Filed 5/25/22 In re April S. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.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

In re APRIL S. et al., Persons

Coming Under the Juvenile 

Court Law.

 B314127

 (Los Angeles County

 Super. Ct.

 No. 19LJJP00459A-C)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

FELIPE S. et al.,

Defendants and 

Appellants.

APPEAL from orders of the Superior Court of Los Angeles 

County, Michael C. Kelley, Judge. Affirmed.

Terence M. Chucas, under appointment by the Court of 

Appeal, for Defendant and Appellant Felipe S.
2

Carolyn S. Hurley, under appointment by the Court of 

Appeal, for Defendant and Appellant Maria S.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, 

Assistant County Counsel, and Veronica Randazzo, Deputy 

County Counsel, for Plaintiff and Respondent.

* * * * * *

Appellants Maria S. (mother) and Felipe S. (father) appeal 

from the juvenile court’s orders terminating parental rights over 

their children, April (born 2011), Ariel (born 2016), and Adan 

(born 2017) and freeing the children for adoption. Both parents 

contend the orders must be reversed because (1) the beneficial 

parent-child exception to terminating parental rights applies, (2) 

legal guardianship should have been considered as an 

alternative, and (3) a proper inquiry under the Indian Child 

Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA) was not 

undertaken.

We affirm the juvenile court’s orders.

BACKGROUND

Detention and Welfare and Institutions Code1 section 300 

petition

The Los Angeles County Department of Children and 

Family Services (the Department) received a referral in 

June 2019 alleging drug abuse and domestic violence by the 

parents. When the social worker responded to the referral, the 

1 All further statutory references are to the Welfare and 

Institutions Code, unless stated otherwise.
3

children were living with their paternal grandmother. The 

paternal uncle was also involved in the children’s care. The 

family had previously been living in the maternal grandfather’s 

home. The parents initially agreed to have the paternal 

grandmother become the children’s legal guardian but changed 

their minds after an argument with the paternal uncle.

In early July, mother and father signed an affidavit 

allowing the children to be removed from their care and placed 

with maternal aunt Angeles R. pending a detention hearing. The 

maternal aunt lived with her partner, Sara B., and Sara’s family.

On July 9, 2019, the Department filed a petition under 

section 300, subdivision (b), alleging the parents’ history of 

substance abuse and current abuse of amphetamine and 

methamphetamine rendered them incapable of providing regular 

care for the children and placed the children at risk of harm. The 

petition further alleged that mother had mental and emotional 

problems, including a diagnosis of depression and suicidal 

ideation, had attempted suicide in the past, and had been 

previously hospitalized for evaluation and treatment of a 

psychiatric condition. The petition alleged that father knew of 

mother’s condition and failed to protect the children.

At the July 10, 2019 detention hearing, the juvenile court 

found father to be the children’s presumed father. Both parents 

filed ICWA-020 Parental Notification of Indian Status forms in 

which they denied knowledge of any Indian ancestry. The 

Department’s detention report indicated that during a June 13, 

2019 interview with the social worker, mother and father had 

denied any Indian ancestry. The juvenile court found it had no 

reason to know ICWA applied but advised the parents to make 
4

their attorneys, the Department, and the court aware of any new 

information concerning possible ICWA status.

The juvenile court then ordered the children detained from 

parental custody. The court granted the parents monitored 

visitation a minimum of three times per week, three hours per

visit, limited only by the availability of a monitor.

Jurisdiction and disposition

The children remained placed with maternal aunt at the 

time of the August 19, 2019 adjudication hearing. Maternal aunt 

was willing to become the children’s legal guardian if the parents 

failed to reunify.

Mother and father both pleaded no contest to the 

allegations of the petition, which the juvenile court amended by 

interlineation. The sustained allegations state that the children 

were at substantial risk of abuse or neglect because of the 

parents’ methamphetamine abuse, mother’s mental and 

emotional problems, and father’s failure to protect the children 

from mother’s mental and emotional problems.

The juvenile court declared the children to be dependent 

children and removed them from parental custody. The court 

ordered both parents to enroll in a full drug and alcohol program 

with weekly random testing and aftercare, conjoint counseling, 

and parenting classes. The court ordered mother to enroll in 

individual counseling and psychiatric services and to comply with 

the recommendations of her mental health provider. Both 

parents were granted monitored visits a minimum of nine hours 

per week.
5

Review proceedings

The Department reported in February 2020 that the 

children remained in the care of maternal aunt, to whom they 

were bonded.

