Filed 1/26/23 In re Anthony P. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

In re ANTHONY P., a Person Coming 

Under the Juvenile Court Law.

_____________________________________

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN AND 

FAMILY SERVICES,

Plaintiff and Respondent,

v.

D.T.,

Defendant and Appellant.

B313193

(Los Angeles County

Super. Ct. No. DK22208)

APPEAL from orders of the Superior Court of Los Angeles 

County, Robin R. Kesler, Juvenile Court Referee. Affirmed.

Cristina Gabrielidis, under appointment by the Court of 

Appeal, for Defendant and Appellant.
2

Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, 

Assistant County Counsel, and Tracey Dodds, Deputy County 

Counsel for Plaintiff and Respondent.

 ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳

D.T. (mother) appeals from juvenile court orders denying 

her Welfare and Institutions Code1 section 388 petition and 

terminating parental rights to her son, Anthony P. Mother 

contends the juvenile court erred by denying her section 388 

petition because she demonstrated both changed circumstances 

and that reinstating her reunification services was in Anthony’s 

best interests. She further contends that the juvenile court erred 

in terminating parental rights because the parental-benefit 

exception to adoption (§ 366.26, subd. (c)(1)(B)(I)) applied, and 

the Los Angeles County Department of Children and Family 

Services (DCFS) conducted an inadequate inquiry pursuant to 

California law implementing the Indian Child Welfare Act 

(ICWA) (§ 224.2). We find no error, and thus we will affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

I. Detention (March 2017).

Mother and Alexander P. (father) began dating when they 

were 14 and 15 years old, respectively. Mother became pregnant 

with Anthony 10 months later, and she dropped out of high 

school after his birth in June 2015. Mother and Anthony lived at 

times with father’s family or with the maternal grandmother; at 

other times, mother lived at a homeless shelter and Anthony 

stayed with the paternal grandparents.

1 All undesignated statutory references are to the Welfare

and Institutions Code.
3

In March 2017, DCFS received a report that father had 

assaulted mother. A social worker interviewed mother, who 

reported that since Anthony’s birth, father “ ‘hits me all the 

time,’ ” slapping, socking, and pinching her. The maternal 

grandmother gave a similar report, saying that mother had 

bruises on her arm, face, back, and leg. Maternal grandmother

said she had tried to help mother, but she could not have father 

in her house because he had stolen from her, as well as from the 

maternal great-grandmother and their church. 

Father accused mother of using drugs and denied abusing

her, suggesting that mother’s injuries might have been selfinflicted. He admitted using methamphetamine in the past and 

currently smoking marijuana, but he denied using drugs around 

Anthony. Father had a juvenile criminal history and was 

currently on probation. 

In March 2017, Anthony was detained from mother and 

father and placed with Leticia I., the sister of maternal 

grandmother’s husband. Mother, who was still a minor, was 

detained from her own parents and placed in a group home. 

Mother said she was relieved Anthony was not with father but 

was afraid for Leticia and maternal grandmother because 

“ ‘I know how he [father] is.’ ”

II. Petition; jurisdiction and disposition hearing

(June 2017).

DCFS filed a section 300 petition in March 2017. As 

subsequently amended, the petition alleged that Anthony was a 

dependent child pursuant to section 300, subdivision (b) because 

mother and father engaged in domestic violence in Anthony’s 

presence (count b-1), and both parents used marijuana while 

caring for Anthony, placing him at risk of harm (counts b-2, b-3).
4

Simultaneously, DCFS filed a separate petition alleging that 

mother was a dependent child because the maternal grandmother 

was unable or unwilling to care for her.

At the March 2017 detention hearing, the court detained 

Anthony from mother and father, who were ordered to stay away 

from each other. The court ordered the parents to participate in 

various services and to drug test.

Mother ran away from her group home in April 2017, 

returning in late May 2017. That month, a multidisciplinary 

assessment team reported that Anthony was comfortable with 

Leticia and looked to her for comfort and security. He frequently 

woke up agitated during the night, but would fall back to sleep if 

Leticia picked him up and hugged him.

In June 2017, mother said she and father had always had 

domestic violence issues, and father last hit her in March. They 

were no longer in a relationship, and mother wanted a 

restraining order against him. She acknowledged using 

marijuana in the recent past. 

At the June 2017 jurisdiction hearing, the parents pled no 

contest to an amended section 300 petition. The court declared 

Anthony a dependent child and removed him from his parents’ 

custody, placing him with Leticia. Mother was granted 

monitored visits and ordered to randomly drug test and to 

participate in a domestic violence support group, a parenting 

class, and individual counseling. 
5

III. Six-month review (December 2017).

With her family’s support, mother entered a drug 

treatment program in Tijuana, Mexico in July 2017.2 Prior to her 

enrollment, mother had sporadic monitored visits with Anthony, 

during which she was “attentive,” changing Anthony’s diaper and 

positively interacting with him, including playing with and 

hugging him. Mother stopped visiting Anthony when she began 

her program. 

In December 2017, the court granted both parents further 

reunification services, finding that they had made significant 

progress resolving the problems that led to Anthony’s removal.

IV. Twelve-month review (May 2018).

In January 2018, mother ran away from her drug 

rehabilitation program and returned to the United States to be 

with father. She refused to return to the program, saying that 

she wanted to be with her son and complete her coursework in 

Los Angeles. Upon her return, she enrolled in adult school, as 

well as drug rehabilitation, domestic violence, and parenting 

programs. As of April 2018, she had completed nine weeks of 

those programs, and had one random negative drug test, with 

several no-shows.

The social worker noted that mother was “very attentive, 

appropriate, loving and caring with Anthony” during monitored 

visits, and it appeared mother and Anthony had “bonded.” 

Anthony was “always happy to see his mom”; mother brought 

2 Maternal grandmother reportedly funded mother’s 

program, believing mother needed to get away from the abuse she 

had endured. 
6

them books to read together, worked with Anthony on his speech

delays, and was otherwise alert to Anthony’s needs. However, 

mother and father had continued to see one another, and father 

continued to “become very upset and angry at times when things 

[were] not going his way.”

In May 2018, the court continued reunification services and 

granted mother four-hour monitored visits. Because the parents

allegedly continued to see each other and were dishonest with the 

social worker, the court reiterated that the stay-away order 

remained in place and that couples counseling would be required 

if they planned to reunite. Mother reported that she had moved 

into her own apartment, and maternal grandmother recently had 

been approved to monitor her visits with Anthony.

V. 18-month review; return of Anthony to mother’s 

physical custody (December 2018).

In August 2018, DCFS indicated mother had not yet 

completed a full drug program, but she had tested negative on all 

nine drug tests administered over the preceding several months. 

Mother was working and had attended Anthony’s recent

educational assessment. By September 2018, mother had 

completed her parenting and domestic violence courses and her 

individual counseling. 

At the 18-month review hearing in December 2018, the 

court ordered Anthony placed with mother and issued a 

restraining order protecting mother from father.

VI. Mother’s continued contact with father; further 

petition and detention (March 2020).

In April 2019, the social worker visited Anthony at 

mother’s apartment, which was clean, furnished, and had plenty 
7

of food and items for Anthony’s care. Mother was “vigilant” in 

parenting Anthony, applying a “warm, loving, but a firm 

parenting style.” Anthony “listened and obeyed” mother. They 

were bonding, and Anthony appeared at ease in the home and 

said “yes” when asked if he felt safe and wanted to stay with 

mother. Maternal relatives were supportive. Mother had 

enrolled in an outpatient drug program, but over the preceding 

three-month period had appeared for only four of 10 drug tests, 

testing negative at each. Father was incarcerated in state prison 

for gun possession and vehicle theft.

In June 2019, the court declined to close the case because 

mother had missed a number of drug tests. The matter was 

continued for an additional three months, to September 2019, 

and then again to March 2020.

In December 2019, mother reported to police that father 

had walked into her apartment unannounced and demanded her 

car keys. He left when she threatened to call the police. Four 

days later, the police again responded to mother’s apartment in 

response to a neighbor’s call regarding a young couple arguing. 

The neighbor reported seeing a young man at mother’s home and 

walking outside with a child several times per week. Mother 

denied these allegations, claiming to report all of father’s visits to 

police. However, father, who was then on probation, told his 

probation officer that he was babysitting Anthony.

Days later, the social worker visited mother’s apartment

unannounced after the maternal great-grandfather reported that 

father had hidden in mother’s closet during prior check-ins. 

