1

Filed 8/29/24 In re T.S. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

----

In re T.S., a Person Coming Under the Juvenile Court 

Law.

C099680

SAN JOAQUIN COUNTY HUMAN SERVICES 

AGENCY,

Plaintiff and Respondent,

v.

P.M.,

Defendant and Appellant.

(Super. Ct. No. 

STKJVDP20180000510)

Mother, P.M., appeals from the juvenile court’s orders entered at a selection and 

implementation hearing under Welfare and Institutions Code section 366.26 terminating 

parental rights to her son, T.S.1 She contends that she did not receive adequate notice of 

the hearing, in violation of her right to due process and the requirements of section 294. 

1

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

Alternatively, she asserts that the juvenile court abused its discretion in refusing to 

continue the proceedings. She also argues that the San Joaquin County Human Services 

Agency (Agency) did not comply with the Indian Child Welfare Act (25 U.S.C. § 1901 et 

seq.) (ICWA) and related California law by failing to contact known relatives about T.S.’s

possible Native American heritage. 

We reject mother’s due process claim and her challenge to the juvenile court’s 

decision to proceed with the section 366.26 hearing. We conclude, however, that a

limited remand to comply with the ICWA is necessary.

BACKGROUND

I.

In December 2018, the Agency filed a section 300 petition alleging that mother 

and T.S.’s father (father) were not capable of caring for newborn T.S. due to their 

substance abuse. (§ 300, subd. (b)(1).) Mother told the social worker preparing the 

detention report that she might have Native American heritage through her father, but she 

could not identify the tribe. Father reported that he had no Native American ancestry. 

The juvenile court appointed counsel for each parent at the detention hearing. The 

court also advised parents of the ICWA’s requirements and provided them with Parental 

Notification of Indian Status (Judicial Council Forms, form ICWA-020) (ICWA-020)

forms. Mother and father filed their forms on January 10, 2019, indicating no Native 

American ancestry. A second set of ICWA-020 forms was completed later the same 

month, also indicating no Native American heritage. According to the Agency’s 

disposition report, parents also denied Native American ancestry at the detention hearing. 

In February 2019, the juvenile court adjudicated T.S. a dependent child of the 

court, and parents were ordered to participate in reunification services, including drug 

treatment. Parents participated in services, and on April 22, 2020, T.S. was returned to 

his parents’ care with family maintenance services.
3

In October 2020, parents relapsed. Father continued to use drugs, and mother 

entered a residential treatment facility with T.S. Father’s reunification services were 

terminated in February 2021; the juvenile court continued mother’s family maintenance 

services. 

In November 2021, the juvenile court gave mother full custody of T.S. with 

supervised visits for father and terminated dependency jurisdiction. It does not appear 

from the record that the court made any ICWA findings during these dependency

proceedings.

II.

In July 2022, the Agency filed a new petition under the same case number, 

alleging that T.S. came within the jurisdiction of the juvenile court (§ 300, subd. (b)(1)). 

The petition included allegations related to T.S.’s previous dependency proceedings and

additionally alleged that mother had relapsed into drug use, had left T.S. with strangers in 

a homeless encampment, and had failed to supervise father’s visits as required by the

court’s visitation order. T.S. was detained pursuant to an emergency protective custody 

order and placed with maternal cousin D.H. pending further proceedings. 

Mother told the social worker preparing the detention report that she might have 

Native American ancestry on her father’s side, but she did not know the tribe and had 

been unable to obtain information because her father was deceased. At the detention 

hearing on July 7, 2022, the juvenile court explained the ICWA, and parents told the 

juvenile court that they did not have Native American heritage. ICWA-020 forms

indicating the absence of Native American ancestry were filed soon thereafter. T.S. was 

formally detained, and there was no opposition to his continued placement with D.H. 

In August 2022, mother waived reunification services. In October 2022, the 

juvenile court accepted father’s waiver of reunification services. 

The Agency’s February 2023 selection and implementation report under 

section 366.26 recommended a plan of permanent guardianship with D.H., who had been 
4

T.S.’s principal caregiver since his birth, save for during the seven months he spent in 

mother’s custody. Both parents received weekly supervised visits, but it was reported 

that mother often failed to attend, instead randomly calling or using video calls. 

