Filed 11/3/20 In re A.G. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

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

has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

IN RE A.G. et al.,

Persons Coming Under The 

Juvenile Court Law.

_____________________________

SANTA BARBARA COUNTY 

DEPARTMENT OF SOCIAL

SERVICES,

 Plaintiff and Respondent,

v.

R.G., et al.,

 Defendants and Appellants.

2d Juv. No. B305272

(Super. Ct. Nos. 1506280-A, 

1506281-A, 1506282-A, 

1506283-A, 19JV00371)

(Santa Barbara County)

R.G. (father) and A.F. (mother) appeal the juvenile court’s 

order terminating their parental rights to their minor children 

A.G., D.G., and G.G. with a permanent plan of adoption. (Welf. & 
2

Inst. Code,1 § 366.26.) Mother also appeals the order terminating 

her parental rights to her minor children S.C. and D.R. with

adoption as the permanent plan. Mother and father contend the 

court erred in denying a contested hearing to determine whether 

the beneficial parent-child relationship exception to adoption (id., 

subd. (c)(1)(B)) applied. They also contend the court erred in 

finding that the Indian Child Welfare Act (ICWA) (25 U.S.C.A.

§ 1901, et seq.) did not apply. 

We agree that the court abused its discretion in denying 

mother a contested section 366.26 hearing. “When, as here, a 

parent has consistently and regularly visited his or her children 

and at the selection and implementation hearing, offers 

testimony regarding the quality of their parent-child relationship 

and possible resulting detriment that would be caused by its 

termination, a juvenile court abuses its discretion if it denies a 

contested hearing on the beneficial parent-child relationship 

exception.” (In re Grace P. (2017) 8 Cal.App.5th 605, 608-609 

(Grace P.).) Accordingly, we reverse and remand for the court to 

conduct such a hearing. Otherwise, we affirm.

FACTS AND PROCEDURAL HISTORY

Dependency Petitions; Detention

Appellants are the natural parents of A.G. (born in July 

2014), D.G. (born in July 2014), and G.G. (born in August 2017). 

1 All Statutory references are to the Welfare and Institution

Code.
3

Mother is also the natural parent of L.E.2 (born in November 

2005), S.C. (born in May 2011), and D.R. (born in January 2013). 

In October 2016, Santa Barbara County Department of 

Social Services, Child Welfare Services (DSS) detained A.G., 

D.G., L.E., S.C., and D.R. based on allegations that mother and 

father were using drugs and engaging in criminal activity and 

domestic violence. At the six-month status review hearing, the 

children were returned to mother and father with family 

maintenance services. In December 2017, the matter was 

dismissed and the children were returned to mother and father’s 

legal and physical custody. 

In September 2019, DSS filed another dependency petition 

as to all six children. The petition alleged among other things 

that on August 25, 2019 the children witnessed mother, who 

suffers from bipolar disorder, attempt to commit suicide by 

ingesting various pills. Father was aware of the suicide attempt 

but “did not seek out appropriate medical attention for the

mother, resulting in 13-year-old [L.E.] having to reach out to 

others so that her mother would receive li[f]e-saving medical 

attention.” Mother admitted using methamphetamine. Both 

parents have extensive histories of domestic violence, child 

welfare referrals, and criminal activity including possession and 

being under the influence of a controlled substance. In addition, 

appellants each previously had their parental rights terminated 

to other children (A.R., C.R., and Al.G.) who were subsequently 

adopted. 

2 At the conclusion of the section 366.26 hearing, the court 

selected legal guardianship as the permanent plan for L.E. 

Mother does not challenge this aspect of the court’s order.
4

L.E. was placed with her maternal uncle in Goleta, S.C. 

and D.R. were placed with D.R.’s paternal aunt in Lompoc, and 

D.G., A.G. and G.G. were placed with their paternal uncle and his 

wife in Lompoc. 

At the detention hearing, the court stated, “I have to ask in 

every case whether a child is or may be a Native American Indian 

child. There have been prior cases, but I have to ask each and 

every time. I’ll ask you at this time if you have any Native 

American Indian heritage and, if so, what tribe.” Father replied 

that he had no such heritage. Mother replied “I believe so” and 

identified the tribe as “Chumash.” The court asked mother “[i]s 

that the Coastal Chumash, or is that the Federally recognized 

tribe, which is the Santa Ynez Band of Chumash?” Mother 

replied, “Coastal.” The court then added, “We went through this 

last time and the tribe was found not to be Federally recognized 

and not Indian children, but still we have to notice the Bureau of 

Indian Affairs.” 