Mother denied that anyone else was in the apartment other than 

Anthony and herself. She led the social worker to the closet,

pulled her teenage brother out, and told the social worker that he
8

was the only one in the closet. The social worker looked inside 

and “saw father’s feet, his legs (which were slim and hairy), and 

his shoes inside the closet.” After the person refused to leave the 

closet, the social worker asked Anthony whether father was in 

the closet. Anthony closed the closet door so the person inside 

could not see him, and he also made sure mother did not see him. 

He then noddled “yes.”

3 Mother continued to deny that father 

was there. Feeling unsafe, the social worker left the home. 

Later, police told the social worker that mother reported father 

had broken her windshield. 

In February 2020, mother reported to the police that father 

had come to Anthony’s school, snatched her keys out of her hand, 

and stolen her car. Father was apprehended and arrested.

The social worker reported that, as of February 2020, 

Anthony appeared in good health and had bonded with mother. 

However, he had “reverted to being quiet [and] angry with mom” 

and had resumed having tantrums. Mother missed the majority 

of her drug tests between September 2019 and February 2020, 

although she tested negative at each of the six scattered tests at 

which she appeared.

In March 2020, DCFS filed a subsequent petition pursuant 

to section 387, alleging that mother had disobeyed prior court 

orders by allowing father to frequent her home and have 

unlimited access to Anthony. Anthony was detained from mother 

and returned to Leticia’s custody.

At a March 10, 2020 detention hearing, the court told 

mother it appeared father “comes and goes whenever he wants, 

3 When later asked whether father was in the closet, 

Anthony shook his head both yes and no.
9

and . . . he has been staying at your house contrary [to] court 

orders.” While the court believed mother did not harm Anthony 

physically and was not using drugs, it said that “allowing a 

person who the court has found to present as a safety risk to your 

son and to you in your home and letting him have contact with 

[Anthony] . . . is putting your son in a dangerous situation.” 

Further, if mother was “afraid of father, [or] worried that he’s 

going to harm you, then you need to think about moving out and 

getting a confidential address. . . . [Father] is relentless. And 

unless you act on it, he’s going to keep looking for you, and you 

have let him.” The court granted mother monitored visitation 

and ordered her to reenroll in individual counseling and

parenting classes and to drug test.

VII. Further adjudication and disposition; denial of 

further reunification services (July 2020).

In April 2020, Leticia reported that mother and father were 

“ ‘always together’ ” and that the relationship between them was 

“ ‘toxic.’ ” She said father was very controlling of mother and 

continued to hit her. In June 2020, the maternal grandmother 

reported that father was frequently at mother’s apartment and 

mother was six months pregnant with father’s child. Mother 

continued to miss many drug tests.

In July 2020, the court sustained the section 387 petition, 

removed Anthony from mother’s custody, denied mother further 

reunification services, and scheduled a section 366.26 hearing.

Although mother’s “regular[] and consistent” visits showed she 

“clearly ha[d] a bond” with Anthony and that Anthony was 

“attach[ed]” to her, the court said it needed to address

permanency. The court did not accept mother’s assertions that 

father was not in her home or the father of her new child.
10

The October 2020 section 366.26 report noted that Leticia 

and her husband were closely bonded with Anthony and wished 

to adopt him. Five-year-old Anthony said he felt safe and loved 

in Leticia’s home. He looked to Leticia and her husband for care 

and comfort, and he appeared closely bonded to them and their 

three-year-old son. Leticia continued to facilitate in-person and 

phone visits with mother.

In November 2020, mother filed a section 388 petition 

requesting that Anthony be placed with the maternal 

grandmother or great-grandmother. The court denied the 

petition, stating that Anthony had been in his present placement 

for significant periods, and the grandmothers had not previously

sought placement.

In January 2021, DCFS reported that mother had not made 

herself available for an interview. Leticia reported that mother’s 

visits with Anthony went well, but “sometimes the child cries as 

he does not want to go on visits.” 

In February 2021, the court denied mother’s request for a 

bonding study, stating that the request was untimely and a 

bonding study would not assist the court because DCFS’s reports 

adequately documented mother’s relationship with Anthony. The 

court also denied mother’s request that Anthony testify at the

366.26 hearing, finding testifying could be emotionally 

detrimental to him in light of his young age, but it ordered DCFS 

to interview Anthony about his wishes.

In March 2021, the social worker reported that she had 

spoken to Leticia regarding Anthony’s visits with mother. Those 

visits were monitored by the maternal grandmothers, and thus 

Leticia could not speak to how they went. Leticia said, however, 

that while Anthony sometimes wanted to visit mother, at other 
11

times she had to bribe him with a toy. For the first two months, 

Anthony cried when he was dropped off, concerned that Leticia

might not pick him up. Further, during phone visits with 

mother, Anthony was unusually disobedient with Leticia.

The maternal grandmother reported to the social worker 

that she monitored visits every Sunday, and that mother and 

Anthony had a “great connection.” Mother usually visited for six 

hours. Anthony talked and played with mother and appeared 

happy. Mother was attentive with Anthony, cooking for him, and 

putting him in his pajamas when he was ready to go. Anthony

would ask where certain toys were at mother’s home, and mother 

reassured him that she had them. When the visit was almost 

over, Anthony would ask if he could stay. Maternal greatgrandfather also observed visits between mother and Anthony, 

confirming to the social worker that mother treated Anthony

well, cooking, bathing, and dressing him. Anthony loved his 

mother, and would kiss and hug her, and would cry at the end of 

visits because he wanted to stay. Maternal great-grandmother, 

who also regularly monitored visits starting in March 2020, 

described mother as patient with and dedicated to Anthony, 

feeding and bathing him and talking to him. At the end of visits, 

Anthony would cry and ask to stay. 

The social worker asked Anthony, who was then five years 

old, about adoption, but he did not understand the concept. He 

said he wanted to stay with “Lety” (Leticia).

In March 2021, mother filed a second section 388 petition, 

requesting that Anthony be returned to her care or that her 

reunification services be reinstated. She contended that 

circumstances had changed because she had been participating in 

domestic violence and parenting classes, which she expected to 
12

complete in April, and placing Anthony in her care was in his 

best interests because they were closely bonded. The court 

denied mother’s petition without a hearing, finding there was no 

new evidence or changed circumstances.

In May 2021, mother filed a third section 388 petition, 

asserting that she had completed her classes and consistently 

visited Anthony.

VIII. Combined section 388 and termination hearing 

(May 2021).

On May 27, 2021, the juvenile court held a combined 

hearing on mother’s section 388 petition and DCFS’s request to 

terminate parental rights. After hearing argument, the court 

denied the section 388 petition, finding that mother had not 

demonstrated a significant change in circumstances or that it 

was in Anthony’s best interests to be returned to her custody.

The court then permitted mother to testify by 

videoconference regarding termination of parental rights. 

Mother testified that after Anthony was detained for the second 

time, she resumed weekly visits with him every Saturday, and a 

Zoom call either Wednesday or Friday. At the beginning of visits, 

Anthony would run to mother and hug her. Anthony would tell 

mother he missed her and ask how her week was. They would 

cook breakfast and bake together, and mother would help 

Anthony with his homework. Mother said she had spoken to 

Anthony’s teacher and was involved with his medical decisions. 

At the end of visits, Anthony would become sad, ask to stay 

longer, and hide his shoes. Mother therefore asked that Anthony 

be placed in a legal guardianship so she could continue to see 

him. She believed that severing their contact would be 

detrimental to Anthony because he had a strong bond with her 
13

and with his baby sister; further, she said, she believed that 

“emotionally and, you know, mentally, . . . [it will] really mess up 

his head by me not being in his life.”4

At the conclusion of mother’s testimony, counsel for DCFS 

argued that adoption was the preferred permanent plan when 

reunification with a parent was not possible, and that the 

parental-benefit exception applied only where the strength and 

quality of the parent-child relationship exceeded the benefit to 

the child a new family would confer. Counsel noted that the 

present case was more than four years old, and while there was 

evidence of a loving bond between mother and Anthony, his 

primary attachment was to Leticia, with whom he had lived for 

many years. DCFS therefore asked that mother’s parental rights 

be terminated. Anthony’s counsel joined in DCFS’s argument.

Mother’s counsel argued that the parental-benefit exception 

to adoption applied, and she therefore requested that Anthony be 

placed in a legal guardianship and mother granted continued 

visitation. Counsel noted that mother had visited regularly, and 

the visits were meaningful, substantial, and positive. Further, 

mother had taken on a parental role, cooking for Anthony, buying 

him clothing, and participating in his medical decisions. Counsel 

argued that terminating mother’s parental rights therefore would 

be detrimental to Anthony because he was bonded to mother and 

loved her.

