Filed 8/26/22 In re E.B. CA2/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

In re E.B., a Person Coming 

Under the Juvenile Court Law.

 B317052

LOS ANGELES COUNTY 

DEPARTMENT OF 

CHILDREN AND FAMILY 

SERVICES,

Plaintiff and Respondent,

v.

VANESSA S.,

Defendant and Appellant.

 (Los Angeles County

 Super. Ct.

 No. 18CCJP07513A)

APPEAL from orders of the Superior Court of Los Angeles 

County, Steff Padilla, Judge Pro Tempore. Affirmed.

Janette Freeman Cochran, under appointment by the Court 

of Appeal, for Defendant and Appellant.
2

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

Assistant County Counsel, and Navid Nakhjavani, Deputy 

County Counsel, for Plaintiff and Respondent.

——————————

Mother appeals from juvenile court orders denying her 

petition to modify a court order and terminating her parental 

rights. On appeal, mother contends the juvenile court erred in 

finding she did not establish changed circumstances sufficient to 

reinstate family reunification services and in concluding the 

parental benefit exception to adoption did not apply in this case. 

Mother further contends the order terminating her parental 

rights must be reversed because the Los Angeles County 

Department of Children and Family Services (DCFS) failed to 

conduct an adequate inquiry to determine whether E.B. is or may 

be an Indian child. We find no prejudicial error and affirm the 

juvenile court orders.

FACTUAL AND PROCEDURAL BACKGROUND

One-year-old E.B. came to the attention of DCFS in August 

2018, when the agency received referrals about mother and 

father having violent altercations in E.B.’s presence. DCFS 

learned mother had a history of alcohol and drug abuse. She had 

completed an inpatient drug program in 2014 and other drug 

treatment services in 2016. Dependency jurisdiction was

previously asserted over mother’s older child, in part due to 

mother’s substance abuse. Although mother denied current drug 

or alcohol use, she subsequently admitted she sometimes had 

“one beer every now and then,” and she and father argued about 

her drinking. Father and several of his relatives reported mother 

drank alcohol, acted erratically, and at times appeared to be 

under the influence. Despite father’s expressed concerns about 
3

mother’s behavior, he left E.B. alone with her. In November 

2018, DCFS detained E.B. from both parents and filed a petition 

pursuant to Welfare and Institutions Code section 300, 

subdivisions (b) and (j),

1 alleging mother’s past and current 

substance abuse placed E.B. at risk of harm. The petition further 

alleged father failed to protect E.B. DCFS subsequently filed an 

amended petition alleging father also had a history of substance 

abuse and was a current abuser of methamphetamine. 

At the January 17, 2019 jurisdiction and disposition 

hearing, both parents waived their rights to a hearing and 

pleaded no contest. The juvenile court sustained an amended

petition, asserted dependency jurisdiction over E.B., and removed 

her from both parents.2 The court ordered DCFS to provide 

reunification services to both parents. Mother was ordered to 

participate in drug and alcohol services, random drug and alcohol

testing, parenting classes, and individual counseling. The court 

ordered mother to have monitored visitation but granted DCFS 

discretion to liberalize her visits. DCFS placed E.B. in the home 

of a paternal cousin.

1 All undesignated statutory references are to the Welfare 

and Institutions Code.

2 The juvenile court dismissed two counts alleging 

jurisdiction was warranted under section 300, subdivision (j), and 

amended the petition by interlineation, deleting the allegation 

that father failed to protect E.B., limiting the allegations related 

to mother to alcohol use that periodically interfered with her 

ability to care for E.B., and describing father as a “recent user” of 

methamphetamine. 
4

Six-month review hearing

In advance of the six-month review hearing, DCFS reported 

mother was consistently participating in services. She regularly 

submitted to drug and alcohol testing, although in the review 

period she had several diluted test results and twice missed tests. 

Although mother denied living with father, it appeared to the 

social worker that they were either living together or father 

visited mother’s home frequently. DCFS had obtained 

information that in late March 2019, police were called to 

mother’s home to respond to a domestic violence incident 

involving father. 

Mother was visiting E.B. regularly. During visits mother 

was engaged with E.B., she got on the floor at eye level and 

played with E.B., she spoke softly and calmly to her, and E.B. 

“appear[ed] to have a very good time” during the visits. E.B. had 

also “bonded well” with the caregiver. She followed the caregiver 

around the home, responded well when the caregiver spoke to 

her, and appeared happy and energetic in the home. 

At the September 2019 hearing, the juvenile court 

continued family reunification services. 

Twelve-month review hearing

In the report for the 12-month review hearing, DCFS 

informed the juvenile court that mother was arrested on a 

driving under the influence charge in May 2019. Since the last 

hearing, mother had missed five drug tests and was hospitalized 

in September 2019 for kidney failure due to excessive drinking. 