At the conclusion of the hearing, mother and father 

submitted on temporary detention, the children were ordered 

detained in out-of-home care, and the matter was set for a 

jurisdiction hearing. 

Jurisdiction and Disposition

In its jurisdiction report, DSS recommended that the court 

find the allegations of the dependency petition true and that the 

children remain in out-of-home care pending disposition. DSS

also asked the court to find that ICWA did not apply to the 

children. DSS noted that S.C. and D.R.’s fathers had both denied 

Native American heritage. DSS further noted that in the prior 

dependency case, it had received a letter from the Santa Ynez 

Band of Chumash Indians indicating that A.G., D.G., L.E., S.C., 
5

and D.R. were neither members of the tribe nor eligible for 

enrollment. The Coastal Chumash tribe, of which mother 

claimed heritage, is not a federally recognized Indian tribe. 

At the jurisdiction hearing, the court granted DSS’s request 

for judicial notice of the records in the prior dependency 

proceedings and found that ICWA did not apply as to all the 

children except S.C., for whom such a finding was still pending. 

In its report for the disposition hearing, DSS recommended 

that the children be declared dependents of the juvenile court and 

that both mother and father be bypassed for reunification

services pursuant to section 361.5, subdivisions (b)(11) and 

(b)(13).3 At the conclusion of the hearing, counsel for DSS stated 

that the parties had reached a settlement whereby mother and 

father would withdraw their contest to DSS’s recommendations 

in exchange for DSS’s agreement that they would each receive 

3 Section 361.5, subdivision (b)(11) provides that

reunification services need not be provided when the court finds 

by clear and convincing evidence “[t]hat the parental rights of a 

parent over any sibling or half-sibling of the child had been

permanently severed, . . . and that, according to the findings of 

the court, this parent has not subsequently made a reasonable 

effort to treat the problems that led to removal of the sibling or 

half sibling of that child from the parent.” Subdivision (b)(13) 

states that reunification services may be bypassed where parent

“has a history of extensive, abusive, and chronic use of drugs or 

alcohol and has resisted prior court-ordered treatment for this 

problem during a three-year period immediately prior to the 

filing of the petition that brought the child to the court’s 

attention, or has failed or refused to comply with a program of 

drug or alcohol treatment described in the case plan required by 

Section 358.1 on at least two prior occasions, even though the 

programs identified were available and accessible.” 
6

three hours of weekly supervised visits with the children. The 

court entered orders accordingly and set the matter for a section 

366.26 hearing. 

Section 366.26 Hearing; Offer of Proof

In its report for the section 366.26 hearing, DSS

recommended that parental rights be terminated as to all five of 

mother and father’s children with a permanent plan of adoption

for all of the children. Mother and father both requested that the 

matter be set for a contested hearing. At DSS’s request, the court 

ordered mother and father to file offers of proof for a contested 

hearing. The court also found that ICWA did not apply as to S.C. 

Prior to the section 366.26 hearing, mother filed an “offer of 

proof to outline, in summary form, some of the evidence that will 

be presented to the Court on the specific issue of whether there 

exists a ‘beneficial relationship[]’ between mother and children 

pursuant to . . . [s]ection 366.26(c)(1)(B)(i).” Mother offered she 

would give testimony establishing among other things that (1) 

“[m]other is consistent with visitations and comes prepared and 

is engaged throughout the visits”; (2) “[m]other has been clean 

and sober since October 4, 20[19], is attending substance abuse 

treatment at Lompoc Recovery Center, and meets with a Sponsor 

on a regular basis”; (3) “[m]other is prepared and lovingly 

interacts with all her children during visits”; (4) “[m]other and 

[the] children have open communication and during visits talk 

about school and daily life”; (5) “[m]other is able to assist all the 

children when they are in need of assistance”; (6) “[d]uring visits 

the children look to mother to meet their emotional needs” and 

that “[m]other can provide numerous examples of when the 

children look to [her] for their emotion[al] needs[,] i.e., during 

sibling disagreements”; (7) “[G.G.] runs to mother during visits” 
7

and “looks to his mother when needing to be soothed”; (8) “[t]he 

children reach out to their parents for affection at the beginning 

and end of the visits”; and that (9) “[d]espite having only hours of 

visitation a month the children continue to look to mother for 

emotional and physical support.” 