4 After mother finished testifying, her counsel sought to call 

maternal grandmother as a witness. The court refused to allow 

her to testify because it believed grandmother had been present 

during mother’s testimony, contrary to the court’s order, and thus 

mother’s testimony had tainted grandmother’s potential

testimony.
14

The court found that Anthony was adoptable and the 

parental-benefit exception did not apply. It noted that mother 

had allowed father in her home in violation of court orders, and 

then “ma[de] Anthony lie to the social workers to indicate that 

father was not there,” which the court said was “a lot for little 

kid.” The court also found mother’s testimony that father’s 

presence in her home was without her consent was contradicted 

by disinterested witnesses and was not credible. Additionally, 

the court said, application of the exception required “daily contact 

and acting in the role of a parent,” and “mother has not been 

doing that.” Finally, the court believed that mother’s statement 

that severing parental rights would be detrimental to Anthony

was “an opinion without any facts behind it.” The court therefore 

found that the parental-benefit exception did not apply, 

terminated mother’s and father’s parental rights, and designated 

Leticia as the prospective adoptive parent.

Mother timely appealed.

DISCUSSION

I. The juvenile court did not err by denying mother’s 

May 2021 section 388 petition.

Mother contends that the juvenile court abused its 

discretion by denying her May 2021 section 388 petition seeking 

that her reunification services be reinstated or Anthony be 

returned to her care. We disagree.

Section 388 permits a parent to petition the juvenile court 

to modify any order based on changed circumstances or new 

evidence. To obtain the requested modification, the moving party

must demonstrate by a preponderance of the evidence both a 

change of circumstance and that the proposed change of order is 
15

in the child’s best interests. (§ 388; In re Alayah J. (2017) 

9 Cal.App.5th 469, 478; In re Mickel O. (2011) 197 Cal.App.4th 

586, 615.) 

To obtain a hearing, the moving party must make a prima 

facie showing of both elements. (In re Brittany K. (2005) 

127 Cal.App.4th 1497, 1504.) The petition must be liberally 

construed in favor of granting a hearing, and the prima facie 

requirement is met if the facts alleged would sustain a favorable 

decision on the petition. (Id. at p. 1505.) “If it appears that the 

best interests of the child . . . may be promoted by the proposed 

change of order . . . the court shall order that a hearing be held.” 

(§ 388, subd. (d).)

The change in circumstance must be such that the problem 

that brought the child into the dependency system has been 

removed or ameliorated; the change must therefore be significant 

or substantial. (In re Mickel O., supra, 197 Cal.App.4th at 

p. 615.) Circumstances must have changed and not be merely 

changing. (Ibid.) To determine whether this showing has been 

made, the court may consider the entire factual and procedural 

history of the case. (Id. at p. 616.) Whether to modify an order 

under section 388 rests in the juvenile court’s discretion and will 

not be disturbed on appeal unless there has been a clear abuse of 

discretion. (In re Mickel O., at p. 616.) 

On appeal, mother advances two separate, but interrelated, 

claims with respect to the denial of her May section 388 petition. 

First, she suggests that the juvenile court based its denial upon a 

misapprehension of the basis for denying mother’s March 2021 

section 388 petition. Second, mother argues that her May 2021 

petition was sufficient to warrant a hearing because she had 
16

completed her domestic violence program and was deeply bonded 

with Anthony. Mother is wrong on both scores.

When the court denied mother’s May section 388 petition, it 

reasoned that it had already denied her March section 388

petition, and that mother’s completion of programs was not a 

significant change in circumstances demonstrating that it was in 

Anthony’s best interests to be returned to her. Mother argues 

that the court was “confused” regarding the bases for its earlier 

decisions, erroneously believing that the reason underlying its 

November decision was, in fact, the reason underlying its March 

decision. However, the court’s decision did not address the 

reasons for its prior denials. The colloquy that mother invokes 

occurred during her counsel’s argument, at which point the court 

clarified with mother’s counsel the bases for its prior rulings, 

correctly stating that the denial of the “original [November 2020]” 

petition was due to the lack of a prior placement request by 

maternal grandparents. As such, the court did not mistake the 

bases for its prior orders.

Mother next argues that the court abused its discretion by 

denying her petition without a hearing because her completion of 

domestic violence and parenting courses was a sufficient change 

in circumstances. Again, mother’s contention lacks factual and 

legal support. Mother had already completed domestic violence 

and parenting courses in September 2018. Then, mother 

continued to see father in spite of protective orders, resulting in 

several reports, by neighbors and mother herself, of fighting 

and/or property damage. Mother hid father from social workers 

when they came to visit the home, and she appeared to coax 

Anthony into telling social workers otherwise. This resulted in 

Anthony’s second removal from mother’s custody and a second 
17

order for mother to participate in services. Consequently, the 

record is clear that the completed programs cited in mother’s 

May 2021 petition were the second round of such programs, 

ordered after mother again became enmeshed with father despite 

having completed the first sequence of programming. 

Additionally, over the period that followed Anthony’s second 

removal from mother’s custody, there were several reports 

suggesting that mother was still in contact with father, including 

potentially having given birth to his new child.

Viewed in this light, we cannot say that the juvenile court 

abused its discretion in holding that mother’s completion of 

further domestic violence and parenting classes did not constitute 

sufficient changed circumstances. Considering, as we must, the 

trajectory of the entire four-plus year case, it was eminently 

rational for the court to conclude that mother’s mere completion 

of this second round of coursework was not sufficiently

substantial to require the conclusion that the problem which 

brought the child into the dependency system had been 

ameliorated. (In re Mickel O., supra, 197 Cal.App.4th at p. 615; 

see In re Elizabeth M. (2018) 19 Cal.App.5th 768, 780 [juvenile 

court does not abuse discretion unless it acted “ ‘in an arbitrary, 

capricious or patently absurd manner that resulted in a 

miscarriage of justice’ ”].) 

For several of the same reasons, the court did not abuse its 

discretion in further concluding that returning Anthony to 

mother’s custody was not in Anthony’s best interests. Mother 

cites her steady visitation and “deep[] bond” with Anthony, and 

that she was not alleged to have abused Anthony. But the 

juvenile court was not required to conclude that returning to 

mother’s custody was in Anthony’s best interests merely because 
18

she and Anthony were “bonded” and she had not abused 

Anthony. Instead, it was well within its discretion to find that 

mother’s continued association with father meant that Anthony 

could not safely be returned to her care. 

Accordingly, the juvenile court’s denial of mother’s 

May 2021 section 388 petition was not an abuse of discretion.

II. The juvenile court did not abuse its discretion by 

concluding that the parental-benefit exception did 

not apply.

Next, mother argues that the juvenile court erred when it 

found that the parental-benefit exception to adoption (§ 366.26, 

subd. (c)(1)(B)(i)) did not apply. Again, we disagree.

A. Governing law and standard of review.

Section 366.26’s express purpose is “to provide stable,

permanent homes” for dependent children. (§ 366.26, subd. (b).) 

If the juvenile court has ended reunification services,

adoption is the legislative preference. (§ 366.26, subd. (b)(1).) 

When the court finds by clear and convincing evidence

the child is likely to be adopted, the statute mandates

terminating parental rights and placing the child for adoption 

unless the parent can demonstrate an exception applies. 

(§ 366.26, subd. (c)(1); In re Caden C. (2021) 11 Cal.5th 614, 625 

(Caden C.).)

One such exception is the parental-benefit exception, which 

applies if the harm from severing the parent-child relationship 

outweighs the benefit of placing the child in an adoptive home. 

(Caden C., supra, 11 Cal.5th at p. 632.) To establish this 

exception, the parent must demonstrate, by a preponderance of 

the evidence, that termination would be detrimental to the child
19

in light of three statutory elements: (1) regular visitation and 

contact with the child, (2) a relationship, the continuance of 

which would benefit the child, such that (3) terminating parental 

rights would be detrimental to the child. (§ 366.26, subd. 

(c)(1)(B)(i); Caden C., at p. 631.) In assessing whether 

termination would be detrimental, “the [juvenile] 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.” (Caden C., at p. 632.) 

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.) 

The second element requires the court to “assess whether 

‘the child would benefit from continuing the relationship.’ 

(§ 366.26, subd. (c)(1)(B)(i).) Again here, the focus is the child. 

And the relationship may be shaped by a slew of factors, such as 

‘[t]he age of the child, the portion of the child’s life spent in the 

parent’s custody, the “positive” or “negative” effect of interaction 

between parent and child, and the child’s particular needs.’ ” 

(Caden C., supra, 11 Cal.5th at p. 632.) In evaluating this factor, 

“courts often consider how children feel about, interact with, look 

to, or talk about their parents.” (Ibid.) 

