1

Filed 10/22/21 In re G.Y. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Nevada)

----

In re G.Y., a Person Coming Under the Juvenile Court 

Law.

C092972, C093380

NEVADA COUNTY DEPARTMENT OF SOCIAL 

SERVICES,

Plaintiff and Respondent,

v.

C.E.,

Defendant and Appellant.

(Super. Ct. No. J-09554)

C.E., mother of the minor (mother), appeals from orders of the juvenile court

denying her petition to modify a prior order and terminating her parental rights, freeing 

the minor for adoption. (Welf. & Inst. Code, §§ 366.26, 388, 395.)1 Mother contends the 

1 Undesignated statutory references are to the Welfare and Institutions Code.
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court erred when it denied her an evidentiary hearing on her section 388 petition, found 

the Indian Child Welfare Act (the ICWA) (25 U.S.C. § 1901 et seq.) did not apply, found 

the beneficial parental relationship exception to adoption did not apply, and terminated 

her parental rights. The Nevada County Department of Social Services (Department) 

concedes the ICWA issue but argues the remaining claims lack merit. We will reverse 

and remand for limited ICWA proceedings and otherwise affirm the juvenile court’s 

orders.

BACKGROUND

The minor and his parents became familiar to the Department over the course of 

nearly a year as a result of numerous child welfare referrals beginning in April 2018, just 

10 days after the minor’s birth. The referrals alleged neglect of the minor by mother and 

J.Y. (father), both of whom had untreated mental health issues and were incapable of 

caring for the minor. In addition to allegations of poor home conditions, the minor was 

not meeting his developmental milestones due to mother’s failure to feed him, pick up on 

his cues for hunger, connect with him, care for him properly, or be consistent with 

medical appointments. Mother, who reported having been diagnosed with autism, 

depression, anxiety, attention deficit hyperactivity disorder, attention deficit disorder, and 

epilepsy, was offered voluntary services on numerous occasions to help her meet the 

minor’s needs. She declined to engage in services. 

On March 4, 2019, the Department filed a dependency petition pursuant to section 

300, subdivision (b) based on the parents’ inability to provide appropriate care due to 

their mental health issues. The minor was thereafter removed from the parents pursuant 

to a protective custody warrant. The court ordered the minor detained and subsequently 

sustained the petition as amended. 

Mother was interviewed and stated she used alcohol and marijuana but abstained 

from marijuana when she was pregnant with the minor. She began taking psychotropic 

medications at a very young age. She stopped taking them when she was 17 because she 
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felt they were no longer necessary and she did not like the side effects of the medication. 

She was under the care of a psychiatrist and taking medication to treat her seizures, but 

was not taking any additional medications. Mother reported no domestic violence in a

relationship with father, but that she had experienced domestic violence in her previous 

relationship. She stated the minor was under the care of a physician prior to removal. 

She claimed the minor had attended all of his doctor’s visits since birth, about one every 

two months, and received all of his immunizations. She also reported she had been in a 

relationship with father for approximately four years until they broke up a few months 

prior. 

Father reported having used marijuana and methamphetamine in the past, but 

claimed he stopped using methamphetamine when he learned mother was pregnant. He 

denied any current drug use. Father also reported having been diagnosed with depression 

and anxiety. He took prescribed medication for a few years but then stopped due to the 

stigma of taking psychiatric medicine and because he feared he would develop a 

tolerance to the medication. 

Both parents were participating in supervised visitation twice a week without 

incident. However, the parents required a significant amount of redirection, for instance, 

they had to be reminded to stay off their phones and interact with the minor. 

The Department referred the parents to individual counseling, parenting education, 

and ongoing visitation, and father was referred to substance abuse treatment, drug testing, 

and community-based support groups. It was noted that while the parents had maintained 

their desire for reunification, they had been slow to engage in services and had 

demonstrated limited ability to appropriately do so. The Department recommended the 

minor remain in out-of-home placement while the parents participated in services. 

At the continued disposition hearing, the court found the parents’ progress toward 

alleviating or mitigating the causes necessitating the minor’s removal was insufficient. 

The court ordered that the minor continue in out-of-home placement and the Department 
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provide reunification services to the parents. In September 2019, as agreed by the 

parties, mother’s services were tailored to her specific needs pursuant to 

recommendations following a psychological evaluation. 

As of January 2020, mother had made minimal progress in her case plan services. 

She was inconsistent in her attendance at appointments with service providers and 

continued to struggle with meeting her basic daily needs. She lacked follow-through 

with, and participation in, housing, employment, and social services meetings, and failed 

to engage with her mental health specialist. 

The parents were attending couples therapy until mother was arrested in late 2019 

after a domestic violence incident between them. Thereafter, mother attended individual 

therapy and was reportedly engaged and open. However, she was making minimal 

progress in her psychiatric services. 