Mother also offered that she would elicit testimony from 

the social worker to establish that “during a visit on November 7, 

2019, when asked about what [D.R.] and [S.C.] though about the 

plan to stay in their current placement[,] they became sad and 

asked when they would get to be with their mom. [S.C.] 

expressed further sadness about the plan meaning she cannot bet 

to see their mother every day.” Mother also submitted 

documentary evidence of her ongoing participation in drug 

treatment and parenting classes. She went on to assert that her 

offer of proof was “sufficient to justifying a full evidentiary 

hearing per the standard articulated in Grace P.” Father did not 

file an offer of proof.

At the hearing, counsel for DSS conceded that mother had 

maintained regular visitation with children. Counsel asserted, 

however, that mother’s proffered evidence “does not rise to the 

level to substantiate her burden and . . . does not outweigh the 

benefit of permanency for the children to be placed in adoption.” 

Counsel also claimed that mother’s offer of proof “does not 

describe any evidence that is different or in addition to what is 

already set forth in the social worker’s report.” Counsel added 

“there’s nothing to indicate that what will be shown will 

distinguish [mother’s] interaction with her children from any 

other caring, loving adult to support a finding that this specific 

relationship is a beneficial relationship to the children, that that 
8

warrants delaying permanency for the children who are in 

adoptive homes.” 

Mother’s attorney countered “there’s nothing in the reports 

that talks about any other interactions with her children and 

then running to this other person. It’s specifically to the mother. 

I can’t argue in the negative, something that doesn’t appear in 

the reports.” The court replied: “That would not be the standard. 

Even if they ran to no one else and only ran to the mother, is that 

enough to show beneficial relationship? Based upon the offer of 

proof, it’s not specific enough. The request for hearing is denied, 

as the offer of proof[] I find to be insufficient. There’s not enough 

that’s been demonstrated what specific evidence you would intent 

to show to justify having the hearing.” 

Father’s counsel acknowledged that no offer of proof was 

filed on father’s behalf and added, “I’m not arguing whether or 

not we would have been able to provide an offer of proof.” After 

noting father’s ongoing efforts to correct the issues that led to the 

children’s removal, counsel stated “the reason I didn’t provide an 

offer of proof to the Court is the very positive things that he’s 

been doing don’t address any of the particular factors in the 

exceptions [to adoption].” The court replied: “[T]he preference at 

this stage is adoption, unless there’s an exception and that 

exception has to be clearly and strongly demonstrated to be must 

more than the legal preference for adoption. There’s no offer of

proof that was made by the father. I assume you can’t meet it. 

Mother’s I find is insufficient.” The court proceeded to terminate 

parental rights to A.G., D.G., G.G., S.C., and D.R. with a 

permanent plan of adoption. L.E. was placed in a legal 

guardianship. 
9

DISCUSSION

Mother’s Offer of Proof for Contested Hearing

Mother contends the juvenile court abused its discretion

and violated her due process rights by refusing to hold a 

contested section 366.26 hearing to determine whether the 

beneficial parent-child relationship exception to adoption 

applied. She claims that her offer of proof was sufficient to 

warrant such a hearing because it set forth evidence relevant to 

her claim that the exception applied. We agree.

“‘The selection and implementation hearing under section 

366.26 takes place after the juvenile court finds that the parents 

are unfit and the child cannot be returned to them.’ [Citation.] 

Section 366.26 governs termination of parental rights. 

Subdivision (b) of this section states: ‘At the hearing, . . . the 

court . . . shall review the report [required by statute], shall 

indicate that the court has read and considered it, shall receive 

other evidence that the parties may present, and then shall make 

findings and orders.’ [Citation.]” (Grace P., supra, 8 Cal.App.5th 

at p. 611.)

“If the parents have failed to reunify and the court has 

found the child likely to be adopted, the burden shifts to the 

parents to show exceptional circumstances exist such that 

termination would be detrimental to the child. [Citation.] 

Parents can request a contested hearing on this issue to present 

evidence supporting their claim that an exception to termination 

of parental rights exists.” (Grace P., supra, 8 Cal.App.5th at 

p. 611.) 

Here, mother sought a contested hearing to present 

evidence that the beneficial parent-child relationship exception to 

adoption applied. That exception provides that the juvenile court 
10

shall not terminate parental rights where it “finds a compelling 

reason for determining that termination would be detrimental to 

the child [because] [¶] (i) The parents have maintained regular 

visitation and contact with the child and the child would benefit 

from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) 

“A parent has a right to due process at a section 366.26

hearing resulting in the termination of parental rights, which 

includes a meaningful opportunity to be heard, present evidence, 

and confront witnesses. . . . Since due process does not authorize 

a parent ‘to introduce irrelevant evidence, due process does not 

require a court to hold a contested hearing if it is not convinced 

the parent will present relevant evidence on the issue he or she 

seeks to contest.’ [Citation.] ‘The trial court can therefore 

exercise its power to request an offer of proof to clearly identify 

the contested issue(s) so it can determine whether a parent’s 

representation is sufficient to warrant a hearing involving 

presentation of evidence and confrontation and cross-examination 

of witnesses.’ [Citation.] The parent’s offer of proof ‘must be 

specific, setting forth the actual evidence to be produced, not 

merely the facts or issues to be addressed and argued.’ 

