Filed 6/12/23 In re Gabriella H. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

IN RE GABRIELLA H. et al.,

Persons Coming Under the 

Juvenile Court Law.

 B315796

 

 (Los Angeles County

 Super. Ct. No. 20CCJP01554)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

CHASTITY B.,

Defendant and Appellant.

APPEALS from orders of the Superior Court of Los Angeles 

County, Tara Newman, Judge. Affirmed in part and 

conditionally affirmed in part with directions.
2

Jesse McGowan, under appointment by the Court of 

Appeal, for Defendant and Appellant Chastity B.

Dawyn R. Harrison, County Counsel, Kim Nemoy, 

Assistant County Counsel, and Navid Nakhjavani, Principal 

Deputy County Counsel, for Plaintiff and Respondent. 

____________________________________

INTRODUCTION

This consolidated appeal concerns three juvenile court 

orders. First, Chastity B. appeals from an order under Welfare 

and Institutions Code section 366.26 terminating her parental 

rights to her daughters, Gabriella H. and Gracie H.

1 Chastity

argues the juvenile court erred in ruling the parental-benefit 

exception under section 366.26, subdivision (c)(1)(B)(i), did not 

apply. We affirm the court’s order because Chastity failed to 

prove she maintained regular visitation and contact with her 

daughters.

Second, Chastity appeals from an order denying a petition 

under section 388 seeking to modify a visitation order regarding

Gabriella and Gracie. Because Chastity makes no argument 

regarding that order, we affirm it too.

Finally, Chastity appeals from an order denying a petition 

under section 388 regarding placement of her youngest child, 

Ramon T., Jr. She argues the Los Angeles County Department of 

Children and Family Services did not comply with the inquiry 

and notice requirements of the Indian Child Welfare Act 

(25 U.S.C. § 1901 et seq.) (ICWA) and related California law. The

1 Undesignated statutory references are to the Welfare and 

Institutions Code. 
3

Department concedes, and we agree, it did not comply with ICWA 

and related California law because it did not conduct an adequate 

inquiry into Ramon, Jr.’s possible Indian ancestry or provide 

adequate notice to the relevant tribe. Therefore, we conditionally 

affirm the court’s order regarding Ramon, Jr. and direct the 

juvenile court to ensure the Department complies with its duties 

under ICWA and related California law.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Juvenile Court Declares Gabriella and Gracie 

Dependent Children, Terminates Chastity’s 

Reunification Services, and Schedules a Hearing

Under Section 366.26

Chastity previously appealed from juvenile court orders 

denying certain section 388 petitions concerning Gabriella’s and 

Gracie’s placement and a disposition order concerning Chastity’s 

daughter, Hailey T., who is not the subject of these appeals. Our 

previous opinion provided a detailed factual and procedural 

background regarding the juvenile court’s jurisdiction findings 

and disposition orders concerning Gabriella and Gracie. (See 

In re Gabriella H. (Aug. 12, 2022, B313276) [nonpub. opn.]

(Gabriella H. I).) As we explained, Chastity was at the time the 

mother of four children: Isabella, Gabriella, Gracie, and Hailey, 

ranging in age from 15 years old (Isabella) to two years old

(Hailey). Isabella’s father is not the father of Chastity’s other 

children and he, like Isabella, is not a party to these proceedings. 

Gabriella and Gracie’s father is Moises H.; Hailey’s father is 

Ramon T. Since Chastity’s first appeal she had another child, 
4

Ramon, Jr., who is now 18 months old and whose father is also 

Ramon.

In March 2020 the juvenile court issued a removal order for 

Gabriella, Gracie, and newborn Hailey and placed Gabriella and 

Gracie with their paternal grandparents. At that time, Gabriella 

and Gracie were six and four years old, respectively. Hailey was 

placed with her father, but the Department later detained Hailey 

from Ramon following his incarceration for a domestic violence 

incident involving Chastity. In February 2021 the juvenile court 

sustained a petition on behalf of Gabriella, Gracie, and Hailey 

under section 300, subdivisions (a), (b), and (j). In May 2021 the 

juvenile court declared Gabriella, Gracie, and Hailey dependent 

children of the court and removed them from their parents. On 

December 10, 2021 the court terminated Chastity’s reunification 

services regarding Gabriella, Gracie, and Hailey and scheduled a 

permanency planning hearing under section 366.26. Throughout 

Gabriella and Gracie’s placement with their paternal 

grandparents, the children thrived and expressed their desire to 

remain with their grandparents. The Department reported that 

the paternal grandparents provided the girls a “safe, stable, 

loving and nurturing home environment.” 