Mother had been accepted into a drug court program in 

August 2019 but was discharged from the program in October 

2019 when she tested positive for methamphetamine and refused 

to enroll in residential treatment. Mother thereafter completed 

an outpatient substance abuse program but tested inconsistently

for drugs. She had either tested positive or failed to appear for 

12 out of 18 scheduled tests. Father had tested positive for 

methamphetamine in October 2019 and had not complied with 

his case plan.

Mother and father visited regularly with the children. The 

parents arrived on time for all scheduled visits and were 

attentive to the children’s needs. The social worker observed that 

the children appeared comfortable and were affectionate toward 

the parents.

At the six-month review hearing held on February 19, 

2020, the juvenile court continued reunification services for both 

parents.

In August 2020, the Department reported that the children 

were closely bonded with maternal aunt. The social worker 

observed that Adan was comforted by maternal aunt’s presence 

and reached for her to pick him up. When maternal aunt did so, 

Adan rested his head on her shoulder.

The maternal aunt updated the Department on the 

children’s participation in services. Adan was receiving weekly 

regional center services. Ariel had completed mental health 

services and had been referred for speech evaluation. April was 
6

participating in weekly therapy. Her therapist reported that 

April had expressed mixed feelings about returning to the 

parents. When the social worker asked April if she wanted to live 

with mother and father, April responded, “sometimes yes, but not 

all the time.” April explained that the parents did not have a 

house and that she liked living in her present home. When asked 

if she had any other concerns about living with her parents, April 

responded, “they fight.”

Mother and father were in partial compliance with their 

case plans. Both parents had drug-tested inconsistently. Mother 

had completed an outpatient substance abuse program and was 

enrolled in individual counseling. The parents had not begun 

conjoint counseling. Mother explained they were waiting for 

father to complete his substance abuse program.

The parents’ in-person visits with the children were 

suspended in March 2020 because of COVID-19. The in-person 

visits were replaced by daily video visits. By July 2020 the 

parents’ video visits with the children became more sporadic. On 

August 24, 2020, the juvenile court ordered the Department to 

prepare an update on the parents’ progress and continued the 

matter to September 29, 2020.

The Department reported in September 2020 that mother 

and father had enrolled in a 12-week parenting class and had

attended three of four sessions. Both parents failed to appear for 

eight scheduled drug tests.

In-person visits between the parents and children resumed 

in August 2020. The social worker monitored weekly two and a 

half-hour visits on Tuesdays, and the maternal aunt monitored 

weekend visits. The social worker noted that the parents did not 

effectively manage the children’s tantrums and aggressive 
7

behaviors. The parents would admonish the children not to hit 

one another, but would engage in rough play with them 

immediately thereafter. The social worker observed that Adan 

began biting both mother and his siblings upon the parents’ 

arrival at an August 2020 visit. Mother admonished Adan not to 

bite but then rolled on the ground with the children as they 

pushed and climbed atop one another. Adan slapped mother on 

the face several times and was aggressive with his siblings and 

with mother throughout the visit. He cried at the end of the visit 

and refused to get into his car seat.

When the social worker asked maternal aunt about Adan’s 

behavior, she responded that Adan exhibited behavioral issues 

after in-person visits with the parents. He had begun hitting and 

biting other children at childcare. At home, Adan would refuse to 

follow instructions, throw tantrums, and cry, asking for the 

parents. His disruptive behaviors subsided two or three days 

after parental visits. Maternal aunt further stated that the 

parents “baby” the children, who then regress, mumbling and 

speaking like babies when with the parents. The children then 

had difficulty transitioning back to maternal aunt’s home, where 

they were not allowed to engage in such behaviors.

Mother testified at the September 29, 2020 12-month 

review hearing. She said she visited consistently with the 

children; and when in-person visits were suspended, she and the 

children participated in video visits that lasted between 30 and 

40 minutes. Mother stated that April sometimes appeared 

distant during the video visits and would not want to talk to her. 

She added that video visits with the younger children were 

sometimes very short. When in-person visits resumed in August 

2020, mother did not miss a single visit. Mother said the 
8

children were affectionate with her. She was never told that the 

visits were inappropriate or had not gone well.

At the conclusion of the hearing, the juvenile court found 

both parents to be in partial compliance with their case plans and 

that neither parent had made significant progress in resolving 

the problems that led to the children’s removal. The court 

terminated reunification services and set the matter for a 

permanency planning hearing.

