Filed 8/26/20 In re O.G. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re O.G., a Person Coming 

Under Juvenile Court Law.

_______________________________

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

K.G.,

Defendant and Appellant.

 B303106

 (Los Angeles County Super.

 Ct. No. DK08600C)

APPEAL from an order of the Superior Court of Los 

Angeles County, D. Brett Bianco, Judge. Affirmed.

Maryann M. Goode, under appointment by the Court of 

Appeal, for Defendant and Appellant. 

Mary C. Wickham, County Counsel, and Kim Nemoy, 

Acting Assistant County Counsel, for Plaintiff and Respondent.

________________________
2

INTRODUCTION

Mother appeals from the juvenile court’s termination of her

parental rights to her medically fragile five-year-old. Mother 

contends the evidence did not support the trial court’s finding 

that the child was likely to be adopted. She also argues the 

juvenile court and Los Angeles County Department of Children 

and Family Services (DCFS) failed to comply with the Indian 

Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) 

We conclude substantial evidence supported the juvenile

court’s finding that the child, who had lived in a medical facility 

since infancy, would be adopted by a family that had a positive 

history of adopting medically fragile children and demonstrated 

means to care for the child. We also conclude the juvenile court 

and DCFS conducted an adequate inquiry under ICWA, and the 

court’s ICWA inapplicability finding was supported by 

substantial evidence. We affirm the termination of parental 

rights.

FACTUAL AND PROCEDURAL BACKGROUND

Mother and father have three children (born 2004, 2011, 

and 2014). On December 2, 2014, the children were taken into 

protective custody. On December 8, 2014, DCFS filed Welfare 

and Institutions Code section 300 petitions against the parents, 

alleging drug use, emotional abuse of the children by father, and 

neglect.1 On April 15, 2015, the court sustained the petition.

During the pendency of this case, the parents divorced. Mother 

eventually reunified with the two older children,

2 and on

1 All subsequent statutory references are to the Welfare and 

Institutions Code unless indicated otherwise.

2 Father has not appealed the order terminating parental 

rights. 
3

February 23, 2017, the court terminated jurisdiction over the two 

older children. Mother was awarded sole legal and physical 

custody and father monitored visitation.

3 Neither parent was 

able to reunify with the child born in 2014 (son) and reunification 

services were terminated on July 26, 2017. Only son, who was 

two months old when dependency proceedings commenced, is at 

issue in this appeal.

1. Son’s Medical Condition

As an infant, son was diagnosed with Crouzon’s Syndrome. 

This was later re-diagnosed as Pfeiffer Syndrome Type II, a 

genetic illness that resulted in severe structural abnormalities of 

son’s face and skull, fluid buildup in his brain, bulging eyes, and 

severe developmental disability. The syndrome has required

multiple surgeries in his young life and will likely require future 

surgery. Son has been dependent on a g-tube for feeding.

Doctors reported that son likely would have a shortened lifespan. 

In a report filed with the court, DCFS summarized the syndrome

as follows:

“ ‘Pfeiffer syndrome type II is characterized by a more 

severe form of craniosynostosis (Cloverleaf skull) 

with more severe hand and foot anomalies and 

additional malformations of the limbs [than 

Crouzon’s Syndrome]. In infants with Pfeiffer 

syndrome type II, premature closure of the fibrous 

joints (cranial sutures) between several bones in the 

skull causes the skull to have a “tri-lobed” 

appearance . . . Characteristic craniofacial features 

associated with Pfeiffer syndrome type II may include 

3 By this point in time, mother had given birth to her fourth 

child who remained in her custody and is not subject to this 

appeal. 
4

an abnormally high, broad forehead; severe 

protrusion of the eyes (ocular proptosis); an 

unusually flat middle portion of the face (midface 

hypoplasia); a “beak-shaped” nose; and downwardly 

displaced ears. Affected infants may also exhibit 

abnormal fixation and lack of mobility (ankylosis) of 

the elbow joints and/or, in some cases, various 

malformations of certain internal organs in the 

abdomen (visceral anomalies). In addition, infants 

with Pfeiffer syndrome type II often experience 

impaired mental development and neurological 

problems due to severe involvement of the brain, 

and/or hypoxia due to problems with breathing. 

