Filed 3/1/22 In re A.G. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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

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 This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re A.G., a Person Coming Under 

the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH 

AND HUMAN SERVICES 

AGENCY,

Plaintiff and Respondent,

v.

D.G.,

Defendant and Appellant.

 D079606

 (Super. Ct. No. J520082)

APPEAL from an order of the Superior Court of San Diego County, 

Rohanee Zapanta, Judge. Reversed and remanded.

Elena S. Min, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Lonnie J. Eldridge, County Counsel, Caitlin E. Rae, Chief Deputy 

County Counsel, and Eliza Molk, Deputy County Counsel, for Plaintiff and 

Respondent.
2

D.G. (Mother) appeals from the juvenile court’s order terminating her 

parental rights to her daughter at the hearing pursuant to Welfare and 

Institutions Code section 366.26.1 She contends the court applied an 

incorrect legal standard in determining the parental-benefit exception to 

adoption did not apply. Specifically, she contends the court improperly 

focused on whether Mother held a parental role and had overcome the 

protective issues that led to dependency, factors which have been disapproved 

by the California Supreme Court in In re Caden C. (2021) 11 Cal.5th 614

(Caden C.). Mother also contends reversal is required because the San Diego 

County Health and Human Services Agency (Agency) failed to comply with 

the inquiry requirements under the Indian Child Welfare Act (ICWA). (25 

U.S.C. § 1901 et seq.) 

On the record before us, we are unable to conclude that the juvenile 

court applied the correct legal standard in determining the parental-benefit 

exception did not apply. Accordingly, we are compelled to reverse the order 

terminating Mother’s parental rights and remand the matter for further 

proceedings consistent with Caden C. Because we also conclude the Agency 

has failed to comply with ICWA, we remand for the Agency to conduct further 

inquiry consistent with ICWA. 

1 Undesignated statutory references are to the Welfare and Institutions 

Code.
3

FACTUAL AND PROCEDURAL BACKGROUND

I.

Proceedings Before Contested Section 366.26 Hearing

A.G. was born to Mother and R.G. (Father)2 and came to the attention 

of the Agency on at least four separate occasions before her second birthday.3

In July 2019, the Agency was contacted after the police served a search 

warrant on the parents’ home and found methamphetamine, marijuana, drug 

paraphernalia, and a loaded .32 revolver, some of which were accessible to 

A.G. In addition, the physical living conditions of the home were deemed 

“ ‘hazardous’ ” due to the presence of cockroaches, rats, and dog feces inside. 

The parents were arrested and charged with drug-related offenses. Mother 

was also charged with child cruelty. A.G. was taken to Polinksy Children’s 

Center and, a few days later, placed with paternal uncle and paternal aunt

(caregivers).

2 Father is not a party to this appeal.

3 The family had come to the Agency’s attention on three occasions before 

the current case. In October 2017, the Agency received a referral alleging

general neglect and caretaker absence/incapacity based on a report that 

Mother tested positive for methamphetamines and Father was also using 

drugs. The referral as to general neglect was closed as inconclusive and the 

allegation of caretaker absence/incapacity was closed as unfounded. In 

December 2017, public officials witnessed Father strike and shove Mother, 

which resulted in a referral of general neglect and emotional abuse of A.G. 

The allegation of general neglect was substantiated, while the allegation of 

emotional abuse was closed as inconclusive. Another referral was made that 

same month alleging general neglect due to alleged presence of marijuana in 

the parents’ home, which was evaluated out.
4

A. Detention and Jurisdiction/Disposition Hearings

On July 8, 2019, the Agency filed a dependency petition on behalf of 

A.G. Pursuant to section 300, subdivision (b)(1), the Agency alleged there 

was a substantial risk A.G. would suffer serious physical harm or illness 

based on the inadequate and unsafe home environment discovered by the 

police. At the detention hearing the next day, the juvenile court made a 

prima facie finding on the petition, removed A.G., and detained her in the 

home of an approved relative, noting that she was currently placed with 

caregivers. The court ordered the Agency to provide the parents with 

voluntary services and ordered liberal, supervised visitation for Mother and 

Father. 

At the contested jurisdiction and disposition hearing in September 

2019, the court found clear and convincing evidence to support jurisdiction

and declared A.G. a dependent. At this time, the court found Mother’s 

progress toward alleviating the protective issues to be “adequate” and 

Father’s progress was “none.” 

B. Six-Month and 12-Month Reviews

The six-month review hearing was originally scheduled for March 2020. 

However, it was continued several times, in part due to the onset of the 

Covid-19 pandemic, and ultimately combined with the contested 12-month 

review hearing held in November 2020. 

During this period, Mother had several supervised visits with A.G. The 

caregivers reported that Mother was attentive and appropriate during the 

visits, that A.G. enjoyed the time with Mother and was “always excited” to 

see her. These positive reports led the Agency to briefly lift the supervision of 

the visits, but the reports during this unsupervised period were less 

encouraging. The caregivers reported that A.G. was returned to them unfed, 
5

“dirty and messy,” and with bug bites on her back. The parents were also 

often tardy picking her up, sometimes appearing hours late without notice. 

Additionally, concerns about the parents’ mental health, substance 

abuse, and inability to control their anger began to appear prominently in the 

Agency’s reports.4 At A.G.’s third birthday party in July 2020, Father 

became angry and belligerent, yelled at A.G. and other adults, pushed the 

paternal uncle, tried to push the paternal grandmother, and at one point 

raised his hand as if to hit Mother. Mother also became upset, screaming 

and yelling at family members. A.G. appeared afraid and made comments 

afterwards (“ ‘[poor] mommy, daddy hit her’ ”) suggesting she had previously 

witnessed Father hitting Mother. In August 2020, Father kicked in the front 

door of the maternal grandfather’s house, pulled out a pocket knife, and 

threatened to kill him. That same month, Mother was seen parked outside of 

a boxing class taken by the caregivers’ son, glaring at him as he left the 

building. She drove away when paternal aunt arrived. As a result of these 

incidents,the Agency reverted the parents’ visits with A.G. to supervised. 

At the combined six-month and 12-month hearing in November 2020, 

the Agency conceded that reasonable services had not been offered for the 12-

month review period but had been offered for the six-month review period. 

Thus, the court ordered that additional services be provided to the parents 

and scheduled the 18-month review hearing, which was later continued to 

March 2021 for a contested hearing.