However, mother had completed a substance abuse program in 

October 2019. She had also completed a parenting program. 

Father had tested positive for methamphetamines several 

times, then he stopped submitting to drug tests. Mother denied 
5

that she and father were still in a relationship, yet both parents 

admitted they had frequent contact and father said he spoke with 

mother daily. Mother was not participating in individual 

counseling regularly and had only had two sessions since June 

2019.

Mother continued to visit E.B. Mother played with E.B. 

appropriately, brought food and snacks, provided E.B. positive 

reinforcement, and focused solely on her during visits. 

The review hearing, originally set for March 2020, was 

delayed until October 2020 as a result of the COVID-19 

pandemic. In the meantime, in a September 2020 report, DCFS

informed the juvenile court mother had been arrested on another 

driving under the influence charge in August 2019. Since the 

March 2020 report, mother had missed several random drug and 

alcohol tests. She said she was participating in remote Alcoholics 

Anonymous (AA) meetings, but she provided no proof of 

attendance to DCFS. However, mother had re-enrolled in 

individual counseling. She continued to visit E.B., virtually in 

the early months of the pandemic, then again in person 

beginning in July 2020. 

On October 1, 2020, the day of the review hearing, DCFS 

submitted a last minute information report informing the 

juvenile court that mother tested positive for methamphetamine 

and amphetamine on September 18, 2020.3 Mother told DCFS 

she had remained consistent in individual therapy, but the 

therapist told DCFS that mother had completed only seven 

sessions since enrolling in March 2020. 

3 Because of the pandemic-related delays, the hearing was 

scheduled as a combined 12- and 18-month review hearing. 
6

Mother testified at the hearing. She indicated she had 

gained coping skills to avoid resorting to alcohol. She further 

testified that she had completed a 12-step program and was 

looking for a sponsor. She admitted testing positive for 

methamphetamine on September 18, but claimed she had last 

used the drug in 2015 and denied any recent use. Mother had 

been attending AA meetings for around a year and a half and had 

completed 10 therapy sessions with her current therapist. She 

testified her therapist felt she had grown from the therapy and 

was discontinuing the sessions. However, mother had not told 

her therapist that she tested positive for methamphetamine in 

September. 

On cross-examination, mother claimed she had missed drug

and alcohol tests due to lack of transportation or because she was 

working. She denied being hospitalized for kidney failure from 

excessive drinking—she asserted there were false test results—

and she believed the positive methamphetamine test was also an

incorrect test. 

The juvenile court terminated the parents’ reunification 

services and set a hearing pursuant to section 366.26 (.26 

hearing) for February 2021. 

Section 388 and .26 hearings

The .26 report indicated mother continued to visit E.B. The 

visits were appropriate. DCFS noted, however, that E.B. had 

lived in the home of the caregiver for almost three years. E.B. 

saw the caregiver as “her primary mother-figure” and their 

relationship continued to “bond and grow stronger each day.” 

The caregiver, E.B.’s paternal second cousin, wanted to adopt 

her. E.B. received “good care, safety and a sense of security” with 

the caregiver and her family. 
7

Shortly before the February 2021 .26 hearing date, mother 

filed a request to change a juvenile court order pursuant to 

section 388. Mother declared she had enrolled in another 

substance abuse program in late October 2020 and completed the 

program in early December 2020. She was participating in an 

outpatient program. As of January 2021, she had enrolled in a 

transitional housing program and was participating in domestic 

violence, anger management, and parenting programs. She was 

testing negative for drugs and alcohol. Mother further indicated 

she and E.B. had a strong bond, she had obtained housing, and 

she maintained consistent visits with E.B. Mother asked the 

court to order DCFS to provide additional reunification services 

and transition E.B. back into her care. The juvenile court set the 

matter for a hearing.4 Separately, the court continued the .26 

hearing to June 2021. 

In a response to mother’s section 388 petition, DCFS 

reported mother had been cited for driving under the influence on 

May 5, 2021. When interviewed, mother denied driving under 

the influence. She asserted she had been in a car accident and 

was cited only for driving without a license. Mother had moved 

to a different inpatient program; she denied being terminated 

from the program she was in at the time she filed her section 388

petition. Mother reported she was participating in counseling 

and maintaining her sobriety. A March 24, 2021 letter from a 

substance abuse program reported mother enrolled in services in 

4 The juvenile court initially set the matter for hearing on 

April 5, 2021, to determine whether to grant or deny an 

evidentiary hearing. On April 5, the court set the matter for an 

evidentiary hearing on June 10, 2021. 
8

late December 2020 and she was continuing to participate in the 

program. DCFS had also received a March 24, 2021 letter stating 

mother had been receiving counseling services since midFebruary 2021. A social worker was unable to make contact with 

mother’s therapist to confirm mother’s participation in 

counseling. 