Without appropriate treatment, the physical 

abnormalities associated with the disorder may lead 

to life-threatening complications during infancy[.]’

(National Organization for Rare Disorders, 2015.)”

Son had spent almost all of his life in hospital settings and

needed ongoing, round-the-clock, intensive medical care. In 

addition to Pfeiffer Syndrome Type II, he was diagnosed with 

failure to thrive, g-tube dependency, a history of cerebellar 

tonsillar ectopy, and other medical disorders. Mother visited 

(though inconsistently) and was an active participant in son’s

care, but struggled to complete the medical education necessary 

to care for son while at the same time parenting her two older 

children.

4 She accepted that DCFS was looking for an adoptive 

4 The trial court said that mother had made “valiant efforts” 

to obtain necessary medical knowledge although it ultimately

concluded mother was unable to care for son.
5

placement for son and stated she would still like to visit him 

when possible.

2. Adoptive Family Identified

For nearly two years, DCFS searched for an adoptive home. 

The juvenile court scheduled multiple permanency hearings, only 

to continue them because no prospective adoptive parent could be 

found. On April 25, 2019, DCFS located a prospective adoptive 

family, the Cs, who had a history of adopting special-needs 

children. Mr. and Ms. C, who had been married for seven years,

were raising Ms. C’s 13-year-old biological daughter and three 

adopted medically-fragile sons, one of whom was also adopted by 

Mr. C. Ms. C also had two adult biological children who did not 

reside in the home. The Cs had a substantial income and were 

able to meet the family’s financial needs and provide for the 

children’s medical care. They were highly motivated to adopt son 

and provide him a loving and safe home. Their prior adoptions 

were through DCFS, and the Cs understood the responsibilities 

associated with adoption.

After DCFS completed pre-placement steps and assessment 

of the home and family, the Cs and son began pre-adoptive visits 

in July 2019. Son became closely attached to the Cs. The Cs

were committed to adopting son and willing to allow ongoing 

contact between him and mother and his siblings in order to 

maintain son’s familial connection. Mother was in agreement 

with the plan as “it would be like [son] has 2 families that care 

for him.” Son was placed in the Cs’ home on October 5, 2019. 

Mother desired a collaborative effort between the two families, 

and she requested a referral to the Consortium for Children.5

5 It appears mother thought she could establish through the 

Consortium some agreement between the parties for visitation. 
6

The last of several section 366.26 hearings was held on 

November 20, 2019. Mother’s trial attorney objected to the 

termination of parental rights. She also requested a continuance 

since the case had not yet been referred to the Consortium for 

Children.

The court proceeded with the permanency hearing. The 

court found clear and convincing evidence of the child’s 

adoptability and terminated parental rights. The court never 

expressly stated whether son was generally or specifically 

adoptable, but the court designated the child’s current 

caretakers, Mr. and Mrs. C, as the child’s prospective adoptive 

parents. In making its adoptability ruling, the court stated son 

had been with the Cs for six months, the Cs had expressed a 

commitment to adoption, and the Cs had taken at least one step 

to facilitate the adoptive process.6

3. ICWA Inquiry and Findings

As mother contests the court’s ICWA inquiry and findings, 

we address the chronology of the ICWA facts separately here. 

On December 2, 2014, both parents denied Native 

American ancestry to the social worker. Six days later at the

detention hearing, father filled out the ICWA-020 form claiming 

Rappahannock ancestry through the paternal great-greatgrandmother. He also told the court at the hearing the paternal 

great-great-grandmother was 100 percent Rappahannock Indian. 

The court ordered DCFS to investigate the claim and to send out 

notices if appropriate.

On December 23, 2014, the social worker re-interviewed 

the parents and asked father about his Native American 

ancestry. Father stated: “ ‘my paternal great grandmother[’s] 

6 Son had actually been living with the Cs for six and a half 

weeks, and had known the Cs for approximately five months.
7

. . . mother was somehow involved with the Rappahannock Indian 

Tribe, but I have no other information. Actually, now that I 

think of it, we do not have any American Indian Heritage. Just 

document that in there. There is no American Indian Heritage. 