4 Both parents have mental health diagnoses for which they have been 

prescribed medication. Mother’s mental health issues were manageable with 

medication, medical evaluations, and support. In June 2020, however, she 

stopped attending a mental health program and stopped refilling her 

medication. 
6

C. 18-Month Review 

In the following months, Mother continued to visit A.G. often, and the 

visits were generally positive. A.G. eagerly waited to be picked up for the 

visits, was always happy to see Mother, hugged and kissed her, and “truly 

appear[ed] to love” Mother. Mother brought games and toys for A.G., talked 

and played with her, and sometimes read to her. Mother focused her 

attention on A.G. and told her she loves her. At the conclusion of the visits, 

A.G. would tell Mother that she loves her but would appear ready to leave. 

Not all of Mother’s visits with A.G. were positive, however. Sometimes 

after a visit, A.G. would tell the caregivers, “no more mommy and dada.” She 

went home early from one visit crying because her parents were arguing and 

yelling. She would occasionally say that she does not want any more visits 

with her parents because she does not like to see them fight. She also asked

the caregivers to wait in the car during visits until she knew what mood the

parents were in, describing them as “ ‘good gummybears’ ” or “ ‘bad 

gummybears.’ ” The caregivers reported that at times A.G. “seem[ed] so

exhausted” and “completely drained,” and “want[ed] to be comforted” after 

the visits.5

At the 18-month review hearing in March 2021, the juvenile court 

found by clear and convincing evidence that reasonable services had been 

offered to the parents, but the parents made minimal progress toward 

alleviating or mitigating the causes necessitating placement. Accordingly, 

5 By contrast, the Agency’s reports described the caregivers’ home as a 

“stable,” “calm and relaxing environment” where A.G. is “very loved and 

doted on by the entire family.” The Agency also reported that A.G. is “very 

close” to the caregivers and looked to them when she needed help and 

assurance. 
7

the court terminated reunification services and scheduled a section 366.26 

hearing for July 2021. 

After reunification services were terminated, Mother continued to visit 

with A.G. regularly. A.G. played with the toys brought by Mother, shared 

snacks with her, and talked and sang with her. In one tender moment, A.G. 

said something to her parents, to which Mother responded, “ ‘We miss you 

too, we miss you and love you so much.’ ” During a June 2021 visit, Mother 

appeared ill due to the heat, and A.G. poured some water for Mother to drink. 

In July 2021, A.G. acted lovingly toward her parents, and Mother held and 

rocked her while telling her that she loved her. One time, A.G. appeared 

saddened at the memory of taking baths at the parents’ home and rested her 

head on Mother’s chest. When Mother began to cry, A.G. wiped her tears 

with a napkin. At another visit, A.G. ran to Mother shouting “ ‘mommy!’ ” 

However, Mother’s conduct sometimes distressed A.G. In August 2021, 

paternal aunt took A.G. to a scheduled visit but a monitor was not available

so the visit could not proceed. Mother approached paternal aunt in the 

parking lot and began discussing the case. When paternal aunt indicated the 

case was proceeding towards adoption instead of guardianship, Mother 

became angry and started yelling at paternal aunt, calling her “ ‘a liar.’ ” 

A.G. was crying, so paternal aunt left to take her home, but then realized 

Mother had A.G.’s blanket. Paternal aunt returned and tried to get the 

blanket back, but Mother refused to give it to her. Both paternal aunt and 

A.G. tried to pull the blanket from Mother, but Mother continued to hold onto 

it and pull it back towards herself. Paternal aunt felt “foolish pulling the 

blanket back and forth” so she “gave up” and left with A.G. She reported that

A.G. was scared and crying so hard she could not catch her breath. A.G.
8

referred to the parents as “ ‘ugly gummy bears’ ” and expressed that she was 

sad and scared.

II.

Contested Section 366.26 Hearing

The section 366.26 hearing was held on September 1, 2021. The social 

worker testified and the court received the Agency’s section 366.26 and 

various addendum reports into evidence.

In its section 366.26 report, the Agency concluded A.G. was generally

and specifically adoptable, as paternal uncle and aunt wanted to adopt A.G. 

The agency reported it was “evident” that A.G. “loves her parents, and that 

her parents love her. However, all of [A.G.’s] needs have been met by her 

current caregivers for a period of almost two years.” The Agency noted that 

A.G. “appears to have a positive relationship with her caregivers, and is 

comforted by their presence.” 

In an addendum report, the Agency determined that A.G. “does not 

have a significant, positive, emotional attachment to her parents.” In making 

that determination, the Agency considered A.G.’s young age; that the

“smaller portion of [her] life [had been] spent in parental custody (23 months 

out of 49)”; “the minimal impact of interaction with her parents,” including 

that A.G. does not show distress upon separation, she wanted her caregiver 

during multiple visits, and she showed visible distress after paternal aunt’s 

altercation with Mother over the blanket; and that A.G.’s “particular needs 

are all being met by the caregivers,” who “have been fulfilling the parental 

role for [A.G.] for over two years.”

The social worker testified consistent with the Agency’s reports. 

According to her, A.G. appeared to “generally enjoy seeing her parents” and 

the parents were “generally very affectionate with her.” The social worker 
9

observed that A.G. appeared uncomfortable during multiple visits. Her 

demeanor would change where she would become silent or nonresponsive to 

her parents and would ask to end the visits and return home with the 

caregivers. The caregivers had also reported to the social worker that A.G. 

said she was more comfortable with the visits when her paternal aunt was 

nearby or A.G. knew paternal aunt was coming to get her. A.G. also did not 

show distress when the visits ended. 

The social worker opined that adoption, not guardianship as requested 

by the parents, was in A.G.’s best interest. She explained that guardianship 

did not provide A.G. with stability, because it “denote[d] that the parents 

would retain rights to visitation as well as a right to petition the [c]ourt later 

on in a change of circumstances.” This would not be in A.G.’s best interest 

because “throughout this case[,] the parents have inconsistently participated 

in services, have lacked the insight into their actions and how those actions 

have impacted [A.G.]; have not engaged in . . . drug testing consistently; or, in 

addition,the father has tested positive for methamphetamines recently 

within the past couple of months.” “[A]ll of this, in addition to the impulse 

control . . . with the several violent incidents that have taken place over the 

past year or so, lends to the idea that the parents’ lack impulse control and 

insight and would continue to jeopardize [A.G.’s] stability.” Thus, despite an 

“extensive period of reunification services,” parents had failed to show they 

can mitigate the protective issues.

The social worker testified she had also determined that A.G. does not 

have “a significant positive emotional attachment” to her parents. She 

reached this conclusion based on observing A.G.’s behavior during visits with 

her parents and “her identification with the caregivers as her parental 
10

figures.” She also noted that during visits A.G. was “hesitant” to approach 

Father and that she does not seek out her parents for comfort. 