B. Chastity Visits Gabriella and Gracie Inconsistently

In March 2020, when the juvenile court issued the removal 

order for Gabriella and Gracie, the court granted Chastity two, 

two-hour monitored visits each week. In December 2020, the 

Department reported that Chastity visited Gabriella and Gracie 

only once every other week for two hours, or one-quarter of the 

opportunities for visitation the court granted. 
5

Following the disposition hearing in May 2021 the juvenile 

court increased Chastity’s weekly visitation to three, three-hour 

visits. The Department did not finalize Chastity’s visitation 

schedule until July 2021 because of difficulties caused by “the 

animosity between [Chastity] and [the] paternal grandparents.” 

At a visit monitored by the paternal grandfather in early October 

2021, Chastity yelled at him about the girls’ backpacks, their 

homework, and the food he provided. After that visit Gabriella 

and Gracie’s paternal grandfather told the Department he did not 

feel safe at visits without Department staff present, and the 

juvenile court ordered future visits to take place at the 

Department’s office.

In October 2021 Chastity gave birth to Ramon, Jr. and was 

hospitalized for several days. Between Chastity’s hospitalization 

in late October and the end of November 2021, Chastity visited 

with Gabriella and Gracie once. Between late 2021 and early 

2022, Chastity’s visits with Gabriella and Gracie continued to be 

“sporadic.” 

Beginning in February 2022, the Department changed 

Chastity’s visits back to two, two-hour visits per week. From that 

time, and leading up to the section 366.26 hearing in August 

2022, Chastity’s visits with Gabriella and Gracie were more 

consistent. Out of 24 visits (not including scheduled visits that 

were canceled due to the children’s or Chastity’s illness), Chastity 

canceled three visits and left one visit early. 
6

C. This Court Directs the Juvenile Court To Ensure the 

Department Complied with Its Duties Under ICWA 

and California Law

As described in Gabriella H. I, supra, B313276, Hailey’s 

paternal aunt Vanessa T. told a dependency investigator Hailey’s 

paternal great-grandfather “came from the Yaqui tribe, but he 

was not registered with the tribe.” Vanessa did not know the 

paternal great-grandfather’s name and did not have additional 

information about him, but she gave the investigator the name 

and phone number of the paternal great-grandfather’s sister. 

Vanessa also gave the investigator the names and birth dates 

(but not birth years) of Hailey’s paternal grandfather (who was 

deceased) and paternal grandmother, as well as the place where 

the paternal grandfather died. The investigator called the sister 

of Hailey’s paternal great-grandfather twice and left messages, 

but the sister did not respond. The record did not indicate the 

investigator attempted to contact Hailey’s paternal grandmother.

The dependency investigator sent ICWA-030 notices on 

behalf of Hailey to the Pascua Yaqui tribe and to the Bureau of 

Indian Affairs. The notices included the name and address of 

Hailey’s father and the names (but not the (partial) dates or 

places of birth) of Hailey’s paternal grandparents. The notices 

also included an address in Los Angeles for Hailey’s paternal 

grandmother, but no information about Vanessa or Hailey’s 

paternal great-grandfather’s sister. The investigator also 

contacted the Pascua Yaqui tribe by phone. On August 20, 2020 

the Pascua Yaqui tribe notified the Department that Hailey, 

Chastity, and Ramon were not members of the tribe and did not 

have any pending applications for membership. Based on the 
7

information the Department provided, the Pascua Yaqui tribe 

concluded Hailey was not eligible for membership in the tribe. 

At Hailey’s May 27, 2021 disposition hearing the court 

found there was no reason to know Hailey had Indian ancestry. 

Chastity appealed, arguing the Department failed to conduct an 

adequate inquiry into Hailey’s possible Indian ancestry and to 

provide adequate notice to the Pascua Yaqui tribe. We agreed 

and directed the juvenile court to ensure the Department 

complied with its duties under ICWA and related California law. 

(Gabriella H. I, supra, B313276.)

