Filed 7/1/24 In re E.N. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

In re E.N. et al., Persons Coming 

Under the Juvenile Court Law.

 B332435 c/w B333367

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

JOSE N.,

Defendant and Appellant.

 (Los Angeles County

 Super. Ct.

 No. 21CCJP05572A-D)

APPEAL from orders of the Superior Court of Los Angeles 

County, Marguerite D. Downing, Judge. Affirmed in part, 

conditionally affirmed in part, and remanded with directions.

Jamie A. Moran, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Dawyn R. Harrison, County Counsel, Kim Nemoy, 

Assistant County Counsel and Navid Nakhjavani, Principal

Deputy County Counsel, for Plaintiff and Respondent. 
2

Father appeals from the orders denying his petitions under 

Welfare and Institutions Code section 388

1 and terminating 

parental rights to L.L. (minor).

2 Father contends the court 

abused its discretion when it summarily denied his section 388 

petitions, and it erred in denying application of the parental 

relationship exception to termination of parental rights under 

section 366.26, subdivision (c)(1)(B)(i). Father also contends that 

the court erroneously failed to ensure that the Los Angeles 

County Department of Children and Family Services 

(Department) complied with requirements of the Indian Child 

Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) and related 

California statutes (Welf. & Inst. Code, § 224 et seq.). We affirm. 

The parties are familiar with the facts and procedural 

history, and our opinion does not meet the criteria for 

publication. (Cal. Rules of Court, rule 8.1105(c).) We therefore 

resolve this appeal by memorandum opinion pursuant to 

Standard 8.1 of the Standards of Judicial Administration and 

consistent with constitutional principles (Cal. Const., art. VI, § 14 

[“Decisions of the Supreme Court and courts of appeal that 

determine causes shall be in writing with reasons stated”]; Lewis 

v. Superior Court (1999) 19 Cal.4th 1232, 1263, fn. omitted 

[three-paragraph discussion of issue on appeal satisfies 

1 All further statutory references are to the Welfare and 

Institutions Code unless otherwise indicated.

2 On October 6, 2023, this court consolidated father’s two 

appeals—the June 7, 2023 appeal of the orders summarily 

denying father’s section 388 petitions and the July 17, 2023 

appeal of the order terminating parental rights. 
3

constitutional requirement because “an opinion is not a brief in 

reply to counsel’s arguments. [Citation.] In order to state the 

reasons, grounds, or principles upon which a decision is based, 

[an appellate court] need not discuss every case or fact raised by 

counsel in support of the parties’ positions”].)

DISCUSSION

A. Father’s Section 388 Petitions

Father contends the court’s September 14, 2023 summary 

denial of his section 388 petitions without an evidentiary hearing 

was an abuse of discretion. We disagree.

On receipt of a section 388 petition, the court may either 

summarily deny the petition or order a hearing. (In re Lesly G.

(2008) 162 Cal.App.4th 904, 912.) The court may summarily 

deny the petition unless the petitioner makes a prima facie 

showing in his or her favor. (Ibid.; see also In re Marilyn H.

(1993) 5 Cal.4th 295, 310.) We review the summary denial of a 

section 388 petition for abuse of discretion. (In re G.B. (2014) 227 

Cal.App.4th 1147, 1158.)

A petition to change or modify a juvenile court order under 

section 388 must factually allege that: (1) there are changed 

circumstances or new evidence to justify the requested order, and 

(2) the requested order would serve the minors’ best interests. 

(In re G.B., supra, 227 Cal.App.4th at p. 1157; Cal. Rules of 

Court, rule 5.570(d)(1) & (2).) “ ‘A prima facie case is made if the 

allegations demonstrate that these two elements are supported 

by probable cause. [Citations.] It is not made, however, if the 

allegations would fail to sustain a favorable decision even if they 
4

were found to be true at a hearing. [Citations.] While the 

petition must be liberally construed in favor of its sufficiency 

[citations], the allegations must nonetheless describe specifically 

how the petition will advance the child’s best interests.’ 

[Citation.] In determining whether the petition makes the 

required showing, the court may consider the entire factual and 

procedural history of the case. [Citation.]” (In re K.L. (2016) 248 

Cal.App.4th 52, 61–62; see also In re Anthony W. (2001) 87 

Cal.App.4th 246, 250 [“ ‘[S]pecific allegations describing the 

evidence constituting the proffered changed circumstances or new 

evidence’ is required”].)