The third element—whether termination would be 

detrimental to the child due to the relationship—requires the 

court to decide whether it would be harmful to the child to sever 

the relationship and choose adoption. (§ 366.26, subd. (c)(1)(B); 

see also id., subd. (c)(1)(D).) In making this determination, a 

court must determine “how the child would be affected by losing 

the parental relationship—in effect, what life would be like for 
20

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

life.” (Caden C., supra, 11 Cal.5th at p. 633.) In each case, then, 

“the court acts in the child’s best interest in a specific way: it 

decides whether the harm of severing the relationship outweighs 

‘the security and the sense of belonging a new family would 

confer.’ [Citation.] ‘If severing the natural parent/child 

relationship would deprive the child of a substantial, positive 

emotional attachment such that,’ even considering the benefits of 

a new adoptive home, termination would ‘harm[ ]’ the child, the 

court should not terminate parental rights. [Citation.] That 

subtle, case-specific inquiry is what the statute asks courts to 

perform: does the benefit of placement in a new, adoptive home 

outweigh ‘the harm [the child] would experience from the loss of 

[a] significant, positive, emotional relationship with [the 

parent?]’ ” (Id. at pp. 633–634.) 

In considering these issues, the parent’s struggles with 

issues such as those that led to dependency are relevant only “to 

the extent they inform the specific questions before the court: 

would the child benefit from continuing the relationship and be 

harmed, on balance, by losing it?” (Caden C., supra, 11 Cal.5th 

at p. 638.) As our Supreme Court has explained: “[H]ow and how 

much the loss of a relationship with a parent may be harmful, 

how and how much that harm might be offset by a new family are 

complex questions not always answered just by determining how 

beneficial the child’s relationship with the parent is. Though 

there is no reason for a court to consider ‘a second time’ the same 

struggles in the same way, a parent’s struggles with substance 

abuse, mental health issues, or other problems could be directly 

relevant to a juvenile court’s analysis in deciding whether 

termination would be detrimental.” (Id. at p. 639.)
21

Because the first two elements––whether the parent has 

visited the child consistently, and whether the relationship is 

such that the child would benefit from continuing it––are factual 

determinations, we review them for substantial evidence. 

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

whether termination of parental rights would be detrimental to 

the child––requires the court to engage in a “delicate balancing” 

and assess “the likely course of a future situation that’s 

inherently uncertain.” (Id. at p. 640.) This determination is 

inherently discretionary, and thus we review it for abuse of 

discretion.

B. Analysis.

1. Regular visitation.

Mother contends that the juvenile court did not properly 

apply the first prong of the statutory test––regular visitation––

and we agree. The section 366.26 hearing in this case took place 

on May 27, 2021, the same day our Supreme Court issued its 

decision in Caden C., and thus neither the parties nor the 

juvenile court had the benefit of that decision.5 The juvenile 

court’s statements on the record suggest that it found the 

exception did not apply, at least in part, because mother had not 

had “daily contact” with Anthony. But daily contact is not 

required under Caden C.; what is required is “consistent[]”

visitation and contact, to the extent permitted by court orders.

5 As a nonfinal case pending when Caden C. was issued, we 

presume, as the parties have, that Caden C. has retroactive 

effect. (See, e.g., Waller v. Truck Ins. Exchange, Inc. (1995) 

11 Cal.4th 1, 24, 44 [“[T]he general rule [is] that judicial decisions 

are to be applied retroactively”].)
22

(Caden C., supra, 11 Cal.5th at p. 632.) The juvenile court 

therefore erred by requiring mother to demonstrate daily contact 

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

The juvenile court’s error as to the first prong is not 

dispositive of the applicability of the exception, however. Instead,

because mother bore the burden of the proof as to all three prongs 

of the statutory test (Caden C., supra, 11 Cal.5th at p. 631), the 

error necessarily was harmless if the court applied the correct 

legal standard as to the second or third prongs and its findings 

were supported by substantial evidence. We turn therefore to 

those prongs.

2. Benefit to Anthony from continuing the 

relationship.

To prove the second element, mother had to demonstrate 

that Anthony had “a substantial, positive, emotional” attachment 

to her, such that he “would benefit from continuing the 

relationship.” (Caden C., supra, 11 Cal.5th at p. 636.) Mother 

contends the juvenile court misapplied this element because it 

focused on her failure to end her relationship with father and to 

occupy a “parental role” in Anthony’s life, rather than on 

Anthony’s bond with mother. For the reasons that follow, we 

disagree.

Prior to Caden C., many courts evaluating the parentalbenefit exception considered whether a parent had acted in “a 

parental role” with regard to the child. (E.g., In re Dakota H. 

(2005) 132 Cal.App.4th 212, 229 [“In order to overcome the 

statutory preference for adoption, the parent must prove he or 

she occupies a parental role in the child’s life”]; In re L. Y. L. 

(2002) 101 Cal.App.4th 942, 954 [“[t]he parent must show he or 

she occupies a parental role in the child’s life, resulting in a 
23

significant, positive, emotional attachment from child to 

parent”].) Mother contends that Caden C. definitively rejected 

this approach to the parental-benefit exception, and she requests 

that we therefore remand this case so the juvenile court can 

reconsider her evidence under the correct standard. But as 

another appellate court recently has noted, the Supreme Court in 

Caden C. did not use the phrase “parental role” in any portion of 

its analysis (In re A.L. (2022) 73 Cal.App.5th 1131, 1157), and

while the focus of the second prong under Caden C. is on the 

benefit to the child of maintaining the parent-child relationship, 

the parent’s failure to occupy a “parental role” can be highly 

relevant to that analysis (ibid. [“the strength and quality of the 

parent’s relationship with the child, including whether that 

parent has a parental role, is a relevant consideration” under 

Caden C.], italics added).

Division One of this court considered a claim similar to 

mother’s in In re Katherine J. (2022) 75 Cal.App.5th 303, 319–

320 (Katherine J.).) There, a father challenged an order 

terminating parental rights, urging that the juvenile court 

misconstrued the second element of the parental-benefit 

exception to require that he occupy a “traditional parental role” 

in his daughter’s life. (Id. at p. 318.) The Court of Appeal 

disagreed and affirmed. Although the juvenile court had found 

the father “ ‘ha[d] not occupied a significant parental role,’ ” it

also “explained what it meant”––namely, that the “father’s 

unresolved issues with substance abuse and violence had 

consistently destabilized [his daughter’s] life for years, fatally 

compromising father’s attempts to maintain a strong, positive 

emotional attachment with her.” Because this finding was 

supported by substantial evidence, the appellate court held that
24

remand for further fact-finding was not appropriate. (Id. at 

pp. 318–322.)

The court similarly concluded in In re A.L., supra, 

73 Cal.App.5th 1131. There, the father challenged an order 

terminating parental rights, urging that the juvenile court erred 

“by failing to complete ‘the complex task of reaching a detriment 

finding [and instead] merely relying on father’s and the 

caretakers’ [respective] parental role[s].” (Id. at p. 1155.) The 

court disagreed, noting, in part, that nothing in the record 

suggested that the court’s statements on the record were 

“intended to be a comprehensive recitation of the grounds for its 

decision.” (Id. at p. 1156.) Further, the court said, in assessing 

potential detriment, “it was proper for the juvenile court to

consider whether, and the extent to which, the caregivers and 

[parent] occupied parental roles with the minor.” (Id. at p. 1157.) 

Because substantial evidence supported a conclusion that the 

benefits of adoption outweighed the harm from the loss of the 

relationship with the father, the juvenile court did not abuse its 

discretion in concluding that the parental-benefit exception did 

not apply. (Id. at p. 1161.)

In the present case, although the court found that mother 

had failed to act in the role of a parent, it did not stop there––

instead, as in In re Katherine J., the court “explained what it 

meant.” Specifically, the court noted that mother had exposed 

Anthony to repeated domestic violence incidents between the 

parents, including father stealing mother’s car keys, breaking her 

windshield, and removing her window screens. The court also 

noted that mother had encouraged four-year-old Anthony not to 

tell the truth about father’s presence in mother’s closet, which 
25

Anthony knew to be wrong. Being asked to lie to protect his 

parents was, the court said, “a lot for a little kid.” 

Nor did the juvenile court err by considering, in the context 

of the second prong, Anthony’s likely continued exposure to 

domestic violence if his visits with mother were to continue. 