Neither parent testified, but Mother submitted a letter to the juvenile 

court. In it, Mother took responsibility for her mistakes, conveyed lessons 

she learned through her participation in services, and asked for “another 

chance” to keep A.G. safe. 

In its closing argument, the Agency asked the court to terminate 

parental rights to allow for adoption. The Agency asserted the parentalbenefit exception to the preference for adoption did not apply because the 

parents’ contacts with A.G. were more akin to a “friendly visitor.” Counsel 

noted that, while some of the reports reflected pleasant interactions between 

A.G. and her parents, A.G. often asked that her caregiver attend visits and 

did not exhibit distress upon separating from her parents. In addition, the 

Agency argued several incidents that negatively impacted A.G., including the 

verbal altercation between Mother and the paternal aunt and the two 

incidents involving violence by Father, weighed against finding that there 

was a significant bond between A.G. and Mother that would outweigh the 

benefits of adoption. 

Minor’s counsel agreed with the Agency. Counsel noted that A.G. had

spent more than half of her life with the caregivers, was bonded to them, and 

did not get upset when her visits with her parents ended. Counsel stated, 

“the relationship that [A.G.] has with both of her parents is more than just a 

friendly visitor[. W]e can tell from the visitation descriptions that were 

provided by the social worker, that she is excited to see her parents. She 

runs to them. She plays with them. There are really sweet moments they

have together where [A.G.] will lay on her mother or lay on her father or 

cuddle with them and plays with them, and the parents do bring food and 
11

snacks and toys to every single visit.” But, continued counsel, “the parentchild bond requires more than just that. . . . It requires that they fill a strong

parental role.” She argued A.G. understood who her parents were, but that 

she looked to the paternal aunt, and not them, to fill that role. In addition, 

she noted the parents’ protective issues continued to exist and that “there is 

still a lot of progress that needs to be made.” 

Mother’s counsel countered that she was fulfilling the parental role, 

“which is the real test here.” Mother would bring snacks, play games, play 

music, take A.G. to the restroom, “doing the things that every parent does for 

their child.” Mother’s counsel acknowledged that A.G. was more comfortable 

with the caregivers and looked to them for her needs, but asserted that was 

to be expected given the limited court-ordered visitation she had with A.G. 

Counsel argued Mother “has done her best to [be a mother], to actually play it 

out in person with the minor.” Father’s counsel also asserted that the

parents were playing a parental role during the visits, and that they had 

taken care of A.G. without assistance on two different occasions, once where 

she almost choked and once where she fell.

Following arguments, the juvenile court found that the parental-benefit

exception did not apply. The court stated:

“[G]iven the evidence . . . the [c]ourt does find that there 

was regular and consistent visitation. That’s not easy. I want to 

recognize that it takes -- given the parents’ circumstances, it 

takes a lot of dedication, effort, sacrifice to make those visitations 

meaningful, to be prepared for those visitations, to think about 

how and what to bring and how to interact during the visitation.

It takes work, it takes a care and a concern and a support for 

[A.G.], and I certainly want to recognize that and I want to give 

both parents credit for that. 

“I always say this in every case, that time is the biggest 

enemy in this case. And so throughout the course of this case 

[A.G.] is growing, she is getting bigger, she is developing all these 
12

skills, and she is also becoming more and more her own person. 

She has her own little personality and I am sure both parents 

have noticed that as the time has gone by. 

“What the law looks at and what the [c]ourt has to consider 

is based on what evidence is shown before this [c]ourt is, as her 

path in life moves forward and she starts with every day growing 

bigger and getting older and learning things and developing into 

her own person, both the mother and the father have their own 

paths in moving forward and becoming healthier and safer 

people, understanding themselves better, the kind of parents 

they want to be, how they want to interact with [A.G.], what they 

can provide and offer to her, and they’re both growing and 

developing. It’s clear, I have read this letter, and I have noticed 

that the mother has learned and shared with the [c]ourt as far as 

her insight and how she sees things.

“The key is, though, when we’re talking about the bond and 

parent-child bond, so these three paths kind of have to 

intertwine, and that’s the key here is the paths are moving 

forward and these visits and the contact that the parents are 

making with [A.G.], they are healthy and they appear to be for 

the most part mostly positive. But the contact and the connection 

with the parents have to intertwine, almost like a braid to make 

[A.G.] even stronger, right? That’s the point of the understanding 

of parent support and being there. That’s each parent separate 

and apart to intertwine into that kind of braid for a stronger, 

healthier [A.G.]

“At this point, the [c]ourt sees based on the evidence that 

the paths are moving forward, time is going forward, and there is 

only so much time that the law affords for this type of situation. 

Those paths have not intertwined to the sense where if we were 

to do adoption, unraveling that braid would be harmful or 

detrimental to [A.G.] In fact, the [c]ourt finds that there is still a 

lot of growth that needs to happen. There is still a lot of 

discovering and insight that needs to be done with both parents as 

far as the health, safety, well-being of [A.G.] And although the 

visits are consistent and they’re loving and they’re supportive, 

just the insight that the mother has provided in her own letter, in 

addition to the behaviors and the evidence provided in each of the 

reports, [A.G.] does look to her caregiver for all her specific needs 

for care and support. She does enjoy the time she spends with 
13

her parents, but of course there have been incidents where she 

has been concerned and she references them as good or bad 

gummie bears.

“At the same time, also, what’s been kind of clear is that I 

am trying to understand, mother and father, they each have their 

own separate paths, and hopefully the goal was to intertwine 

them to a point where they are connected so much with [A.G.] 

But it does appear from the evidence that the mother has been 

trying very, very hard to kind of reach some type of balance. And 

it does appear since the inception of the case, frankly, that she is 

going back and forth and trying to please so many people, 

including the father and engage the father, and it does appear 

that there are issues too that the father is needing to address as 

far as sobriety and the kind of healthy and safe person he wants 

to be to be the healthy and safe parent he can be for [A.G.] [¶] 

And the mother has begun to recognize insight as to kind of where 

she wants her growth to be, but it hasn’t gotten to the point where 

she understands what she needs to do for [A.G.] as a mother. It 

looks like she is between a rock and a hard place and trying to 

please so many people that at some point there hasn’t been 

enough to elevate the visitation or the contact to the point where 

things have intertwined and connected to [A.G.] and the point 

where that would require something less than adoption.

“So for those reasons, I will adopt the recommendations set 

forth in the social worker’s report.” (Italics added.)