D. The Juvenile Court Finds There Was No Reason To 

Know Ramon, Jr. Had Indian Ancestry and Declares 

Him a Dependent Child of the Court

Meanwhile, on February 1, 2022 the juvenile court 

sustained a petition under section 300, subdivisions (b), (d), 

and (j), on behalf of Ramon, Jr., who had a positive toxicology for 

marijuana at birth. The court also found, based on a notice from 

the Pascua Yaqui tribe stating Ramon, Jr. was not eligible for 

membership in the tribe, the court had no reason to know or 

believe Ramon, Jr. was an Indian child. On March 1, 2022, 

before our decision in Gabriella H. I, the juvenile court declared 

Ramon, Jr. a dependent child of the court, removed him from

parental custody, and denied Chastity reunification services. The 

court placed Ramon, Jr. in foster care.
8

E. The Juvenile Court Terminates Chastity’s Parental 

Rights to Gabriella and Gracie and Denies Chastity’s 

Petition Under Section 388 To Modify Ramon, Jr.’s 

Placement

At the August 30, 2022 section 366.26 hearing for Gabriella 

and Gracie, counsel for the children asked the juvenile court to 

terminate Chastity’s and Moises’s parental rights. Counsel for 

the children acknowledged Chastity had “a connection” with 

Gabriella and Gracie, but argued the benefits of permanence for 

the children “far outweigh the benefit of any continuing 

parent/child relationship.” Failing to terminate parental rights, 

he continued, would result in “continued instability in their lives 

[and] continued inconsistent visits with [Chastity].” Counsel for 

Chastity asked the court to find the parental-benefit exception 

applied and argued Chastity had “maintained consistent 

visitation . . . for quite some time.” Counsel for the Department 

acknowledged Chastity’s visits appeared to be “somewhat 

consistent,” but argued the parental-benefit exception did not 

apply because Chastity had not shown terminating her parental 

rights would be detrimental to Gabriella and Gracie. 

The juvenile court found that Gabriella and Gracie were 

adoptable and that the parental-benefit exception did not apply 

because the benefit of the children’s permanency far outweighed 

maintaining any connection with their parents. On the issue of 

Chastity’s visitation, the court said “the visits that she does have 

when she is present are generally positive, but there have [also 

been] inconsistencies in her visitation.” The court also denied a 

section 388 petition Chastity had filed on August 26, 2022 asking

the court to modify its previous order placing Ramon, Jr. with a 

non-relative caregiver to place him with Chastity instead. 
9

F. Chastity Timely Appeals

Chastity filed two timely notices of appeal from the three 

orders on two dates (we consolidated the appeals). First, 

Chastity appealed from the October 8, 2021 order regarding the

section 388 petition Chastity filed to modify her visitation with 

Gabriella. Chastity makes no argument regarding that order. 

Second, Chastity appealed from two August 30, 2022 orders, one 

that terminated her parental rights over Gabriella and Gracie 

and one that denied her section 388 petition asking the court to 

change its order placing Ramon, Jr. with a non-relative 

caregiver.

2

DISCUSSION

A. The Juvenile Court Did Not Err in Ruling the 

Parental-benefit Exception Did Not Apply

1. Applicable Law and Standard of Review

The purpose of a hearing under section 366.26 is “‘to select 

and implement a permanent plan for the child’” after the juvenile 

court has terminated reunification services. (In re Caden C. 

(2021) 11 Cal.5th 614, 630 (Caden C.); see In re D.M. (2021) 

71 Cal.App.5th 261, 268.) If the court determines “the child is 

likely to be adopted,” the court must “terminate parental rights to 

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

subd. (c)(1).) “But if the parent shows that termination would be 

2 Moises did not oppose termination of his parental rights,

and neither he nor Ramon T. appealed from the orders addressed 

in this appeal.
10

detrimental to the child for at least one specifically enumerated 

reason, the court should decline to terminate parental rights and 

select another permanent plan.” (Caden C., at pp. 630-631; see 

§ 366.26, subd. (c)(1)(B), (4)(A).) One of those reasons, the 

parental-benefit exception, requires the parent to establish by a 

preponderance of the evidence (1) “the parent has regularly 

visited with the child,” (2) “the child would benefit from 

continuing the relationship,” and (3) “terminating the 

relationship would be detrimental to the child.” (Caden C., at 

p. 629; see § 366.26, subd. (c)(1)(B)(i); D.M., at p. 268.)

“The first element—regular visitation and contact—is 

straightforward. The question is just whether ‘parents visit 

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

orders.’” (Caden C., supra, 11 Cal.5th at p. 632; accord, In re A.L.

(2022) 73 Cal.App.5th 1131, 1151; see In re I.R. (2014) 

226 Cal.App.4th 201, 212 [“Regular visitation exists where the 

parents visit consistently and to the extent permitted by court 

orders.”].) “Visits and contact ‘continue[ ] or develop[ ] a 

significant, positive, emotional attachment from child to parent.’ 