When a social worker spoke with father, he reported that 

mother had recently been arrested for driving under the influence

after she totaled her car, and that she had been drinking “on and 

off [the] entire time.” DCFS subsequently learned that contrary 

to mother’s reports about her living situation, the transitional 

housing and aftercare program she had been in asked her to 

leave after she was arrested for driving under the influence. The 

program administrator said, “[M]other’s recent arrest was a huge 

downfall and the mother needs to use the tools that she has been 

taught.” 

Mother had continued to regularly visit E.B. The caregiver 

reported the visits were pleasant and took place at the park or 

McDonalds. 

In the section 388 response, DCFS praised mother’s efforts 

to participate in programs but expressed concern that she 

continued to have an unresolved substance abuse problem and 

recurrent relapses. DCFS noted that even though mother had 

completed multiple programs, she had not “substantively 

benefitted” from the services she had received. Further, 

“mother’s deep rooted underlying issues cannot be mitigated in 

an additional six months as evidenced by the mother’s relapse 

and criminal actions and convictions.” DCFS opined that 

disruption to E.B.’s environment would be detrimental to her,

and interrupting permanency would place her “at risk of yet 
9

another traumatic experience that may have a negative impact in 

her development and mental health.” 

The section 388 hearing took place over two days, 

beginning on August 18, 2021. Mother testified she had been in 

three drug and alcohol programs since the case opened. She was

arrested for driving under the influence after completing the last 

substance abuse program. Mother again testified that she had 

learned coping skills through her programs and had a sponsor. 

She expected to complete her current substance abuse program 

on September 14, 2021. 

Mother further testified that she and E.B. still shared a 

bond and E.B. asked to see her. She had not visited E.B. in over 

two months after her driving under the influence arrest and 

entry into an inpatient treatment program.5 Prior to that time 

she was visiting E.B. once a week. During visits, mother and 

E.B. played games, went on the slide at the park, engaged in 

activities mother brought, and had lunch together. E.B. was 

almost four years old and had last lived with mother when she 

was one year old. E.B. called her “Vanessa Mommy.” Mother 

testified E.B. was excited and happy to see her during visits. 

When visits ended, E.B. would ask the caregiver for “five more 

minutes, just five more minutes.” Mother video chatted or texted

with E.B. two or three times a day. E.B. described her school and 

activities to mother. 

5 Mother eventually explained that she was in a treatment 

program (Shiloh), she was arrested for driving under the 

influence and went to another program (Stepping Stones), and at 

the time of the section 388 hearing was in a different program 

(Mariposa Recovery).
10

On September 28, 2021, the second day of the section 388 

hearing, mother was in a different substance abuse program. A 

last minute information submitted to the juvenile court included 

information from the caregiver that mother was terminated from 

the previous substance abuse program due to “wanting to fight 

someone.” The social worker had not yet been able to make 

contact with the program to confirm the reasons for mother’s 

departure. Mother denied being terminated from the prior 

program, insisting the new program was a better opportunity for 

her as it would also help her with housing. However, mother 

admitted that prior to her admission into the most recent 

program she had stayed briefly in a hotel. 

The juvenile court concluded mother had not established 

changed circumstances and denied the section 388 petition. The 

court pointed out mother’s frequent program changes, noting 

mother had been in three programs that year, which reflected her 

instability. The court further explained: “Mother has a problem 

with alcohol. She continues to deny it but it impacts her 

parenting . . . it’s clear that it does.” 

The juvenile court then proceeded to the .26 hearing. 

Mother argued the parental benefit exception to adoption applied. 

The court found the exception did not apply, noting the case had 

been pending for three years, and during that time E.B. had 

thrived with the same caregiver. Mother’s visits remained 

monitored and the caregiver was E.B.’s one consistent parental 

figure. The court further noted that in the preceding year, there 

were times mother was unable to visit because she was taking 

care of her own needs. The court therefore rejected the exception 

and terminated parental rights. Mother timely appealed. 
11

DISCUSSION

I. The juvenile court did not abuse its discretion in 

denying mother’s section 388 petition

Mother contends the juvenile court abused its discretion 

when it denied her section 388 petition seeking additional 

reunification services and the return of E.B. to her care. We 

disagree.

A. Applicable legal principles

“Section 388 permits the parent of a dependent child to 

petition the juvenile court for a hearing to modify an earlier order 

on the basis of changed circumstances or new evidence. (§ 388, 

subd. (a)(1).) The petitioning party bears the burden of showing 

that there is new evidence or changed circumstances and that the 

proposed modification would be in the best interests of the child.