Mother was also inconsistent in attending visits with the minor, was acting 

inappropriately in front of the minor during visits, and did not engage with the minor 

unless specifically directed to do so. She talked about the case in front of the minor, 

including making disparaging remarks about the foster parents and the social workers. 

On one occasion, she brought her dog to a visit, during which the minor suffered from 

flea bites. She also called the minor an “asshole” when he urinated on her during a diaper 

change. Of the 48 visits scheduled, mother missed or cancelled eight visits and left four 

visits early. Despite mother’s issues with her case plan, the Department recommended 

another six months of services. 

On February 4, 2020, the parents engaged in another domestic violence incident 

which led to father’s arrest. Mother was hit multiple times but refused an emergency 

protective order and allowed father to stay with her at a hotel. Later that month, mother 

reported she was pregnant with father’s child. 

On February 6, 2020, after finding the parents made minimal progress in their case 

plans, the court acknowledged the parties’ stipulated agreement to (1) hold a combined 
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six-month and 12-month review hearing in March 2020; (2) provide the parents with 

reunification services until the 18-month review, with the understanding that if the 

parents failed to comply with their case plans, the Department could file a section 388 

petition to terminate services with no objection from the parents; (3) meet and confer 

regarding the Department’s option to file a petition to terminate services in the event of 

another domestic violence incident between the parents; and (4) meet and design 

additional services for the parents with input from the service providers. 

The March 2020 status review report stated mother was making minimal progress 

in her services but her participation in individual counseling was adequate. Mother was 

consistently visiting the minor and was continuing to show improvement in her 

interactions with him. At the combined six- and 12-month review hearing the following 

month, the court found mother had made adequate progress in her case plan and ordered 

continued reunification services, as outlined in the parties’ earlier stipulation. 

On July 9, 2020, the Department filed a section 388 petition requesting that the 

court terminate the parents’ reunification services pursuant to the terms of the parties’ 

February 6, 2020 stipulation based on additional domestic abuse incidents between the 

parents on March 23, 2020, April 17, 2020, and July 7, 2020. 

As agreed in the stipulation, the parents did not oppose the Department’s section 

388 petition at the July 16, 2020 hearing. The court granted the petition, terminated the 

parents’ services accordingly, and set the matter for a section 366.26 hearing. 

At mother’s request, the parties convened at a hearing on July 30, 2020, to clarify 

their respective understandings regarding the stipulated termination of mother’s services. 

The court ordered that mother be allowed to continue participating in speech therapy with 

the minor every other week, parent coaching sessions (to be counted as visitations) every 

other week, and supervised visitation once a week, and that mother be referred to the 

Consortium for Children and Families. 
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Mother’s October 14, 2020 section 388 petition

On October 14, 2020, mother filed a section 388 petition seeking to change the 

court’s July 16, 2020 order terminating her reunification services by ordering that the 

minor be returned to mother or that reunification services resume, along with 

unsupervised and overnight visitation. The petition alleged mother completed parenting 

education classes, the minor graduated from speech and physical therapy in which mother 

also participated, and mother had made significant progress in her own therapy, including 

domestic violence counseling. Mother alleged that she was granted a domestic violence 

restraining order (DVRO) against father on July 29, 2020, and, since then, had severed all 

ties with father, blocked his calls, and called law enforcement when necessary to enforce 

the DVRO. She worked continuously with her domestic violence therapist even after her 

services were terminated. She attended all visits but two (once when the caregivers were 

evacuated due to fire and once when the caregivers were on vacation). She enrolled in 

new programs to help develop her skills, and she baby-proofed her home. She was able 

to purchase a car and pay for services that were not otherwise covered following 

termination of her services. She also established a support system. 

The petition alleged the requested change was in the minor’s best interest because 

he had lived with mother for the first 10 months of his life, he knew her and referred to 

her as “mama,” he sought mother out for comfort, he had a strong and loving bond with 

mother, he had a new baby brother, and mother had insight into what it was like to grow 

up with special needs. 

The court ordered a hearing on mother’s petition to determine whether to grant or 

deny an evidentiary hearing. 

Section 366.26 report

The October 2020 section 366.26 report stated that while mother was participating 

in visits with the minor and taking feedback from the social service aides, she needed 

consistent guidance and redirection and appeared to be taking on the role of a playmate 
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rather than a parent. During visits in August 2020, mother had to be prompted to interact 

with the minor and had difficulty engaging with the minor, and she complained and 

blamed the therapist when it was brought to her attention at one of those visits. The 

Department noted it could only provide limited information regarding mother’s visits 

with the minor every other week at Helping Hands, as mother declined to sign a release 

of information regarding services at that facility. 

The minor had been in his current placement for over 16 months and was 

reportedly doing well with his caregivers, who provided physical therapy, speech therapy, 

and an infant program. The caregivers wanted to provide the minor with permanency 

through adoption. The minor struggled with separation from his caregivers when 

dropped off for visitation with mother. After visits he cried, screamed, scratched, and hit, 

was angry, and had nightmares. The report noted the minor was on track 

developmentally due to the services he received and the “consistent and stable support 

from the current caregivers.” It was also noted that the minor’s “disabilities are 

diminishing due to the current caregivers’ engagement, support and consistent 

involvement.” 