[Citation.]” (Grace P., supra, 8 Cal.App.5th at p. 612.) If the 

parent’s offer of proof is sufficient, the juvenile court’s failure to 

hold a contested hearing amounts to an abuse of discretion. (Id. 

at pp. 611, 614-615.)

“Application of the beneficial parent-child relationship 

exception consists of a two-prong analysis. [Citation.] The first 

prong inquires whether there has been regular visitation and 

contact between the parent and child. [Citation.] The second 

asks whether there is a sufficiently strong bond between the 

parent and child that the child would suffer detriment from its 
11

termination. [Citation.] [¶] The first prong is quantitative and 

relatively straightforward, asking whether visitation occurred 

regularly and often. . . . [¶] In contrast, the second prong 

involves a qualitative, more nuanced analysis, and cannot be 

assessed by merely looking at whether an event, i.e. visitation, 

occurred. Rather, the second prong requires a parent to prove 

that the bond between the parent and child is sufficiently strong 

that the child would suffer detriment from its termination. 

[Citation.] In applying this exception, the court must take into 

account numerous variables, including but not limited to (1) the 

age of the child, (2) the portion of the child’s life spent in the 

parent’s custody, (3) the ‘“positive”’ or ‘“negative”’ effect of 

interaction between parent and child, and (4) the child’s unique 

needs. [Citation.]” (Grace P., supra, 8 Cal.App.5th at pp. 612-

613.) “The application of the beneficial parent relationship 

exception requires a robust individualized inquiry given that 

‘[p]arent-child relationships do not necessarily conform to a 

particular pattern,’ and no single factor—such as supervised 

visitation or lack of day-to-day contact with a noncustodial 

parent—is dispositive. [Citations.]” (Id. at p. 613.)

Here, it is undisputed that mother established the first 

prong of the beneficial parent-child relationship exception by 

maintaining regular visitation with the children. With regard to 

the second prong, mother offered to testify among other things 

that “[d]uring visits the children look to [her] to meet their 

emotional needs” and that she “can provide numerous examples 

of when the children look to [her] for their emotion[al] needs[,] 

i.e., during sibling disagreements.” Mother also offered to testify 

that G.G. “runs to mother during visits” and “looks to his mother 

when needing to be soothed, ” that “[t]he children reach out to 
12

their parents for affection at the beginning and end of the visits,”

and that “[d]espite having only hours of visitation a month the 

children continue to look to mother for emotional and physical 

support.” Mother further offered she would elicit testimony from 

the social worker that during a visit on November 7, 2019, D.R. 

and S.C. expressed sadness when asked about the plan to stay in 

their placement “and asked when they would get to be with their 

mom.” 

The juvenile court nevertheless found that mother’s offer of 

proof was insufficient and accordingly refused to hold a contested 

section 366.26 hearing. In doing so, the court violated mother’s 

due process rights and thus abused its discretion.

Grace P., supra, 8 Cal.App.5th 605, is on point. The father 

in that case, like mother here, made an offer of proof regarding 

the beneficial parent-child relationship exception to adoption. As 

here, it was undisputed that the father had maintained regular 

visitation with his children. “As to the second prong, Father 

offered his testimony about the positive quality of his visitation, 

how he parented all three children during visits, and how the 

children considered him to be a father figure. Father also offered 

Grace’s testimony regarding how she enjoyed visits with Father, 

saw Father as a parent, and would be sad if visitation with 

Father ended. The juvenile court opined this offer of proof was 

not sufficient to warrant a contested hearing.” (Id. at p. 614.)

The court of appeal reversed. After recognizing that 

father’s offer of proof merely had to identify evidence that was 

relevant to his claim that the beneficial-child relationship 

exception applied, the court of appeal reasoned that “since Father 

satisfied the first prong [of the exception] in the case at bar, his 

proffered evidence was consequential to and probative of the 
13

issue of his relationship with the children and the detriment they 

would suffer by its severance. . . . [T]his qualitative inquiry 

regarding the nature of the relationship between the parent and 

child cannot be as directly and summarily assessed as the first 

prong regarding contact. The second prong requires the court’s 

careful assessment of the child’s relationship with the parent. 