[Citation.] [¶] In determining whether the petitioning party has 

carried his or her burden, ‘the court may consider the entire 

factual and procedural history of the case.’ [Citation.] . . . [¶] 

‘Not every change in circumstance can justify modification of a 

prior order.’ [Citation.] The change in circumstances supporting 

a section 388 petition must be material. [Citations.] In the 

context of a substance abuse problem that has repeatedly resisted 

treatment in the past, a showing of materially changed 

circumstances requires more than a relatively brief period of 

sobriety or participation in yet another program.” (In re N.F.

(2021) 68 Cal.App.5th 112, 120–121.)

After the juvenile court has terminated family reunification 

services, family reunification is no longer the primary goal of the 

proceedings. Instead, “ ‘the focus shifts to the needs of the child 

for permanency and stability’ [citation], and in fact, there is a 

rebuttable presumption that continued foster care is in the best 
12

interests of the child. [Citation.] A court hearing a motion for 

change of placement at this stage of the proceedings must 

recognize this shift of focus in determining the ultimate question 

before it, that is, the best interests of the child.” (In re 

Stephanie M. (1994) 7 Cal.4th 295, 317.)

We review a juvenile court order denying a section 388 

petition for abuse of discretion. (In re J.C. (2014) 226 

Cal.App.4th 503, 525.) “ ‘The appropriate test for abuse of 

discretion is whether the . . . court exceeded the bounds of reason. 

When two or more inferences can reasonably be deduced from the 

facts, the reviewing court has no authority to substitute its 

decision for that of the . . . court.’ ” (In re Stephanie M., supra, 7 

Cal.4th at pp. 318–319.)

B. Discussion

The juvenile court did not abuse its discretion in denying 

mother’s section 388 petition. Dependency jurisdiction in this 

case was necessary in part due to mother’s unresolved alcohol 

abuse. Although mother began participating in substance abuse 

programs at the outset of the case, by September 2021, three 

years later, mother was still struggling to consistently maintain 

her sobriety. After she filed her section 388 petition in February 

2021, she was again arrested for driving under the influence in 

May 2021. This was an indication that mother continued to 

abuse alcohol and engage in dangerous behavior while under the 

influence. While the section 388 petition was pending, mother 

was enrolled in at least three different substance abuse 

programs. The switching of programs had impaired her ability to 

maintain regular visits with E.B.

The juvenile court and DCFS commended mother’s 

persistence in seeking substance abuse treatment, despite her 
13

relapses. However, the court did not exceed the bounds of reason 

in concluding that mother had not presented evidence of a 

substantial change of circumstances as she was far from 

demonstrating sustained sobriety.

Further, even if mother’s evidence established a change of 

circumstances, the juvenile court did not abuse its discretion in 

concluding mother had not established the requested change—

additional reunification services to facilitate an eventual return 

of custody—would be in E.B.’s best interests. E.B. had been out 

of mother’s care for three years. Mother’s evidence of her 

relationship with E.B. did not establish that delaying 

permanence and stability for E.B., in whatever form that might 

take, would be in E.B.’s best interests. E.B. had been living with 

the caregiver for most of her life, was attached to her, and saw 

her as her primary parental figure. Mother’s circumstances were 

unstable and changing, even during the pendency of the 

section 388 petition. Due to delays, mother received nine months 

of reunification services beyond the applicable 12-month 

statutory maximum period. (§ 361.5, subd. (a)(1)(B) [for child 

under three at time of initial removal, services are to be provided 

for period of no more than 12 months from the date child entered 

foster care].) In addition, after mother’s reunification services 

were terminated, the evidence established that she continued 

participating in services for 10 additional months before the 

section 388 hearing.

6 Yet, return of E.B. to her care was still not 

6 The juvenile court detained E.B. on November 26, 2018. 

The 12-month review hearing should have taken place by 

January 26, 2020. (§ 366.21, subd. (f)(1)(A); § 361.5, 

subd. (a)(1)(B); § 361.49.) Instead, and in part due to pandemic-
14

appropriate and mother’s request was for an additional period of 

reunification services. The juvenile court acted well within its 

discretion in concluding that mother did not establish that 

granting her request, thereby further delaying permanence and 

stability, would be in E.B.’s best interests.

II. The juvenile court did not err in finding the parental 

benefit exception to adoption did not apply

Mother further contends the juvenile court erred when it 

rejected her argument that parental rights should not be 

terminated because she established the parental benefit

exception to adoption. We again disagree.