Under Caden C., assessing whether “ ‘the child would benefit 

from continuing the relationship’ ” requires the juvenile court to 

consider a variety of factors, including the “ ‘the “positive” or 

“negative” effect of interaction between parent and child.’ ” 

(Caden C., supra, 11 Cal.5th at p. 632.) A parent’s continued 

struggles to make progress with the issues leading to dependency 

may be highly relevant to the parental-benefit exception: As our 

Supreme Court has explained, “[i]ssues such as those that led to 

dependency often prove relevant to the application of the 

exception” because “[a] parent’s struggles may mean that 

interaction between parent and child at least sometimes has a 

‘ “negative” effect’ on the child.” (Id. at p. 637.) Accordingly, it 

was appropriate for the juvenile court to consider the likelihood 

that Anthony would continue to be exposed to domestic violence 

between his parents in determining that, on balance, he would 

not benefit from continuing his relationship with mother.6

6 For this reason, we do not agree with mother that the 

juvenile court “made no analysis of the relationship Anthony had 

with Mother and whether it was beneficial to him, but rather, 

judged Mother for being in a domestic violence relationship with 

Father and putting her relationship with Father ‘above their 

child.’ ” As we have described, the effect on Anthony of the 

domestic violence between mother and father was highly relevant 

to the relative benefit to Anthony of continuing his relationship 
26

Because the juvenile court applied a correct legal standard

in considering the second prong of the Caden C. analysis, we 

must affirm its finding that the parental-benefit exception did not 

apply unless we conclude that the evidence compelled a finding 

for mother as a matter of law. (In re I.W. (2009) 180 Cal.App.4th 

1517, 1528, disapproved on other grounds in Conservatorship of 

O.B. (2020) 9 Cal.5th 989, 1010, fn. 7 [where the trier of fact has 

concluded that the party with the burden of proof did not carry 

the burden and that party appeals, “the question for a reviewing 

court becomes whether the evidence compels a finding in favor of 

the appellant as a matter of law”].) It did not. While there 

certainly was evidence of a loving bond between mother and 

Anthony, there also was evidence that, on balance, Anthony 

would not benefit from continuing the relationship. 

Unquestionably, Anthony was often happy to see mother, enjoyed 

his time with her, and became upset when it was time to end 

visits. But there was also evidence that Anthony was 

significantly affected by the violent relationship between mother 

and father. In February 2020––i.e., during the period Anthony 

was living with mother and there were reports of domestic 

violence incidents between mother and father––the social worker 

reported that Anthony had “reverted to being quiet [and] angry 

with mom” and had resumed having tantrums. After Anthony

was returned to Leticia, he cried when she dropped him off to 

visit mother for the first several months, fearful that Leticia 

might not pick him up. Other times, Leticia had to bribe 

Anthony with a toy to get him to visit mother. And when the 

with mother, and thus it was a proper basis for the court’s 

decision.
27

social worker asked Anthony about permanency, he said he 

wanted to stay with Leticia.

It is apparent to this court that mother loves Anthony and 

made many positive changes in her life to regain custody of her 

son. It is also apparent that Anthony loves his mother and enjoys 

visits with her and his maternal grandparents. But “[a]

biological parent who has failed to reunify with an adoptable 

child may not derail an adoption merely by showing the child 

would derive some benefit from continuing a relationship 

maintained during periods of visitation with the parent.” (In re 

Angel B. (2002) 97 Cal.App.4th 454, 466.) Instead, the parent 

must demonstrate that the child would, on balance, benefit from 

continuing the relationship. (Caden C., supra, 11 Cal.5th 637.) 

The juvenile court did not err by concluding that mother failed to 

make that showing here, and thus that the parental-benefit 

exception did not apply.7

III. The juvenile court did not err by finding that DCFS 

made an adequate ICWA inquiry.

Both mother and father denied Indian heritage when DCFS 

interviewed them and again on their ICWA-020 forms. On the 

basis of these denials, the juvenile court found at the March 2017 

detention hearing that it had no reason to know that Anthony 

was an Indian child, but it ordered the parents to keep DCFS, 

their attorneys, and the court aware of any new information 

relating to possible ICWA status. 

7 Having so concluded, we need not address whether the 

juvenile court properly concluded that the third Caden C. factor 

was unmet.
28

Although mother did not challenge the juvenile court’s 

ICWA finding below, on appeal she urges that DCFS breached its 

duty of inquiry because it did not interview readily available 

extended family members, including maternal grandmother, 

maternal great-grandmother, paternal grandmother, and

maternal and paternal aunts about possible Indian ancestry. She 

thus urges that the order terminating parental rights should be 

reversed and remanded for compliance with ICWA.

For all the reasons discussed in In re Ezequiel G. (2022)

81 Cal.App.5th 984, 1005 (Ezequiel G.), we conclude that the 

juvenile court did not err in concluding that ICWA does not apply 

to this case. Stated briefly, there is no evidence in the present 

record that would support the conclusion that Anthony is an

Indian child. Further, the juvenile court did not abuse its 

discretion in concluding that the agencies conducted an adequate 

inquiry. In reviewing a juvenile court’s ICWA findings for abuse 

of discretion, the key question for a reviewing court is whether 

the ICWA investigation has reliably answered the question at the 

heart of the ICWA inquiry: Whether a child involved in a 

proceeding “is or may be an Indian child” (§ 224.2, subd. (a))––

that is, whether he or she either (a) “is 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); see also § 224.1, subds. (a)–(b).) In other words, the 

focus of the court’s analysis is not on the number of individuals 

interviewed, but on whether the agency’s ICWA inquiry has 

yielded reliable information about a child’s possible tribal 

affiliation. (Ezequiel G., at p. 1009.) 

As we have explained, “ ‘ICWA does not apply simply based 

on a child or parent’s Indian ancestry.’ ” (Ezequiel G., supra, 
29

81 Cal.App.5th 1009, citing U.S. Dept. of Interior, Bureau of 

Indian Affairs, Guidelines for Implementing the Indian Child 

Welfare Act (Dec. 2016) (BIA Guidelines), p. 10 

<https://www.bia.gov/sites/default/files/dup/assets/bia/ois/pdf/idc2

-056831.pdf> [as of July 29, 2022], archived at 

<https://perma.cc/5758-64CA>.) Instead, “the statutory definition 

of ‘Indian child,’ . . . is based on the child’s political ties to a 

federally recognized Indian Tribe, either by virtue of the child’s 

own citizenship in the Tribe, or through a biological parent’s 

citizenship and the child’s eligibility for citizenship.” (Indian 

Child Welfare Act Proceedings, 81 Fed.Reg. 38795 (June 14, 

2016) (BIA ICWA Proceedings), italics added.) In other words, an 

Indian child is one with a tribal affiliation, not merely Indian 

ancestry.

“Tribal citizenship (aka Tribal membership) is voluntary 

and typically requires an affirmative act by the enrollee or her 

parent.” (BIA ICWA Proceedings, supra, 81 Fed.Reg. at p. 38783, 

italics added.) Specifically, “Tribal laws generally include 

provisions requiring the parent or legal guardian of a minor to 

apply for Tribal citizenship on behalf of the child. [Citation.] 

Tribes also often require an affirmative act by the individual 

seeking to become a Tribal citizen, such as the filing of an 

application. [Citation.] As ICWA is limited to children who are 

either enrolled in a Tribe or are eligible for enrollment and have 

a parent who is an enrolled member, that status inherently 

demonstrates an ongoing Tribal affiliation.” (Ibid., italics added; 

see also BIA Guidelines, supra, at p. 10 [“Most Tribes require 

that individuals apply for citizenship and demonstrate how they 

meet that Tribe’s membership criteria.”].) Because membership 

in an Indian tribe therefore requires that an individual or his or 
30

her parent apply for tribal membership, a child’s parents will, in 

most cases, be the best source of information for determining 

whether a child is an Indian child. 

In the present case, nothing in the record gives us reason to 

doubt the accuracy of mother’s or father’s denial of a tribal 

affiliation. Each of the parents unequivocally denied Indian 

ancestry, and mother has not identified any evidence in the 

record that would support an inference that she or father might 

unknowingly be a member of an Indian tribe. (See Ezequiel G., 

supra, 81 Cal.App.5th at p. 1015.) Indeed, the evidence is to the 

contrary. Both mother and father were raised primarily by their 

own parents and lived with them intermittently in the period 

between Anthony’s birth and detention. Maternal and paternal 

relatives were present at the detention hearing when the juvenile 

court made ICWA findings, and no relative contradicted the 

parents’ denials of Indian ancestry. Further, both parents 

remained in close contact with their families throughout these 

proceedings: Father lived with his mother (the paternal 

grandmother) at the time of the detention hearing, and the 

maternal grandmother and great-grandparents monitored 

mother’s visits with Anthony. The possibility that either parent 

might unknowingly be a member of an Indian tribe thus appears 

trivially small. The juvenile court therefore did not abuse its 

discretion by concluding that DCFS conducted an adequate 

ICWA inquiry as to both parents.