According to the report, “The child is noted to smile and greet his parents as ‘mommy’ 

and ‘daddy,’ then he runs off to play and does not really interact with them. [T.S.] does 

not follow his parents’ instructions, but rather yells ‘no’ and runs off.” T.S. lived with 

D.H. (whom he also called “ ‘mommy’ ”) and her nine-year-old daughter with whom he 

was close. D.H. was committed to providing T.S. permanency, including possible

adoption. But in light of T.S.’s ongoing relationship with his parents, D.H. had elected 

for legal guardianship at that time. 

In the context of this information, the Agency recommended that the juvenile court 

find that the beneficial parental relationship exception to adoption applied and appoint 

D.H. as T.S.’s legal guardian with supervised visitation for parents. The juvenile court 

made these findings, and the guardianship was approved at the February 2023 selection 

and implementation hearing. The dependency case was dismissed after the letters of 

guardianship were issued later that month. The juvenile court retained jurisdiction over 

the guardianship. (In re Heraclio A. (1996) 42 Cal.App.4th 569, 574.)

On April 25, 2023, D.H. filed a section 388 petition asking to change the

guardianship to an order allowing her to adopt T.S. Father supported the adoption, but 

D.H. did not know mother’s position. The petition asserted that mother had seen T.S. 

only twice since the guardianship was established. D.H. also believed that adoption 

would promote T.S.’s well-being and would not inhibit his ability to have a relationship 

with his biological parents, because D.H. was committed to allowing them in his life. 

The clerk served a copy of the section 388 petition on the parties’ previously appointed 

counsel, including the public defender’s office, which had represented mother. T.S.’s 

attorney filed a response supporting the section 388 petition. 
5

The juvenile court set the petition for a hearing on May 25, 2023. Notice of the 

hearing was served on the parties’ previously appointed counsel, again including the 

public defender’s office. At some point prior to the hearing, mother spoke with her 

previously appointed counsel from the public defender’s office about D.H.’s petition and 

relayed that she wished to oppose it.

Mother attended the May 25, 2023, hearing. Her previous counsel from the public 

defender’s office appeared as well, and the juvenile court reappointed her to represent 

mother. Counsel informed the juvenile court that mother had not received notice of the 

hearing and had learned of it only “by happenstance.” Counsel stated that mother 

objected to the setting of a hearing under section 366.26 and opposed D.H.’s request to 

adopt T.S.

The Agency supported D.H.’s petition and asked that the case be reopened so that 

it could be sent to the Agency’s adoptions unit and a section 366.26 hearing could be set. 

Father supported the petition.

At a later point in the hearing, counsel for the Agency said: “I’m not asking to 

reinstate dependency. This is a very strange situation. . . . [¶] . . . [¶] . . . I don’t believe 

there is a need for the [Agency] to be involved with this family. This is simply for a 

request for adoption now. And I still think we need to go out, just to make sure we do it 

the correct way if we terminate parental rights, so maybe the [c]ourt can just set the .26 

and continue the 388 until that day? I don’t believe we need [c]ourt intervention.” 

The juvenile court agreed that approach was “appropriate” and set a 

section 366.26 hearing for August 30, 2023, with the section 388 petition trailing. The 

court then said: “Parents are ordered present on the 30th of August at 1:30.” 

The Agency filed its report on August 22, 2023. It recommended terminating

parental rights and freeing T.S. for adoption. The report noted the date and time of the 

upcoming hearing (August 30) on the first page. The report was served by first-class 

mail on mother individually and on the public defender’s office. 
6

The report stated that mother was inconsistent with her weekly visits since the 

reinstitution of the dependency case in July 2022. It was reported that mother had seen 

T.S. only once since the guardianship was granted in February 2023, joining the end of a 

family dinner with D.H., father, and T.S. D.H. reported that “mother randomly comes to 

her house in the middle of the night and rings the doorbell, likely with intent to see 

