1

Filed 10/6/23 In re M.C. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Yolo)

----

In re M.C., a Person Coming Under the Juvenile 

Court Law.

C097947

YOLO COUNTY HEALTH AND HUMAN 

SERVICES AGENCY,

Plaintiff and Respondent,

v.

C.C.,

Defendant and Appellant.

(Super. Ct. No. JV2020-0222)

Appellant C.C., mother of the minor, M.C., appeals from the juvenile court’s 

orders terminating parental rights and freeing the minor for adoption. (Welf. & Inst. 

Code,1 §§ 366.26, 395.) Mother contends that the juvenile court erred by: (1) finding the 

1 Undesignated statutory references are to the Welfare and Institutions Code.
2

section 366.26, subdivision (c)(1)(B)(i) beneficial parental relationship exception did not 

apply to prevent the termination of parental rights; and (2) the Yolo County Health and 

Human Services Agency (Agency) failed to comply with the inquiry requirements of the 

Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). We will conditionally 

affirm subject to full compliance with the ICWA on remand, as described in this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

I

Initial Dependency Proceedings

The minor was born prematurely at 28 weeks gestation and remained in the 

neonatal intensive care unit (NICU) from the time of her birth until the time of detention. 

On November 3, 2020, the Agency filed a petition alleging that the minor (then age two 

months) came within the provision of section 300, subdivision (b)(1) (failure to protect). 

The petition alleged that the minor was at substantial risk of harm due to the mother’s 

unstable mental health; alcohol abuse by the father of the minor, S.D.; and domestic 

violence. The minor was placed into protective custody. The Agency’s detention report 

stated that the minor had undergone hernia surgery and was on oxygen 24 hours a day. 

Mother tested positive for marijuana and amphetamine. Mother reported she had 

Cherokee ancestry and father reported he had Cherokee and Blackfeet ancestry. 

At the detention hearing on November 4, 2020, the juvenile court ordered the 

minor detained and ordered video visits for the parents. The court found there was a 

reason to believe that the minor may be an Indian child, and the Agency was ordered to 

complete further inquiry. 

II

Jurisdiction And Disposition

The Agency’s December 9, 2020 jurisdiction/disposition report recommended 

sustaining the petition, removing the minor from the parents’ care, and providing 

reunification services to mother. The Agency recommended providing reunification 
3

services to father if he was found to be the biological or presumed father. The report 

noted that the father spoke with the social worker and claimed that he had Cherokee and 

Comanche ancestry, not Blackfeet. Mother reported to the social worker that she no 

longer thought she had Cherokee ancestry based on the results of a DNA test. The social 

worker reported sending notices of child custody proceeding for Indian child (ICWA030) forms with detailed family information to the Cherokee Nation, Eastern Band of 

Cherokee Indians, United Keetoowah Band of Cherokee Indians, and the Comanche 

Nation. However, as to mother, the notices indicated that any Indian tribe or band was 

“none” or “unknown” and possible Indian ancestry to search for the maternal side was 

not listed. As to father’s paternity, the ICWA notices indicated that the parentage of the 

minor was “unknown.” The Agency received responses from the Cherokee Nation, the 

Eastern Band of Cherokee Indians, the Comanche Nation, and the United Keetoowah 

Band of Cherokee Indians advising that the minor was not eligible for membership. 

At the December 9, 2020 jurisdiction and disposition hearing, the minor’s counsel 

informed the juvenile court that the minor’s condition had worsened. The juvenile court 

continued the hearing, pending paternity test results. On January 4, 2021, the Agency 

learned that the minor would need a gastrostomy tube. The minor’s pediatrician 

recommended that due to the minor’s medical condition, she should not have contact with 

anyone outside the foster placement and essential medical personnel.

On January 11, 2021, the juvenile court took jurisdiction, found the father to be 

the presumed father, and ordered family reunification services to both parents. The court 

would not allow in-person visits until the minor’s pediatrician advised it was safe for the 

minor. 

At the time of the subsequent visitation review on March 8, 2021, the minor 

continued to be dependent on the gastrostomy tube, oxygen, and various machines and 

medications. The minor was diagnosed with bronchopulmonary dysplasia, 

developmental delay, abnormal muscle tone, chronic lung disease of prematurity,
4

dysphagia, cerebral palsy, static encephalopathy, ventricular septal defect, visual 

impairment, gastroesophageal reflux, seizures, patent foramen ovale, anemia of 

prematurity, respiratory distress syndrome, congenital heart disease, immature retina, and 

retinopathy of prematurity level 3. At the visitation review hearing, the juvenile court 

declined to allow in-person visits and set a further review of visitation. 