For all the same reasons, even if the juvenile court erred by 

finding DCFS’s inquiry adequate, that error was not prejudicial 

because it is not “reasonably probable that an agency’s error in 

not conducting a proper initial inquiry affected the correctness 

(that is, the outcome) of the juvenile court’s ICWA finding.” (In re 
31

Dezi C. (2022) 79 Cal.App.5th 769, 781, italics added, review 

granted Sept. 21, 2022, S275578.) As we have said, nothing in 

the juvenile court record gives us a reason to doubt the accuracy

of the parents’ denials that they or Anthony were members of or 

eligible for membership in an Indian tribe, and mother has not 

made a proffer on appeal that she or father has Indian heritage. 

No remand therefore is warranted.

DISPOSITION

The May 27, 2021 orders denying mother’s section 388 

petition and terminating parental rights are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL 

REPORTS

EDMON, P. J.

I concur:

EGERTON, J.
1

RICHARDSON (ANNE K.), J., Concurring and Dissenting.

I agree that the juvenile court’s disposition of the 

modification petition was not an abuse of discretion. I 

respectfully disagree with the majority’s conclusions that the 

juvenile court applied the correct legal standard as to the 

beneficial relationship exception (Welf. & Inst. Code,1 § 366.26), 

and that substantial evidence supported the finding that DCFS’s 

ICWA inquiry was adequate. I would therefore reverse the 

juvenile court’s termination order and, on account of that 

disposition, also vacate the finding that ICWA does not apply, 

with instruction to the juvenile court to order DCFS to comply 

with its duties under ICWA. 

DISCUSSION

I. Beneficial relationship exception

Turning to the beneficial relationship question first, the 

majority recognizes that, in In re Caden C. (2021) 11 Cal.5th 614 

(Caden C.), our Supreme Court resolved several open questions 

as to how the beneficial relationship test is applied. (Maj. opn. 

ante, at pp. 19–23.) I agree with the majority’s conclusion that 

the juvenile court erred with respect to the first prong of the 

three-step Caden C. analysis because mother maintained 

consistent visitation. (Maj. opn. ante, at pp. 21–22.) I part ways, 

however, with respect to the majority’s treatment of Caden C.’s 

second prong. I agree with mother that the juvenile court 

improperly focused on her inability to overcome her domestic 

violence relationship and that she had not occupied a parental 

1 All undesignated statutory references are to the Welfare 

and Institutions Code.
2

role in Anthony’s life, rather than focusing on the nature of her 

bond with Anthony. Because the application of an incorrect legal 

standard prejudiced mother, the matter should be returned to the 

juvenile court to reconsider the exception’s applicability with the 

benefit of Caden C.

The second prong of the beneficial relationship analysis 

requires that the parent show that the child had a “substantial, 

positive, emotional attachment” to them. (Caden C., supra, 11 

Cal.5th at p. 636.) “[T]he focus is the child[,]” with attention to

“ ‘[t]he age of the child, the portion of the child’s life spent in the 

parent’s custody, the “positive” or “negative” effect of interaction 

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

at p. 632.) 

In Caden C., supra, 11 Cal.5th at page 637, our Supreme 

Court clarified that a parent’s failure to make “sufficient progress 

in addressing the problems that led to dependency” is not a 

“categorical bar to applying the exception.” Because a section 

366.26 hearing “all but presupposes that the parent has not been 

successful” in their case plan, a contrary approach would 

“effectively write the exception out of the statute.” (Ibid.) 

Accordingly, a parent’s struggles are relevant only insofar as they 

bear upon the fundamental inquiry posed by the exception, i.e., 

the parent’s relationship with the child. (Id. at pp. 637–638.) 

Additionally, courts are not to “compar[e] the parent’s 

attributes as custodial caregiver relative to those of any potential 

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

Thus, while it is true as the majority notes that Caden C. did not 

use the term “parental role” and did not prohibit an evaluation of 

the same (maj. opn. ante, at pp. 22–23), it certainly did set limits 

on its use. (Caden C., at p. 634 [“courts should not look to 
3

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”].) Thus, “problems arise when 

juvenile courts use the phrase ‘parental role’ without explaining 

which meaning(s) they impart to it.” (In re Katherine J. (2022) 75 

Cal.App.5th 303, 319 (Katherine J.); see In re L.A.-O. (2021) 73 

Cal.App.5th 197, 211 [best practice is to not use “ ‘parental role’ 

”].) However, a court adequately explains the phrase’s use when

it relies upon evidence that a parent’s actions “consistently 

destabilize[ ]” the parent-child relationship. (Katherine J., at 

pp. 319–320.)

Before the Supreme Court decision in Caden C., courts of 

appeal applied different versions of the parental benefit test that 

generally included the requirement that the relationship between 

the child and the parent must be “parental” without any of the 

above nuance. (In re Caden C. (2019) 34 Cal.App.5th 87, 105 [“Of 

necessity, however, the relationship at issue must be parental. 

‘No matter how loving and frequent the contact, and 

notwithstanding the existence of an “emotional bond” with the 

child, “the parents must show that they occupy ‘a parental role’ in 

the child’s life” ’ ”], revd. (2021) 11 Cal.5th 614; In re I.W. (2009) 

180 Cal.App.4th 1517, 1528 [same].) Indeed, several appellate 

decisions went on to say that such a role “ ‘characteristically 

aris[es] from day-to-day interaction, companionship and shared 

experiences[,]’ ” although “day-to-day contact is not always 

required.” (In re Caden C., supra, 34 Cal.App.5th at p. 105.) 

I think it is clear that the trial court used an incorrect legal 

standard in deciding the parental benefit exception, where the 

closing arguments and comments of the court reflect the elements 
4

of a pre-Supreme Court Caden C. analysis rather than focusing 

on the relationship between parent and child; hardly surprising 

since the hearing took place on the very day the decision was 

announced. 

Here, during closing arguments at the section 366.26 

hearing, the focus of argument was not on Anthony’s emotional 

bond with mother, but whether mother occupied a parental role 

in Anthony’s life by serving as his primary caretaker. DCFS’s 

counsel repeatedly suggested that mother’s showing was 

insufficient because she had not occupied a parental role. DCFS 

cited a pre-Caden C. precedent to argue that because mother was 

“unable to meet the child’s need[s],” this was not an 

“extraordinary case [where] preservation of parental rights will 

prevail over the preference of adoption.” (In re K.P. (2012) 203 

Cal.App.4th 614, 621.)2 Elaborating, counsel concluded by 

contrasting mother to Anthony’s caregiver, Leticia, who Anthony 

“look[ed] to” as “responsible for his day-to-day needs, for taking 

him to school, for helping him with his homework, for attending 

to medical [and] mental health issues, and any other issues. 

[She] holds the place of the mother and the primary caretaker for 

Anthony.”3 Similarly, Anthony’s counsel asserted that mother 

2 Notably, the Caden C. court expressly disavowed the 

precise case that K.P. cited in support of this proposition, In re 

Jasmine D. (2000) 78 Cal.App.4th 1339, 1350, while concluding 

that a parent need not demonstrate a “compelling reason” to 

invoke the exception. (Caden C., supra, 11 Cal.5th at p. 636 & fn. 

5.)

3 By doing so, DCFS engaged in precisely the kind of 

“contest of who would be the better custodial caregiver” that the 
5

did not meet her burden because a beneficial relationship 

“need[ed] to arise from a day-to-day interaction from having some 

shared experiences” and mother was “not there to help [Anthony] 

get ready in the morning” or “tuck him in every night.” 

The court’s oral findings reflect that it was persuaded by 

these arguments. Over five pages of transcript, the court 

referenced mother’s lack of a parental role at least four times. It 

expressly conveyed its agreement with Anthony’s counsel that 

mother was not “acting in the role of a parent” because she lacked 

“daily contact.” Later restating its conclusions, the court 

reasoned that mother had not acted in a parental role given that 

she had physical custody of Anthony for “probably less than 50 

percent” of his life.4 

court in Caden C. held was “decidedly not” the purpose of a 

section 366.26 hearing. (Caden C., supra, 11 Cal.5th at p. 634.)