At the .26 hearing, the juvenile court must select a 

permanent plan for the child, with the express purpose of 

providing the child a “stable, permanent” home. (§ 366.26, 

subd. (b).) If the court finds by clear and convincing evidence 

that the child is likely to be adopted, the court must terminate 

parental rights to allow for adoption, unless the parent shows 

termination would be detrimental to the child for one of several 

reasons set forth in section 366.26, subdivision (c). (In re 

Caden C. (2021) 11 Cal.5th 614, 630 (Caden C.).) The “ ‘statutory 

exceptions merely permit the court, in exceptional circumstances 

[citation], to choose an option other than the norm, which 

remains adoption.’ ” (Id. at p. 631.)

Under section 366.26, subdivision (c)(1)(B)(i), the parental 

benefit exception applies when the juvenile court finds 

related delays, the hearing took place on October 1, 2020. The 

section 388 hearing did not take place until August 18, 2021, and 

did not conclude until September 28, 2021. By the time of the 

section 388 hearing, mother had participated in over 30 months 

of programs and services.
15

termination of parental rights would be detrimental to the child 

because the parents have maintained regular visitation and 

contact with the child and the child would benefit from 

continuing the relationship. In Caden C., supra, 11 Cal.5th at 

p. 636, our high court explained that a “parent asserting the 

parental benefit exception must show, by a preponderance of the 

evidence, three things. The parent must show regular visitation 

and contact with the child, taking into account the extent of 

visitation permitted. Moreover, the parent must show that the 

child has a substantial, positive, emotional attachment to the 

parent—the kind of attachment implying that the child would 

benefit from continuing the relationship. And the parent must 

show that terminating that attachment would be detrimental to 

the child even when balanced against the countervailing benefit 

of a new adoptive home.”

We review the first two elements for substantial evidence; 

the third is reviewed for abuse of discretion. (Caden C., supra, 

11 Cal.5th at pp. 639–640.) When reviewing for substantial 

evidence we do “ ‘not reweigh the evidence, evaluate the 

credibility of witnesses, or resolve evidentiary conflicts.’

[Citation.] The [juvenile court’s factual] determinations should 

‘be upheld if . . . supported by substantial evidence, even though 

substantial evidence to the contrary also exists and the . . . court 

might have reached a different result had it believed other 

evidence.’ ” (Id. at p. 640.) As explained above, we will find an 

abuse of discretion “only when ‘ “ ‘the . . . court has exceeded the 

limits of legal discretion by making an arbitrary, capricious, or 

patently absurd determination.’ ” ’ ” (Id. at p. 641.)

Mother asserts the juvenile court failed to properly address 

the parental benefit exception because it did not explicitly 
16

reference each of the three elements individually. We find no 

such error. The juvenile court explicitly referenced Caden C. in 

its ruling and expressed an understanding of the relevant law. 

The court was not required to make specific findings on the 

record as to each element of the exception. (In re A.L. (2022) 73 

Cal.App.5th 1131, 1156 [no authority for proposition that specific 

findings required and inferring from § 366.26, subd. (c)(1)(D) that 

specific findings not required when court concludes terminating

parental rights would not be detrimental].)

Mother testified that she had not visited E.B. in over two 

months, although she had maintained contact through other 

means.7 The juvenile court also noted mother had not

maintained regular visitation in the year preceding the 

.26 hearing. To the extent the court found mother failed to 

establish the parental benefit exception’s first element of regular 

visitation, we would conclude substantial evidence supported that 

finding. (In re Eli B. (2022) 73 Cal.App.5th 1061, 1069 [any 

ambiguity in court finding as to regularity of visitation must be 

construed against parent].)

However, the juvenile court’s analysis appeared to focus on 

the third element, whether terminating the relationship between 

mother and E.B. would be detrimental even when balanced 

against the benefit of a new adoptive home. We find no abuse of 

discretion in the court’s finding that it would not be detrimental.

The juvenile court described several factors it considered: 

the significant length of time E.B. had been out of mother’s care; 

7 At the .26 hearing, the juvenile court granted mother’s 

request that it incorporate and consider mother’s testimony from 

the section 388 hearing.
17

that mother’s visits had remained monitored, which prevented 

her from taking on more of a meaningful role in E.B.’s life; and 

E.B.’s need for permanence and stability. These were all highly 

relevant to the question of whether E.B.’s loss of the relationship 

with mother would “harm [her] to an extent not outweighed, on 

balance, by the security of a new, adoptive home.” (Caden C., 

supra, 11 Cal.5th at p. 634.) The court could reasonably conclude 

the benefits of placement in an adoptive home outweighed the 

harm of losing the relationship with mother. E.B. was detained 

from mother when she was one year old. She was almost four 

years old by the .26 hearing. Although there was evidence of a 

pleasant, warm relationship between E.B. and mother, there was 

no evidence E.B. suffered any distress or negative effects during 

the periods mother was unable to visit. (In re A.L., supra,

73 Cal.App.5th at pp. 1158–1159 [evidence that while father’s 

visits were consistent and positive, child had no difficulty 

separating and was unaffected by missed visits, supported 

finding that potential benefit of adoption outweighed harm].) 