Because this is an individualized inquiry and parenting style and

relationships differ greatly between families, the juvenile court 

must take caution before denying a contested hearing on this 

issue when a parent has clearly maintained regular contact with 

the child.” (Grace P., supra, 8 Cal.App.5th at pp. 614-615.) 

In reaching its conclusion, the court of appeal also rejected 

the Los Angeles County Department of Child and Family 

Service’s [DCFS] arguments that the father’s offer of proof was 

insufficient because (1) “the proposed testimony would not 

provide new information to the court since DCFS’s reports 

documented Father’s interactions with the children”; and (2)

“based on its own reports, Father was incapable of proving a 

sufficiently strong relationship with the children to satisfy the 

exception.” (Grace P., supra, 8 Cal.App.5th at p. 615.) The court 

reasoned that “DCFS’s arguments are based entirely on the 

evidence it offered at the selection and implementation hearing. 

Father’s proposed evidence, which purported to address the 

existence of a beneficial parent-child relationship, was not 

admitted. Without such evidence, we cannot conclude that 

Father was incapable of proving the exception. Without the 

evidence, we cannot conclude that Father’s and Grace’s testimony 

would be duplicative of the DCFS reports. On the contrary, the 

offer of proof indicated that Father and Grace would expound on 
14

the details of the relationship that has been positively (though 

concisely) documented by DCFS.” (Id. at p. 615.)

Here, DSS makes similarly-unavailing arguments in

asserting that mother’s offer of proof was insufficient to warrant 

a contested hearing. Moreover, DSS ignores Grace P., other than 

to cite it for the proposition that the juvenile court’s order 

denying such a hearing is reviewed for an abuse of discretion. 

As Grace P. makes clear, the juvenile court abuses its discretion 

in denying a parent’s request for a contested hearing where, as 

here, the parent files an offer of proof that sets forth “‘relevant 

evidence on the issue he or she seeks to contest.’ [Citation.]” 

(Grace P., supra, 8 Cal.App.5th at p. 612.) Mother’s offer of proof 

plainly set forth such evidence. The juvenile court erred in

requiring mother to identify evidence sufficient to establish that 

the beneficial parent-child relationship exception applied. 

Mother referred the juvenile court to Grace P. and the court was 

bound to follow that decision. (Auto Equity Sales, Inc. v. Superior 

Court (1962) 57 Cal.2d 450, 455.)

To the extent DSS relies on cases holding that the juvenile 

court did not abuse its discretion in finding that the exception did 

not apply (e.g., In re Aaliyah R. (2006) 136 Cal.App.4th 437), 

those cases are inapposite. Here, as in Grace P., “[mother’s] 

proposed evidence, which purported to address the existence of a 

beneficial parent-child relationship, was not admitted. Without 

such evidence, we cannot conclude that [mother] was incapable of 

proving the exception.” (Grace P., supra., 8 Cal.App.5th at 

p. 615.) 

Moreover, mother’s proffered evidence was not duplicative 

of the evidence contained in the relevant reports. The section 

366.26 report purports to contain information regarding each 
15

child’s statements regarding their placements and prospective 

adoptions. L.E., however, was the only child asked whether she 

wanted to continue living with mother and she stated that she 

did. Mother’s parental rights to L.E. were not terminated, and 

L.E. was placed in a legal guardianship. As to the other children, 

the report contains no statements regarding their relationships 

with mother. With regard to eight-year-old S.C. and seven-yearold D.R., the report merely states that the girls “enjoy their 

placement” and “rated their placement ‘20’ out of a scale of one to 

ten.” As mother stated in her offer of proof, she intended to offer 

evidence that both children did not want to end their relationship 

with mother, considered her to be their “mom,” and wanted to be 

with her. 

In light of this proffered evidence, mother had a due 

process right to a contested section 366.26 hearing to address the 

beneficial parent-child relationship exception to adoption. (Grace 

P., supra, 8 Cal.App.5th at pp. 608-609.) The juvenile court thus 

abused its discretion in refusing to hold such a hearing. (Ibid.) 