The juvenile court then found by clear and convincing evidence that 

A.G. will likely be adopted if parental rights are terminated and that it was 

in A.G.’s best interest to be adopted. Accordingly, the court terminated 

parental rights and selected adoption as the permanent plan for A.G. Mother 

timely appealed.

DISCUSSION

I.

The Parental-Benefit Exception

Mother contends the juvenile court applied an incorrect legal standard 

in determining the parental-benefit exception to adoption did not apply. 
14

Specifically, she contends the court improperly focused on whether Mother 

had overcome the protective issues that led to dependency and held a 

parental role, factors which have been disapproved by the California 

Supreme Court in Caden C. On the record before us, we are unable to 

conclude that the court conducted the proper analysis of the second and third 

elements of the legal standard set forth in Caden C., namely whether the 

child would benefit from continuing the parental relationship and whether 

terminating that relationship would be detrimental to the child. We are 

therefore compelled to reverse the juvenile court’s order terminating parental 

rights and to remand the matter for another section 366.26 hearing, with 

instructions to the court to consider these factors as set forth in Caden C.

A. Legal Principles

When the juvenile court sets a section 366.26 hearing, it has already 

terminated reunification services and determined the dependent child cannot 

safely return to a parent’s custody. (Caden C., supra, 11 Cal.5th at p. 630; In 

re Marilyn H. (1993) 5 Cal.4th 295, 304; § 366.26, subd. (b)(1).) There is now 

an “assumption . . . that the problems that led to the court taking jurisdiction 

have not been resolved” and, thus, “the question before the court [at the 

section 366.26 hearing] is decidedly not whether the parent may resume 

custody of the child.” (Caden C., at p. 630.) Indeed, it is no longer 

permissible to order reunification at this juncture. (Ibid., citing In re Zeth S.

(2003) 31 Cal.4th 396, 411.) Instead, the focus of the dependency process 

changes from reunification services to the child’s need for permanency and 

stability and the court is to select and implement a permanent plan for the 

child. (See Marilyn H., at p. 304; In re Celine R. (2003) 31 Cal.4th 45, 52−53 

(Celine R.) [The section 366.26 hearing is “designed to protect children’s 
15

‘compelling rights . . . to have a placement that is stable, permanent, and that 

allows the caretaker to make a full emotional commitment to the child.’ ”].)

At the section 366.26 hearing, the court has three permanent 

placement options: adoption, guardianship, or long-term foster care. 

(§ 366.26, subd. (b).) Of these options, “[a]doption, where possible, is the

permanent plan preferred by the Legislature.” (In re Autumn H. (1994) 27 

Cal.App.4th 567, 573 (Autumn H.).) While legal guardianship or long-term 

foster care leaves parental rights in place, adoption “requires terminating the 

natural parents’ legal rights to the child.” (Id. at p. 574.)

“Even when a court proceeds to select [adoption as] a permanent 

placement for a child who cannot be returned to a parent’s care, the parent 

may avoid termination of parental rights in certain circumstances defined by 

statute. One of these is the parental-benefit exception. What it requires a 

parent to establish, by a preponderance of the evidence, is that the parent 

has regularly visited with the child, that the child would benefit from 

continuing the relationship, and that terminating the relationship would be 

detrimental to the child. [Citations.] The language of this exception, along 

with its history and place in the larger dependency scheme, show that the 

exception applies in situations where a child cannot be in a parent’s custody 

but where severing the child’s relationship with the parent, even when 

balanced against the benefits of a new adoptive home, would be harmful for 

the child.” (Caden C., supra, 11 Cal.5th at pp. 629–630, citing § 366.26, subd. 

(c)(1)(B)(i).) 

Pursuant to section 366.26, the juvenile court must first determine by 

clear and convincing evidence whether the child is likely to be adopted and, if 

it does, “then the court shall terminate parental rights to allow for adoption.” 

(Caden C., supra, 11 Cal.5th at p. 630.) “But if the parent shows that 
16

termination would be detrimental to the child [due to the parental-benefit 

exception], the court should decline to terminate parental rights and select 

another permanent plan. (See § 366.26, subd. (c)(1)(B)(i)−(iv), (4)(A).).” (Id.

at pp. 630−631.) “The statutory exceptions merely permit the court, in 

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

which remains adoption.” (Celine R., supra, 31 Cal.4th at p. 53.)

The first element of the parent’s burden in establishing the parentalbenefit exception⎯regular visitation and contact⎯is “straightforward” and 

“[t]he question is just whether ‘parents visit consistently,’ taking into account 

‘the extent permitted by court orders.’ ” (Caden C., supra, 11 Cal.5th at 

p. 632; § 366.26, subd. (c)(1)(B)(i).) 

“As to the second element, courts assess whether ‘the child would 

benefit from continuing the relationship.’ ” (Caden C., supra, 11 Cal.5th at 

p. 632, citing § 366.26, subd. (c)(1)(B)(i).) “[T]he relationship may be shaped 

by a slew of factors, such as ‘[t]he age of the child, the portion of the child’s 

life spent in the parent’s custody, the “positive” or “negative” effect of 

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

(Caden C., at p. 632, quoting Autumn H., supra, 27 Cal.App.4th at p. 576.) 

With the focus on the child, “courts often consider how children feel about, 

interact with, look to, or talk about their parents.” (Caden C., at p. 632.) 

Recognizing that “rarely do ‘[p]arent-child relationships’ conform to an 

entirely consistent pattern,” our Supreme Court has stated that “it is not 

necessary ⎯ even if it were possible ⎯ to calibrate a precise ‘quantitative 

measurement of the specific amount of “comfort, nourishment or physical 

care” [the parent] provided during [his or] her weekly visits.’ ” (Ibid.)

“Concerning the third element ⎯ whether ‘termination would be 

detrimental to the child due to’ the relationship ⎯ the court must decide 
17

whether it would be harmful to the child to sever the relationship and choose 

adoption.” (Caden C., supra, 11 Cal.5th at p. 633, citing § 366.26, subds. 

(c)(1)(B) and (c)(1)(D).) “Because terminating parental rights eliminates any 

legal basis for the parent or child to maintain the relationship, courts must 

assume that terminating parental rights terminates the relationship. 

[Citations.] What courts need to determine, therefore, is how the child would 

be affected by losing the parental relationship — in effect, what life would be 

like for the child in an adoptive home without the parent in the child’s life.” 