In April 2021, the minor’s pediatrician continued to recommend against in-person 

visits until mother obtained her own housing because she was living in a communal 

setting, and the COVID-19 pandemic posed a high risk to the minor. In June 2021, the 

juvenile court authorized mother to attend in-person medical appointments and in-person 

visits after obtaining safe housing. 

III

Status Review

The Agency’s July 12, 2021 six-month status review report recommended 

terminating services to father and continuing services to mother. Mother participated in 

the minor’s medical appointments in person and had video visits with the minor three 

hours per week and the visits were generally positive. 

On July 19, 2021, the juvenile court held the six-month review hearing, and 

mother submitted on the recommendation but argued that the Agency did not provide 

reasonable services because there were no in-person visits. The court terminated father’s

services, continued services to mother, and set a visitation review. The court found that 

the Agency provided reasonable services and ordered that mother would have supervised 

in-person visits with a medical professional present. 

At the 12-month status review hearing, the juvenile court ordered further services 

to mother on the Agency’s recommendation. The Agency retained a registered nurse to 

monitor the minor’s medical needs during visits and provide training to mother. 

In its 18-month status review report, the Agency recommended ceasing services to 

mother because she remained incapable of safely caring for the minor despite extensive 
5

medical training and continued to struggle with tasks like changing the minor’s clothes

and detangling the minor’s medical cords. Mother did not request return of the minor but

instead requested an additional six months of services. The registered nurse tasked with 

training mother expressed the opinion that mother would require full-time home support 

to be able to care for the minor. The minor struggled after visits with mother, becoming

fatigued, irritable, and adverse to touch; these issues improved somewhat by adding rest 

time to visits and dimming the lights, but the issues worsened each time visits with 

mother increased. At the July 25, 2022 contested 18-month review hearing, the juvenile 

court found clear and convincing evidence that return would create a substantial risk of 

detriment and that offering more services would not be in the minor’s best interests. The 

court then terminated reunification services to mother and set a selection and 

implementation hearing pursuant to section 366.26. 

IV

Section 366.26 Hearing

On November 15, 2022, the Agency filed a section 366.26 report recommending 

termination of parental rights with a plan of adoption. The minor was also diagnosed 

with autism spectrum disorder, level 3, which will require lifelong care. At medical 

appointments, mother was unable to perform simple tasks to care for the minor and 

continued to be argumentative or dismissive of the minor’s issues. It was reported that 

mother would repeatedly pick up the minor to hold her despite the minor wiggling away 

from mother. At many of the visits, the minor exhibited signs of stress, tiredness, or 

unhappiness. The minor was reported to respond better to virtual visits with mother 

when she could be comfortable in her home environment. 

At the contested section 366.26 hearing on January 18, 2023, mother presented no 

witnesses or evidence. The social worker testified that the minor was physically 

exhausted after visits. The minor demonstrated reflexive eye rolling when in-person 

visits started with mom, but that decreased when visits with mother decreased. The 
6

social worker testified that she did not believe there would be any detriment to the minor 

if visits with mother ended and the minor was not getting any benefit from the visits, 

which benefitted mother more than the minor. She testified that the benefits of 

permanency outweighed any relationship or visits with mother. 

The juvenile court found by clear and convincing evidence it was likely the minor 

would be adopted, none of the exceptions pursuant to section 366.26, subdivision (c)(1) 

existed, termination of parental rights would not be detrimental to the minor, and it was 

in the best interest of the minor to terminate parental rights. As to the beneficial parental 

relationship exception, the court found that the first element of consistent visitation was 

met. But the court then found that mother failed to meet her burden to show a significant 

positive emotional attachment and the level of detriment to the minor in terminating 

parental rights would outweigh the benefit to the minor of placement in an adoptive

home. The court reasoned that: “[Mother] has faithfully visited, but I don’t see and I 

haven’t seen ever where the visits have been for [the minor’s] benefit. They have always 

been for [mother’s] benefit; [mother] trying to learn how to take care of her, [mother] 

wanting to spend time with this baby, but they’ve been difficult for [the minor]. They 

make her tired. They make her sick. They give her problems, and yet we still tried and 

tried and tried to give [mother] that chance. It’s just not there, and I don’t think [the 

minor] has bonded at all with her mother.” The court further reasoned that the visitation 

notes did not evidence a significant bond between the minor and the mother, and because 

the court could not find such a bond, “the benefit of maintaining that relationship 

certainly is not going to outweigh the benefits of being adopted.” 