Accordingly, we reverse the order terminating parents rights and 

remand for further proceedings.4

4 For purposes of remand, “[w]e note even when a parent 

makes a prima facie case and obtains a contested selection and 

implementation hearing under section 366.26, the juvenile court 

continues to exercise its discretion to limit the hearing to 

relevant evidence. [Citations.] In addition, that a parent 

satisfies a prima facie showing does not guarantee the court 

finding the existence of the exception: the court may still find 

that the parent-child relationship is not significant enough to 

‘outweigh the well-being the child would gain in a permanent 

home with new, adoptive parents.’ [Citation.] The contested 
16

Because we reverse the termination of parental rights as to 

mother, we must also reverse the termination of parental rights 

as to father. (Cal. Rules of Court, rule 5.725(a)(1), (2); In re Mary 

G. (2007) 151 Cal.App.4th 184, 208.) To the extent father argues 

that the juvenile court abused its discretion in denying him a 

contested section 366.26 hearing, the claim is forfeited because he 

did not file an offer of proof. Although father asserts that an offer 

of proof “would have been futile” and that evidence of his ongoing 

efforts to achieve sobriety was relevant to the determination 

whether the children would benefit from continuing their 

relationship with him, that evidence was plainly insufficient by 

itself to demonstrate a prima facie showing for a contested 

hearing.

ICWA

Mother and father also contend the juvenile court erred in 

finding that ICWA did not apply. We conclude otherwise.

“ICWA protects the interests of Indian children and 

promotes the stability and security of Indian tribes and families 

by establishing certain minimum federal standards in juvenile 

dependency cases. [Citations.] ICWA defines an Indian child as 

any unmarried person who is under age 18 and is either: (1) a 

member of an Indian tribe, or (2) eligible for membership in an 

Indian tribe and the biological child of a member of an Indian 

tribe. [Citation.]” (In re Shane G. (2008) 166 Cal.App.4th 1532, 

1538 (Shane G.).) “When a court ‘knows or has reason to know 

that an Indian child is involved’ in a juvenile dependency 

hearing solely provides the parent the opportunity to make his or 

her best case regarding the existence of a beneficial parental 

relationship that has been fostered by the continued and regular 

contact.” (Grace P., supra, 8 Cal.App.5th at p. 615.)
17

proceeding, a duty arises under ICWA to give the Indian child’s 

tribe notice of the pending proceedings and its right to intervene. 

[Citations.] Alternatively, if there is insufficient reason to believe 

a child is an Indian child, notice need not be given. [Citations.]” 

(Ibid.)

Circumstances that may provide knowledge or reason to 

know a child is an Indian child include where “[a] person having 

an interest in the child . . . informs the court or the county 

welfare agency . . . or provides information suggesting that the 

child is an Indian child . . . .” (Cal. Rules of Court, former rule 

5.664(d)(4)(A); Shane G., supra, 166 Cal.App.4th at p. 1538.) “If 

. . . circumstances indicate a child may be an Indian child, the 

social worker must further inquire regarding the child’s possible 

Indian status. Further inquiry includes interviewing the 

parents, Indian custodian, extended family members or any other 

person who can reasonably be expected to have information

concerning the child's membership status or eligibility. 

[Citation.] If the inquiry leads the social worker or the court to 

know or have reason to know an Indian child is involved, the 

social worker must provide notice. [Citations.]” (Id. at p. 1539.)

Here, father disclaimed any Indian heritage. Mother said 

she “believe[d]” she was descended from the Coastal Chumash

tribe, which is not federally recognized; the only federallyrecognized Chumash tribe is the Santa Ynez Band of Chumash. 

The court noted “[w]e went through this last time [i.e., in the 

prior dependency proceedings] and the tribe was found not to be 

Federally recognized and not Indian children, but still we have to 

notice the Bureau of Indian Affairs.” At the jurisdiction hearing, 

the court granted DSS’s request for judicial notice of the records 

in the prior proceedings—which included the Santa Ynez Band of 
18

Chumash’s response stating that A.G., D.G., L.E., S.C., and D.R.

were neither members of the tribe nor eligible for membership—

and found that ICWA did not apply as to all the children except 

S.C., for whom such a finding was still pending due to 

information regarding her natural father’s possible Indian 

heritage. At the section 366.26, the court found that ICWA did 

not apply to S.C. 

The juvenile court did not err in finding that ICWA did not 

apply. In making its finding, the court took judicial notice of the 

record of the prior dependency proceedings in 2017, in which the 

only federally-recognized Chumash tribe (the Santa Ynez Band of 

Chumash) sent a response stating that the children were neither 

members of the tribe nor eligible for membership.5 In light of 

this evidence, the court could reasonably find that the ICWA 

noticing requirements did not apply. 