Section 366.26 proceedings

The Department reported in January 2021 that maternal 

aunt and her partner were strongly committed to adopting the 

children. The Department noted that the children were closely 

bonded with their caregivers, with whom they had been placed 

since early July 2019.

The Department reported in March 2021 that April said 

she was “happy” living with maternal aunt. Ariel also said she 

“like[s] living with my auntie.” Adan appeared happy and 

comfortable in maternal aunt’s home. The social worker observed 

the children hugging maternal aunt and looking to her for 

comfort. Maternal aunt responded by hugging the children in 

return and giving them her attention.

Maternal aunt reported that father continued to call the 

children on a weekly basis, but mother’s calls had become less 

frequent. Both parents attended in-person weekly visits. When 

asked if any of the children cried at the end of the visits, 

maternal aunt responded no, the children had adjusted to the 

routine.

At the March 29, 2021 hearing, the juvenile court identified 

adoption as the appropriate permanent plan.
9

In a May 2021 addendum report, the Department reported 

that maternal aunt and her partner were closely bonded with the 

children and were strongly committed to adopting them. 

Maternal aunt said she would continue mother’s visits with the 

children after the adoption. April told the social worker that she 

wanted to be adopted by maternal aunt and to continue living 

with her. April said she did not want to live with mother.

On May 27, 2021, the juvenile court set the matter for a 

contested section 366.26 hearing. The court ordered the 

Department to interview April and to prepare a supplemental 

report.

In a last minute information for the court, the Department 

reported that when the social worker asked April on May 28, 

2021, whether she wanted to live with mother, the child said,

“Kind of.” April responded “yes” when asked if she wanted to 

continue living with maternal aunt. In a June 12, 2021 

interview, April told the social worker she wanted to be adopted 

by her caregivers. April identified her caregivers as people she 

could trust and speak to about anything. When asked if she felt 

the same way about mother, April responded, “no.”

Section 366.26 hearing

Father did not attend the July 12, 2021 section 366.26 

hearing. Mother was present and testified that she and father 

had in-person weekend visits with the children that lasted 

between two to three hours. Mother said that when the children 

see mother and father, they run toward the parents and scream, 

“Mommy, Daddy, we love you.” She described her relationship 

with the children as “amazing.” During the visits, the children 

show mother their art projects and tell her about what they had 

learned in school. Mother testified that she also had daily 
10

telephone contact with the children and maternal aunt. Mother 

said she and maternal aunt had a good relationship and 

communicated regularly about the children’s health and their 

progress in school.

After hearing argument from counsel, the juvenile court 

found by clear and convincing evidence that the children were 

adoptable. The court then noted that the California Supreme 

Court had recently “clarified the standard that applies” when 

assessing the beneficial parent-child exception to terminating 

parental rights. The juvenile court found that mother had 

“probably carried her burden of demonstrating regular visitation” 

with the children but noted that “the key issue” was “whether it’s 

in the child’s best interest to avoid adoption and preserve the 

parental bond and the parental relationship.”

The juvenile court observed that “[w]hile mother’s visits are 

generally good, her monitoring of school progress does not really 

equate with actually being a parental figure and being 

responsible for the day-to-day oversight of the child’s progress in 

school.” The court found significant April’s clearly stated 

preference to be adopted: “She is the oldest child. She was in 

mother’s care the longest. And she is quite clear . . . that she 

would, in fact, like to be adopted. . . . And given that the other 

two children are even younger and were in mother’s care for 

much short[er] periods of time, I think the inference is quite 

strong that there is not the kind of bond between mother and the 

children that would not be compensated [by] the security of a new

and permanent adoptive home.” The juvenile court found no 

exception to adoption applied and terminated parental rights. 

The court responded in the affirmative to a request by father’s 
11

counsel that the minute order “reflect that the termination of 

parental rights is also over father’s objection.”

This appeal followed.

DISCUSSION

I. Beneficial parent-child exception

A. Applicable law and standard of review

Once a juvenile court has terminated reunification services 

and determined that a child is adoptable, the court is required to 

terminate parental rights unless it finds an applicable exception. 

(§ 366.26, subd. (c)(1).) The exception at issue here, sometimes 

referred to as the beneficial parent-child exception, applies when 

“[t]he court finds a compelling reason for determining that 

termination would be detrimental to the child” because “[t]he 

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).)