The juvenile court then ordered the parents’ parental rights terminated and freed 

the minor for adoption. The court also found: “This child is not an Indian child, and 

[the] ICWA does not apply.” 
7

DISCUSSION

I

Beneficial Parental Relationship Exception

Mother contends the juvenile court erred in failing to find the beneficial parental 

relationship exception to adoption applied based on her relationship with the minor. She 

argues that the juvenile court erred in its analysis under In re Caden C. (2021) 11 Cal.5th 

614, 629 (Caden C.) by discussing improper factors and because the evidence supported 

application of the exception. We disagree.

At the section 366.26 selection and implementation hearing, 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 Ronell A. (1996) 

44 Cal.App.4th 1352, 1368.) There are only limited circumstances that 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).) One such circumstance is the 

so-called beneficial parental relationship exception. (§ 366.26, subd. (c)(1)(B)(i) 

[beneficial parental relationship exception]; Caden C., supra, 11 Cal.5th at p. 629.)

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

any circumstances that constitute an exception to termination of parental rights. 

(Caden C., supra, 11 Cal.5th at pp. 636-637; In re Melvin A. (2000) 82 Cal.App.4th 1243, 

1252; Cal. Rules of Court, rule 5.725(d)(2).) The parent “must show regular visitation 

and contact with the child, taking into account the extent of visitation permitted. 

Moreover, the 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. And the parent must show that terminating that 
8

attachment would be detrimental to the child even when balanced against the 

countervailing benefit of a new, adoptive home.” (Caden C., at p. 636.)

The beneficial parental relationship exception to adoption “must be 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.” 

(In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) The factual predicates 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.) We do not substitute our judgment for that of the juvenile 

court as to what is in the child’s best interests. (Id. at pp. 640-641.)

Here, the fact that mother consistently visited the minor was undisputed. As to the 

second element, the juvenile court conducted a detailed analysis and found that there was

not a significant positive emotional attachment between mother and the minor. As to the 

third element, the juvenile court concluded because there was no significant bond, mother 

could not meet her burden to establish that termination of the positive attachment would 

be detrimental to the minor. From the time she left the NICU months after birth, the 

minor spent two years in her placement with her caregivers, while mother’s contact with 

the minor was limited to visits. The juvenile court found those visits were not always

positive, causing the minor distress, illness, and exhaustion. 

Mother presented no evidence or testimony to meet her burden of establishing a 

substantial positive bond. (Cf. Caden C., supra, 11 Cal.5th at pp. 636-637.) Conversely, 

the Agency provided the juvenile court with sufficient evidence, including reports on 

visitation and testimony from the social worker, to determine the minor did not have the 

kind of relationship with mother that would trigger the beneficial parental relationship 

exception. Mother relies extensively on a report and testimony during the 18-month 
9

review from the nurse who trained mother, who stated that she thought there was a bond 

between mother and the minor because there was eye contact and the minor responded to 

mother during visits. However, this testimony was both earlier in the case and refuted by 

a psychological evaluation of the minor finding that “[s]he displayed no non-verbal 

behaviors, such as eye contact or use of gestures.” (Italics omitted.) Additionally, there 

is no indication in the record that the juvenile court relied on the opinion of the nurse 

from the earlier proceeding in finding that the beneficial parental relationship exception 

did not apply at the section 366.26 hearing. Further, we do not reweigh the credibility of 

witnesses. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

There was no significant evidence that the minor would benefit from continuing 

the relationship. While she appeared to sometimes enjoy her visits, there were many 

visits where she pulled away from mother or returned home from the visits exhausted and 

stressed. The minor had significant developmental and language delays and was not 

capable of expressing if she was excited to see mother, sad to see her leave, or if she 

missed her between visits. The record supports the juvenile court’s finding that the visits 

were physically demanding of the minor and did not significantly benefit her. In light of 

the evidence in the record that we have set forth ante, as well as the stability the minor 

enjoyed in her caregivers’ home, there was a dearth of evidence demonstrating the minor 

would suffer detriment from the loss of a significant bond if parental rights were 

terminated.

