

rights would not be detrimental to the children, and the children 

depended on the caregiver as their primary parental figure.

The Juvenile Court’s Ruling

On the first day of the hearing, the court denied the section 

388 petitions of Mother and Father, stating, “Both of you seem to 

be doing well. And you are in the process of changing your lives. 

This particular petition is somewhat difficult for a parent to 

prevail because they have to show that their circumstances have 

been totally and completely changed. [¶] Both [Mother] and 
13

[Father] are in the process of changing their lives . . . [¶] I’m 

going to deny the JV-180s for both. They do not show changed 

circumstances to the extent that would be necessary. And there 

is no showing that it would be in the best interest of the children 

at this time, based on those two prongs.” 

The court then turned to the section 366.26 issues. The 

court observed that reunification services had been terminated 

over a year prior for Father and over six months prior for Mother, 

and the children needed stability. It found by clear and 

convincing evidence that the children were generally and 

specifically adoptable and stated the permanent plan was 

adoption. Regarding the beneficial relationship exception, the 

court ruled Mother “tried her best and has maintained 

reasonable visitation with her children.” However, neither 

parent had “prove[n] by a preponderance of the evidence that the 

children would benefit from continuing the parental relationship 

to such a degree that terminating parental rights would be 

detrimental to the child. That has not been shown by any 

evidence in this hearing.” The court continued, “So with that I 

am going to note that mother, once she had – once she exposed 

the children to domestic violence back last year, mid—in her 

relationship around the middle of last year, that at the end of this 

last year she was allowing [Father] in the house based on the 

information that was – I know that this is not her testimony, but 

the information contained in the reports, including the testimony 

of other children, show that [Father] was coming over there at 

least once a week even though there was a criminal protective 
14

order, and at one point [Father], though it did not result in a 

conviction, was arrested for domestic violence and he has – has 

testified so. [¶] So based on all of that information, the parental 

rights are terminated.” Mother timely appealed from the court’s 

January 11, 2021 order.3

DISCUSSION

I. Denial of Mother’s Section 388 Motion

Mother contends that the trial court abused its discretion 

in denying her section 388 request by requiring a showing of 

circumstances that had “totally and completely” changed, rather 

than the pertinent substantial change standard. (See In re 

Esperanza C. (2008) 165 Cal.App.4th 1042, 1061 [“A decision that 

rests on an error of law constitutes an abuse of discretion”].) She 

also contends that the court abused its discretion when it 

determined that she had not established that return of the 

children would be in their best interests. We need not decide 

whether the juvenile court used an incorrect standard to evaluate 

Mother’s changed circumstances showing because we find no 

merit to Mother’s second contention.4

3 Mother’s counsel filed a notice of appeal for her on March 

9, 2021, and Mother filed what is designated in the record as a 

“duplicate notice” on March 11, 2021.

4 Mother’s notices of appeal designate an appeal from a 

January 11, 2021 order under “Section 366.26.” Her duplicate 

notice indicates an appeal from “January 11, 2021. Order of 

termination of parental rights, planned permanency placement,” 

and from an order in June 2020 under “Section 360,” “Removal of 

custody from parent or guardian.” These notices do not specify 

the section 388 order. The court in In re Madison W. (2006) 

141 Cal.App.4th 1447, 1450–1451, explained that it routinely 
15

Section 388 authorizes a parent to petition the court to 

change a previous order based on a change in circumstances or 

new evidence if undoing the prior order would be in the child’s 

best interests. (§ 388, subds. (a)(1), (d); In re Kimberly F. (1997) 

56 Cal.App.4th 519, 526–527 & fn. 5, 529 (Kimberly F.).) The 

parent bears the burden to establish a genuine change of 

circumstances, and that undoing the prior order would be in the 

best interests of the child. (Kimberly F., at p. 529.) Section 388 

serves as “an ‘escape mechanism’ when parents complete a 

reformation in the short, final period after the termination of 

reunification services but before the actual termination of 

parental rights.” (Id. at p. 528.) In this respect, it is “vital to the 

constitutionality of our dependency scheme as a whole, and the 

termination statute, section 366.26, in particular.” (Ibid., citing 

In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.).)