(Caden C., at p. 633, italics added.) Thus, “ ‘[i]f severing the natural 

parent/child relationship would deprive the child of a substantial, positive 

emotional attachment such that,’ even considering the benefits of a new 

adoptive home, termination would ‘harm[ ]’ the child, the court should not 

terminate parental rights.” (Ibid.)

This third element⎯whether termination of parental rights would be 

detrimental to the child⎯is the most difficult question for the juvenile court 

to resolve. Where the court has found that regular contact and visitation 

have continued, and that this contact has created a relationship that benefits 

the child, the court must “decide whether the harm from severing the child’s 

relationship with the parent outweighs the benefit to the child of placement 

in a new adoptive home.” (Caden C., supra, 11 Cal.5th at p. 632, citing 

Autumn H., supra, 27 Cal.App.4th at p. 575.) As the Supreme Court stated, 

determining the “harm associated with severing the relationship is a subtle 

enterprise.” (Caden C., at p. 634.) A parent-child relationship sometimes 

“involves tangled benefits and burdens” and “[i]n those cases, the court faces 

the complex task of disentangling the consequences of removing those 

burdens along with the benefits of the relationship.” (Ibid.) 
18

The Supreme Court in Caden C., therefore, provided guidance on the 

factors a juvenile court may and, importantly in the instant case, may not

consider in deciding whether termination of parental rights would be 

detrimental to a child. First, it is improper to compare a “parent’s attributes 

as custodial caregiver relative to those of any potential adoptive parent(s)” 

when weighing whether termination would be detrimental to the child. 

(Caden C., supra, 11 Cal.5th at p. 634.) Because “[n]othing that happens at 

the section 366.26 hearing allows the child to return to live with the parent,” 

a court “should not look to whether the parent can provide a home for the 

child.” (Ibid.) The hearing “is decidedly not a contest of who would be the 

better custodial caregiver.” (Ibid.) Rather, “the question is just whether

losing the relationship with the parent would harm the child to an extent not 

outweighed, on balance, by the security of a new, adoptive home.” (Ibid.) 

“Even where it may never make sense to permit the child to live with the 

parent, termination may be detrimental.” (Ibid.)

Second, a parent’s “continued struggles” with the issues that led to 

dependency cannot, “standing alone,” be a bar to the parental-benefit 

exception as such a rule “would effectively write the exception out of the 

statute.” (Caden C., supra, 11 Cal.5th at p. 637.) Because reunification 

services have been terminated when the court sets the section 366.26 

hearing, “it all but presupposes [when it holds the hearing] that the parent 

has not been successful in maintaining the reunification plan meant to 

address the problems leading to dependency.” (Caden C., at p. 637.) Noting 

that “[t]he parental-benefit exception can therefore only apply when the 

parent has presumptively not made sufficient progress in addressing the 

problems that led to dependency,” the Supreme Court “reject[ed]the 

paradoxical proposition . . . that the exception can only apply when the 
19

parent has made sufficient progress in addressing the problems that led to 

dependency.” (Ibid.) In demonstrating detriment, “[p]arents need not show 

that they are ‘actively involved in maintaining their sobriety or complying 

substantially with their case plan’ [citation] to establish the exception.” (Id. 

at p. 637 & fn. 6 [disapproving a line of cases that held to the contrary].) 

However, a parent’s struggles with the issues that led to dependency 

“often prove relevant to the application of the [parental-benefit] exception”

because it “may mean that interaction between parent and child at least 

sometimes has a ‘ “negative” effect’ on the child.” (Caden C., supra, 11 

Cal.5th at p. 637.) But a parent’s struggles “are relevant only to the extent 

they inform the specific questions before the court: would the child benefit 

from continuing the relationship and be harmed, on balance, by losing it? 

The parent’s continuing difficulty with mental health or substance abuse may 

not be used as a basis for determining the fate of the parental relationship by 

assigning blame, making moral judgments about the fitness of the parent, or 

rewarding or punishing a parent.” (Id. at p. 638.) “Nor could a parent’s 

struggles be relevant simply because they might conceivably affect the 

parent’s ability to regain custody of the child,” because return to the parent’s 

custody is not an option at the section 366.26 hearing. (Ibid.) “A parent’s 

struggles may be most directly relevant . . . to the ‘ “positive” or “negative”

effect of interaction between parent and child’ (Autumn H., supra, 27 

Cal.App.4th at p. 576) and then somewhat more indirectly to the harm of 

removing such interactions from the child’s life.” (Id. at p. 639.)

B. Analysis

We apply the substantial evidence standard in reviewing the court’s 

findings on the first two elements⎯whether the parent has consistently 

visited and maintained contact with the child and whether the relationship is 
20

such that the child would benefit from continuing it. (Caden C., supra, 11 

Cal.5th at p. 639.) We review the court’s findings as to the third element, 

whether there is detriment to the child in severing the relationship, for abuse 

of discretion. (Id. at pp. 639−641.) As the Court in Caden C. explained, as to 

the third element, “the [trial] court must also engage in a delicate balancing 

of these determinations as part of assessing the likely course of a future 

situation that’s inherently uncertain. . . . The court makes the assessment by 

weighing the harm of losing the relationship against the benefits of 

placement in a new, adoptive home. And so, the ultimate decision — whether 

termination of parental rights would be detrimental to the child due to the 

child’s relationship with his parent — is discretionary and properly reviewed 

for abuse of discretion.” (Id. at p. 640.) A juvenile court abuses its discretion 

when it applies an incorrect legal standard. (In re Shannon M. (2013) 221 

Cal.App.4th 282, 289.) 

Here, on the record before us, we are unable to conclude that the

juvenile court applied the correct legal standard in determining the parentalbenefit exception did not apply. In making its ruling, the court placed 

significant emphasis on Mother’s continued struggles with the issues that led 

to dependency, a factor that our high court recently clarified is not 

dispositive. (Caden C., supra, 11 Cal.5th at pp. 637−838.) Further, rather 

than expressly discussing whether A.G. would benefit from continuing the 

relationship with Mother, and whether termination of that relationship 

would be detrimental to A.G., the court employed an analogy regarding a 

braid created by intertwined paths. We acknowledge that the court likely

used the analogy in a sincere effort to explain seemingly complex legal 

principles to the parents. However, the analogy is fairly complex itself, and 

leaves us unable to determine whether the court applied the correct legal 
21

standard. Further, the court’s comments as a whole strongly suggest the

court was focused more on whether the parents had a typical parental 

relationship with A.G., as opposed to considering whether A.G. would benefit 

from continuing the relationship that they did have. 