Mother further contends that the juvenile court applied improper factors when, at 

the outset of its analysis, the court summarized the case and noted that mother clearly 

loved the minor and had made efforts toward reunification but was not in a position to 

take the minor. The contention lacks merit. The court followed this preface by stating: 

“Right now, this isn’t a question of whether or not she’s going back to mom. It’s a 

question of whether or not she’s adoptable, and she is.” The court then followed this 
10

finding that the minor was adoptable with a detailed analysis of the beneficial parental 

relationship exception in accordance with Caden C., applying the factors appropriately.

Having considered both the evidence and oral argument, and noting mother had 

the burden to show the exception applied, the juvenile court found there was insufficient 

evidence of a significant bond and of detriment, appropriately comparing the harm 

caused by the termination of the parental relationship to the benefits of an adoptive home, 

as required under Caden C. (See Caden C., supra, 11 Cal.5th at p. 632 [“in assessing 

whether termination would be detrimental, the trial court must decide whether the harm 

from severing the child’s relationship with the parent outweighs the benefit to the child of 

placement in a new adoptive home”].) We conclude the juvenile court’s finding is well

supported by the record. The court did not err in finding the beneficial parental 

relationship exception did not apply.

II

The ICWA

Mother contends that the Agency and the juvenile court failed to comply with their 

duty of further ICWA inquiry after the initial inquiry showed there was reason to believe 

the minor may be an Indian child. Specifically, she contends that while the Agency

performed some inquiry as to the father’s claims of Indian ancestry, the notice to the 

tribes failed to include mother’s reported Indian ancestry and the adjudication of father’s 

paternity, and the record does not show that the Agency inquired with mother’s extended 

family. We agree and, as we explain, the failure to fully comply with the requirements of 

the ICWA requires remand for further proceedings.

As this court recently explained: “ ‘The ICWA protects the interests of Indian 

children and promotes the stability and security of Indian tribes by establishing minimum 

standards for removal of Indian children from their families, and by permitting tribal 

participation in dependency proceedings. [Citations.] A major purpose of the ICWA is 

to protect “Indian children who are members of or are eligible for membership in an 
11

Indian tribe.” [Citation.]’ (In re A.W. (2019) 38 Cal.App.5th 655, 662.) The ICWA 

defines an ‘ “Indian child” ’ as a child who ‘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).) The juvenile court and the social services 

[agency] have an affirmative and continuing duty, beginning at initial contact, to inquire 

whether a child who is subject to the proceedings is, or may be, an Indian child. (Cal. 

Rules of Court, rule 5.481(a); § 224.2, subd. (a).)” (In re G.A. (2022) 81 Cal.App.5th 

355, 360, review granted Oct. 12, 2022, S276056.)

“[S]ection 224.2 creates three distinct duties regarding [the] ICWA in dependency 

proceedings. First, from the Agency’s initial contact with a 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 Agency ‘shall make further inquiry 

regarding the possible Indian status of the child, and shall make that inquiry as soon as 

practicable.’ (Id., subd. (e), italics added.) Third, if that further inquiry results in a 

reason to know the child is an Indian child, then the formal notice requirements of section 

224.3 apply. (See § 224.2, subd. (c) [court is obligated to inquire at the first appearance 

whether anyone ‘knows or has reason to know that the child is an Indian child’]; id.,

subd. (d) [defining circumstances that establish a ‘reason to know’ a child is an Indian 

child]; § 224.3 [ICWA notice is required if there is a ‘reason to know’ a child is an Indian 

child as defined under § 224.2, subd. (d)].)” (In re D.S. (2020) 46 Cal.App.5th 1041, 

1052.) We review claims of inadequate inquiry into a child’s Native American ancestry 

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

Here, mother’s disclosure that she had Cherokee ancestry and father’s disclosure 

that he had Cherokee or Comanche ancestry gave the Agency and the juvenile court 

“reason to believe” the minor was an Indian child within the meaning of the ICWA, 

triggering the Agency’s duty of “further inquiry” under the ICWA. (In re T.G. (2020) 
12