When, as here, a section 388 petition is filed after family 

reunification services have been terminated, the juvenile court’s 

overriding concern is the child’s best interest. (In re Stephanie M.

(1994) 7 Cal.4th 295, 317.) The parent’s interests in the care, 

custody, and companionship of the child are no longer 

paramount; and the focus shifts to the needs of the child for 

permanency and stability. (Ibid.; In re Malick T. (2022) 73 

Cal.App.5th 1109, 1123.) Nonetheless, by showing that 

circumstances have changed and that the best interest of the 

child warrants further reunification services, a parent may rebut 

the presumption that once family reunification services have 

been terminated reunification is not in the best interest of the 

child. (In re Marilyn H., supra, 5 Cal.4th at p. 309; In re 

Stephanie M., supra, at p. 317.) “[B]est interests is a complex 

idea” that requires consideration of a variety of factors. (In re 

Kimberly F. (1997) 56 Cal.App.4th 519, 530; see In re Jacob P.

(2007) 157 Cal.App.4th 819, 832–833.) In determining whether a 

section 388 petitioner has made the requisite showing, the 

juvenile court may consider the entire factual and procedural 
5

history of the case, including factors such as the seriousness of 

the reason leading to the child’s removal, the reason the problem 

was not resolved, the passage of time since the child’s removal, 

the relative strength of the bonds with the child, the nature of the 

change of circumstance, and the reason the change was not made 

sooner. (In re Mickel O. (2011) 197 Cal.App.4th 586, 616; In re 

Aaliyah R. (2006) 136 Cal.App.4th 437, 446–447; In re Justice P.

(2004) 123 Cal.App.4th 181, 188–189.)

Here, the juvenile court did not abuse its discretion when it 

summarily denied the section 388 petitions father filed with 

respect to all four children, whose ages ranged from four to 

seventeen years old. The family has a lengthy history of domestic 

violence, dating back to 2017, when mother and father were 

involved in a violent altercation. At that time, parents had only 

two children, and both children were present during the 

altercation (the older child was ten and the younger one still an 

infant). The incident led to a dependency case, which the 

juvenile court ended in April 2018 with an order granting mother 

and father custody of the two children. From 2019 to 2021, the 

Department continued to receive referrals alleging ongoing 

domestic violence between the parents. The referrals did not 

result in a new dependency proceeding until the Department filed 

a petition in the current case in December 2021, alleging the four 

children were at risk of harm based on the parents’ history of 

engaging in domestic violence, father’s physical abuse of one 

child, and mother and father’s history of substance abuse. The 

2021 petition alleged mother was a current abuser of 

methamphetamine and alcohol, and father was a current abuser 

of alcohol.
6

The record includes ample evidence that the relationship 

between mother and father was tempestuous, with both mother 

and father threatening to leave, or actually leaving the 

relationship, only to return. At times, the parents deceived social 

workers about the status of their relationship. During a 

Department investigation in August 2021, mother denied any 

domestic violence or drug use; however, father reported mother 

was using methamphetamine and alcohol daily in the children’s 

presence and was arrested for physically assaulting him. By 

December 2022, mother and father had reconciled. While father 

had been compliant with his court-ordered services, mother had 

not, and father began missing visits with the children. By Easter

in 2023, tensions were again rising between the two, although 

they reconciled again in the same month, April 2023. As 

maternal grandmother, the children’s caregiver, explained, 

parents always fought, broke up, and got back together.

In its six-month review report in August 2022, the 

Department recommended six additional months of reunification 

services, based on father’s compliance with services. In May 

2023, the Department recommended terminating services. 

Mother had missed ten drug tests, and while father was 

participating in services, his on-again, off-again relationship with 

mother meant he had not demonstrated a willingness to keep the 

children safe. The court terminated reunification services on 

May 18, 2023.

Just four months later, on September 13, 2023, father filed 

four section 388 petitions, one for each child, seeking to have his 

reunification services reinstated or the children placed with him. 

Describing what circumstances had changed since termination of 

reunification services, father’s petitions stated that the court had 
7

terminated services “due to father continuing to remain in a 

relationship with mother, and cohabitate with her. Since [then], 

father has reportedly moved away from mother and has ended 

his relationship with her. He now resides in a separate home and 

is able to receive the children into his custody without mother.” 