The Department recommended the court terminate parental rights and free the 

minor for adoption. 

October 19, 2020 hearing on mother’s section 388 petition

On October 19, 2020, the court held a hearing to determine whether to grant or 

deny an evidentiary hearing on mother’s section 388 petition. The Department stated its 

objection to an evidentiary hearing, arguing mother had not made the required prima 

facie showing. The Department argued that whatever progress mother had made in 

services did not constitute changed circumstances, nor did it demonstrate how reinstating 

services to mother would be in the minor’s best interest. While mother had obtained a 

DVRO against father, the DVRO had been in place for only two and a half months, and 

was obtained only after mother’s services were terminated. Given mother’s “chronic 
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pattern of domestic violence” in her relationship with father, the relatively new DVRO 

was insufficient to demonstrate she had successfully addressed and resolved her issues 

with domestic violence. The Department also argued mother’s completion of a parenting 

program nearly 19 months after being referred to those services was not evidence of 

changed circumstances, nor was the documentation showing mother attended the minor’s 

speech and physical therapy sessions. It was also argued the therapist’s report was 

specific to the minor’s progress, not mother’s progress. 

The Department further argued there was insufficient evidence that returning the 

minor to mother would be in the minor’s best interest, as mother was still having 

supervised visitation and was still in need of intensive services to address her own issues. 

The Department noted that the minor had been in foster care longer than he had been with 

mother, and the fact that the reunification period had expired “some time ago” rendered 

mother’s request to resume reunification services inappropriate. 

Mother’s counsel argued the documentary evidence attached to her section 388 

petition demonstrated changed circumstances. In particular, counsel argued the 

therapist’s notes reflected “mother’s self-recognition of her issues with domestic 

violence,” her ability to recognize it, and her ability to take steps to protect herself and 

her children. Counsel further argued that mother had gained insight into the fact that her 

relationship with father was “toxic” and obtained a DVRO against father after her 

services were terminated. Mother also completed the services in her case plan. Counsel 

noted that mother had been diagnosed with autism, a disorder known to have certain 

characteristics including inability to make eye contact, inability to interact, and a 

significant amount of social anxiety. Mother was now able to interact independently with 

service providers, something she was unable to do prior to termination of her services, 

she participated in the minor’s speech and physical therapy, and helped contribute to his 

success. Counsel further argued that mother was financially stable, was able to purchase 
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a car, and was consistent with visitation. Finally, mother’s counsel argued there was no 

risk of danger to the minor if returned to mother’s care. 

Counsel for the minor indicated he had no objection to the setting of an 

evidentiary hearing on mother’s petition. The court asked minor’s counsel to identify 

what evidence supported mother’s claim that the requested change was in the minor’s 

best interest. Minor’s counsel stated he could not “point to one thing that would say, yes, 

this convinces me this is in [the minor’s] best interests over and above just a general 

understanding the child should be with a parent if they can.” The court took the matter 

under submission. 

October 23, 2000 order denying mother’s section 388 petition

On October 23, 2020, the court issued a written order denying an evidentiary 

hearing on mother’s section 388 petition. The court first noted that despite the minor 

being under the age of three at the time of detention in March 2019, the parents’ 

reunification services were extended an additional six months in February 2020. 

Although the parents continued to make minimal progress as of the 12-month review 

hearing, the parties agreed to extend services another six months with the understanding 

that additional services would be added to their case plans based on the doctor’s 

recommendations following mother’s psychological evaluation and, if another incident of 

domestic violence occurred between the parents, services would be terminated without 

objection and the matter would be set for a section 366.26 hearing. On July 16, 2020, 

following the latest domestic violence incident, the parents’ reunification services were 

terminated and a section 366.26 hearing was set pursuant to the parties’ agreement. 

Next, the court noted that mother continued to pursue services and “made some 

good progress.” She had recently given birth to a baby boy and expressed her intention 

to continue to fully engage in services. The court also noted that the minor had been in 

his current relative placement, “a loving and stable placement,” for nearly 17 months. He 

was securely attached to and bonded with his caretakers. During the approximately 16
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months mother was receiving reunification services, she never progressed past supervised 

visits and she struggled to appropriately engage with the minor during the majority of that 

time. With regard to the best interest prong of section 388, the court stated mother’s 

petition set forth “in conclusory terms” that it would be in the minor’s best interest to 

return to her custody and/or reinstate her reunification services, but did not “point to any 

evidence to support why it would be in his best interests to remove him from the 

placement where he has thrived for the past almost 17 months.” Similarly, minor’s 

counsel was unable to identify any evidence to support mother’s assertion. 