Nonetheless, after reunification services have been 

terminated and a section 366.26 hearing has been set, as in this 

case, “the parent[’s] interest in the care, custody and 

companionship of the child are no longer paramount. Rather, at 

deemed notices of appeal from termination of parental rights to 

include denials of section 388 petitions filed within 60 days prior. 

In re J.F. (2019) 39 Cal.App.5th 70, 77–78, declined to follow 

Madison W. where the court denied a section 388 petition 44 days 

before the termination of parental rights and appellant’s briefing 

addressed only the 388 petition. We will follow Madison W. here 

and liberally construe the notices of appeal because Mother made 

her section 388 motion on the day of the section 366.26 hearing, 

both parties’ briefing addresses the sections 388 and 366.26 

orders, and the Department does not argue the section 388 order 

was not appealed, nor does it assert any prejudice.
16

this point ‘the focus shifts to the needs of the child for 

permanency and stability’ ([Marilyn H., supra, Cal.4th at 

p. 309]), and in fact, there is a rebuttable presumption that 

continued foster care is in the best interests of the child.’ ” (In re 

Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).) “A court 

hearing a motion for change of placement at this stage of the 

proceedings must recognize this shift of focus in determining the 

ultimate question before it, that is, the best interests of the 

child.” (Ibid.) 

The determination of a section 388 motion is committed to 

the sound discretion of the juvenile court, which we do not 

disturb unless abuse of discretion is clearly established, that is, if 

the trial court “ ‘exceeded the bounds of reason.’ ” (Stephanie M., 

supra, 7 Cal.4th at pp. 318–319.) This is a high standard, and an 

order denying a section 388 motion is rarely reversed. (In re 

Daniel C. (2006) 141 Cal.App.4th 1438, 1445.) If the facts are 

susceptible to more than one inference, we may not substitute our 

inference for that of the trial court. (Stephanie M., at p. 319.) 

Here, we find no abuse of discretion in the trial court’s 

denial of Mother’s last-minute section 388 request: Mother did 

not establish that the children’s need for permanency and 

stability would be advanced by granting her motion. Mother 

testified that she was taking her medication, going to counseling, 

she was in contact with the YWCA, and she had stable housing. 

However, Mother ignores the juvenile court’s salient finding that, 

towards the end of 2020, Mother was allowing Father to visit her 

on a weekly basis (ultimately culminating in Father’s arrest for 
17

domestic battery), despite the case history and the protective 

order. It is not the province of this court to reevaluate a witness’s 

credibility. (In re I.B. (2020) 53 Cal.App.5th 133, 156 (I.B.).) 

Considering the evidence of Mother’s recent inability to cut ties to 

Father, who visited in violation of the protective order, 

reasonable uncertainty existed that Mother would be successful 

in providing her children with a stable home and protecting them 

from domestic violence. Given the children’s need for safety, 

stability, and a permanent home at this point in the process, the 

juvenile court did not abuse its discretion in deciding Mother had 

not sufficiently demonstrated it would be in the children’s best 

interests to grant the section 388 request.

Mother’s arguments to the contrary are unavailing. She 

contends recent authority supports the continued use of the 

factors in Kimberly F., supra, 56 Cal.App.4th 519, to evaluate the 

child’s best interests. (See In re J.C. (2014) 226 Cal.App.4th 503, 

527 [declining to apply Kimberly F. factors because they did not 

take into account shift of focus to child’s best interests and 

Stephanie M. rather than parent’s efforts]; I.B., supra, 

53 Cal.App.5th at p. 163 [trial court did not abuse discretion by 

also considering Kimberly F. factors as part of “holistic 

evaluation” where mother established she could immediately 

provide permanent and stable home for her child; explaining J.C.

declined to apply the factors because parent failed to address 

permanency and stability]; In re J.M. (2020) 50 Cal.App.5th 833, 

847–851 (J.M.) [applying Kimberly F. factors].) Observing that 

courts may be tempted to simply compare the household and 
18

upbringing provided by the parents with that of the caretakers, 

the Kimberly F. court listed factors courts should consider when 

assessing the minor’s best interests on a petition for modification. 

(Kimberly F., at pp. 529, 532.) These factors include the 

seriousness of the problem that led to the dependency; the 

strength of the relative bonds between the dependent children to 

both the parent and caretaker; and the degree to which the 

problem may be easily removed or ameliorated and the degree to 

which it actually has been. (Id. at p. 532.) 