58 Cal.App.5th 275, 292; see In re D.S., supra, 46 Cal.App.5th at p. 1052; see also 

§ 224.2, subd. (e)(1), (2).) The Agency was thus required to follow the provisions set 

forth in section 224.2. Further inquiry includes interviewing the parents, Indian 

custodian, and extended family members to gather available familial and tribal 

enrollment information. (§§ 224.2, subd. (e)(2)(A); 224.3, subd. (a)(5).) Further inquiry 

also includes contacting the Bureau of Indian Affairs and State Department of Social 

Services for assistance with identifying tribes in which the child may be a member of or 

eligible for membership. (§ 224.2, subd. (e)(2)(B).) Finally, further inquiry also includes

contacting tribes the child may be affiliated with, and anyone else, that might have 

information regarding the child’s membership or eligibility in a tribe. (§ 224.2, subd. 

(e)(2)(C).) “Contact with a tribe shall, at a minimum, include telephone, facsimile, or 

electronic mail contact to each tribe’s designated agent for receipt of notices under the 

[ICWA]” and “include sharing information identified by the tribe as necessary for the 

tribe to make a membership or eligibility determination, as well as information on the 

current status of the child and the case.” (Ibid.)

Here, the Agency’s reports indicate that it undertook an inquiry of the father’s 

family and sent notices to the tribes with extensive family information, and the tribes

advised the minor was not eligible for enrollment. However, the record does not disclose 

that the Agency inquired with any maternal relatives about her claim. Although mother 

later claimed that she took a DNA test and did not have Cherokee ancestry, this is not 

dispositive and did not discharge the Agency’s duty of further inquiry regarding mother’s 

claim under section 224.2, subdivision (e)(2). Because of this error, the notices to the 

tribes did not accurately disclose mother’s claim and pertinent family history. (See 

In re K.T. (2022) 76 Cal.App.5th 732, 744 [a child welfare agency “does not discharge 

[its] duty of further inquiry until [it] make[s] a ‘meaningful effort’ to locate and interview 

extended family members”].) Further, the record does not show that the Agency made an 

adequate effort to update the tribes with the minor’s parentage information once father’s 
13

paternity was determined. While the Agency correctly asserts it was not required to 

complete an ICWA-030 form and was only required to share with the tribes “information 

identified by the tribe as necessary for the tribe to make a membership or eligibility 

determination,” an essential part of that information surely must include the mother’s 

claim of Cherokee heritage, which was fully omitted. (§ 224.2, subd. (e)(1)(C).) We 

cannot say these errors were harmless. The Agency should have, at a minimum, after 

conducting further inquiry with relatives, listed what information it was able to gather 

from these sources and provided information regarding mother’s claim of Cherokee 

ancestry to the tribes. (§ 224.2, subd. (e)(2)(C).) For these reasons, we conclude the 

Agency did not adequately discharge its duty of further inquiry, and as such, the juvenile 

court’s finding that the ICWA did not apply was not supported by substantial evidence. 

(See In re Rebecca R., supra, 143 Cal.App.4th at p. 1430.)

Limited remand is necessary for the Agency to adequately discharge its duty of 

further inquiry under section 224.2. If that further inquiry results in a reason to know the 

minor is an Indian child within the meaning of the ICWA, then the formal notice 

requirements of section 224.3 apply. The Agency either did not take sufficient 

affirmative steps to investigate the minor’s possible Indian ancestry on the maternal side

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 Agency’s 

efforts to fulfill its continuing duty of inquiry, we cannot say the failure of ICWA 

compliance was harmless. A failure to conduct a proper ICWA inquiry requires a limited 

remand for proper inquiry and any required notice. (In re A.B. (2008) 164 Cal.App.4th 

832, 839; In re D.T. (2003) 113 Cal.App.4th 1449, 1454-1456.) We must therefore 

remand for limited proceedings consistent with this opinion.
14

DISPOSITION

The orders terminating parental rights are conditionally affirmed subject only to 

full compliance with the ICWA as described in this opinion. If, on remand, the juvenile 

court determines the ICWA applies, the court shall vacate its previous orders terminating 

parental rights and conduct further proceedings consistent with the ICWA, including a 

new section 366.26 hearing. (25 U.S.C. § 1914; § 224, subd. (e).)

/s/ 

ROBIE, Acting P. J.

We concur:

/s/ 

KRAUSE, J.

/s/ 

BOULWARE EURIE, J.