[T.S.]” and that mother left “random items at the home’s entrance.” D.H. “acknowledged 

that [T.S.] knew his parents and wanted to keep their connection intact.” D.H. originally 

hoped parents would continue their services so that they could ultimately reunite, but 

parents ceased services following the guardianship, leading D.H. to decide that adoption 

would better serve T.S. The report noted that T.S. was “very bonded” to D.H., looked to 

her for his needs, and referred to her as “mom.” D.H. cared for T.S. during the prior 

dependency, continued contact after that dependency’s termination, and was committed to 

providing a stable, loving home for him. The report concluded: “After weighing the 

benefits to the child in receiving a permanent adoptive home against any detriment to the 

child resulting from the termination of the parental relationship, the loss of the parental 

relationship does not outweigh the security and stability a new home provides.” It does 

not appear that the Agency interviewed mother when preparing this report. 

Father appeared as ordered for the August 30 hearing, but mother did not. 

Mother’s appointed counsel was not present, but another attorney from the public 

defender’s office attended. “[B]ased on [appointed counsel’s] notes,” the attorney asked 

that the matter be set for a contested hearing or “for a one-week continuance so she can 

be present.” Counsel for D.H. and T.S. objected. The juvenile court rejected the 

attorney’s request, stating that mother had attended the hearing on May 25, 2023, and was 

ordered to appear on August 30. The court therefore proceeded “over her objection.”

The juvenile court adopted the Agency’s proposed findings and orders, finding no 

exception to adoption applied, terminating parents’ rights, and freeing T.S. for adoption. 
7

The court deemed the section 388 petition moot. It does not appear that the juvenile 

court made any ICWA findings during these proceedings.

On the same day that mother filed her notice of appeal, D.H. completed an ICWA020 form indicating that the family did not have Native American heritage. The form 

was filed in the juvenile court a few weeks later. 

DISCUSSION

I.

Mother first contends that she did not receive adequate notice of the August 30 

hearing at which her parental rights were terminated, in violation of her right to due 

process and the requirements of section 294. 

Under the Constitution’s due process guarantee, parents are entitled to notice of 

dependency proceedings affecting their interest in the custody of their children. (In re 

Anna M. (1997) 54 Cal.App.4th 463.) Due process “ ‘requires “notice reasonably 

calculated, under all the circumstances, to apprise interested parties of the pendency of 

the action and afford them an opportunity to present their objections.” ’ ” (Id. at p. 468.)

Section 294 prescribes various methods by which child welfare agencies and 

juvenile courts must notify parents of a selection and implementation hearing held under 

section 366.26. As relevant here, section 294, subdivision (f)(1) provides that, if “the 

parent is present at the hearing at which the court schedules a hearing pursuant to 

Section 366.26, the court shall advise the parent of the date, time, and place of the 

proceedings, their right to counsel, the nature of the proceedings, and the requirement that 

at the proceedings the court shall select and implement a plan of adoption, legal 

guardianship, placement with a fit and willing relative, or another planned permanent 

living arrangement, as appropriate, for the child. The court shall direct the parent to 

appear for the proceedings and then direct that the parent be notified thereafter only by 

first-class mail to the parent’s usual place of residence or business, or by electronic 

service pursuant to Section 212.5.”
8

Mother asserts that her due process rights were violated because she was not 

informed that the juvenile court would consider terminating her parental rights at the 

August 30 hearing and because she did not receive a mailed notice of the hearing as 

required under section 294. As an initial matter, we note that mother has forfeited these 

claims because her counsel failed to raise an objection based on lack of notice at the 

August 30 hearing. (In re Z.S. (2015) 235 Cal.App.4th 754, 771, disapproved on other 

grounds in In re A.R. (2021) 11 Cal.5th 234, 251, fn. 2.) In any event, we reject mother’s 

challenge on the merits because the record establishes that she had actual notice of the 

date and time of the August 30 hearing and what was at stake at that hearing.

As noted above, mother was present for the May 25 hearing at which the parties 

and juvenile court addressed D.H.’s request to change her guardianship to adoption. At 

that hearing and on the record, the juvenile court set the section 366.26 hearing for

August 30, and it ordered mother and father to appear. 