The evidence and findings from below establish that the 

Kimberly F. factors do not help Mother. The issues that brought 

Mother before the dependency court were serious. Mother and 

Father initially failed to protect the children from domestic 

violence, and Father placed the children at risk of physical harm. 

The section 387 petition occurred because of domestic violence 

between Mother and her boyfriend and because Mother allowed 

Father to visit her and the children without Department 

supervision, in violation of the protective order. Mother’s counsel 

represented Mother had ended her relationship with her 

boyfriend. But the court found that Mother had been allowing 

Father to visit in violation of the protective order, and he was 

arrested at her home on December 26, 2020 for domestic battery. 

Mother thus had not remedied or shown that she was likely to 

remedy the serious problems underlying the dependencies. As to 

the strength of the children’s bonds, the evidence established a 

strong bond with Mother, but it also showed a strong bond to the 
19

caregiver, with whom Al. said she wanted to grow up, and who 

was meeting the children’s emotional and physical needs. 

Both I.B. and J.M., upon which Mother relies, are 

distinguishable. In J.M., domestic violence issues with the father 

served as the basis for the dependency petition (J.M., supra, 

50 Cal.App.5th at p. 836), and in I.B., exposure of the children to 

domestic violence between the mother and the father and an 

unsanitary home served as the basis for the dependency petition 

(I.B., supra, 53 Cal.App.5th at pp. 136–137). As of the filing of 

the section 388 petitions in both cases, the mothers had ceased 

contact with the fathers for significant periods of time, and each 

had ameliorated the concerns that led to the dependencies. 

(J.M., at pp. 836, 843, 845–849; I.B., at p.157.) The cessation in 

contact with the fathers in both cases supported the courts’ 

conclusions that the mothers could offer a safe, permanent, and 

stable home. (See J.M., at pp. 848–849; I.B., at p. 161.) That is 

not the case here.

We recognize the evidence shows that Mother loved her 

children, and she made progress by completing a domestic 

violence program, attending counseling, and taking her 

medication. But the focus at this stage is on the best interests of 

the children. Considering all relevant factors and the trial court’s 

credibility findings, the court reasonably concluded the children’s 

best interests would not be served by returning them to Mother. 

II. The Beneficial Relationship Exception

Mother next contends that the juvenile court incorrectly 

found the beneficial relationship exception inapplicable. 
20

(§ 366.26, subd. (c)(1)(B)(i).) The Department concedes remand is 

required in light of our Supreme Court’s recent guidance on this 

exception in Caden C. For the reasons set forth below, remand is 

required.

The purpose of the section 366.26 hearing is to select a 

permanent plan for the child after reunification efforts have 

failed. (§ 366.26, subd. (b); Marilyn H., supra, 5 Cal.4th at 

p. 304.) Adoption, where possible, is the permanent plan 

preferred by the Legislature for a dependent minor child who has 

not been returned to the custody of his or her parents and is 

found by the court to be adoptable. (In re Autumn H. (1994) 

27 Cal.App.4th 567, 573.) When the court finds that a child is 

likely to be adopted if parental rights are terminated, it must 

select adoption as the permanent plan unless “the parent shows 

that termination would be detrimental to the child for at least 

one specifically enumerated reason.” (Caden C., supra, 

11 Cal.5th at p. 630.)

In Caden C., the Supreme Court provided new guidance 

regarding the beneficial relationship exception to termination of 

parental rights. To apply this exception, a parent is required to 

show “(1) regular visitation and contact, and (2) a relationship, 

the continuation of which would benefit the child such that (3) 

the termination of parental rights would be detrimental to the 

child.” (Caden C., supra, 11 Cal.5th at p. 631, italics omitted.) 

“The first element—regular visitation and contact—is 

straightforward. The question is just whether ‘parents visit 

consistently,’ taking into account ‘the extent permitted by court 
21

orders.’ ” (Id. at p. 632.) For the second element, “courts assess 

whether ‘the child would benefit from continuing the 

relationship.’ ” (Ibid.) “[T]he parent must show that the child 

has a substantial, positive, emotional attachment to the parent—

the kind of attachment implying that the child would benefit 

from continuing the relationship.” (Id. at p. 636.) That 

relationship may be shaped by numerous factors, such as “ ‘[t]he 

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

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

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

p. 632.) For the third element, the court decides whether it 

would harm the child to sever the relationship and choose 

adoption. (Id. at p. 633.)