The court found mother’s circumstances were changing but not yet changed. The 

court also found that while mother undoubtedly loved the minor, the minor had not lived 

with mother for 19 months and her visits never progressed past supervised and had only 

recently begun improving in quality. Finally, the court found “[t]here has simply been no 

showing that it would be in [the minor’s] best interests to grant the relief requested.” 

Mother filed a timely notice of appeal from the court’s October 23, 2020 order. 

Minor’s December 9, 2020 section 388 petition

On December 9, 2020, counsel for the minor filed a section 388 petition seeking 

an order for visitation between the minor and his infant sibling, L.E. The court ordered a 

hearing to determine whether to grant or deny an evidentiary hearing on the minor’s 

petition. 

December 17, 2020 section 366.26 hearing

Both parents appeared for the contested section 366.26 hearing on December 17, 

2020. Mother testified regarding her participation in services following termination of 

her services, including completion of a parenting program and visitation at Helping 

Hands. Mother also testified she participated in the minor’s speech and motor skills 

therapy at Alta Regional Center once a month and took weekly early education classes 

with the minor. She played with the minor during visits and would take toys away from 

him when he misbehaved. She also changed the minor’s diaper during visits when she 
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noticed he needed a diaper change. She denied ever being told by the minor or staff to 

change the minor’s diaper. She admitted virtual visits with the minor during the COVID19 pandemic were “a little more rough” due to the minor’s age, and that she did become 

frustrated when she was redirected by a therapist. 

Mother denied ever being unwilling to participate in reunification services and 

testified she completed her case plan services after her services were terminated by the 

court. She gave birth to the minor’s sibling in October 2020, but had not had contact 

with father since July 2020. Mother testified that since July or August 2020, after her 

services were terminated, she took on a parental role during visits. She also testified she 

had a car, a home, and a savings account for the children. 

Mother further testified she believed it was in the minor’s best interest to be 

returned to her because she was his birth mother, she could provide anything he needed, 

she truly loved him, and she could now provide a more stable environment for him, free 

of domestic violence. 

The social worker testified that according to the social service aide and the 

caregiver, the minor sometimes struggled with separating from his caregiver for visits 

with mother since July 2020. Since July 2020, mother had to be redirected to perform 

parental duties during supervised visits approximately four or five times. The social 

worker testified she credited the caregivers with the minor’s progress and success in 

speech therapy because, although mother participated in the twice-monthly one-hour 

sessions, the caregivers participated in ongoing and continuous work with the minor 

during the remaining days and weeks between sessions and spent “24/7, seven days a 

week” with the minor helping him with his speech therapy, physical therapy, and other 

ongoing needs. 

After commending mother on her progress in her case plan, the court noted that 

she had only recently started making progress after failing to do so during the first 18 

months of the proceedings. The court found the minor was generally and specifically 
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adoptable. With regard to the beneficial parental relationship exception, the court found 

that although mother had established the first prong by demonstrating consistent 

visitation and contact with the minor, the exception did not apply because mother had not 

demonstrated a substantial emotional attachment to the minor or that the benefits of 

adoption were outweighed by the benefit of continuing her relationship with the minor. 

The court terminated parental rights and freed the minor for adoption. Based on the 

agreement of the parties, the court granted the minor’s section 388 petition for continued 

contact between the minor and his infant sibling. 

Mother filed a timely notice of appeal of the court’s December 17, 2020 order 

terminating parental rights. 

DISCUSSION

I

Denial of Section 388 Petition

Mother contends the juvenile court erred when it denied her section 388 petition 

without an evidentiary hearing. She claims her petition made a prima facie showing of 

changed circumstances and that the requested change was in the minor’s best interest. 

The Department argues mother’s circumstances were, at best, changing, and that the 

evidence in support of her petition was for the most part already known to the court, and 

the evidence meant to support the minor’s best interests focused instead on mother’s best 

interests and failed to demonstrate how the minor’s best interests would be served by the 

requested change. As we will explain, mother’s claim lacks merit.

A petition to change or modify a juvenile court order under section 388 must 

factually allege that there are changed circumstances or new evidence to justify the 

requested order, and that the requested order would serve the minor’s best interests. 

(In re Daijah T. (2000) 83 Cal.App.4th 666, 672.) The petitioner has the burden of proof 

on both points by a preponderance of the evidence. (Cal. Rules of Court, rule 
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5.570(h)(1)(D).)2 In assessing the petition, the court may consider the entire history of 

the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 189.)

To decide whether a parent has met his or her burden under section 388, the 

juvenile court must consider such factors as the seriousness of the problem that led to the 

dependency, and the reasons for the problem’s continuation; the degree to which the 

problem may be and has been removed or ameliorated; and the strength of the relative 

bonds between the dependent child and the child’s parents as well as the caretakers. 

However, this list is not exhaustive. (In re B.D. (2008) 159 Cal.App.4th 1218, 1229.)

The child’s best interests “are not to further delay permanency and stability in 

favor of rewarding” the parent for his or her “hard work and efforts to reunify.” (In re 

J.C. (2014) 226 Cal.App.4th 503, 527.)