First, we note that the juvenile court repeatedly focused on time as a 

factor. The court stated,“time is the biggest enemy in this case,” “time is 

going forward, and there is only so much time that the law affords for this 

type of situation.” While it is true that parents are only afforded a limited 

amount of time to reunify (Celine R., supra, 31 Cal.4th at p. 52), the parentchild relationship often pre-dates the juvenile dependency proceeding, as it 

did here, and that relationship may be beneficial to the child regardless of the 

length of the dependency proceedings. Moreover, as we have explained, “the 

question before the court [at the section 366.26 hearing] is decidedly not 

whether the parent may resume custody of the child.” (Caden C., supra, 11 

Cal.5th at p. 630.) Instead, the court must choose the most appropriate 

permanent placement option for the child and, in doing so, must consider 

whether severing the pre-existing parent-child relationship would be so 

detrimental to the child as to outweigh the presumptive benefits of adoption.

(Id. at pp. 630, 632.) 

Here, it seems the juvenile court was more concerned with Mother’s

continued struggles with the issues that led to dependency than the 

beneficial nature of her relationship with A.G. It placed significant emphasis 

on Mother’s failure to make herself “healthier and safer” in order to be “the 

kind of parent[ ] [she] want[s] to be.” But as our high court recently clarified 

in Caden C., a parent’s continued struggles with the issues leading to 

dependency cannot serve as a categorical bar to the parental-benefit

exception. (See Caden C., supra, 11 Cal.5th at p. 637.) As the Court 
22

observed, “when the court holds a section 366.26 hearing, it all but 

presupposes that the parent has not been successful in maintaining the 

reunification plan meant to address the problems leading to dependency.” 

(Ibid.) Accordingly, “[p]arents need not show that they are ‘actively involved 

in maintaining their sobriety or complying substantially with their case 

plan’ ” and “[a] parent’s continued struggles with the issues leading to 

dependency are not a categorical bar to applying the exception.” (Ibid.) 

“Instead, the focus is whether there is a substantial, positive emotional 

attachment between the parent and child.” (In re D.M. (2021) 71 Cal.App.5th 

261, 270.)

This is not to say that a parent’s struggles are never relevant at the 

section 366.26 hearing. “A parent’s struggles may mean that interaction 

between parent and child at least sometimes has a ‘ “negative” effect’ on the 

child.” (Caden C., supra, 11 Cal.5th at p. 637.) Thus, “a parent who gains 

greater understanding of herself and her children’s needs through treatment 

may be in a better position to ensure that her interactions with the children 

have a ‘ “positive” . . . effect’ on them.” (Id. at pp. 637–638.) “[T]he parent’s 

struggles speak to the benefit (or lack thereof) of continuing the relationship 

and are relevant to that extent. And issues such as those leading to 

dependency may also be relevant to the detriment from terminating parental 

rights.” (Id. at p. 638.) There was evidence in the record that the parents’ 

protective issues did have an adverse impact on A.G., but, here, the juvenile 

court did not directly connect its discussion of Mother’s need to gain insight 

into her struggles to the impact of those struggles on A.G. or the parent-child 

bond.

It appears the juvenile court may have been attempting to do so with 

the braid analogy, but, unfortunately, the court did not clearly explain how 
23

the analogy related to the legal questions before it. Thus, it is impossible for 

this court to determine whether the juvenile court applied the correct legal 

standards, whether A.G. would benefit from continuing the relationship with 

Mother and to what extent termination of that relationship would be 

detrimental to her. The court did state, “[t]hose paths have not intertwined 

to the sense where if we were to do adoption, unraveling that braid would be 

harmful or detrimental to [A.G.]” However, it is not clear what “unraveling 

that braid” means in this context, particularly since the court was discussing 

not just the parent-child relationship, but the “intertwined” paths between 

Mother, Father, and A.G. Beyond this one statement, the court did not

directly address the beneficial nature of the relationship between Mother and 

A.G., or the extent to which severing that relationship would be detrimental

to A.G. The court did make a passing reference to the “loving” and 

“supportive” nature of A.G.’s visits with both Mother and Father, but it did 

not directly address how A.G. “feel[s] about, interact[s] with, look[s] to, [and] 

talk[s] about” Mother. (Caden C., supra, 11 Cal.5th at p. 632.)

Moreover, the totality of the juvenile court’s comments, including the 

braid analogy, suggest the court was focused more on whether the Mother, 

Father, and A.G. had a typical familial relationship, and not whether the 

relationship Mother had with A.G. was beneficial to A.G. In examining the 

nature of the parent-child relationship,“courts must remain mindful that 

rarely do ‘[p]arent-child relationships’ conform to an entirely consistent 

pattern.” (Caden C., supra, 11 Cal.5th at p. 632.) “Certainly, it is not 

necessary — even if it were possible — to calibrate a precise ‘quantitative 

measurement of the specific amount of “comfort, nourishment or physical 

care” [the parent] provided during [his or] her weekly visits.’ ” (Ibid.) This is 
24

particularly true where, as here, the parents have only limited, supervised 

time with the child. 

In addition, the juvenile court seemed to compare the parents to A.G.’s 

caregivers, noting that A.G. turned to the caregivers to meet her “specific 

needs for care and support.” “But such evidence does not preclude a finding 

[A.G.] had a significant positive attachment to mother. In proving the 

existence of a beneficial relationship, mother was not required to prove that 

[A.G.]’s attachment to her was [A.G.’s] primary bond.” (In re J.D. (2021) 69 

Cal.App.5th 594, 620.) The question before the court was whether A.G. had a 

beneficial relationship with Mother; “the section 366.26 hearing is decidedly 

not a contest of who would be the better custodial caregiver.” (Caden C., 

supra, 11 Cal.5th at p. 634.) By focusing on Mother’s progress and comparing 

her to the caregivers, it appears that the juvenile court did not adequately 

consider the relevant factors as set forth in Caden C. before terminating 

Mother’s parental rights. 

We note that the juvenile court’s comments may have been, in part, 

influenced by the arguments presented by counsel, which also alluded to 

factors disapproved in Caden C. and failed to adequately address A.G.’s 

emotional attachment to Mother. For example, the Agency argued that the 

second element was not met because Mother was more of a “friendly visitor,”

and that A.G. is bonded to her caregivers, whom she relies on for her daily 

needs. In sum, considering the totality of the juvenile court’s comments on 

the record, we cannot say with certainty that the court applied the correct 

legal standard. The court’s comments seem to be focused primarily on the 

parents’ continued struggles with the issues that led to dependency, a factor 

disapproved in Caden C., and it is not clear from the analogy the court 

employed that it fully considered the nature of the relationship A.G. did have 
25

with Mother. Specifically, we cannot say that the juvenile court adequately

examined how Mother’s continued struggles impacted A.G.’s relationship

with her or whether there was a significant, positive, emotional attachment

between them, such that severing the relationship would outweigh the 

benefits of adoption. (See In re B.D. (2021) 66 Cal.App.5th 1218, 1227–1228, 

1231 [reversing on similar grounds].) 