There is none. I don’t know why I said that in Court, but maybe 

it has something to do with the advice that I received from my 

lawyer, but not sure. All I can tell you now is that there is no 

known American Indian blood in my ancestry. I apologize for the 

confusion.’ ” At the social worker’s insistence, father provided the 

names and information for several family members including the 

paternal grandparents, great-grandparents and great-greatgrandparents.

The social worker unsuccessfully tried to locate the 

Rappahannock tribe in the Federal Registry. The social worker 

reported that he also tried to search the tribe through a Google 

online search to no avail. In February 2015, DCFS advised the 

court the Rappahannock Indian Tribe was not listed on the 

Federal Registry.7 On January 19, 2018, the juvenile court found

no reason to believe that the ICWA applied. The court did not 

state the basis for its finding.

DISCUSSION

Mother argues the court erred in finding son adoptable and 

in concluding ICWA did not apply without further inquiry of the 

paternal relatives. We address each argument in turn.

1. Substantial Evidence Supports the Court’s 

Adoptability Finding

Mother argues insufficient evidence supported the trial 

court’s finding of adoptability. Whether a child is likely to be 

7 DCFS efforts to identify the Rappahannock Tribe took 

place in 2014 and early 2015. Apparently, the tribe became 

federally recognized in January 2018.
8

adopted is the “pivotal question” under section 366.26. (In re 

Tamneisha S. (1997) 58 Cal.App.4th 798, 804.) In order for a 

juvenile court to terminate parental rights under section 366.26, 

the court must find by clear and convincing evidence that it is 

likely that the child will be adopted. (§ 366.26, subd. (c)(1).) We 

review whether there was substantial evidence to support a 

finding of adoptability under the heightened standard of review 

set by our Supreme Court. (Conservatorship of O.B. (2020) 

9 Cal.5th 989, 1005.) When “presented with a challenge to the 

sufficiency of the evidence associated with a finding requiring 

clear and convincing evidence, the [appellate] court must 

determine whether the record, viewed as a whole, contains 

substantial evidence from which a reasonable trier of fact could 

have made the finding of high probability demanded by this 

standard of proof.” (Ibid.)

When, as here, the child satisfies criteria so that he or she 

is considered difficult to place for adoption, the dependency court 

may terminate parental rights only if the court finds the child is

“specifically” adoptable, meaning adoptable by an identifiable 

person. (In re R.C. (2008) 169 Cal.App.4th 486, 494 [specific 

adoptability applies due to child’s age, poor physical health, 

physical disability, or emotional instability].) To find a child 

specifically adoptable, the court must identify prospective 

adoptive parents who intend to adopt the child if the court frees 

the child for adoption. “ ‘When a child is deemed adoptable only 

because a particular caretaker is willing to adopt, the analysis 

shifts from evaluating the characteristics of the child to whether 

there is any legal impediment to the prospective adoptive 

parent’s adoption and whether he or she is able to meet the needs 

of the child.’ ” (Ibid.) If a legal impediment exists that bars the 

prospective adoptive parents from adopting the children, the 

court must not terminate parental rights—to do so risks making 
9

the children legal orphans if no other adoptive parents step 

forward. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061–1062

(Carl R.).)

On appeal, mother concedes there were no legal 

impediments to adoption by the Cs. The record shows Ms. C had 

no disqualifying criminal or child-abuse history. Though Mr. C 

had several old traffic citations and two offenses for driving while 

under the influence in 1998 and 2014, DCFS reviewed the

relevant court and police records, noted Mr. C successfully 

completed all court requirements, and found that Mr. C posed no 

safety concerns. On this information, DCFS granted him a 

criminal exemption to clear him for son’s adoption. The record 

also reflects that the five state-certified and licensed home-health 

nurses who provided care for the C family – two of whom were 

hired to work directly with son – found no disqualifying issues.

Ms. C’s adult adopted son, who also resided in the family home, 

had no disqualifying criminal history. 

Mother argues the court’s adoptability finding was 

premature and based on a misgiving that the child had been 

living with the Cs for over six months. Mother asserts son barely 

knew the Cs. Mother correctly points out the child was placed 

with the Cs six and a half weeks, not six months, prior to the 

order terminating parental rights. This misapprehension 

notwithstanding, we conclude substantial evidence supports the

adoptability finding.