“A petition which alleges merely changing circumstances and would mean 

delaying the selection of a permanent home for a child to see if a parent, who has 

repeatedly failed to reunify with the child, might be able to reunify at some future point, 

does not promote stability for the child or the child’s best interests. [Citation.]” (In re 

Casey D. (1999) 70 Cal.App.4th 38, 47, disapproved on other grounds in In re Caden C.

(2021) 11 Cal.5th 614, 636, fn. 5 (Caden C.).) The petition must be liberally construed in 

favor of its sufficiency. (Rule 5.570(a).) Nonetheless, if the juvenile court finds that,

even so construed the petition fails to make a prima facie case as to either or both tests 

under section 388, the court may deny the petition without an evidentiary hearing. (In re 

Justice P., supra, 123 Cal.App.4th at p. 189; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 

1413-1414; In re Zachary G. (1999) 77 Cal.App.4th 799, 806; see rule 5.570(d).)

We review the denial of a section 388 petition for abuse of discretion. (In re S.R. 

(2009) 173 Cal.App.4th 864, 870; In re J.T. (2014) 228 Cal.App.4th 953, 965.)

2 Further rule references are to the California Rules of Court.
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Here, mother’s petition requested return of the minor to her care or, alternatively, 

reinstatement of her reunification services and unsupervised and overnight visitation. 

Mother argued changed circumstances based on the fact that she completed parenting 

education classes, made progress in her own therapy, participated in the minor’s speech 

and physical therapy, obtained a DVRO against father and severed all ties with him, 

worked with her domestic violence therapist, purchased a car, established a support 

network, and attended all visits but for those canceled by the caregiver. She further 

argued the minor’s best interests would be served by the requested change because he 

lived with mother for the first 10 months of his life, he knew her and referred to her as 

“mama,” he sought mother out for comfort, he had a strong and loving bond with mother, 

he had a new baby brother, and mother had insight into what it was like to grow up with 

special needs. At the hearing to determine whether to conduct an evidentiary hearing on 

mother’s petition, mother’s counsel argued the points raised in the petition, namely, that 

mother had gained insight into the toxic nature of her relationship with father and learned 

how to protect herself and her children, as demonstrated by the DVRO she obtained, and 

the notes made by her therapist. Counsel further argued that mother’s diagnosis of 

autism explained some of her behaviors (e.g., not making eye contact or interacting),

which she was learning to overcome, and she had become financially stable and had been 

consistent with visitation. 

The minor was removed in March 2019 due to the fact that mother and father had 

untreated mental health issues and were incapable of caring for the minor, as evidenced 

by the fact that the minor was not meeting his developmental milestones due to mother’s 

failure to feed him, pick up on his cues for hunger, connect with him, care for him 

properly, or be consistent with medical appointments. Although mother was offered 

voluntary services on numerous occasions to assist her in meeting the minor’s needs, she 

refused the help. Mother’s engagement in services after the minor was removed and,

during the first 18 months of the proceedings, was minimal, if not nonexistent, as noted 
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by the juvenile court. Additionally, the parents engaged in several domestic violence 

incidents which eventually led to termination of their reunification services in July 2020. 

Thereafter, and for the next three months until the October 2020 hearing, mother began to 

participate in services and, by all accounts, made some significant progress. While her 

progress is commendable, it demonstrates that, at best, her circumstances were changing.

Mother argues she has addressed the initial concerns of the Department and the 

domestic violence issues “significantly and completely,” as evidenced by the fact that she 

ended her relationship with father and obtained a DVRO, and she made great progress in 

her individual therapy, which included domestic violence counseling. Again, while 

mother’s progress regarding her domestic violence issues is laudable, that progress only 

began after services were terminated and was still considerably recent, given that the 

three most recent domestic violence incidents between the parents occurred on March 23, 

2020, April 17, 2020, and July 7, 2020, and mother obtained the DVRO on July 29, 2020, 

less than three months prior to the hearing on her section 388 petition. In other words, 

her circumstances were still changing. A petitioner “must show changed, not changing, 

circumstances.” (In re Mickel O. (2011) 197 Cal.App.4th 586, 615, italics omitted.)

Mother’s claim that return of the minor to her or reinstatement of her services was 

in the minor’s best interest is similarly unavailing. In order to determine the minor’s best 

interests, a court examines: “(1) the seriousness of the problem which led to the 

dependency, and the reason for any continuation of that problem; (2) the strength of 

relative bonds between the dependent children to both parent and caretakers; and (3) the 

degree to which the problem may be easily removed or ameliorated, and the degree to 

which it actually has been.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.) Mother 

claims she demonstrated the minor’s best interests would be served by the requested 

change by arguing the minor lived with her for the first 10 months of his life, they shared 

a strong and loving bond, he called her “mama,” and she knew firsthand what it was like 

to grow up with special needs. We are not persuaded.
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While the minor spent the first 10 months of his life with mother, he spent the next 

nearly two-thirds of his young life in the home of relative caretakers, with whom he 

developed a strong, secure bond and in whose care he flourished. Indeed, he struggled 

with separation from his caregivers before visits with mother and cried, screamed, 

scratched, and hit, was angry, and had nightmares after visits. 