On the third element, Caden C. provided additional 

guidance. The court explained that, in conducting its analysis, 

the juvenile court must assume that terminating parental rights 

entirely terminates the relationship with the child. (Caden C., 

supra, 11 Cal.5th at p. 633.) “What courts need to determine, 

therefore, is how the child would be affected by losing the 

parental relationship—in effect, what life would be like for the 

child in an adoptive home without the parent in the child’s life. 

[Citation.] . . . [T]he effects might include emotional instability 

and preoccupation leading to acting out, difficulties in school, 

insomnia, anxiety, or depression [or] . . . a new, stable home may 

alleviate the emotional instability and preoccupation leading to 

such problems, providing a new source of stability that could 

make the loss of a parent not, at least on balance, detrimental.” 
22

(Ibid.) If severing the parent/child relationship would deprive the 

child of a substantial, positive emotional attachment such that 

termination would harm the child even considering the benefits 

of a new adoptive home, the court should not terminate parental 

rights. (Ibid.) Moreover, whether a parent is ready for a return 

of custody is not by itself relevant. (Id. at p. 634.) The court thus 

cannot compare the parent’s attributes as a custodial caregiver to 

those of a potential adoptive family. (Ibid.) 

Caden C. also instructed on the relevance of the parent’s 

continued struggles with the issues that led to the dependency, 

stating that such struggles “are not a categorical bar to applying 

the [beneficial parental relationship] exception.” (Caden C., 

supra, 11 Cal.5th at p. 637.) “Parents need not show that they 

are ‘actively involved in maintaining their sobriety or complying 

substantially with their case plan’ [citation] to establish the 

exception.” (Ibid.) Nevertheless, the issues that led to the 

dependency may be relevant to the application of the exception, 

such as where there is a negative effect on the child. (Ibid.) But 

they are relevant only to the extent they inform whether the child 

would benefit from continuing the parental relationship and be 

harmed by losing it. (Id. at 638.) 

A substantial evidence standard of review applies to the 

juvenile court’s findings on the first two elements of the beneficial 

relationship exception because these are factual determinations. 

(Caden C., supra, 11 Cal.5th at pp. 639–640.) The third element 

is subject to a “hybrid” standard of review. (Id. at p. 641.) The 

court’s factual determinations regarding, among other things, the 
23

specific features of the child’s relationship with the parent, the 

harm that would come from losing those specific features, and 

how the prospective adoptive placement may offset and even 

counterbalance those harms are reviewed for substantial 

evidence. (Id. at p. 640.) The court’s “delicate balancing” of “the 

harm of losing the relationship against the benefits of placement 

in a new, adoptive home” is discretionary and properly reviewed 

for abuse of discretion. (Ibid.)

On the first element, the juvenile court here found that 

Mother maintained reasonable visitation, the Department agrees, 

and substantial evidence supports the finding. Mother’s 

visitation in the early stages of the dependency was consistent. 

The social worker reported some difficulty in arranging visitation 

as a result of transportation challenges after the section 387 

petition, but visits had returned to multiple times a week in the 

weeks leading to the section 366.26 hearing. Mother, in turn, 

testified that she had not missed visits and explained that any 

missed visits were rescheduled.

The juvenile court’s findings with respect to the second and 

third elements are not as clear. Specifically as to these elements, 

the court stated, “[N]either parent has proved by a 

preponderance of the evidence that the children would benefit 

from continuing the parental relationship to such a degree that 

terminating the parental rights would be detrimental to the 

child.” But the court also noted the incident of domestic violence 

with Mother’s boyfriend, the recent evidence of Father visiting 

Mother in violation of the restraining order, and Father’s 
24

December 26, 2020 arrest. The court then concluded, “So based 

on all of that information, the parental rights are terminated.” 

In making these findings, the court seems to have impliedly 

found a benefit, and evidence of the children’s age, the length of 

time they lived with Mother, and their interactions with her 

would support such a finding. Nonetheless, the court also 

expressly stated it based the termination of parental rights on 

Mother’s ongoing struggles with domestic violence. The court 

had noted the children needed stability, and it is possible the 

court concluded that Mother’s involvement in violent 

relationships meant that her interactions with the children had a 

negative impact. However, the children were not present for the 

more recent interactions between Mother and Father that the 

court mentioned, and there is no indication they knew of these 

incidents. Thus, it is not clear that the court did not improperly 

fault Mother for her ongoing struggles with domestic violence. 