Mother argues that it was not clear that the juvenile court would consider 

terminating her parental rights at the August 30 hearing, but the record demonstrates 

otherwise. At the May 25 hearing, the juvenile court and the parties discussed D.H.’s 

request to adopt T.S. and the fact that a hearing under section 366.26 would be necessary 

before the court could entertain that request. Mother’s counsel stated her client’s 

opposition to adoption and her objection to setting a hearing under section 366.26. T.S.’s 

counsel noted that mother could offer any arguments for a legal exception to adoption at 

the section 366.26 hearing. These discussions all made clear that the August 30 hearing 

would address the possible termination of parental rights.

We recognize that mother may not have understood the repeated references to 

“.26,” but she was represented by counsel at the hearing, and counsel herself used that 

shorthand to refer to the upcoming hearing at which the issue of parental rights and 

D.H.’s adoption request would be addressed. In addition, both mother and her counsel 

were served with the Agency’s report filed on August 22, which stated on the first page 
9

the date and time of the section 366.26 hearing as well as the Agency’s 

“recommend[ation] that the parental rights of the mother, [P.M.], and the biological father

. . . be terminated to free the minor, [T.S.], for adoption.” On this record, we conclude 

that mother was adequately apprised that the juvenile court would consider terminating 

her parental rights at the August 30 hearing.

These facts distinguish this case from In re Anna M., supra, 54 Cal.App.4th 463, 

on which mother relies. In Anna M., when the juvenile court set the section 366.26 

hearing, the social services agency was recommending a legal guardianship, and the 

juvenile court orally indicated to the mother and other parties that it would likely agree 

with that recommendation. (Anna M., at pp. 465-466.) On the day of the scheduled 

section 366.26 hearing, the agency filed a new report recommending that the mother’s 

parental rights be terminated and the children placed for adoption. (Anna M., at p. 467.) 

Under those circumstances, the Court of Appeal concluded that the juvenile court’s oral 

advisements did not adequately notify the mother “of what was truly at stake in the 

section 366.26 hearing.” (Id. at p. 468.) In contrast here, the central focus of the May 25 

hearing was setting a section 366.26 hearing that would address the possible termination 

of parental rights in light of D.H.’s desire to adopt T.S. Thus, unlike in Anna M., mother

here had actual notice that her parental rights were at stake at the section 366.26 hearing. 

There was accordingly no violation of her right to due process. (See, e.g., In re Phillip F.

(2000) 78 Cal.App.4th 250, 258-259 [actual notice of a continued § 366.26 hearing 

satisfies due process].)

As for mother’s statutory claim, she is correct that the juvenile court’s failure to 

direct the Agency to send a written notice of the hearing did not fully satisfy the 

requirements of section 294, subdivision (f)(1). At the May 25 hearing, the juvenile court 

advised parents of the August 30 hearing and ordered them to appear. But we see no

evidence in the record that it directed parents to be notified by first-class mail thereafter,

as the statute requires. (§ 294, subd. (f)(1).) This defective procedure, however, provides 
10

no ground for reversal because it did not prejudice mother. As we have explained, 

mother had actual notice of the date, time, and nature of the August 30 hearing. The 

August 30 hearing was discussed in mother’s presence at the May 25 hearing; and the 

Agency’s report, which was served on mother personally as well as on her counsel, 

confirmed that the August 30 hearing would address the possible termination of her 

parental rights. We therefore see no reasonable probability that an additional mailed 

notice would have made a difference in ensuring that mother was notified of the hearing. 

(See, e.g., In re Jesusa V. (2004) 32 Cal.4th 588, 625 [applying harmless error test under 

People v. Watson (1956) 46 Cal.2d 818, 836 to prisoner’s statutory right to attend 

adjudication of dependency petition]; In re J.P. (2017) 15 Cal.App.5th 789, 797 [applying 

Watson harmless error to denial of parent’s statutory right to counsel].)

II.

Mother next contends that the juvenile court abused its discretion in refusing to set 

a contested hearing and declining to grant a one-week continuance. 