The Cs had been interested in adopting son since April 

2019, and had “many preplacement visits with [son]” prior to his 

placement in their home on October 5, 2019. Contrary to 

mother’s assertion that son did not know the Cs, the ongoing preplacement visits and eventual placement in the Cs’ home created 

a close attachment between son and the Cs. From the time they 

were told about son in April 2019, until the termination of 
10

parental rights in November 2019, the Cs, who had previously 

adopted three special-needs, medically-fragile children through 

DCFS, never wavered in their commitment to adopt son.

That the Cs appeared uniquely qualified for this adoption –

or that son was specifically adoptable by the Cs, to use the legal 

standard – was supported by substantial evidence. They had the 

financial wherewithal to provide him round-the-clock care to 

address his Pfeiffer Syndrome, failure to thrive, g-tube 

dependency, history of cerebellar tonsillar ectopy, and cranial 

issues. They were highly motivated to adopt son in order to 

provide him a loving and safe home. The Cs had already proved 

they were capable of caring for son because they were already 

caring for three other medically fragile children.

In her argument that insufficient evidence supported the 

adoptability finding, mother refers us to three cases: In re 

Helen W. (2007) 150 Cal.App.4th 71 (Helen W.), Carl R., supra,

128 Cal.App.4th 1051, and In re Valerie W. (2008) 

162 Cal.App.4th 1 (Valerie W.). None of the cases is apt and 

Helen W. and Carl R. actually affirm a finding of adoptability.

In Helen W., the appellate court affirmed that the child was 

adoptable even though the severity of the children’s medical and 

psychological conditions were not yet known. The appellate court 

concluded that their foster mother of two years was fully aware of 

their conditions and was willing to adopt. (Helen W., supra,

150 Cal.App.4th at pp. 79-80.) In Carl R., the child had lived in a

medical facility from infancy until he was freed for adoption at 

eight years old. (Carl R., supra, 128 Cal.App.4th at p. 1058.) The

Carl R. court concluded that the adoptive family’s history of 

providing a good home for disabled children and their resources 

to care for the child supported the finding of specific adoptability.

(Id. at pp. 1064-1065.) In our view these cases support the 

juvenile court’s adoptability finding. Son’s condition was well-
11

documented, the Cs had a history of raising special-needs 

children, they had a history of adopting children through DCFS, 

and they had the means to meet son’s needs—employing five 

home-health nurses, two of whom exclusively worked with son.

In Valerie W., the appellate court found the adoptability 

finding unsupported and reversed. But the facts are quite 

different from the present appeal. The prospective adoptive 

parents were not provided with the results of genetic and 

neurological testing of the child, testing that had been 

recommended because of seizures and other medical issues. The

juvenile court also failed to consider whether there were legal 

impediments to the planned adoption by the child’s caregiver and 

her adult daughter. (Valerie W., supra, 162 Cal.App.4th at 

pp. 13-14.) In contrast, the record here does not reveal any 

withheld medical tests or other medical information. Rather, the 

Cs appeared to be well-aware of son’s extensive medical 

conditions and his needs to the point that they had already hired 

two nurses to care exclusively for him. There were no legal 

impediments to adoption.

We conclude the record does not support mother’s stated 

concerns for a failed adoption. What the record reflects is that 

after five years of living in a medical facility, son now had a 

chance for a home life with family that had both the expertise 

and the commitment to care for him.

2. DCFS and the Court Satisfied ICWA

Mother argues the order terminating parental rights must 

be reversed because DCFS and the court failed to investigate 

father’s Rappahannock heritage. “We review a court’s ICWA 

findings for substantial evidence.” (In re Austin J. (2020) 

47 Cal.App.5th 870, 885 (Austin J.).)

“Under California law, the court and county child welfare 

department ‘have an affirmative and continuing duty to inquire 
12

whether a child,’ who is the subject of a juvenile dependency 

petition, ‘is or may be an Indian child.’ [Citations.] The child 

welfare department’s initial duty of inquiry includes ‘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.’ (§ 224.2, subd. (b).)” (Austin J., supra,

47 Cal.App.5th at p. 883.) DCFS is required to “make further 

inquiry regarding the possible Indian status of the child” if it has

“reason to believe” the child is an Indian child (§ 224.2, subd. (e)),

and give notice to the tribe where it has “reason to know” the 

child is an Indian child (25 U.S.C. § 1912, subd. (a); § 224.2, 

subd. (f)).