(Caden C., supra, 11 Cal.5th at p. 637.) It is also unclear from 

the court’s comments whether it considered Mother’s lack of 

ability to provide a safe home for the children in making its 

decision. (Id. at p. 634.) Thus, we simply cannot be certain from 

this record that the court did not consider improper factors when 

assessing whether the beneficial relationship exception applied.

Given these ambiguities and the importance of the parental 

relationship, we deem it prudent to remand for reconsideration so 

that the trial court can make its findings with the benefit of 

Caden C.’s guidance. We recognize it is in the children’s interest 

to expeditiously select a permanent plan, but we cannot 
25

determine on the record before us that the court’s ruling complied 

with Caden C. 

III. ICWA

Mother contends that the juvenile court’s ICWA finding 

must be reversed because the Department did not adequately 

investigate the children’s possible Indian ancestry. We agree.

A. Relevant Background

At the December 2018 detention hearing, Father submitted 

an ICWA-020 form indicating he may have Cherokee ancestry on 

the paternal side from a great-great grandparent.5 Father made 

a similar statement in a January 2019 interview with the 

Department. As a result, the Department’s 

jurisdiction/disposition report states that “[t]he Department is 

engaged in research efforts around [Father’s] ancestry.” 

On February 7, 2019, the Department sent ICWA-030 

notices to the Cherokee Nation, the Eastern Band of Cherokee 

Indians, and the United Keetoowah Band of Cherokee Indians. 

The notices included Father’s information, listing “Cherokee 

Tribes” thereunder, but they did not contain information about 

Father’s relatives. The Eastern Band of Cherokee Indians and 

the Cherokee Nation responded that the children were not 

eligible for membership.

5 Mother also submitted an ICWA-020 form stating she 

may have Native American ancestry. Mother does not challenge 

the Department’s handling of her potential Native American 

ancestry or the court’s findings under ICWA with respect to 

Mother, so we do not discuss the facts underlying the 

Department’s ICWA efforts as to Mother.
26

The court’s ICWA findings after the February 28, 2019 

contested jurisdiction/disposition hearing stated: “The court and 

Department properly inquired of the mother, [M.H.], whether the 

children might be Indian children under [ICWA], provided said 

party with Notification of Indian Status (Juvenile Court) (ICWA020) and ordered the party to complete form ICWA-020 and to 

submit it to the court before leaving the courthouse today. The 

court orders the Department to conduct additional inquiry and 

notice, if necessary, to comply with the Act.”

The Department’s six-month review report indicated that 

the Eastern Band of Cherokee Indians and the Cherokee Nation 

had responded that the children were not eligible for 

membership, but the United Keetoowah Band of Cherokee 

Indians had not responded. At the August 2019 six-month 

review hearing, the court found ICWA did not apply.

The court’s next ICWA related findings, entered November 

13, 2019 after Father’s contest of the six-month review hearing, 

stated, “The Court has read and considered the documents 

submitted by the Department, including notice sent to the 

applicable tribe(s) and the BIA and responses received; [¶] There

is currently insufficient information to determine if the children 

may be Indian children; [¶] The Indian Child Welfare Act does 

not [ ] apply to this case.” 

All subsequent filings by the Department in this matter 

contain the statement that the court had found on November 13, 

2019 that ICWA did not apply, and no additional information 
27

indicated otherwise. The section 366.26 hearing and orders did 

not discuss ICWA compliance. 

B. ICWA Compliance

“ICWA protects the interests of Indian children and 

promotes the stability and security of Indian tribes by 

establishing minimum standards for, and permitting tribal 

participation in, dependency actions.” (In re A.G. (2012) 

204 Cal.App.4th 1390, 1396.) “Indian child” is defined as “any 

unmarried person who is under age eighteen and is either (a) a 

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

Indian tribe and is the biological child of a member of an Indian 

tribe.” (25 U.S.C. § 1903(4); § 224.1, subds. (a), (b).)