4 Relatedly, the juvenile court’s faulting mother for not 

making enough progress despite several years of dependency 

proceedings (i.e., referencing time as a relevant factor) was also 

improper. While parents are only afforded a limited amount of 

time to reunify (In re Celine R. (2003) 31 Cal.4th 45, 52), the 

parent-child relationship often precedes the dependency (as 

here), and that relationship may benefit the child regardless of 

the length of the proceedings. As our Supreme Court has 

explained, “the question before the court [at the section 366.26 

hearing] is decidedly not whether the parent may resume custody 

of the child.” (Caden C., supra, 11 Cal.5th at p. 630; see id. at

p. 638 [parent’s continuing struggles are not relevant because 

they might affect ability to regain custody].) Thus, the court’s 

reference to mother’s inability to sever ties with father, get 

unmonitored visits, or complete programming in a timely fashion 

did not, as DCFS asserts, demonstrate it adequately considered 
6

“When a trial court applies the wrong legal standard, a 

remand for further proceedings is certainly appropriate if an 

appellate court announces a new legal standard and it is unclear 

from the record whether the trial court would have reached the 

same result had it not lacked appellate guidance.” (In re J.R.

(2022) 82 Cal.App.5th 526, 532.)5 Thus, I agree with those courts 

that have reversed juvenile court rulings that were entered 

before Caden C. was decided “when the evidence adduced at the 

section 366.26 hearing could have supported application of the 

beneficial relationship exception had the juvenile court had the 

benefit of that decision when it ruled.” (Ibid.) 

I believe the evidence here meets that standard.6 The 

reports entered into evidence at the section 366.26 hearing 

the parent-child bond, but illuminated the shortcomings in its 

analysis.

5 As a threshold matter, most courts have doubted the 

applicability of harmless error analysis in this context, reasoning 

that the exception is a discretionary determination which must 

be made by “the juvenile court . . . in the first instance.” (In re 

D.M. (2021) 71 Cal.App.5th 261, 271; see, e.g., In re M.G. (2022) 

80 Cal.App.5th 836, 852; In re J.D. (2021) 70 Cal.App.5th 833,

865 (J.D.); In re B.D. (2021) 66 Cal.App.5th 1218, 1231.) Because 

an appeals court is ill-suited to speculate as to how the trial court 

might have exercised its discretion in light of Caden C., many 

courts reason that reversal is necessary irrespective of harmless 

error. (In re D.M., at p. 271.) 

6 Preliminarily, it bears noting that the court denied 

mother’s requests to present additional evidence in the form of a 

bonding study and further testimony from maternal grandmother

(see Caden C., supra, 11 Cal.5th at p. 633, fn. 4 [recommending 
7

contained several third-party accounts of the mother-child bond 

which, applying the relevant factors (Caden C., supra, 11 Cal.5th 

at p. 632), could have sufficed to demonstrate a “substantial, 

positive, [and] emotional attachment.” (Id. at p. 636.)7

Those reports reflected that at the time of the May 2021 

hearing, Anthony was in mother’s custody for over half of his 

nearly six-year life, from his June 2015 birth to the March 2017 

removal (21 months), and again from December 2018 to the

second removal in March 2020 (15 months). Courts are more 

likely to find a beneficial relationship where a parent has acted 

as a primary caretaker for at least half of the child’s life. (See, 

e.g., J.D., supra, 70 Cal.App.5th at p. 855 [finding a beneficial 

relationship where the child “had lived with [his] mother for just 

over half of his life”]; In re S.B. (2008) 164 Cal.App.4th 289, 298–

299 [finding a beneficial relationship where the father of a fiveyear-old child was the child’s caregiver for three years]; In re 

Amber M. (2002) 103 Cal.App.4th 681, 689 [finding a beneficial 

relationship where two of the mother’s three children had been in 

trial courts “seriously consider, where requested and appropriate, 

allowing for a bonding study or other relevant expert 

testimony”]), evidence which, if available, may have furnished 

additional relevant information about the parent-child bond. 

7 Because credibility is a question for the trier of fact (In re 

Precious D. (2010) 189 Cal.App.4th 1251, 1258–1259), I defer to 

the juvenile court’s credibility determinations as to mother’s 

testimony.
8

her care for most of their lives].)8 They are also more likely to 

find a beneficial relationship where, as here, the child has 

sufficiently advanced beyond infancy to understand the concept of 

a biological parent and develop an attachment to them. (See In 

re Angel B. (2002) 97 Cal.App.4th 454, 468 [exception 

inapplicable because child’s infancy meant he was not old enough 

to understand the idea of a biological parent].) 

Further, three maternal relatives—whose reports that 

father was abusing mother (leading to Anthony’s first removal) 

and that father was hiding in mother’s closet (leading to 

Anthony’s second removal) showed they had no difficulty being 

candid with DCFS—described mother’s positive connection with 

Anthony with specificity. They recounted that, during weekly 

day-long visits over the year-plus period following Anthony’s 

second removal, Anthony was always happy to see mother and 

tearful when saying goodbye. Anthony openly conveyed his love 

for mother, hugging and kissing her and stating as much. 

Mother appropriately met Anthony’s needs, whether it involved 

cooking, bathing, dressing, grooming, or helping him with school 

work. At the end of visits, Anthony pleaded with the family to let 

him stay. 

Indeed, the juvenile court and social worker stated several 

times—including as recently as the previous year—that Anthony 

and mother had bonded, and there was no reason to believe their 

bond had evaporated over those intervening months, during 

which mother consistently visited. Earlier reports referenced 

8 The trial court appeared to misapprehend the time 

Anthony spent in mother’s custody, stating that it was “for 

probably less than 50 percent of his [life].”
9

Anthony’s calling for mother as he was transported to caregiver’s 

home, as well as his statements that he liked it in mother’s home 

and wanted to stay.9 The section 366.26 report also documented 

Anthony’s developmental and educational progress, despite the 

deficits with which he was diagnosed in 2017. Since much of this 

progress occurred at least in part during Anthony’s time in 

mother’s custody, mother’s active role in his education cannot be 

discounted as a contributing factor, further reflecting her efforts 

to meet Anthony’s needs. The section 366.26 report also detailed 

that mother adequately addressed Anthony’s medical and dental 

needs. 

As such, at least some evidence supported the exception’s 

application. (In re J.R., supra, 82 Cal.App.5th at p. 533.) That 

mother—a young woman struggling to overcome a difficult 

9 Anthony’s statement that he wanted to stay with Leticia 

(maj. opn. ante, at p. 26) does not preclude a significant positive 

attachment with mother. (J.D., supra, 70 Cal.App.5th at p. 859 

[“A child’s emotional attachments are not a zero-sum game”].) 

Indeed, several cases cited favorably by the court in Caden C., 

supra, 11 Cal.5th at pages 632 to 634, 638, illustrate that a 

parent need not prove that the child’s attachment to them was 

their primary bond. (In re S.B., supra, 164 Cal.App.4th at p. 300 

[“requiring the parent of a child removed from parental custody 

to prove the child has a ‘primary attachment’ to the parent” is not 

“reasonable”]; see, e.g., In re Scott B. (2010) 188 Cal.App.4th 452, 

473 [reversing order terminating parental rights, and noting 

minor “clearly needs both of his mothers—his biological mother 

and his foster mother”].) Moreover, Anthony was confused by the 

concept of adoption, and never asked about his “feelings towards 

his mother, which, at least in the context of the beneficial 

relationship exception, was equally or more important.” (J.D., at 

p. 860 [faulting child’s attorney and social worker for asking only 

where child wished to live].) 
10

upbringing and an abusive relationship—had imperfect 

compliance with her case plan was not unexpected. (Cf. In re 

J.M. (2020) 50 Cal.App.5th 833, 848 [“The goal of dependency 

court proceedings is not to engineer perfect parents.”].) But given 

her dedication to preserving her strong bond with Anthony, I am 

unpersuaded that a trial court, considering the actual evidence 

before it and the proper factors, might not have reached a 

different outcome. 

The majority acknowledges some evidence of a bond (maj. 

opn. ante, at pp. 26–27) but declines to find error because, in one 

instance when the court said mother did not act in a parental 

role, it also “noted that mother had exposed Anthony to repeated 

domestic violence incidents between the parents, including father 

stealing mother’s car keys, breaking her windshield, and 

removing her window screens.” (Maj. opn. ante, at p. 24.) The 

court also noted that being asked to lie about father’s presence in 

mother’s closet was “a lot for a little kid.” (Id. at p. 25.) 

Analogizing this case to Katherine J., supra, 75 Cal.App.5th at 

pages 319 to 320 and In re A.L. (2022) 73 Cal.App.5th 1131, 1157, 

the majority concludes that the court did not err in considering 

“the effect on Anthony of the domestic violence” (maj. opn. ante, 

at p. 25, fn. 6) or his “likely continued exposure to domestic 

violence if his visits . . . were to continue.” (Maj. opn. ante, at 

p. 25.) 

I do not believe the record and the cases the majority 

invokes support these conclusions. In my view, while a juvenile 

court may properly decline to find a substantial, positive 

emotional attachment when presented with actual evidence that 

a parent-child relationship has been materially and adversely 

affected by the parent’s ongoing struggles with domestic violence, 
11

it cannot proceed by assuming that any such struggles have had 

such an effect. 