Mother argues she was uniquely positioned to understand the minor’s special 

needs because she herself grew up with her own special needs. However, those special 

needs were already being met by the relative caretakers, who were providing the minor 

with physical therapy, speech therapy, and an infant program, as well as life skills and 

socialization. While in mother’s care, the minor was developmentally delayed due to her 

inability to adequately interact with him or otherwise meet his needs. With the 

“engagement, support and consistent involvement” of his caregivers, the minor was 

developmentally on track and his disabilities were diminishing. Mother provided 

insufficient evidence to demonstrate how removing the minor from his secure placement 

with his caregivers and returning him to her care or otherwise providing her with 

reunification services would be in his best interest.

We conclude the court did not abuse its discretion in denying mother’s section 388 

petition without an evidentiary hearing.

II

Beneficial Parental Relationship Exception

Mother contends the juvenile court erred when it found the beneficial parental 

relationship exception to adoption did not apply. The claim lacks merit.

At the selection and implementation hearing held pursuant to section 366.26, a 

juvenile court must choose one of the several “ ‘possible alternative permanent plans for 

a minor child. . . . The permanent plan preferred by the Legislature is adoption. 

[Citation.]’ [Citation.] If the court finds the child is adoptable, it must terminate parental 

rights absent circumstances under which it would be detrimental to the child.” (In re 
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Ronell A. (1996) 44 Cal.App.4th 1352, 1368.) There are only limited circumstances 

which permit the court to find a “compelling reason for determining that termination [of 

parental rights] would be detrimental to the child.” (§ 366.26, subd. (c)(1)(B).) Such 

circumstances include when the parents have maintained regular visitation and contact 

with the child, the child would benefit from continuing the relationship, and termination 

of parental rights would be detrimental to the child. (§ 366.26, subd. (c)(1)(B)(i) 

[beneficial parental relationship exception]; Caden C., supra, 11 Cal.5th at p. 625.)

To prove that the beneficial parental relationship exception applies, the parent 

must show there is a significant, positive emotional attachment between the parent and 

child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) The parent must also 

prove that the parental relationship “ ‘promotes the well-being 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 re S.B. (2008) 164 Cal.App.4th 289, 297, quoting In re 

Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).) “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.” 

(Autumn H., supra, at p. 575.) On the other hand, when the benefits of a stable, adoptive, 

permanent home outweigh the harm the child would experience from the loss of a 

continued parent-child relationship, the court should order adoption. (Caden C., supra,

11 Cal.5th at p. 634; Autumn H., at p. 575.)

The beneficial parental relationship exception to adoption is an exception to the 

general rule that the court must choose adoption where possible, and it “ ‘must be 

considered in view of the legislative preference for adoption when reunification efforts 

have failed.’ ” (In re Celine R. (2003) 31 Cal.4th 45, 53.) “The exception must be 
18

examined on a case-by-case basis, taking into account the many variables which affect a 

parent/child bond. The 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 are some of the variables which logically affect a 

parent/child bond.” (Autumn H., supra, 27 Cal.App.4th at pp. 575-576.)

The party claiming the exception has the burden of establishing the existence of 

any circumstances which constitute an exception to termination of parental rights. (In re 

Cristella C. (1992) 6 Cal.App.4th 1363, 1372-1373; In re Melvin A. (2000) 82

Cal.App.4th 1243, 1252; Rule 5.725(d)(2); Evid. Code, § 500.) The factual predicate of 

the exception must be supported by substantial evidence, but the juvenile court exercises 

its discretion in weighing that evidence and determining detriment. (Caden C., supra, 11

Cal.5th at pp. 639-640; In re K.P. (2012) 203 Cal.App.4th 614, 622-623.) We do not 

substitute our judgment for that of the juvenile court as to what is in the child’s best 

interests. (Caden C., at p. 641.)

The specific elements of this statutory exception require a close examination of 

“the importance of the child’s relationship with the parent or the detriment of losing that 

relationship.” (Caden C., supra, 11 Cal.5th at p. 626.) “When it weighs whether 

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

custodial caregiver relative to those of any potential adoptive parent(s).” (Id. at p. 634.) 

“[C]ourts should not look to whether the parent can provide a home for the child; the 

question is just whether losing the relationship with the parent would harm the child to an 

extent not outweighed, on balance, by the security of a new, adoptive home.” (Ibid.)

Here, there was substantial evidence to support the court’s finding that the 

beneficial parental relationship exception did not apply.