Mother’s first assertion lacks merit because the juvenile court did provide mother 

with a contested section 366.26 hearing—the hearing on August 30. As explained above, 

the juvenile court set that hearing for the purpose of considering the termination of 

parental rights in light of D.H.’s request to adopt T.S. As T.S.’s counsel observed at the 

May 25 hearing, the August 30 hearing would be mother’s opportunity to argue for any 

exceptions to adoption. The juvenile court was not required to set a new contested 

hearing when mother did not appear on August 30.

The juvenile court also did not abuse its discretion in declining to continue the 

August 30 hearing. Section 352, subdivision (a)(1) provides that a juvenile court may 

continue a hearing if it is not “contrary to the interest of the minor.” “In considering the 

minor’s interests, the court shall give substantial weight to a minor’s need for prompt 

resolution of his or her custody status, the need to provide children with stable 

environments, and the damage to a minor of prolonged temporary placements.” (Ibid.) A 
11

continuance may be “granted only upon a showing of good cause and only for that period 

of time shown to be necessary by the evidence presented at the hearing on the motion for 

the continuance.” (§ 352, subd. (a)(2).) “In order to obtain a motion for a continuance of 

the hearing, written notice shall be filed at least two court days prior to the date set for 

hearing, together with affidavits or declarations detailing specific facts showing that a 

continuance is necessary, unless the court for good cause entertains an oral motion for 

continuance.” (§ 352, subd. (a)(3).) 

“ ‘When a parent is absent without good cause at a properly noticed hearing,’ . . . 

‘the court is entitled to proceed in the parent’s absence.’ [Citation.] Ordinarily, a parent’s 

failure to appear will not constitute the good cause necessary to justify a continuance 

because substantial importance is attached to the child’s need to promptly resolve the 

dependency matter. [Citation.] Thus, ‘[a]n unjustified failure to appear at a duly noticed 

hearing reflects a parent’s choice not to attend,’ and the juvenile court ‘may properly treat 

this choice as a waiver of the right to be present at that hearing and of the benefits of 

being present.’ ” (In re A.V. (2021) 73 Cal.App.5th 949, 957, italics omitted.)

We review a juvenile court’s refusal to grant a continuance for an abuse of 

discretion. (In re B.C. (2011) 192 Cal.App.4th 129, 143-144.) We “ ‘consider all the 

evidence, draw all reasonable inferences, and resolve all evidentiary conflicts, in a light 

most favorable to the trial court’s ruling.’ ” (In re Robert L. (1993) 21 Cal.App.4th 1057, 

1067.)

We discern no abuse of discretion in the juvenile court’s refusal to continue the 

hearing, because mother failed to identify any good cause for her request. Mother’s 

attorney asked for the postponement “so she can be present,” but the attorney did not 

offer any explanation for why mother had not appeared as ordered. Mother notes that the 

attorney appearing on her behalf was not her regularly appointed counsel. But both 

lawyers worked in the same law office (the public defender’s office), and the record 

indicates that the attorney who was present at the August 30 hearing had appointed 
12

counsel’s case notes. The record also contains no evidence that the attorney was unable 

to act on mother’s behalf at the hearing. 

That is unlike the situation in In re Julian L. (1998) 67 Cal.App.4th 204, which 

mother cites. In that case, the mother’s attorney, who was appointed one week before the 

section 366.26 hearing, stated that he had been unable to speak to his client and ascertain 

her wishes. (Julian L., at p. 207.) In contrast here, the public defender’s office had long 

represented mother, and the record demonstrates that mother had previously

communicated her position to counsel. 

III.

Mother’s final contention is that the juvenile court failed to assure compliance 

with the ICWA. On this point, we conclude that conditional reversal is required.

“The ICWA protects the interests of Indian children and promotes the stability and 

security of Indian tribes by establishing minimum standards for removal of Indian 

children from their families, and by permitting tribal participation in dependency 

proceedings.” (In re A.W. (2019) 38 Cal.App.5th 655, 662.) The ICWA defines an 

“ ‘Indian child’ ” as a child who “is either (a) a member of an Indian tribe or (b) is 

eligible for membership in an Indian tribe and is the biological child of a member of an 

Indian tribe.” (25 U.S.C. § 1903(4).)