Father attached a one-year lease agreement beginning 

September 2023, a September 2023 letter from a service provider 

stating he had continued participating in the program, and

documentation showing his participation in drug testing and 

substance abuse programs prior to the May 2023 termination of 

services. 

Father’s petitions did not present a prima facie case of 

changed circumstances, because the record demonstrated that 

parents had an ongoing, repeated pattern of separating and 

reconciling, and nothing in the petitions showed that this time 

would be any different. Father filed his petitions just two weeks 

after the lease took effect, and nothing in the lease precluded

mother and father from reconciling once again, this time with 

mother moving into father’s new apartment. Father’s history of 

saying he was fed up with mother’s drug use, only to return to 

the relationship, works against him here, and he has not made a 

prima facie case of changed circumstances.

Even assuming father met the changed circumstances 

requirement by getting a separate apartment, father did not 

make a prima facie case that his requested relief would be in the 

children’s best interests. The petitions simply alleged the 

children had a bond with father and would benefit from 

continuing the relationship. On appeal, father’s only argument is 

that the best interest question should be viewed in the context of 

the denial of father’s section 388 petitions leading directly to the 
8

termination of his parental rights, and that such a termination 

would necessarily cause trauma to the children. This conclusory 

argument does not provide any factual basis to support that 

reinstating reunification services would be in the children’s best 

interests. The record supported the trial court’s determination

that father did not make out a prima facie case: father missed or 

canceled many visits and the children’s behavior and their 

statements to social workers demonstrated that they were either 

uninterested in having a relationship with father, or saw their 

relationship only as a superficial source of snacks and fun. 

Moreover, reinstating reunification services, and thereby further 

delaying permanency for minors, was not in their best interests. 

Having failed to establish a prima facie case of either 

changed circumstances or best interests, father was not entitled 

to an evidentiary hearing on his section 388 petitions.

B. Parental Relationship Exception

Father contends the juvenile court erred when it 

determined that the parental relationship exception to adoption

did not apply. However, taking the applicable law and the 

standard of review into account, father has failed to demonstrate 

reversible error. 

Once the juvenile court finds it is likely the child will be 

adopted, section 366.26, subdivision (c)(1), requires termination 

of parental rights unless a statutory exception applies. “The 

statutory exceptions merely permit the court, in exceptional 

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

which remains adoption.” (In re Celine R. (2003) 31 Cal.4th 45, 

53.) In order to establish the parental relationship exception 
9

under section 366.26, subdivision (c)(1)(B)(i), a parent must prove 

three elements: (1) “regular visitation and contact with the child, 

taking into account the extent of visitation permitted”; (2) that 

“the child has a substantial, positive, emotional attachment to 

the parent—the kind of attachment implying that the child would 

benefit from continuing the relationship”; and (3) that 

terminating the parent-child attachment “would be detrimental 

to the child even when balanced against the countervailing 

benefit of a new, adoptive home.” (In re Caden C. (2021) 11 

Cal.5th 614, 636.)

The substantial evidence standard of review applies to the 

first two elements of the parental relationship exception (Caden 

C., supra, 11 Cal.5th at pp. 639–640), while the third element—

“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.) 

Recognizing that the eldest child is close to 18 years old 

and does not want to spend time with him, father focuses his 

appellate argument on his three younger children. He contends 

that his visits with the children “should be considered consistent 

enough” to meet the first requirement of Caden C., supra, 11 

Cal.5th at pages 629 and 630, and that there was evidence of a 

beneficial relationship between himself and his children. 

Father’s argument misconstrues the operation of the 

substantial evidence standard of review. The appealing party 

“bear[s] the burden to show there was no evidence of a 

sufficiently substantial nature to support those findings and 

orders. [Citation.] We draw all reasonable inferences from the 

evidence to support the findings and orders of the juvenile court 
10

and review the record in the light most favorable to the court’s 

determinations; we do not reweigh the evidence or exercise 

independent judgment, but merely determine if there are 

sufficient facts to support the trial court’s findings. [Citation.] 