E.B. had thrived in the caregiver’s home and viewed the 

caregiver as her primary mother figure.

Mother’s contention that the juvenile court failed to 

consider the parental benefit exception consistent with Caden C.

is not supported by the record.8 The record indicates the juvenile 

8 We do not understand the juvenile court’s references to 

mother’s relapses as an indication the court impermissibly 

concluded her continued struggle with alcohol abuse was a bar to 

the application of the parental benefit exception. (Caden C.,

supra, 11 Cal.5th at p. 637.) In context, the court’s comments 

directly related to appropriate considerations: the amount of 

time E.B. had spent living with the caregiver and mother’s 
18

court considered the exception and found it inapplicable after 

appropriately considering and weighing the harms and benefits 

of terminating mother’s parental rights. The court’s conclusion 

was not arbitrary, capricious, or patently absurd.

III. Reversal is not warranted due to ICWA inquiry error

A. Background

DCFS filed the juvenile dependency petition in this case on 

November 21, 2018. An ICWA-010(A) Indian Child Inquiry 

Attachment form accompanied the petition. The form indicated 

mother was questioned about Indian ancestry and reported “[t]he 

child has no known Indian ancestry.” At the November 26, 2018 

detention hearing, both parents completed and submitted 

Parental Notification of Indian Status (ICWA-020) forms, each 

declaring they had no Indian ancestry as far as they knew. 

Mother’s form stated a previous ICWA-020 form had been filed 

with the court.9 At the hearing, the court twice stated on the 

record, “No ICWA.” The minute order from the hearing reported 

the filing of the ICWA-020 forms and set forth the detailed 

finding that the court did not have a reason to know E.B. was an 

Indian child and did not order notice to any tribe or the Bureau of 

Indian Affairs. Both parents were ordered “to keep [DCFS], their 

inability, at times, to maintain consistent visitation. Moreover, 

we do not presume error and any ambiguities are resolved in 

favor of sustaining the juvenile court orders. (In re Eli B., supra,

73 Cal.App.5th at p. 1069.)

9 This may have been a reference to the prior dependency 

matter involving mother’s older child.
19

Attorney, and the Court aware of any new information relating to 

possible ICWA status.”

On December 6, 2018, a DCFS social worker again asked 

both parents about Indian ancestry. Both parents denied having 

“any Native American heritage.” The record does not reflect that 

DCFS conducted any further inquiry with respect to ICWA.

B. Analysis

As we understand her arguments, mother contends DCFS 

failed to comply with section 224.2, subdivision (b), because no 

inquiry was made of extended relatives to determine whether 

E.B. is or may be an Indian child. DCFS contends any error was 

not prejudicial. Applying the standard set forth by our colleagues 

in Division Two of this court in In re Dezi C. (2022) 79

Cal.App.5th 769 (Dezi C.), we find mother has not established 

that any error was prejudicial and warrants reversal.

“ICWA was enacted ‘ “to protect the best interests of Indian 

children and to promote the stability and security of Indian tribes 

and families by the establishment of minimum Federal standards 

for the removal of Indian children from their families and the 

placement of such children in foster or adoptive homes which will 

reflect the unique values of Indian culture . . . .” [Citation.]’ (In 

re Isaiah W. (2016) 1 Cal.5th 1, 8 . . . ; see 25 U.S.C. § 1902.)” (In 

re Q.M. (2022) 79 Cal.App.5th 1068, 1078.)

Section 224.2 sets forth the duties of a county welfare 

department and the juvenile court in determining whether a 

child is or may be an Indian child. An “ ‘Indian child’ ” is “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(4); § 224.1, subd. (a).) 
20

Section 224.2, subdivision (a), provides that both the 

juvenile court and the child welfare agency have an “affirmative 

and continuing duty” to inquire whether a child is or may be an 

Indian child, beginning with the “initial contact,” which includes 

asking the party reporting abuse or neglect if they have any 

information that the child may be an Indian child. 