Finally, we cannot conclude that the juvenile court’s failure to apply 

the correct legal standard was harmless. As a general rule, appellate courts 

apply a harmless error analysis in juvenile dependency proceedings. (Celine 

R., supra, 31 Cal.4th at pp. 59–60 [dependency court order should not be set 

aside unless it is reasonably probable the result would have been more 

favorable to the appealing party but for the error].) Under certain 

circumstances, though, the appellate court will reverse because it cannot 

properly determine whether the error was harmless by virtue of the impact 

upon the record of the order being considered. (See, e.g., In re T.S. (2020) 52 

Cal.App.5th 503, 518; In re Armando L. (2016) 1 Cal.App.5th 606, 620–621.) 

We are faced with such a situation here. We are unable to determine 

from the record before us how the juvenile court would have analyzed the 

second element had it employed the correct legal standard and focused on the 

exception from the perspective of the child. For similar reasons, we are 

unable to determine whether the juvenile court abused its discretion in 

concluding the detriment caused by severing that relationship would not 

outweigh the benefits of adoption to A.G. We will therefore remand so that

the court may conduct the proper analysis in the first instance.6

6 For this reason, we need not and do not decide Mother’s additional 

contention that substantial evidence fails to support the juvenile court’s 
26

II.

The Indian Child Welfare Act

Mother also contends reversal is required because the Agency failed to 

comply with the inquiry requirements under ICWA. We agree and, on 

remand, the Agency shall conduct further inquiry consistent with ICWA.

A. ICWA Inquiries

Father denied any Native American ancestry. 

Mother also initially denied any Native American ancestry during her 

initial interview with the Agency on July 3, 2019. On her Parental 

Notification of Indian Status (ICWA-020) form, Mother reported she may 

have Indian ancestry and identified the Shoshone tribe. At the detention 

hearing on July 9, 2019, the juvenile court inquired of Mother regarding her 

Native American ancestry. Mother disclosed she was adopted and learned 

from her biological sister she may be Shoshone and Aztec,7 but did not know 

if her great-grandparents were registered. Although she stated she did not 

“know too much,” she also stated, “I do know that I am Native American.” 

(Italics added.) She disclosed her biological sister’s full name and that she 

lives in Las Vegas. Mother did not have a telephone number for her sister

and explained she had found her sister “through Facebook” and had 

“messaged her.” The court asked Mother to “maybe . . . get a little more 

finding the parental-benefit exception inapplicable. We also express no 

opinion as to whether Mother can satisfy the second or third elements. 

7 ICWA does not apply to the Aztec tribe as it is not a federally 

recognized Indian tribe. (25 U.S.C. § 1903, subd. (8) [defining “ ‘Indian 

tribe’ ” to mean “any Indian tribe, band, nation, or other organized group or 

community of Indians recognized as eligible for the services provided to 

Indians by the Secretary because of their status as Indians . . .”]; § 224.1, 

subd. (a).)
27

information” on how to contact her sister and “let her know” the Agency 

would be contacting her for information. 

On July 19, 2019, the Agency reported that Mother disclosed she 

possibly had Shoshone ancestry through her deceased biological mother, O.N. 

It noted that Mother had been unable to provide the Agency with any further 

identifying information for her biological parents or any contact information 

for a relative with such information. There is nothing in the record to 

indicate Mother followed up with her sister in Las Vegas through Facebook or 

otherwise, or that the Agency made any attempt to independently obtain 

further information about that sister despite having her full name. The 

Agency contacted Mother again on July 26, 2019. The Agency reported that 

it will continue to follow up with Mother and “any other relatives that are 

available for inquiry.” 

At the jurisdiction and disposition hearing on July 30, 2019, the 

Agency’s counsel informed the juvenile court that Mother’s claim regarding 

Native American ancestry was still be investigated but had not gone far 

because of a lack of information. The Agency acknowledged based on current 

information it had, there was reason to believe A.G. may be an Indian child. 

Based on the Agency’s intention to conduct further investigation,the juvenile 

court again deferred its ICWA finding.

At the contested jurisdiction and disposition hearing in September 

2019, the Agency requested the juvenile court to find that there was no 

reason to know A.G. was an Indian child. Counsel explained Mother had 

indicated she was adopted when she was 18 months old, her biological 

mother “could have possibly had Shoshone heritage,” and Mother was 

ordered to provide further information to the social worker. Counsel 

contended: “At this point that’s all of the information that the Agency has 
28

been provided with is that there is some possibility of some distant Shoshone 

heritage, but that is not enough to know this child is an Indian child. There 

is no evidence that the mother is a member of that tribe, that she received 

tribal benefits, or anything else.” The juvenile court asked if there was any 

objection to the court making the requested finding. Although the reporter’s 

transcript did not record any audible response, the minute order states there 

was no objection. Accordingly, the court found there was no reason to know 

that A.G. is an Indian child. 

B. Legal Principles

“ICWA is a federal law giving Indian tribes concurrent jurisdiction over 

state court child custody proceedings that involve Indian children living off of 

a reservation. (25 U.S.C. § 1911(b)-(c); Mississippi [Band of Choctaw 

Indians] v. Holyfield (1989) 490 U.S. 30, 36 [(Choctaw Indians)].) Congress 

enacted ICWA to further the federal policy ‘ “that, where possible, an Indian 

child should remain in the Indian community[.]” ’ ([Choctaw Indians, at 

p. 37.])” (In re W.B. (2012) 55 Cal.4th 30, 48, fn. omitted.) Thus, in any 

“proceeding for the foster care placement of, or termination of parental rights 

to, an Indian child,” any parent or Indian custodian and the Indian child’s 

tribe have the right to intervene (25 U.S.C. § 1911, subd. (c)), and may 

petition the court to invalidate any foster care placement of an Indian child 

made in violation of the ICWA (25 U.S.C. § 1914; see also § 224, subd. (e)).

The juvenile court and county child welfare department “have an 

affirmative and continuing duty to inquire whether a child,” who is the 

subject of a juvenile dependency petition, “is or may be an Indian child.” 