In any event, DSS’s investigation into mother’s claimed 

Chumash heritage continued after the court issued its ruling and 

notices were sent to the Santa Ynez Band of Chumash and the 

BIA. On November 1, 2019, the social worker contacted the 

maternal grandmother, through whom mother claimed her 

Coastal Chumash heritage. The maternal grandmother said “she 

is in the process of getting a roll number and researching family 

ancestry” and that “she could not contribute any more 

information other than what [mother] provided regarding Native 

5 The response does not refer to G.G., who was less than a 

month old at the time and was in mother’s custody. Because 

G.G.’s siblings are not members nor eligible for membership in 

the Santa Ynez Band of Chumash tribe, the court could 

reasonably make the same finding as to G.G. (See Shane G., 

supra, 166 Cal.App.4th at p. 1539, fn. 4.)
19

American ancestry.” In February 2020, the Santa Ynez Band of 

Chumash and the BIA were sent ICWA-030 notices by certified 

mail regarding the section 366.26 hearing. It does not appear 

from the record that any response was received as to either 

notice.

“[O]ne of the primary purposes of giving notice to the tribe 

is to enable the tribe to determine whether the child involved in 

the proceedings is an Indian child.” (In re Desiree F. (2000) 83 

Cal.App.4th 460, 470.) “Each Indian tribe has sole authority to 

determine its membership criteria, and to decide who meets those 

criteria. [Citation.] Formal membership requirements differ 

from tribe to tribe, as does each tribe’s method of keeping track of 

its own membership.” (In re Santos Y. (2001) 92 Cal.App.4th

1274, 1300.) Here, DSS sent ICWA notices to the Santa Ynez 

Band of Chumash and the BIA. Neither the tribe nor the BIA 

responded. Moreover, it is undisputed that the Santa Ynez Band 

of Chumash—the only federally-recognized tribe through whom 

the children might have Indian heritage—sent a response in the 

prior dependency proceedings indicating that the children were 

neither members of the tribe nor eligible for membership. 

Accordingly, any error in the court having ruled that ICWA did 

not apply prior to the ICWA notices being sent was harmless. 

(See In re I.W. (2009) 180 Cal.App.4th 1517, 1530 [“ A deficiency 

in notice may be harmless when it can be said that, if proper 

notice had been given, the child would not have been found to be 

an Indian child and the ICWA would not have applied”], 

disapproved on another ground in Conservatorship of O.B. (2020) 

9 Cal.5th 989,1010, fn 7; see also Shane G., supra, 166 

Cal.App.4th at p. 1539 [when agency performed reasonable 

inquiry and found no reason to believe minor was an Indian child, 
20

“reversing the judgment . . . for the sole purpose of sending notice 

to the tribe would serve only to delay permanency . . . rather than 

further the important goals of and ensure the procedural 

safeguards intended by ICWA”].)

DISPOSITION

The juvenile court’s order terminating parental rights is 

reversed. The matter is remanded for the juvenile court to 

conduct a contested section 366.26 hearing as to mother and 

determine whether the beneficial parent-child relationship 

exception precludes the termination of parental rights as 

contemplated in section 366.26, subdivision (c)(1)(B)(i). 

NOT TO BE PUBLISHED.

PERREN, J.

I concur:

TANGEMAN, J.
YEGAN, J., Dissenting: 

 I respectfully dissent. When a biological parent fails to 

reunify and the child is likely to be adopted, the parent has a 

heavy burden of showing the parent-child relationship outweighs 

the benefits of adoption. (In re Autumn H. (1994) 27 Cal.App.4th 

567, 575.) The trial court, in the exercise of its sound discretion, 

reasonably concluded that mother’s offer of proof, which required 

a two-prong showing, was insufficient to warrant a contested 

hearing. 

Prong one required that the offer of proof show that mother 

maintained regular contact or visitation with the child. (In re 

Autumn H., supra, 27 Cal.App.4th at p. 575.) No one disputes 

that mother did that. She regularly visited the children. 

The problem is that mother did not progress beyond 

supervised visits and there was no offer of proof (prong two) that 

the bond between mother and the children was so strong that the 

children would suffer detriment from its termination. (In re 

Grace P. (2017) 8 Cal.App.5th 605, 613.) “[T]he parent must 

prove he or she occupies a parental role in the child’s life, 

resulting in a significant, positive emotional attachment of the 

child to the parent. [Citations.]” (In re Valerie A. (2007) 152 

Cal.App.4th 987, 1007.) That requires a significant, positive, 

emotional attachment from the child to the parent. (In re Bailey 

J. (2010) 189 Cal.App.4th 1308, 1315-1316.) “‘[F]requent and 

loving contact’” is not enough. (Ibid.)