Under section 224.2, subdivision (b), if a child is placed in 

DCFS’s temporary custody, the agency must inquire whether the 

child is or may be an Indian child, by asking a nonexclusive 

group that includes the child, the parents, and extended family 

members. Under section 224.2, subdivision (c), at the first court 

appearance of each party, the juvenile court must ask whether 

the appearing party knows or has reason to know that the child is 

an Indian child. In addition, the court must instruct the parties 

to inform the court if they subsequently receive information that 

provides reason to know the child is an Indian child.10

Under section 224.2, subdivision (e), if the juvenile court or 

social worker has reason to believe an Indian child is involved in 

the proceeding, but does not have enough information to 

determine there is a reason to know the child is an Indian child, 

the court or the social worker must make further inquiry, as soon 

as practicable. “[R]eason to believe” means the court or social 

10 Subdivision (b) of section 224.2 was added to the statute 

after DCFS’s initial contact with the family and the detention 

hearing in this case. (In re D.S. (2020) 46 Cal.App.5th 1041, 

1048–1051.) However, the jurisdiction and disposition hearing 

occurred in 2019, after amendments to section 224.2 went into 

effect, and the juvenile court and DCFS had a continuing duty to 

inquire whether E.B. is or may be an Indian child. (§ 224.2, 

subd. (a).)
21

worker has information “suggesting that either the parent of the 

child or the child is a member or may be eligible for membership

in an Indian tribe.” (§ 224.2, subd. (e)(1).) “Further inquiry” 

includes actions such as “[i]nterviewing the parents, Indian 

custodian, and extended family members” to gather information 

that would be necessary to provide notice to any relevant tribes. 

(§§ 224.2, subd. (e)(2)(A), 224.3, subd. (a)(5).) It also includes 

contacting the Bureau of Indian Affairs and State Department of 

Social Services for assistance in identifying contact information of 

relevant tribes, and contacting the “tribe or tribes and any other 

person that may reasonably be expected to have information 

regarding the child’s membership, citizenship status, or 

eligibility.” (§ 224.2, subd. (e)(2)(B)-(C).)

There is “reason to know” a child is an Indian child when:

a person having an interest in the child informs the juvenile court 

the child is an Indian child; the residence of the child, the child’s 

parents, or the child’s Indian custodian, is on a reservation or in 

an Alaskan Native village; a participant in the proceeding, officer 

of the court, Indian tribe or organization, or agency informs the 

court it has discovered information indicating the child is an 

Indian child; the child gives the court reason to know that the 

child is an Indian child; the court is informed that the child is or 

has been a ward of a tribal court; or the court is informed either 

the parent or the child possesses an identification card indicating 

membership or citizenship in an Indian tribe. (§ 224.2, subd. (d).)

Section 224.2, subdivision (i)(2), provides that if “the court 

makes a finding that proper and adequate further inquiry and 

due diligence as required in this section have been conducted and 

there is no reason to know whether the child is an Indian child, 

the court may make a finding that [ICWA] . . . does not apply to 
22

the proceedings, subject to reversal based on sufficiency of the 

evidence.” “On appeal, we review the juvenile court’s ICWA 

findings for substantial evidence.” (In re D.S., supra,

46 Cal.App.5th at p. 1051; In re Josiah T. (2021) 71 Cal.App.5th 

388, 401.)

Here, mother contends DCFS and the juvenile court failed 

to comply with the duty of inquiry, without any additional 

specific argument. As we understand mother’s argument from 

her recitation of the facts, she appears to contend the error was in 

DCFS’s failure to ask extended relatives whether E.B. is or may 

be an Indian child, consistent with section 224.2, subdivision 

(b).

11 

Section 224.1, subdivision (c), adopts the federal definition 

of “ ‘extended family member’ ”: “ ‘[E]xtended family member’

shall be as defined by the law or custom of the Indian child’s tribe 

or, in the absence of such law or custom, shall be a person who 

has reached the age of eighteen and who is the Indian child’s 

grandparent, aunt or uncle, brother or sister, brother-in-law or 

sister-in-law, niece or nephew, first or second cousin, or 

stepparent.” (25 U.S.C. § 1903(2).)

There is no indication that DCFS asked any of the relatives 

with whom it had contact whether E.B. is or may be an Indian 

11 Mother notes in her appellate briefing that the juvenile 

court did not “inquire on the record” at the .26 hearing, but 

simply stated, “No ICWA.” DCFS appears to construe this 

factual recitation as a separate assertion of inquiry error; we do 

not. Arguments on appeal must be supported by discussion and 

citations to legal authority, otherwise we may deem them 

forfeited. (Delta Stewardship Council Cases (2020) 48

Cal.App.5th 1014, 1075.)
23

child.

12 We therefore agree that DCFS failed to comply with 

section 224.2, subdivision (b) and the juvenile court lacked 

sufficient evidence to conclude DCFS exercised the due diligence 

required for a finding under section 224.2, subdivision (i)(2). 

However, as explained in Dezi C., supra, 79 Cal.App.5th 769, any 

error in compliance with section 224.2, subdivision (b), is state 

law error. Reversal is warranted only if the error is prejudicial. 

We must determine whether it is reasonably probable that the 

juvenile court would have made the same ICWA finding had 

DCFS fully complied with its duty of inquiry. (People v. Watson

(1956) 46 Cal.2d 818, 836; Dezi C., at p. 777.) 