The parent bears the burden of proving that the exception 

applies. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 952-954.) To 

do so, the parent must prove three statutory elements: “(1) 

regular visitation and contact, (2) a relationship, the continuation 

of which would benefit the child such that (3) the termination of 

parental rights would be detrimental to the child.” (In re 

Caden C. (2021) 11 Cal.5th 614, 631 (Caden C.).)

For the first element, visitation, the question is simply 

whether the parent visited consistently, as permitted by court 

orders. The focus is not on punishing or rewarding parents for 

their behavior in visiting or maintaining contact, but on the best 

interests of the child. (Caden C., supra, 11 Cal.5th at p. 632.)
12

As to the second element, whether the child would benefit 

from continuing the relationship, “the parent must show that the 

child has a substantial, positive, emotional attachment to the 

parent—the kind of attachment implying that the child would 

benefit from continuing the relationship.” (Caden C., supra, 11 

Cal.5th at p. 636.) The parent must also show that “the 

relationship promotes the well-being of the child to such a degree 

as to outweigh the well-being the child would gain in a 

permanent home with new, adoptive parents.” (In re Autumn H. 

(1994) 27 Cal.App.4th 567, 575 (Autumn H.).) Relevant factors in 

assessing the parent-child relationship include “[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.” (Id. at p. 576.) For the 

third element, whether termination would be detrimental to the 

child, the court must determine “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., supra, at p. 633.)

We review the juvenile court’s findings concerning 

visitation and whether the child would benefit from continuing 

the relationship with the parent for substantial evidence. 

(Caden C., supra, 11 Cal.5th at pp. 639-640.) Whether 

termination of parental rights would be detrimental to a child 

because of the child’s relationship with the parent is a question 

we review for abuse of discretion. (Ibid.)

B. Father forfeited any claim that the exception 

applies to him

Father forfeited any appellate challenge based on the 

beneficial parent-child exception by failing to raise the issue in 
13

the juvenile court below. An appellant’s failure to raise a 

statutory exception to termination at the section 366.26 hearing 

forfeits the issue on appeal. (In re Daisy D. (2006) 144 

Cal.App.4th 287, 292.) Father’s counsel’s request that the court’s 

minute order “reflect that the termination of parental rights is 

over father’s objection” was insufficient to preserve the issue for 

appellate review.

We decline father’s request to excuse his failure to raise the 

exception in the juvenile court. While an appellate court has 

discretion to review claims not raised in the trial court that 

present important legal issues, that “discretion must be exercised 

with special care,” particularly in dependency matters where 

“considerations such as permanency and stability are of 

paramount importance.” (In re S.B. (2004) 32 Cal.4th 1287, 

1293.) A determination concerning the beneficial parent-child

exception raises factual questions that are unsuitable for 

resolution on appeal. We therefore decline to exercise our 

discretion to excuse father’s forfeiture of the issue.

C. Substantial evidence supports the finding that 

the children did not share a substantial, 

positive emotional attachment with mother that 

would not be outweighed by the permanency of 

an adoptive home 

The juvenile court found, and the parties do not dispute, 

that mother met her burden of showing regular visitation with 

the children. The issue is whether mother met her burden of 

proving that the children shared a substantial, positive emotional 

attachment with her that would not be outweighed by the 

security and permanency of an adoptive home. Substantial 
14

evidence supports the juvenile court’s finding that mother did not 

sustain this burden.

At the time of the section 366.26 hearing, the children had 

been placed with their prospective adoptive parents for two 

years—most of Adan’s and Ariel’s young lives. All three children 

were closely bonded to their caregivers. April, the oldest child 

who had lived with mother the longest, clearly and unequivocally 

stated that she wanted to be adopted and did not want to live 

with mother. April identified her prospective adoptive parents as 

people she could trust and speak to about anything. She denied 

that mother was such a person.

That the children were affectionate and comfortable with

mother during visits is insufficient to satisfy mother’s burden of 

demonstrating that the children shared a substantial, positive 

emotional attachment with her that would not be outweighed by 

the benefits of adoption. To meet this burden, “[a] parent must 

show more than frequent and loving contact or pleasant visits.” 

(In re C.F. (2011) 193 Cal.App.4th 549, 555.) The positive aspects 

of the children’s visits with mother were also offset by negative 

behaviors the children exhibited during and after the visits. 