Here, father initially denied Indian heritage, then later 

stated the paternal great-great-grandmother was of the 

Rappahannock tribe, and ultimately changed his statement and

steadfastly denied Indian heritage. We conclude that, after the 

father’s recantation, neither the court nor the social worker knew 

or had reason to know that son might be an Indian child. The 

information available did not meet the “reason to know” criteria 

set forth in the federal regulations and the California ICWA 

statutes. (See 25 U.S.C. § 1912, subd. (c); § 224.2, subd. (d).) No 

one had unequivocally informed the court or DCFS that son was 

an Indian child. There was no suggestion son had ever lived on a 

reservation or had been a ward of a tribal court, and there was no 

indication that the child or his parents possessed a tribal 

identification card. (See 25 C.F.R. § 23.107, subds. (c)(1), (3)-(6);

§ 224.2, subd. (d)(1), (3)-(6).) Instead, the court reasonably found 

credible father’s adamant denial of Native American ancestry.

Mother did not testify otherwise. Substantial evidence supported 

the trial court’s ICWA finding. 
13

Mother likens the present case to In re Gabriel G. (2012) 

206 Cal.App.4th 1160, 1167-1168 (Gabriel G.) in arguing further 

inquiry was required. There, the father’s unsigned Parental 

Notification of Indian Status (ICWA-020) form indicated that the 

paternal grandfather “ ‘is or was a member’ ” of the Cherokee 

tribe. (Id. at p. 1163.) However, a social worker later reported 

that the father had been interviewed and stated he had no Indian 

heritage. (Id. at p. 1164.) The report did not explain whether the 

social worker probed the discrepancy or asked the father to 

elaborate on the information in his ICWA-020 form. (Ibid.) 

The Gabriel G. court found: “[T]he social worker’s 

representation in the [DCFS] report did not provide any specifics 

regarding the inquiry he made of father as to his Indian heritage. 

For example, the social worker did not state whether he limited 

his inquiry to father’s registration in a federally recognized tribe 

or inquired about the registration status of father’s relatives. . . . 

On the record before us, we cannot discern whether father meant 

to convey that while he was not a registered member of a 

Cherokee tribe, his own father was registered. [¶] At a 

minimum, a conflict in the evidence exists.” (Gabriel G., supra,

206 Cal.App.4th at p. 1167.) The appellate court concluded the 

social worker and juvenile court had a duty of further inquiry, 

and that notice was required to be sent to the Cherokee tribes in 

the absence of information reliably rebutting father’s Cherokee 

heritage. (Id. at p. 1168.)

To the extent that Gabriel holds that any conflict in the 

ICWA evidence automatically triggers a duty of further inquiry, 

we respectfully disagree with the decision. But our facts also 

differ. Here, the social worker specifically followed up with 

father asking about his Native American ancestry. Father, 

whose words are transcribed in DCFS records filed with the 

court, stated he was “an African American male of Black descent”
14

and expressly denied any Native American ancestry, stating: 

“ ‘we do not have any American Indian Heritage. Just document 

that in there. There is no American Indian Heritage. There is 

none. I don’t know why I said that in Court, but maybe it has 

something to do with the advice that I received from my lawyer, 

but not sure. All I can tell you now is that there is no known 

American Indian blood in my ancestry. I apologize for the 

confusion.’ ” 

This case more closely resembles In re Jeremiah G. (2009) 

172 Cal.App.4th 1514 (Jeremiah G.). There, a father vaguely 

stated at a hearing that he “might have some Indian heritage” 

but needed to do further research. (Id. at p. 1516.) Three weeks 

later, he told the agency and the court he did not have Indian 

heritage. Upon further inquiry from the court, the father’s 

counsel indicated he initially thought he might have Indian 

ancestry but later retracted the claim. (Ibid.) On that record, the 

appellate court affirmed the juvenile court’s finding that ICWA 

did not apply. (Ibid.) 

With a similar record, we agree that the trial court did not 

err in finding that ICWA did not apply.

DISPOSITION

The order terminating parental rights is affirmed. 

RUBIN, P. J.

WE CONCUR:

MOOR J.

KIM, J.