[Citation.] Courts should consider in that light whether parents 

‘maintained regular visitation and contact with the child’ 

[citation] but certainly not to punish parents or reward them for 

good behavior in visiting or maintaining contact—here, as 

throughout, the focus is on the best interests of the child.” 

(Caden C., at p. 632; accord, In re Eli B. (2022) 73 Cal.App.5th 

1061, 1069-1070.) Thus, “the visitation element is to be 

understood in light of the overall purpose of the beneficial 

relationship exception.” (Eli B., at p. 1070.)

A juvenile court decision that a parent has not satisfied his 

or her burden to establish the parental-benefit exception applies 
11

“may be based on any or all of the component determinations,” 

including “whether the parent has maintained regular 

visitation.” (In re Breanna S. (2017) 8 Cal.App.5th 636, 646-647, 

disapproved on another other ground in Caden C., supra, 

11 Cal.5th at pp. 637, fn. 6, 638, fn. 7.) Indeed, “a parent must 

prove all three components of the beneficial relationship 

exception,” and a “failure of proof on any one of them is fatal.” 

(In re Katherine J. (2022) 75 Cal.App.5th 303, 322, fn. 10; see 

In re Eli B., supra, 73 Cal.App.5th at p. 1068 [where the father 

did not meet his burden to prove he maintained regular 

visitation, the reviewing court need not consider the other 

elements of the parental-benefit exception].)

We review the juvenile court’s ruling on the first element of 

the parental-benefit exception for substantial evidence. 

(Caden C., supra, 11 Cal.5th at p. 640; In re Eli B., supra,

73 Cal.App.5th at p. 1068.) In reviewing factual determinations 

for substantial evidence, we do not “‘reweigh the evidence, 

evaluate the credibility of witnesses, or resolve evidentiary 

conflicts.’” (Caden C., at p. 640.) 

2. Chastity Failed To Show She Regularly Visited 

Gabriella and Gracie

Chastity argues she satisfied the first element of the 

parental-benefit exception because the “overall evidence” showed 

she regularly visited Gabriella and Gracie. She contends the 

“relevant question is not whether there was some period of 

inconsistent visitation, rather the question is whether the 

visitation was consistent ‘overall.’” But that’s not the standard 

the Supreme Court established in Caden C. The “relevant 

question” is whether Chastity visited “‘consistently,’ taking into 
12

account ‘the extent permitted by court orders.’” (Caden C., supra, 

11 Cal.5th at p. 632; accord, In re Eli B., supra, 73 Cal.App.5th at 

p. 1069.) 

Chastity concedes she did not. She characterizes her 

visitation as inconsistent from March 2020, when Gabriella and 

Gracie were detained, until the disposition hearing in May 2021;

consistent from May 2021 to October 2021; inconsistent again 

from October 2021 to January 2022; then consistent from 

February 2022 until the section 366.26 hearing in August 2022. 

Thus, even in Chastity’s view of the evidence, her visitation with 

Gabriella and Gracie was inconsistent for approximately 18 of the 

29 months between the girls’ detention and the section 366.26 

hearing. It is hard to see how this level of visitation could be 

characterized as consistent “overall”; a more apt description is 

inconsistent overall, or simply, inconsistent. In any event, there 

was ample evidence Chastity failed to maintain regular visitation 

to the extent permitted by the juvenile court. (See In re M.M.

(2022) 81 Cal.App.5th 61, 68 [visitation was inconsistent where 

“the reports relied upon by the court thoroughly discussed the 

infrequency of mother’s visits, and the many visits that had been 

made available to her that she missed or canceled”], review 

granted Oct. 12, 2022, No. S276099; In re Eli B., supra,

73 Cal.App.5th at pp. 1070-1071 [father failed to show regular 

visitation where his visitation “throughout the years-long 

dependency proceeding was sporadic and also entailed significant 

gaps”]; In re Breanna S., supra, 8 Cal.App.5th at p. 647 [sporadic 

visits in the first 18 months of the dependency proceedings,

coupled with more regular visits during the final six months 

before the section 366.26 hearing, were not sufficient to show 

regular visitation]; In re I.R., supra, 226 Cal.App.4th at p. 212 
13

[“significant lapses in visits” showed the parent failed to 

maintain regular visitation].)

Neither of the two cases Chastity cites for the proposition 

“overall” consistency is enough supports that position. First,

Chastity plucks the word “overall” from In re C.F. (2011) 

193 Cal.App.4th 549, where the court held that, while the 

mother’s visitation became “more consistent . . . as the section 

366.26 hearing neared,” “overall her visitation was sporadic.” (Id.

at p. 554, italics added.) The court in C.F. continued: “Sporadic 

visitation is insufficient to satisfy the first prong of the parentchild relationship exception to adoption.” (Ibid.) Moreover, the 

parent in C.F. took advantage of more than half of her permitted 

visits, a stronger visitation record than Chastity’s, but still failed 

to satisfy the first element of the parental-benefit exception.

