Filed 6/18/24 Adoption of H.M. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Adoption of H.M., a Minor. 2d Civ. No. B332831

(Super. Ct. No. T000177)

(Ventura County)

A.F. et al.,

 Plaintiffs and Respondents,

v.

J.M.,

 Defendant and Appellant.

Guardians of a minor child petitioned the trial court to 

have the child declared free from the custody and control of his 

parents pursuant to Family Code section 7822 and Probate Code 

section 1516.5, so the guardians can adopt the child. After a 

contested hearing, the court granted the petition. 

The child’s mother appeals on the grounds that a proper 

inquiry into the child’s potential Indian ancestry was not 
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completed, and no counsel was appointed for the child. We affirm

in part and reverse in part. We conditionally reverse and remand 

for the department to conduct a proper Indian Child Welfare Act 

(ICWA) inquiry. In all other aspects, we affirm.

FACTS

H.M. was born in December 2018, as a result of a brief 

sexual encounter between J.M. (Mother) and G.L. (Father). 

Mother and Father never married or cohabitated. Father was 

initially unaware of H.M.’s birth.1

Mother struggles with her mental health and was unable to 

care for H.M. Mother requested help from A.F. and N.F., her 

aunt and uncle (Petitioners). When H.M. was six weeks old, he 

began sleeping at Petitioners house. On November 26, 2019,

Mother placed H.M. in Petitioners’ care. H.M. has resided with 

Petitioners since.

On December 17, 2019, Mother signed an affidavit giving 

Petitioners temporary guardianship over H.M. until December 

15, 2020. Mother visited H.M. fairly often.

In March 2020, the Petitioners’ household was stricken 

with COVID-19. H.M. went to live with Mother while 

Petitioners’ family quarantined. On April 4, 2020, however, the 

sheriff and child protective services removed H.M. from Mother 

and returned him to Petitioners because Mother had threatened 

to kill herself and H.M. Petitioners obtained emergency 

temporary guardianship of H.M. on April 17, 2020. Thereafter 

Petitioners obtained permanent guardianship over H.M. Mother 

1 In January 2021, Mother told Father of H.M.’s birth and 

that he is the father. Father has had no contact with H.M. and 

has provided no support for him. Father does not appeal the trial 

court’s order.
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was granted supervised visitation. Mother subsequently moved 

to Northern California in November 2020. 

Between January and July 2021, Mother had only 

FaceTime visits with H.M., monitored by a third party. Mother’s 

last contact with H.M. occurred on July 20, 2021. Both Mother’s 

aunt and the third party monitor testified they received no 

request from Mother for a visit since that date. 

Mother has provided no support for H.M., despite having 

worked for several months, receiving unemployment benefits and 

receiving financial support from her current boyfriend since 

November 2021.

H.M. calls Petitioners mom and dad and views their 

children as his siblings. They are the only family he knows, and

their home is the only home he knows.

In April 2022, Petitioners petitioned the trial court to 

declare H.M. free from parental custody and control. The court 

granted the petition in September 2023, finding H.M. had been in 

Petitioner’s custody for at least two years; Mother last visited 

H.M. on July 21, 2021; Mother has not communicated with H.M. 

since and has completely failed to provide support for H.M.;

Mother acted with the intent to abandon H.M.; and it is in H.M.’s 

best interest to be adopted by Petitioners.

DISCUSSION

I. Statutory Foundation

Family Code section 7822, subdivision (a) provides in part: 

“A proceeding [to declare a child free from the custody and control 

of one or both parents] under this part may be brought if any of 

the following occur: [¶] . . . [¶] (2) The child has been left by both 

parents or the sole parent in the care and custody of another 

person for a period of six months without any provision for the 
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child’s support, or without communication from the parent or 

parents, with the intent on the part of the parent or parents to 

abandon the child.”

Family Code section 7822, subdivision (b) provides in part, 

“[F]ailure to provide identification, failure to provide support, or 

failure to communicate is presumptive evidence of the intent to 

abandon.”

Probate Code section 1516.5, subdivision (a) provides in 

part: 

“A proceeding to have a child declared free from the custody 

and control of one or both parents may be brought . . . if all of the 

following requirements are satisfied: 

“(1) One or both parents do not have the legal custody of 

the child.

“(2) The child has been in the physical custody of the 

guardian for a period of not less than two years. 

“(3) The court finds that the child would benefit from being 

adopted by his or her guardian. In making this determination, 

the court shall consider all factors relating to the best interest of 

the child, including, but not limited to, the nature and extent of 

the relationship between all of the following: 

“(A) The child and the birth parent. 

“(B) The child and the guardian, including family members 

of the guardian.

“(C) The child and any siblings or half siblings.”

II. Appointment of Counsel for H.M.

Mother contends the trial court erred in failing to at least 

consider the appointment of counsel for H.M.

Family Code section 7861 provides: “The court shall 

consider whether the interests of the child require the 
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appointment of counsel. If the court finds that the interests of 

the child require representation by counsel, the court shall 

appoint counsel to represent the child, whether or not the child is 

able to afford counsel. The child shall not be present in court 

unless the child so requests or the court so orders.”

Although the ultimate decision whether to appoint counsel 

is in the trial court’s discretion, Family Code section 7861 is clear 

that the court’s duty to consider appointment of counsel is 

mandatory. (Neumann v. Melgar (2004) 121 Cal.App.4th 152, 

171.) Here no party requested the court to appoint counsel for 

H.M. Assuming the court has a sua sponte duty to consider the 

appointment of counsel, any error is harmless.

This is not a close case. H.M. has been living with 

Petitioners since he was less than one year old. He calls 

Petitioners mom and dad and views their children as his siblings. 

Petitioners’ home is the only home H.M. has ever known. H.M. 

was four and one-half years old at the time of the hearing. 