Thus, we do not consider whether there is evidence from which 

the juvenile court could have drawn a different conclusion but 

whether there is substantial evidence to support the conclusion 

that the court did draw.” (In re M.R. (2017) 8 Cal.App.5th 101, 

108.) While father points to specific pieces of evidence that would 

support a finding in his favor, he does not argue and has not 

established that the evidence mandates a reversal of the trial 

court’s determination that the parental relationship exception 

does not apply. He also has not demonstrated that the court 

abused its discretion in determining that the benefits of adoption 

outweighed any potential detriment associated with the 

termination of parental rights.

C. ICWA

Father contends the Department failed to meet its initial 

ICWA inquiry duties because it did not interview certain 

relatives about possible Indian ancestry. The record 

demonstrates that the Department asked mother, father, 

maternal grandparents, a maternal uncle, and paternal 

grandmother about Indian ancestry, and all denied any Indian 

ancestry. Although the Department also spoke with two paternal 

aunts, it did not ask them about possible Indian ancestry.

According to father, the Department failed to comply with 

its continuing duty to interview extended family members 

regarding ICWA despite having contact with several maternal 
11

and paternal family members, and others who were identified but 

whose contact information was not provided. The Department 

contends that because mother, father, maternal grandparents, 

and paternal grandmother all denied any Indian ancestry, there 

is substantial evidence to support the juvenile court’s 

determination that ICWA does not apply.

State law imposes on the Department a first-step inquiry 

duty to “interview, among others, extended family members and 

others who had an interest in the child.” (In re H.V. (2022) 

75 Cal.App.5th 433, 438; see § 224.2, subd. (b).) Federal 

regulations explain that the term “[e]xtended family member is 

defined by the law or custom of the Indian child’s Tribe or, in the 

absence of such law or custom, is a person who has reached 

age 18 and who is the Indian child’s grandparent, aunt or uncle, 

brother or sister, brother-in-law or sister-in-law, niece or nephew, 

first or second cousin, or stepparent.” (25 C.F.R. § 23.2 (2017).) 

The duty of initial inquiry includes making a meaningful effort to 

interview available relatives. (In re Y.W. (2021) 70 Cal.App.5th 

542, 552–553.) It does not include, however, a duty to search for 

all possible extended relatives. (In re Levi U. (2000) 78 

Cal.App.4th 191, 199 [child protective agency is not required to 

conduct an extensive independent investigation or to “cast about” 

for investigative leads]; see also In re H.B. (2023) 92 Cal.App.5th 

711, 721 [where “representatives from both sides of two 

generational levels” of minor’s family denied Indian ancestry, but 

not every extended relative was contacted, ICWA determination 

supported by substantial evidence].)

We agree with father that the Department failed to comply 

with the inquiry requirements of ICWA and related California 

law when it failed to ask reasonably available relatives, including 
12

the two paternal aunts with whom the Department was in 

contact, about possible Indian ancestry. (See In re H.V., supra, 

75 Cal.App.5th at p 438; In re Charles W. (2021) 66 Cal.App.5th 

483, 489.) It therefore appears that the Department failed to 

fulfill its initial duty of inquiry under ICWA. We will therefore 

conditionally affirm and remand for further proceedings.

DISPOSITION

The juvenile court’s September 14, 2023 order denying 

father’s petitions under Welfare and Institutions Code section 

388 are affirmed. The juvenile court’s November 16, 2023 order 

terminating parental rights under Welfare and Institutions Code 

section 366.26 is conditionally affirmed and remanded for 

proceedings required by this opinion. The court shall order the 

Department to make reasonable efforts to (1) interview all 

available extended family members about the possibility of the 

child’s Indian ancestry, including those extended family members 

that the Department had previous contact with, namely, the 

paternal aunts A.N. and S.C.; and (2) report on the results of 

those efforts. Nothing in this disposition precludes the court from 

ordering the Department to make inquiry of the additional family 

members identified in the record or others who may have an 

interest in the children. Based on the information reported, if the 

court determines that no additional inquiry or notice to tribes is 

necessary, the order terminating parental rights is to be 

reinstated. If additional inquiry or notice is warranted, the court
13

shall make all necessary orders to ensure compliance with ICWA 

and related California law.

NOT TO BE PUBLISHED.

MOOR, Acting, P. J.

We concur:

KIM, J.

LEE, J.

 Judge of the San Bernardino Superior Court, assigned by 

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

California Constitution.