We agree with the Dezi C. court that the proper application 

of our state’s test for harmless error in this context is that “an 

agency’s failure to 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. For this purpose, the ‘record’ 

includes both the record of proceedings in the juvenile court and 

any proffer the appealing parent makes on appeal.” (Id. at 

p. 779.)

12 Mother identifies “paternal cousins and maternal greatgrandmother” as relatives with whom DCFS had contact. 

Although DCFS did learn from the caregiver, E.B.’s paternal 

cousin, that she is a “Filipina” and was “raised . . . in 

a . . . traditional Filipino household,” and other documents 

identified father as “Filipino,” the record does not indicate DCFS 

asked the cousin or other relatives about any American Indian 

ancestry in the respective families.
24

This approach “effectuates the rights of the tribes in those 

instances in which those rights are most likely at risk, which are 

precisely the cases in which the tribe’s potential rights do justify 

placing the children in a further period of limbo. The ‘reason to 

believe’ rule also removes the incentive to use ICWA as a 

thirteenth-hour delay tactic and, by allowing parents to cite their 

proffers on appeal as well as the juvenile court record, still sends 

a ‘message’ to agencies that ICWA’s mandates are not to be 

ignored because remand will be ordered in any case where there 

is reason to believe the failure to inquire mattered.” 13 (Dezi C.,

supra, 79 Cal.App.5th at p. 782.) 

13 We reject the automatic reversal rule adopted by some 

courts. (See, e.g., In re H.V. (2022) 75 Cal.App.5th 433, 438; In re 

Y.W. (2021) 70 Cal.App.5th 542, 556.) We agree with the courts 

and others who have concluded the automatic reversal approach

fails to acknowledge or reconcile the requirements of ICWA and 

section 224.2 with the California Constitution’s mandate that a 

judgment may not be set aside unless it has resulted in a 

miscarriage of justice. (Dezi C., supra, 79 Cal.App.5th at p. 779; 

In re A.C. (2022) 75 Cal.App.5th 1009, 1020 (conc. & dis. opn. of 

Crandall, J.).) The automatic reversal approach also requires the 

court to conclude parents’ reports of their own Indian heritage 

cannot be trusted, irrespective of whether there are 

circumstances warranting such distrust. (Dezi C., at p. 784; In re 

Ezequiel G. (July 29, 2022, B314432) ___ Cal.App.5th ___ [2022 

Cal.App. Lexis 671, *33] [because tribal membership typically 

requires affirmative act by parent, parent often will be reliable 

source of information]; see In re M.M. (2022) 81 Cal.App.5th 61, 

71 [“There are serious costs if courts delay finalizing permanency 

for a child in every case where extended family was not 

questioned, on the remote chance those relatives might have 

information which is inconsistent with the parents’ disclaimer of 
25

Here, the record contains no information suggesting there 

is reason to believe E.B. is or may be an Indian child, such that 

the absence of inquiry of other relatives was prejudicial to the 

juvenile court’s ICWA finding. Both parents repeatedly denied 

any Indian ancestry. The record did not indicate that either 

parent was adopted or raised without a connection to their

biological parents or other family members. No other factor 

suggested that the parents’ knowledge of Indian ancestry might 

not be “fully informed.” (Dezi C., supra, 79 Cal.App.5th at p. 779;

cf. In re Y.W., supra, 70 Cal.App.5th at p. 548 [mother was 

adopted and had no information about biological relatives]; In re 

Benjamin M. (2021) 70 Cal.App.5th 735, 740 [father never 

appeared, and mother had no reason to know father’s ancestry].) 

Mother has made no proffer on appeal or representation that 

additional inquiry may have led to the revelation of even 

potential Indian ancestry. 

Under these circumstances, we find any error in DCFS’s 

failure to interview extended relatives does not warrant reversal.

Indian ancestry”]; In re H.V., at pp. 439–442 (dis. opn. of Baker, 

Acting P. J.).) 
26

DISPOSITION

The juvenile court orders are affirmed.

NOT TO BE PUBLISHED.

ADAMS, J.

*

I concur:

EGERTON, J.

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

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

Constitution.
LAVIN, J., Concurring and Dissenting:

I agree that the juvenile court did not abuse its discretion

by denying mother’s petition under Welfare and Institutions

Code section 388. I also agree that the court did not err in finding

the parental benefit exception to adoption did not apply. For the

reasons set forth in my dissent in In re Ezequiel G. (July 29,

2022, B314432) ___Cal.App.5th___ [2022 WL 3009914], however,

I would conditionally affirm the order terminating mother’s

parental rights and remand for further proceedings.

LAVIN, Acting P. J.