Mother has not contacted him in at least two years. If he had 

any memory of Mother at all, it would be vague at best. Mother 

has threatened to kill herself and H.M. The social worker 

involved testified to the benefit of adoption. Mother points to no 

evidence that she has taken steps toward resolving her mental 

health problems.

Petitioners offer H.M. a loving and stable home through 

adoption. Freeing H.M. from parental custody and control so 

that he can be adopted by Petitioners was the only reasonable 

conclusion in this case.

Moreover, both Petitioners and parents presumably had 

H.M.’s best interest at heart. They were represented by counsel, 

and the trial court was fully advised of all matters affecting 
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H.M.’s best interests. The only assistance Mother suggests 

counsel could provide to H.M. is assistance in stating H.M.’s 

preference. But at four and one-half years old, H.M.’s preferences 

would have no weight. He is simply too young to have any 

concept of the consequences of his choice. (See Fam. Code,

§ 7891, subd. (a) [court must ask preferences of child 10 years of 

age or older].) That is particularly true in this case where the 

overwhelming evidence makes adoption the only reasonable 

result.

III. ICWA

Mother contends the trial court’s inquiry pursuant to the 

ICWA (25 U.S.C. § 1901 et seq.; Welf. & Inst. Code, § 224 et seq.) 

was inadequate.

ICWA applies to child custody proceedings including 

termination of parental rights and adoptive placement of an 

Indian Child. (25 U.S.C. § 1903, subd. (1)(ii), (iv).) At issue here 

is the scope of the inquiry necessary to determine whether a child 

subject to child custody proceedings is an “Indian Child.” An 

“Indian Child” is defined as “any unmarried person who is under 

age eighteen and is either (a) a member of an Indian tribe or (b) 

is eligible for membership in an Indian tribe and is the biological 

child of a member of an Indian tribe.” (25 U.S.C. § 1903, subd. 

(4).)

Petitioners, Mother, and Father filed ICWA-020 forms 

stating that neither they nor H.M. had any Indian ancestry. The 

Ventura County Human Services Agency did not conduct an 

ICWA inquiry. Based on the forms filed by Petitioners, Mother, 

and Father, the trial court found ICWA did not apply.

At trial Father’s counsel stated that Father’s family was 

present in court without specifying what members of the family 
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were present. Father’s sister was also present in court on one 

day of the trial. The court made no ICWA inquiry of Father’s 

extended family.

Mother cites In re Y.W. (2021) 70 Cal.App.5th 542, 552-553, 

for the proposition that meaningful efforts must be made to locate 

and interview the child’s extended family members. But In re

Y.W. is based on Welfare and Institutions Code section 224.2, 

subdivision (b): “If a child is placed into the temporary custody of 

a county welfare department pursuant to [Welfare and 

Institutions Code section] 306 or county probation department 

pursuant to [Welfare and Institutions Code section] 307, the 

county welfare department or county probation department has a 

duty to inquire whether that child is an Indian child. 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 

and where the child, the parents, or Indian custodian is 

domiciled.”

Welfare and Institutions Code section 224.2, subdivision (b) 

does not apply to this case. H.M. was not placed into the custody 

of the county welfare or probation departments pursuant to 

Welfare and Institutions Code sections 306 or 307.

There is disagreement among the Courts of Appeal on the 

application of the harmless error rule to the failure to make an 

adequate investigation under ICWA. (See In re Dezi C. (2022) 79 

Cal.App.5th 769, 777-779, review granted Sept. 21, 2022, 

S275578, for discussion of the various views.) The question is 

now before our Supreme Court. (Ibid.) We believe the best 

statement of the rule is in In re Dezi C.: “[A]n agency’s failure to 
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conduct a proper initial inquiry into a dependent child’s 

American Indian heritage is harmless unless the record contains 

information suggesting a reason to believe that the child may be 

an ‘Indian child’ within the meaning of ICWA, such that the 

absence of further inquiry was prejudicial to the juvenile court’s 

ICWA finding.” (In re Dezi C., supra, at p. 779.)

Here both Mother and Father, and Petitioners, filed form 

ICWA-020 attesting that H.M. has no Indian ancestry. Mother 

points to no document or other evidence in the record that 

suggests otherwise. Nevertheless, because of the uncertainty in 

the present state of the law, we think it best to bring this matter 

to a prompt conclusion. 

DISPOSITION

The judgment is conditionally reversed and remanded for 

the limited purpose of complying with ICWA requirements. (See 

In re M.R. (2022) 84 Cal.App.5th 537; Fam. Code, § 7822; Prob. 

Code, § 1516.5.) If H.M. is found to have no Indian ancestry, the 

judgment shall be reinstated. In all other respects, we affirm.

NOT TO BE PUBLISHED.

GILBERT, P. J.

I concur:

BALTODANO, J.
YEGAN, J., Dissenting:

I respectfully dissent. Rather than infuse new life and 

uncertainty in this adoption case, we should mercifully put an 

end to this litigation. With certainty, I opine that there is no 

miscarriage of justice here. (In re J.K. (2022) 83 Cal.App.5th 498 

(dis. opn. of Yegan, J.).) We should not allow slavish adherence 

to ritualistic form to defeat justice for the actual parties and for 

the minor. On remand, there is not even a chance that the 

superior court will remove the child from the only home he has 

ever known. The minor’s rights are paramount. This five-yearold boy should continue to live with the only “parents” he has 

ever known.

NOT TO BE PUBLISHED.

YEGAN, J.
Ferdinand Inumerable, Judge

Superior Court County of Ventura

______________________________

Leslie A. Barry, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Taylor, McCord, Praver & Cherry, Patrick G. Cherry; 

Hartley Lamas and Carla L. Hartley for Plaintiff and 

Respondent.