“ICWA established minimum standards for state courts to 

follow before removing Indian children from their families and 

placing them in foster care or adoptive homes.” (In re D.S. (2020) 

46 Cal.App.5th 1041, 1048 (D.S.).) As relevant here, “section 

224.2 creates three distinct duties regarding ICWA in 

dependency proceedings.” (Id. at p. 1052.) After a child welfare 

department’s initial contact with the minor and his or her family, 

“the statute imposes a duty of inquiry to ask all involved persons 

whether the child may be an Indian child. (§ 224.2, subds. (a), 

(b).) Second, if that initial inquiry creates a ‘reason to believe’ the 

child is an Indian child, then the [Department] ‘shall make 

further inquiry regarding the possible Indian status of the child, 

and shall make that inquiry as soon as practicable.’ (Id., 

subd. (e) . . . .) Third, if that further inquiry results in a reason to 

know the child is an Indian child, then the formal notice 
28

requirements of section 224.3 apply.” (D.S., at p. 1052, italics 

omitted.)

If the court or social worker “has reason to believe that an 

Indian child is involved . . . but does not have sufficient 

information to determine that there is reason to know that the 

child is an Indian child, the court . . . [or] social worker . . . shall 

make further inquiry regarding the possible Indian status of the 

child.” (§ 224.2, subd. (e).) When there is “reason to believe” the 

child is an Indian child, “further inquiry is necessary.” (§ 224.2, 

subd. (e)(2).) It includes “[i]nterviewing the parents . . . and 

extended family members” to gather specified information, 

contacting the Bureau of Indian Affairs (BIA), the State 

Department of Social Services, and “the tribe or tribes . . . that 

may reasonably be expected to have information regarding the 

child’s membership, citizenship status, or eligibility.” (§ 224.2, 

subd. (e)(2)(A)–(C); Cal. Rules of Court, rule 5.481(a)(4).) 

If, based on this further inquiry, there is “reason to know” 

the child is an Indian child, then more formal ICWA notice is 

required.6 (§§ 224.2, subds. (d) & (f), 224.3; Cal. Rules of Court, 

6 Formal notice must be given to the minor’s parents or 

legal guardian, Indian custodian, if any, and the child’s tribe 

regarding any hearings that may culminate in an order for foster 

care placement, termination of parental rights, preadoptive 

placement, or adoptive placement. (§ 224.3, subd. (a).) Notice 

must include “[a]ll names known of the Indian child’s biological 

parents, grandparents, and great-grandparents, or Indian 

custodians, including maiden, married, and former names or 

aliases, as well as their current and former addresses, birth

dates, places of birth and death, tribal enrollment information of 
29

rule 5.481(b); 25 U.S.C. § 1912(a).) As this statutory scheme 

makes clear, the duty to provide notice is narrower than the duty 

of inquiry. (In re Austin J. (2020) 47 Cal.App.5th 870, 884.)

If, on the other hand, the juvenile court finds that the 

Department has conducted “proper and adequate further inquiry 

and due diligence” and that there is no reason to know whether 

the child is an Indian child, the court may make a finding that 

ICWA does not apply. (§ 224.2, subds. (g) & (i)(2); In re Dominic 

F. (2020) 55 Cal.App.5th 558, 570–571.) The Department and the 

court, however, have a continuing duty under ICWA, and the 

court “shall reverse its determination if it subsequently receives 

information providing reason to believe that the child is an 

Indian child and order the social worker or probation officer to 

conduct further inquiry . . . .” (§ 224.2, subds. (a) & (i)(2); see 

D.S., supra, 46 Cal.App.5th at p. 1050.) 

“On appeal, we review the juvenile court’s ICWA findings 

for substantial evidence. [Citations.] But where the facts are 

undisputed, we independently determine whether ICWA’s 

requirements have been satisfied.” (D.S., supra, 46 Cal.App.5th 

at p. 1051.)