Thus, in Katherine J., because there was “evidence of [the 

child] telling others that she was ‘afraid’ of father and that she 

did not want to speak to him” and that she was “traumatized” 

after witnessing her father violently attack her grandmother, the 

Court of Appeal had no difficulty concluding the father’s 

misdeeds had a “consistently destabiliz[ing]” effect on the parentchild relationship. (Katherine J., supra, 75 Cal.App.5th at p. 321; 

see id. at p. 313 [describing effects].) In In re A.L., supra, 73 

Cal.App.5th at page 1159, even though a social worker had 

opined that father’s substance abuse was continuing to 

“negatively impact[]” the parent-child relationship, the juvenile 

court concluded that “there was a beneficial relationship that 

existed between father and the minor.” (In re A.L., at p. 1161.)10

Similarly, in Caden C., there was evidence that mother, as 

a product of her struggles with mental health, “sought to 

undermine at least some of Caden’s foster placements.” (Caden 

C., supra, 11 Cal.5th at p. 637.) Though mother’s struggles 

“could certainly have had a negative effect on [Caden]” (ibid., 

italics added), they were not, on their own, sufficient to bar the 

exception (id. at p. 642). Because the Court of Appeal did not rely 

on “evidence [that] showed Mother’s [struggles] affected whether 

her relationship with Caden was beneficial,” the Supreme Court 

10 However, in light of this evidence, the A.L. court affirmed 

the refusal to apply the exception at the third step of the Caden 

C. analysis. (In re A.L., supra, 73 Cal.App.5th at pp. 1161–1162.)
12

remanded for application of the correct legal standard. (Ibid., 

italics added [court must “connect” struggles to child’s welfare].)11

As these and several other post-Caden C. decisions reflect, 

a court’s reliance upon a parent’s struggles must be evidencebased—not speculative or conclusory—and reflect a materially 

adverse effect on the parent-child bond. (See, e.g., In re B.D., 

supra, 66 Cal.App.5th at p. 1228 [failure to provide evidentiary 

foundation as “how the parents’ continued [struggles] impacted 

the nature of the parent-child relationship” violated Caden C.

(italics added)]; J.D., supra, 70 Cal.App.5th at p. 863 [similar, 

where there was no “evidence in the record” suggesting that 

mother’s struggles had “lasting impact” on the child].) As a court 

of review, we are not to consider any “[o]ne section of the 

dependency law . . . in a vacuum[,]” but to “harmonize[ ]” the 

“whole system of law” to ensure that the parent is afforded “due 

process and fundamental fairness while also accommodating the 

child’s right to stability and permanency.” (In re Marilyn H. 

(1993) 5 Cal.4th 295, 307.) In the context of the beneficial 

relationship application, “proper consideration of the factors 

deemed relevant by our dependency scheme is [a] vital” part of 

protecting the important interests at stake. (J.D., at p. 840.) In 

11 Caden C.’s discussion of this principle also took place in 

its explanation of the third step of the framework. (See Caden C., 

supra, 11 Cal.5th at p. 642 [conclusion that child had beneficial 

relationship (i.e., met the second prong) was not “ ‘seriously 

disputed’ ”]; see also id. at p. 634.) Because the majority declines 

to address the third step and frames its discussion of this 

principle as relevant to the second step (maj. opn. ante, at pp. 26–

27, 29, fn. 7), I do so as well. (Katherine J., supra, 75 Cal.App.5th 

at p. 317, fn. 7 [second and third steps “significantly overlap”].)
13

my view, an evidence-based approach is vital to “preserv[ing] the 

child’s right to the relationship even when the child cannot safely 

live with that parent,” without “judgment about the parent’s 

problems.” (Caden C., supra, 11 Cal.5th at p. 643, italics added.)

Here, assuming for argument’s sake that Anthony was 

“exposed” to domestic violence (maj. opn. ante, at p. 25),

12 the 

record is devoid of evidence that such exposure negatively 

affected Anthony’s bond with mother. Indeed, this case 

exemplifies the necessity of such evidence: a child who has 

12 The majority cites no examples of Anthony witnessing 

any of father’s outbursts, and mistakenly asserts that the trial 

court concluded that he did. In fact, the trial court reasoned: 

“There was other times during that period of time when Anthony 

was living with mom that her car keys were stolen, windows 

broken in, screens taken off her apartment, and [that father is] 

hiding in a closet, refusing to come out. That is not acting like a 

parent that’s protective.” It is noteworthy that the record does

contain several examples of mother trying to limit the effects of 

such incidents, including calling the police, requesting 

restraining orders, and taking Anthony to maternal 

grandmother’s home when she suspected father might cause 

trouble. While I recognize the “serious threat to the well-being 

and safety of children in the home” that domestic violence poses, 

the lack of evidence that Anthony was “physically harmed” or

“witness[ed] any such violence” underscores the extent of 

assumptions required for the majority’s conclusions. (In re J.M., 

supra, 50 Cal.App.5th at p. 848 [lack of such evidence even 

though mother “initially struggled to stay away from [f]ather” 

favors parent in request for modification context].) Nonetheless, 

because the most pertinent question is the effect of the parent’s 

struggles on the parent-child bond (Caden C., supra, 11 Cal.5th 

at pp. 637–638), my analysis assumes that Anthony witnessed at 

least some of these incidents.
14

previously witnessed his mother being abused can certainly 

remain deeply bonded to her such that termination is not in his 

best interest. 

I would instead conclude that the juvenile court’s several 

express findings that mother was not acting in a parental role 

and had not overcome her struggles with domestic violence, 

without tying them to their effect on the parent-child bond, 

demonstrate that the court considered factors which Caden C. 

has clarified as inappropriate in determining whether the 

parental-benefit exception applies. (See Caden C., supra, 11 

Cal.5th at pp. 632–633; In re B.D., supra, 66 Cal.App.5th at 

pp. 1230–1231 [reversing for misapplication of Caden C.]; see also 

In re Charlisse C. (2008) 45 Cal.4th 145, 159 [a “disposition that 

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

Because the juvenile court did not have the guidance of 

Caden C. when it rendered its decision (maj. opn. ante, at p. 21 & 

fn. 5), it should be afforded another opportunity to exercise its 

discretion in light of that decision. This is not a case where 

mother had a full opportunity to present evidence and where “no 

evidence . . . could support a favorable finding for [her],” and thus 

the error cannot be excused as harmless. (In re J.R., supra, 82 

Cal.App.5th at p. 533.) 

For all these reasons, I would reverse the order terminating 

mother’s parental rights and remand for a new section 366.26 

hearing using the Caden C. standard. 

II. ICWA

Finally, I agree with mother’s further contention that 

DCFS failed to ask extended relatives whether Anthony is or may 

be an Indian child as required under section 224.2, subdivision 

(b), and the juvenile court erroneously concluded ICWA does not 
15

apply. Because I have already concluded that the termination 

order must be reversed, I would also vacate the ICWA 

determination and order ICWA compliance on remand.

The language of the governing statute provides that: 

“Inquiry includes, but is not limited to, asking the child, parents, 

legal guardian, Indian custodian, extended family members, 

others who have an interest in the child, and the party reporting 

child abuse or neglect, whether the child is, or may be, an Indian 

child.” (§ 224.2, subd. (b), italics added.) There may be times 

when it is not feasible to make contact with all of the persons 

listed in the code: when they refuse to respond, when no contact 

information is provided, and certainly if there are no such 

relevant persons or such persons are deceased. In this case, 

however, there were readily available extended family members, 

including maternal grandmother, maternal great grandmother, 

paternal grandmother, and maternal and paternal aunts, that 

could have been interviewed about the children’s possible Indian 

ancestry, but DCFS did not attempt any such inquiry. Under 

these circumstances, there was no substantial evidence to 

support a finding that DCFS’s inquiry was proper, adequate, and 

duly diligent. 
16

Where a juvenile court continues to have jurisdiction over 

the child, the proper remedy is to vacate the finding that ICWA 

does not apply, and to remand for compliance with the inquiry, 

and if applicable, notice requirements of ICWA and related 

California law. (See In re Dominick D. (2022) 82 Cal.App.5th 

560, 567 [“ICWA inquiry and notice errors do not warrant 

reversal of the juvenile court’s jurisdictional or dispositional 

findings and orders other than the ICWA finding itself”].) 

Because reversal of the termination order is, in my view, 

necessary, I would also vacate the finding that ICWA does not 

apply, and direct the juvenile court to order DCFS to comply with 

its duties under ICWA. 

RICHARDSON (ANNE K.), J.*

 Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.