Second, Chastity cites In re G.H. (2022) 84 Cal.App.5th 15, 

apparently because the court in that case acknowledged “the 

prongs of the [parental-]benefit exception . . . naturally inform 

and lead into each other. Whether a parent or parents’ regular 

visitation and contact (the first prong) builds a relationship that 

is beneficial to the child (the second prong) depends on the nature 

and quality of the visits.” (Id. at p. 26.) Chastity seems to 

suggest the juvenile court may apply the parental-benefit 

exception on a sliding scale of visitation, with less consistency 

required where the parental relationship is arguably more 

beneficial to the child. As the court in In re G.H. explained in the 

next sentence of its opinion, however, it is the consistency of a 

parent’s visitation that develops “‘a significant, positive, 

emotional attachment from child to parent.’” (Id. at pp. 26-27.) 

Without regular visitation, a parent cannot show a beneficial 

relationship. (See Caden C., supra, 11 Cal.5th at p. 632 [regular 
14

visits and contact are necessary to continue or develop a 

significant, positive, and emotional attachment between parent 

and child]; In re Grace P. (2017) 8 Cal.App.5th 605, 614 

[“evidence of the nature of the visits would be ineffective in 

proving a beneficial parent-child relationship, where the parent 

failed to maintain consistent and frequent contact with the 

child”].) Because Chastity did not meet her burden to prove she 

maintained regular visitation and contact with Gabriella and 

Gracie, she has not shown the juvenile court erred in failing to 

apply the parental-benefit exception to the termination of her 

parental rights. We need not address her arguments the juvenile 

court erred in analyzing the other factors of the parental-benefit 

exception. (See In re Eli B., supra, 73 Cal.App.5th at p. 1068 

[court need not address arguments regarding the second and 

third elements of the parental-benefit exception if the parent fails

to prove the first element].)

B. The Department Did Not Comply with ICWA and 

Related California Law Regarding Ramon, Jr.

Chastity contends the ICWA-030 notice submitted on 

behalf of Ramon, Jr. included the same deficiencies we identified 

with Hailey’s ICWA-030 notice.3 (See Gabriella H. I, supra,

3 Chastity argues we can consider whether the Department 

complied with its duties under ICWA and California law in her 

appeal from the juvenile court’s order denying her section 388 

petition because “Ramon, Jr.’s continued foster care placement 

was at issue.” In In re Isaiah W. (2016) 1 Cal.5th 1 the Supreme 

Court held an appellate court may review a juvenile court’s 

compliance with ICWA in an appeal from any order that “was 

necessarily premised on a current finding by the juvenile court 
15

B313276.) The Department concedes, and we agree, the juvenile 

court failed to ensure the Department fulfilled its obligation to 

conduct an adequate inquiry under ICWA and related California 

law regarding Ramon, Jr. We also accept the Department’s 

concession that remand is appropriate to allow the Department to 

conduct a proper inquiry and to allow the juvenile court to ensure 

the Department conducts such an inquiry.

that it had no reason to know [a child] was an Indian child and 

thus ICWA notice was not required.” (Id. at p. 10.) The 

Department does not challenge Chastity’s position; there are no 

published cases addressing whether a juvenile court’s order 

denying a section 388 petition regarding placement is

“necessarily premised” on a finding that notice under ICWA was 

not required. (See § 224.3, subd. (a) [requiring ICWA notice “for 

hearings that may culminate in an order for foster care 

placement, termination of parental rights, preadoptive 

placement, or adoptive placement”].) We do not express an 

opinion on this issue.
16

DISPOSITION

The juvenile court’s October 8, 2021 order denying 

Chastity’s section 388 petition and the court’s August 30, 2022 

order terminating Chastity’s parental rights to Gabriella and 

Gracie are affirmed. The juvenile court’s August 30, 2022 order 

denying Chastity’s section 388 petition asking the court to change 

its order placing Ramon, Jr. with a non-relative caregiver is

conditionally affirmed. The juvenile court is directed to ensure 

the Department complies fully with the inquiry and notice 

provisions of ICWA and related California law regarding 

Ramon, Jr.

SEGAL, J. 

We concur: 

PERLUSS, P. J.

FEUER, J.