Child welfare agencies and juvenile courts “have ‘an affirmative and continuing 

duty’ in every dependency proceeding to determine whether ICWA applies by inquiring 

whether a child is or may be an Indian child. (§ 224.2, subd. (a).) This ‘duty to inquire 

begins with the initial contact, including, but not limited to, asking the party reporting 

child abuse or neglect whether the party has any information that the child may be an 

Indian child.’ ” (In re Dezi C. (Aug. 19, 2024, S275578) ___ Cal.5th ___ [p. 12].) 

“When the agency has ‘reason to believe’ that an Indian child is involved, further inquiry

regarding the possible Indian status of the child is required. (§ 224.2, subd. (e); see also 

[Cal. Rules of Court,] rule 5.481(a)(4).)” (Id. at p. ___ [pp. 13-14], fn. omitted.) “If the 
13

inquiry establishes a reason to know an Indian child is involved, notice must be provided 

to the pertinent tribes. (§ 224.3, subds. (a), (b); 25 U.S.C. § 1912(a).)” (Id. at p. ___

[p. 15].)

A juvenile court’s finding that the ICWA does not apply is “ ‘subject to reversal 

based on sufficiency of the evidence.’ ” (§ 224.2, subd. (i)(2).) Its “fact-specific 

determination that an inquiry is adequate, proper, and duly diligent is ‘a quintessentially 

discretionary function’ [citation] subject to a deferential standard of review.” (In re Dezi 

C., supra, ___ Cal.5th at p.___ [p. 27].) “ ‘On a well-developed record, the court has 

relatively broad discretion to determine whether the agency’s inquiry was proper, 

adequate, and duly diligent on the specific facts of the case. However, the less developed 

the record, the more limited that discretion necessarily becomes.’ ” (In re Kenneth D. 

(Aug. 19, 2024, S276649) ___ Cal.5th ___ [p. 13].)

A juvenile court must make a finding whether the ICWA applies. (H.A. v. 

Superior Court (2024) 101 Cal.App.5th 956, 965-966; In re E.W. (2009) 170 Cal.App.4th 

396, 403.) Here, the record discloses no express finding concerning the ICWA’s 

applicability. The Agency urges us to imply a finding, but we see no basis in the record 

on which to do so. Except for when the juvenile court explained the ICWA to parents and 

provided them with ICWA-020 forms at the two detention hearings, the court did not 

discuss or consider the ICWA’s applicability. We thus cannot be “confident that the 

juvenile court considered the issue.” (E.W., at p. 405.)

On remand, the juvenile court must make a finding whether the ICWA applies 

after satisfying itself that the Agency has conducted the required inquiry. In this case, 

mother stated in 2018 and 2022 that she believed she had Native American ancestry on 

her father’s side of the family. Yet the record suggests that the Agency did not question 

mother’s known paternal relatives or mother’s stepmother with whom it was in contact. 

Mother’s statements of possible Native American heritage were sufficient to require the 

Agency to follow up. (See In re D. F. (2020) 55 Cal.App.5th 558, 568-569; see generally 
14

In re Dezi C., supra, ___ Cal.5th ___ [p. 27] [“ ‘operative concept is those people who 

are reasonably available to help the agency with its investigation into whether the child 

has any potential Indian ancestry should be asked’ ”].) We remand for the juvenile court 

to make an ICWA finding after discharging its obligation to assure that the required 

inquiry into T.S.’s possible Native American heritage has occurred.

DISPOSITION

The orders terminating parental rights are conditionally reversed and the matter is 

remanded for the limited purpose of complying with the inquiry and notice provisions of 

the ICWA, as well as the requirements of sections 224.2 and 224.3 and the documentation 

provisions of California Rules of Court, rule 5.481(a)(5). If the juvenile court thereafter 

finds a further inquiry was proper and adequate, due diligence has been conducted, and 

concludes the ICWA does not apply, the orders shall be reinstated. If, however, the 

juvenile court concludes that the ICWA applies, the juvenile court is ordered to conduct a 

new section 366.26 hearing and proceed in accordance with the ICWA and California 

implementing provisions.

 /s/ 

FEINBERG, J.

We concur:

 /s/ 

HULL, Acting P. J.

 /s/ 

KRAUSE, J.