Here, the parties agree that the Department’s duty of 

further inquiry was triggered after Father submitted an ICWA020 form indicating he may have Cherokee ancestry on the 

paternal side from a great-great grandmother and after he told 

other direct lineal ancestors of the child, and any other 

identifying information, if known.” (§ 224.3, subd. (a)(5)(C).)
30

the Department in January 2019 that he may have Cherokee 

ancestry. (See In re A.M. (2020) 47 Cal.App.5th 303, 322 [a 

mother’s “statement that she was told and believed that she may 

have Indian ancestry with the Blackfeet and Cherokee tribes” 

and listing her grandfather “as having possible Indian heritage” 

were sufficient to trigger the duty of further inquiry].) The 

Department’s jurisdiction/disposition report states that “[t]he 

Department is engaged in research efforts around [Father’s] 

ancestry.” The record subsequently reflects that the Department 

sent ICWA-030 notices on February 7, 2019, but they listed only 

Father’s information on the paternal side. The Department 

concedes that “the record is simply unclear as to whether th[e] 

duty [of further inquiry] was performed.” Notably, the record 

provides no evidence that the Department asked Father for 

relative contact information or engaged in additional research 

efforts, as it was ordered to do by the juvenile court at the 

February 28, 2019 combined jurisdiction/disposition hearing, and 

as it was required to do by statute. (§§ 224.2, subd. (e)(2)(A)–(C), 

224.3, subd. (a)(5)(C) [requiring, among other things, that the 

social worker interview parents about names, addresses, birth

dates of biological parents, grandparents, and greatgrandparents, or Indian custodians].) Thus, the juvenile court’s 

implied findings of further adequate inquiry and of ICWA’s 

resultant inapplicability lack support in the record, and the 

Department concedes it would be improper to impute such a 

finding to the orders entered at the section 366.26 hearing.
31

“[E]rrors in an ICWA notice are subject to review under a 

harmless error analysis.” (In re Brandon T. (2008) 

164 Cal.App.4th 1400, 1415.) If we conclude the juvenile court 

did not comply with the ICWA provisions, we “reverse only if the 

error is prejudicial.” (In re A.L. (2015) 243 Cal.App.4th 628, 639.) 

Here, the Department either did not take sufficient affirmative 

steps to investigate the children’s possible Indian ancestry or did 

not document its efforts to do so, and the juvenile court failed to 

ensure that an adequate investigation had been conducted. The 

Department does not argue harmless error. We note that the 

Department’s jurisdictional/disposition report stated Father was 

removed from his mother at an early age, and he reported having 

no natural supports, so it is possible he had no identifying or 

contact information for his extended family. On the other hand, 

the same report indicated that Father preferred the children be 

placed with the state rather than Mother or his family, indicating 

that he may be in contact with them. On this record, and in the 

absence of evidence that the Department fulfilled its duty of 

further inquiry, we cannot say the Department’s ICWA noncompliance was harmless. Accordingly, we will conditionally 

reverse the order terminating parental rights. (See In re N.G. 

(2018) 27 Cal.App.5th 474, 486 [conditionally reversing judgment 

terminating parental rights and remanding for court to comply 

with inquiry and notice provisions of ICWA and sections 224.2 

and 224.3].)
32

DISPOSITION

The juvenile court’s January 8, 2021 order denying 

Mother’s section 388 motion is affirmed. 

The juvenile court’s January 11, 2021 order terminating 

Mother’s parental rights is reversed and the matter is remanded 

for the juvenile court to conduct a new section 366.26 hearing 

consistent with Caden C., supra, 11 Cal.5th 614, and the views 

expressed in this opinion. The parties may introduce such 

additional relevant evidence as they deem necessary, including 

but not limited to evidence of the family’s current circumstances 

and any developments that might have occurred during the 

pendency of this appeal. Prior to holding this hearing, the 

juvenile court is to comply with the further inquiry and notice 

provisions of ICWA as set forth below.

The juvenile court’s January 11, 2021 order terminating 

Father’s parental rights is conditionally reversed, and the matter 

is remanded with instructions for the juvenile court to order the 

Department to comply with the further inquiry provisions under 

section 224.2, subdivision (e)(2)(C) regarding the children’s 

Cherokee membership status or eligibility. If, after proper 

further inquiry, the court finds a reason to know the children are 

Indian children, the court must provide notice in accordance with 

ICWA. If the court finds that the children are Indian children, 

then the court must conduct a new section 366.26 hearing and 

any further proceedings in compliance with ICWA and California 

law. If the court finds that the children are not Indian children, 
33

the section 366.26 order terminating parental rights shall be 

reinstated as to Father.

BROWN, J.

WE CONCUR:

POLLAK, P. J.

ROSS, J.

In re A.L. (A162200)

 Judge of the Superior Court of California, City and 

County of San Francisco, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.