(§ 224.2, subd. (a); see In re Isaiah W. (2016) 1 Cal.5th 1, 9; Cal. Rules of 

Court, rule 5.481(a).) “This continuing duty can be divided into three phases: 
29

the initial duty to inquire, the duty of further inquiry, and the duty to provide 

formal ICWA notice.” (In re D.F. (2020) 55 Cal.App.5th 558, 566.) 

“The duty to inquire whether a child is an Indian child begins with ‘the 

initial contact,’ i.e., when the referring party reports child abuse or neglect 

that jumpstarts [the Agency’s] investigation. (§ 224.2, subd. (a).) [The 

Agency’s] initial duty to inquire includes asking the child, parents, legal 

guardian, extended family members, and others who have an interest in the 

child whether the child is, or may be, an Indian child. (Id., subd. (b).) 

Similarly, the juvenile court must inquire at each parent’s first appearance 

whether he or she ‘knows or has reason to know that the child is an Indian 

child.’ (Id., subd. (c).) The juvenile court must also require each parent to 

complete Judicial Council form ICWA-020, Parental Notification of Indian 

Status. (Cal. Rules of Court, rule 5.481(a)(2)(C).) The parties are instructed 

to inform the court ‘if they subsequently receive information that provides 

reason to know the child is an Indian child.’ (25 C.F.R. § 23.107(a) (2020); 

§ 224.2, subd. (c).)” (In re D.F., supra, 55 Cal.App.5th at p. 566, fn. omitted.) 

Relevant here, if the juvenile court or social worker “has reason to 

believe[8] that an Indian child is involved in a proceeding, but does not have 

sufficient information to determine that there is reason to know[9] that the 

8 “There is reason to believe a child involved in a proceeding is an Indian 

child whenever the court, social worker, or probation officer 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. Information suggesting 

membership or eligibility for membership includes, but is not limited to, 

information that indicates, but does not establish, the existence of one or 

more of the grounds for reason to know enumerated” in section 224.2, 

subdivision (d)(1)-(6). (§ 224.2, subd. (e)(1).)

9 “There is reason to know a child involved in a proceeding is an Indian 

child under any of the following circumstances: [¶] (1) A person having an 
30

child is an Indian child, the court [or] social worker . . . shall make further 

inquiry regarding the possible Indian status of the child, and shall make that 

inquiry as soon as practicable.” (§ 224.2, subd. (e), italics added.) When 

there is reason to believe the child is an Indian child, the further inquiry 

mandated by section 224.2, subdivision (e), “includes, but is not limited to”: 

(1) interviewing the parents, Indian custodian, and extended family 

members10, to gather biographical information regarding the child; (2) 

contacting the Bureau of Indian Affairs and the State Department of Social 

Services for assistance in identifying tribes in which the child may be a 

member or eligible for membership; and (3) contacting the tribe and any 

other person who may reasonably be expected to have information regarding 

the child’s membership, citizenship status, or eligibility for membership. 

(§ 224.2, subd. (e)(2)(A)-(C).)

C. Analysis

Here, the Agency agreed there was reason to believe A.G. may be an 

Indian child, based on Mother’s claim she had Native American ancestry,

interest in the child, including the child, an officer of the court, a tribe, an 

Indian organization, a public or private agency, or a member of the child’s 

extended family informs the court that the child is an Indian child. [¶] (2) The 

residence or domicile of the child, the child’s parents, or Indian custodian is 

on a reservation or in an Alaska Native village. [¶] (3) Any participant in the 

proceeding, officer of the court, Indian tribe, Indian organization, or agency 

informs the court that it has discovered information indicating that the child 

is an Indian child. [¶] (4) The child who is the subject of the proceeding gives 

the court reason to know that the child is an Indian child. [¶] (5) The court is 

informed that the child is or has been a ward of a tribal court. [¶] (6) The 

court is informed that either parent or the child possess an identification card 

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

10 “[E]xtended family members” are defined to include a child’s 

grandparents, aunt, and uncle. (§ 224.2, subd. (b); 25 U.S.C. § 1903(2).) 
31

possibly from the Shoshone tribe. That fact triggered the Agency’s

mandatory duty to make further inquiry regarding A.G.’s possible Indian 

status (§ 224.2, subd. (e)), which further inquiry includes interviewing 

“extended family members” and contacting the Bureau of Indian Affairs and 

the State Department of Social Services for assistance in identifying tribes in 

which the child may be a member or eligible for membership (§ 224.2, subd. 

(e)(2)(A)-(C)). 

At the July 30, 2019 jurisdiction and disposition hearing, the Agency 

acknowledged its duty to further investigate Mother’s claim of Native 

American ancestry, including following up with “any other relatives that are 

available for inquiry,” and stated that it intended to conduct further 

investigation. However, from our review of the record, it appears the Agency 

did not take any further action between July 30, 2019 and September 3, 2019, 

when it declared there was “no evidence that the mother is a member of [the 

Shoshone] tribe” and asked the juvenile court to find there was no reason to 

know A.G. was an Indian child. 

Although the Agency had contact with several relatives during the 

proceedings, there is no indication the Agency inquired with these relatives 

about A.G.’s possible Indian ancestry. For example, the Agency spoke with 

adoptive maternal grandfather on several occasions in July 2019, August 

2020, and December 2020. Adoptive maternal grandfather informed the 

Agency that he and his wife adopted Mother when she was 18 months old 

after her biological parents died and her biological grandmother was unable 

to care for her. The Agency was also in regular contact with paternal uncle 

and paternal aunt with whom A.G. had been placed since July 5, 2019, but 

neither were asked about A.G.’s possible Indian ancestry. Moreover, 

although the Agency had the full names of Mother’s biological parents and 
32

biological grandmother, it never made any attempts to contact the Bureau of 

Indian Affairs to determine whether any of these maternal relatives were 

registered or members in any of the 12 federally recognized Shoshone tribes. 

Because we conclude the Agency did not comply with its obligations 

under ICWA, we conclude the juvenile court’s ICWA finding is not supported 

by substantial evidence and reverse on this additional ground. On remand, 

the Agency shall conduct further inquiry as mandated by section 224.2, 

subdivision (e). 

DISPOSITION

The order of the juvenile court is reversed and remanded for further 

proceedings consistent with this opinion. The remittitur shall issue on or 

after 60 days after the filing date of this opinion unless the parties stipulate 

in writing to the earlier issuance of the remittitur. (Cal. Rules of Court, 

rules 8.264(b)(1), 8.272(a), (c)(1).) At the new section 366.26 hearing, the 

parties may consider any circumstances that have arisen since the juvenile 

court’s September 2021 order. 

DO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

HALLER, J.