Mother claims the juvenile court found she had established consistent visitation 

and contact with the minor. We agree with the caveat that, as the record makes plain, it 

took her some time to become consistent with visits and, even when she did, she still had 
19

difficulty engaging and interacting with the minor, she needed consistent guidance and 

redirection, and she reportedly appeared to be taking on the role of a playmate rather than 

a parent. 

Even if there was sufficient evidence of consistent visitation and contact, the same 

cannot be said for mother’s evidence that the minor had a significant, positive emotional

attachment to mother such that the minor would benefit from continuing that relationship 

or be significantly harmed in the event the attachment were severed. As discussed above, 

the minor had spent approximately 19 months—over two-thirds of his young life—with 

his relative caregivers. He was bonded to and emotionally attached to his caregivers such 

that he struggled with separating from them prior to visits with mother and exhibited 

extreme behaviors after those visits. He looked to them for comfort and was flourishing 

in their care. Not only did the caregivers provide for the minor’s daily needs but they 

also provided him with life skills and the services and support necessary to get on track 

developmentally. While mother argues at length that she had a bond with the minor 

which developed during her weekly visits with him and her participation in his classes 

and therapy, she did not provide evidence to demonstrate that losing the relationship with 

her would harm the minor “to an extent not outweighed, on balance, by the security of a 

new, adoptive home.” (Caden C., supra, 11 Cal.5th at p. 634.)

The juvenile court did not err in finding the beneficial parental relationship 

exception to adoption did not apply.

III

The ICWA

Mother contends the juvenile court and the Department failed their continuing 

duty of the ICWA inquiry. She claims there was insufficient evidence to support the 

court’s finding that the ICWA notices were proper and that the ICWA did not apply. The 

Department concedes the issue and agrees the matter must be reversed and remanded for 

further ICWA proceedings. We accept the Department’s concession.
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Background

The parents initially indicated they had no Indian ancestry, and the juvenile court 

found the ICWA does not apply. Thereafter, father reported he believed he had 

Blackfoot and Apache ancestry through his parents and his grandmothers, C.W. and D.C., 

but he was unsure of the specific band or where the tribes were located. The Department 

reported it was working with father to obtain information to complete the “Notice of 

Child Custody Proceeding for Indian Child,” form ICWA-030. 

On May 13, 2019, the Department sent notices of child custody proceedings for 

Indian child to the Bureau of Indian Affairs, the Secretary of the Interior, and 12 tribes 

(Blackfeet Tribe of Montana, Fort Sill Apache Tribe of Oklahoma, Yavapi-Apache 

Nation, San Carlos Tribal Council, White Mountain Apache, Jicarilla Apache Nation, 

Apache Tribes Oklahoma, Tonto Apache Tribal Council, Mescalero Apache Tribe, 

Cherokee Nation Oklahoma, United Keetoowah Band of Cherokee Indians Oklahoma, 

and Eastern Band of Cherokee Indians). The ICWA notices included information 

regarding mother, father, the paternal grandparents, and the paternal great-grandparents. 

The notices omitted father’s birthplace3 and relevant information about the paternal 

grandparents and paternal great-grandparents such as birthdates, birthplaces, tribal 

enrollment numbers, and general biological information. 

Over the next several months, the Department received and filed responses from 

11 of the 12 noticed Tribes (i.e., the Tonto Apache Tribe, the Mescalero Apache Tribe, 

the Blackfeet Tribe, the Eastern Band of Cherokee Indians, the Fort Sill—Chiricahua—

Warm Spring Apache Tribe, the Yavapai-Apache Nation, the San Carlos Apache Tribe, 

the United Keetoowah Band of Cherokee Indians, the White Mountain Apache Tribe, the 

Cherokee Nation, and the Kiowa Tribe—Apache Tribe of Oklahoma), all of which 

3 Father’s birthplace was listed as California on the minor’s birth certificate which 

was attached to the ICWA notices. 
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indicated the minor was neither enrolled nor eligible for enrollment therein. The 

Department requested that the court find that the ICWA does not apply. 

On April 16, 2020, the court made a finding that the ICWA does not apply. 

Law and analysis

“The juvenile court and social services agencies have an affirmative duty to 

inquire at the outset of the proceedings whether a child who is subject to the proceedings 

is, or may be, an Indian child. [Citation.]” (In re K.M. (2009) 172 Cal.App.4th 115, 118-

119.) When the juvenile court knows or has reason to know that a child involved in a 

dependency proceeding is an Indian child, the ICWA requires that notice of the 

proceedings be given to any federally recognized Indian tribe of which the child might be 

a member or eligible for membership. (25 U.S.C. §§ 1903(8), 1912(a); In re Robert A.

(2007) 147 Cal.App.4th 982, 989.) “At that point, the social worker is required, as soon 

as practicable, to interview the child’s parents, extended family members, the Indian 

custodian, if any, and any other person who can reasonably be expected to have 

information concerning the child’s membership status or eligibility.” (In re Michael V.

(2016) 3 Cal.App.5th 225, 233; see rule 5.481(a)(4)(A).)