The written offer of proof states that mother was attending 

therapy and NA/AA meetings, recently started a parenting class, 

had been clean and sober for three months, and was attending 

substance abuse treatment. None of that is relevant to whether 

children had a significant emotional attachment with mother as a 
2

parent figure. The offer of proof stated that mother lovingly 

interacts with the children during visits, that mother missed the 

children, and the children look to mother for emotional and 

physical support. There is no supporting declaration that says 

that --- not from mother, a caregiver, a social worker, a therapist, 

a school teacher, a family member, a relative, a child’s playmate, 

or a sibling. Attached to the written offer of proof is mother’s 

attendance record at NA meetings, a letter that mother attended 

a three-hour class on substance abuse, and a letter that mother 

had attended six parenting classes. 

There was no proof that severing the parent-child 

relationship would be detrimental to the children. (See In re 

Marcelo B. (2012) 209 Cal.App.4th 635, 643.) What we know is 

that the children were detained on August 25, 2019 after mother 

attempted suicide in front of the children. Mother suffered from 

untreated mental health issues (bipolar disorder, depression, and 

anxiety), cried in front of the children, and said she no longer 

wanted to live. Mother had a history of substance abuse 

(methamphetamine), had abused and neglected two older 

children which resulted in the termination of parental rights 

(2011), had a history of domestic violence, substance abuse, drug 

related crimes, and had a history of child welfare referrals, a 

total of 18 from 2003 to 2018. 

After the children were detained, there were more reports 

of domestic violence and sexual abuse. The oldest child said 

mother was “‘taking handfuls of pills’” and yelling about not 

wanting to live anymore as the children ate dinner at the dining 

room table. The oldest child called her aunt in Texas, who called 

911. The paramedic said mother almost died of a drug overdose 

and transported mother to the hospital where she tested positive 
3

for methamphetamine. Fortunately, mother did not die. The 

children were placed with family relatives who provided the 

children loving homes. 

Mother’s trial attorney conceded the offer of proof was 

skimpy and “I would need the social worker to expound on these 

visitations, to tell me what the children have said.” (Italics 

added.) The trial court replied, it “sounds like [a contested

hearing is] going to be . . . akin to a deposition or fishing 

expedition because you don’t know what the social worker is 

going to say.” Counsel conceded that nothing more was being 

offered, “although I believe there’s more.” 

Offers of proof may not be based on speculation. (People v. 

Babbitt (1988) 45 Cal.3d 660, 684.) The social worker reported 

that the children were bored during visits, that mother missed a 

December 10, 2019 visit, and that the youngest child did not 

want to visit mother. At one supervised visit, mother slept for 40 

minutes and claimed she was on new medication. Mother agreed 

to sign a medical release to determine what the medication was, 

but failed to do so. 

It is settled that a parent in a dependency case has no due 

process right to present irrelevant evidence. (In re Tamika T.

(2002) 97 Cal.App.4th 1114, 1122.) Nor is a trial court required 

to conduct a contested hearing where there is no relevant 

evidence to consider. (Ibid; In re Jeanette V. (1998) 68 

Cal.App.4th 811, 817 [“due process right to present evidence is 

limited to relevant evidence of significant probative value to the 

issue before the court”].) In re Grace P., supra, 8 Cal.App.5th at 

page 612, on which the majority relies, states: “The parent’s offer 

of proof ‘must be specific, setting forth the actual evidence to be 

produced, not merely the facts or issues to be addressed and 
4

argued.’ [Citation.]” Here the offer of proof was a Hail Mary. 

There was no credible showing that any social worker, therapist, 

caregiver, teacher, relative, family member, neighbor, CASA 

worker, child, or sibling would testify that severing the parentchild relationship would be detrimental to children and outweigh 

the benefits of adoption. (See, e.g. In re Amber M. (2002) 103 

Cal.App.4th 681, 689; In re Jerome D. (2000) 84 Cal.App.4th 

1200, 1207.)

Finally, it must be observed that the trial court’s ruling 

was addressed to its sound discretion. No abuse of discretion has 

been shown. The ruling was not arbitrary, whimsical, or 

capricious. It does not exceed the bounds of reason and we 

should not substitute our judgment for that of the trial court. 

(See, e.g., Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1448-

1449.)

I would affirm.

NOT TO BE PUBLISHED.

YEGAN, Acting P. J.
Arthur A. Garcia, Judge

Superior Court County of Santa Barbara

______________________________

Jacques Alexander Love, under appointment by the Court 

of Appeal, for Defendant and Appellant R.G.

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

for Defendant and Appellant A.F..

Michael C. Ghizzoni, County Counsel, Lisa A. Rothstein, 

Senior Deputy Counsel, for Plaintiff and Respondent.