ICWA notice must include, among other things, all of the following information, 

if known: the child’s name, birthplace, and birth date; the name of the tribe in which the 

child is enrolled or may be eligible for membership; names and addresses (including 

former addresses) of the child’s parents, grandparents, and great-grandparents, and other 

identifying information; and a copy of the dependency petition. (§ 224.3, subd. 

(a)(5)(A)-(H); In re D.W. (2011) 193 Cal.App.4th 413, 417; In re Mary G. (2007) 

151 Cal.App.4th 184, 209.)

While the Department sent ICWA notices to 12 tribes that included information 

about father and his extended relatives, the notices omitted relevant information about the 

paternal grandparents and paternal great-grandparents. Further, there is no evidence the 

Department attempted to contact and obtain information from any of father’s living 
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extended relatives. Section 224.2, subdivision (a) imposes “an affirmative and 

continuing duty to inquire” whether a child is or may be an Indian child. “It is essential 

to provide the Indian tribe with all available information about the child’s ancestors, 

especially the one with the alleged Indian heritage. [Citation.] Notice to the tribe must 

include available information about the maternal and paternal grandparents and greatgrandparents, including maiden, married and former names or aliases; birthdates; place of 

birth and death; current and former addresses; tribal enrollment numbers; and other 

identifying data.” (In re Francisco W. (2006) 139 Cal.App.4th 695, 703; accord, In re 

Louis S. (2004) 117 Cal.App.4th 622, 631 [“The Agency must provide all known 

information to the tribe, particularly that of the person with the alleged Indian heritage”]; 

In re J.M. (2012) 206 Cal.App.4th 375, 381.)

Here, as mother argues and the Department properly concedes, the ICWA notices 

failed to include known or readily ascertainable information about the paternal 

grandparents and paternal great-grandparents. 

The Department’s duty of the ICWA inquiry extends to the minor’s extended 

family, if known. (§ 224.2, subd. (b); rule 5.481(a)(4).) Here, information regarding the 

minor’s extended family was known. Whether the Department contacted the 

grandparents or great-grandparents or attempted to speak with them is unknown given the 

absence of any mention of such efforts in the record. That problem is compounded by 

the fact that the court never inquired about what efforts the Department made to obtain 

information from any of the minor’s relatives. “[O]nce there is sufficient information to 

believe that the child[ ] might be [an] Indian child[ ] within the meaning of ICWA and 

the California statutes, ‘responsibility for compliance’ with those statutes ‘falls squarely 

and affirmatively’ on both the social services agency and the court. [Citation.] 

Accordingly, the court has a responsibility to ascertain that the agency has conducted an 

adequate investigation and cannot simply sign off on the notices as legally adequate 

without doing so.” (In re K.R. (2018) 20 Cal.App.5th 701, 709.) While the affirmative 
23

and continuing duty of inquiry does not require the social services agency to conduct a 

comprehensive investigation into the minor’s Indian status or to “cast about for Indian 

connections” (In re C.Y. (2012) 208 Cal.App.4th 34, 39, 42; In re S.B. (2005) 130

Cal.App.4th 1148, 1161), the agency must include in its reports a discussion of what 

efforts it undertook to locate and interview family members who might have pertinent 

information and, “[i]n the absence of an appellate record affirmatively showing the 

court’s and the agency’s efforts to comply with ICWA’s inquiry and notice requirements, 

we will not, as a general rule, conclude that substantial evidence supports the court’s 

finding that proper and adequate ICWA notices were given or that ICWA did not apply.” 

(In re N.G. (2018) 27 Cal.App.5th 474, 484; accord, In re K.R., supra, 20 Cal.App.5th at 

p. 709.) Here, the Department failed its duty of inquiry. Therefore, the notices sent by 

the Department were insufficient for purposes of the ICWA.

“[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.) Error is not presumed. It is 

mother’s obligation to present a record that affirmatively demonstrates error. (In re 

D.W., supra, 193 Cal.App.4th at pp. 417-418.) Mother has done so here. The 

Department either did not take sufficient affirmative steps to investigate the minor’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. In the absence of 

evidence of the Department’s efforts to fulfill its continuing duty of inquiry, we cannot 

say the failure of ICWA compliance was harmless. Therefore, we must remand for 

limited ICWA proceedings.

DISPOSITION

The juvenile court’s order terminating parental rights is conditionally reversed and 

the matter is remanded to the juvenile court for limited proceedings to determine 
24

compliance under the ICWA. If, at the conclusion of those proceedings, no tribe 

indicates the minor is an Indian child within the meaning of the ICWA, then the juvenile 

court shall make the appropriate ICWA finding and reinstate the order terminating 

parental rights. If the juvenile court finds, after proper inquiry and notice, that the ICWA 

applies, the juvenile court shall hold such further proceedings as are appropriate. In all 

other respects, the orders of the juvenile court are affirmed.

 KRAUSE , J.

We concur:

 HULL , Acting P. J.

 RENNER , J.