When in-person visits resumed after the COVID-19-related 

hiatus, the children had difficulty transitioning back to their 

caregivers’ home and to childcare after the visits. Adan began 

exhibiting behavioral issues, hitting and biting other children at 

childcare and throwing tantrums at home. Adan also exhibited 

aggressive behaviors during visits with mother. He bit his 

siblings and mother and slapped mother in the face.

Mother’s claim that the juvenile court erroneously based its 

decision on the fact that she did not occupy a “parental role” in 

the children’s lives is unavailing. Some appellate courts have 
15

expressed concern that a juvenile court’s use of that term or 

similar terms such as “parental relationship” in the context of the 

beneficial parent-child exception suggest that an improper legal 

standard was applied. (See In re J.D. (2021) 70 Cal.App.5th 833, 

864 (J.D.) [juvenile court’s conclusory determination that 

mother’s relationship with child did not “‘amount to a parental 

bond’” did not address whether child had a substantial, positive 

emotional attachment to parent]; In re B.D. (2021) 66 

Cal.App.5th 1218, 1229-1230 [questioning whether juvenile court 

improperly “equated a parental role, as it related to application of 

the parent-child relationship exception, with the ability to parent 

‘on a fulltime basis’”].) That concern is not present here.

The juvenile court here stated on the record the relevant 

factors delineated by the Supreme Court in Caden C., supra, 11 

Cal.5th 614 for determining whether the beneficial parent-child 

exception applies. It then applied those factors. The juvenile 

court’s observation that mother did not occupy a “parental role” 

does not persuade us that the court applied an incorrect legal 

standard in this case.

We reject mother’s argument that the record contained 

insufficient facts for the juvenile court to assess the strength of 

her bond with the children as an improper request to reweigh the 

evidence. Under the applicable standard of review, we must 

uphold the juvenile court’s findings if, on the entire record, there 

is substantial evidence to support those findings. We do not 

reweigh the evidence; rather, we draw all reasonable inferences 

in support of the findings and view the record in the light most 

favorable to the juvenile court’s order. (In re Megan S. (2002) 104 

Cal.App.4th 247, 251.)
16

J.D., supra, 70 Cal.App.5th 833, on which mother relies as 

support for her position, is distinguishable. The mother in that 

case presented evidence that her five-and-a-half-year-old son, 

who had lived with mother for half of his life, was clearly bonded 

to her and remained bonded to her throughout the case. (Id. at

p. 856.) That evidence included reports from a family therapist 

who observed that mother and children “‘appear to have a 

positive and affectionate relationship,’” agency reports noting 

that the children “‘come back from their visit[s] happy,’” and a 

caregiver’s statement acknowledging the child’s positive bond 

with mother. (Ibid.) Such evidence is not present in this case. 

To the contrary, the record shows that April, mother’s oldest 

child, who had lived with her the longest, was ambivalent about 

returning to mother’s care. She stated unequivocally, however, 

that she wanted to remain with her maternal aunt and to be 

adopted by her. Unlike the children in J.D. who returned happy 

from their visits with their mother, the children in this case 

engaged in regressive or disruptive behaviors after parental 

visits. Adan exhibited aggressive behaviors, throwing tantrums 

at home and biting and hitting other children at daycare.

Substantial evidence supports the finding that the children 

did not share a substantial, positive, emotional attachment with 

mother that would not be outweighed by the benefits of a 

permanent adoptive home with their maternal aunt.

D. No abuse of discretion in juvenile court’s 

determination that terminating parental rights 

would not be detrimental to the children

The juvenile court did not abuse its discretion by 

concluding that terminating parental rights would not be 

detrimental to the children. The relevant inquiry in this 
17

determination “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., supra, 11 Cal.5th at p. 633.)

There is substantial evidence in the record that the 

children’s interests would be best served by the stability of 

adoption with their current caregivers, who met the children’s 

daily physical and emotional needs. Maternal aunt accompanied 

the children to their medical appointments, therapy sessions, and 

regional service providers. The children looked to their maternal 

aunt for comfort and assurance, and she responded by hugging 

them and giving them her time and attention. The children were 

closely bonded to their caregivers. April repeatedly and 

unequivocally stated that she wished to be adopted by her 

caregivers and to remain in their home. In contrast, she 

expressed ambivalence about returning to mother.

That the children enjoyed visiting with the parents and 

referred to them as “mommy” and “daddy” is insufficient to show 

that terminating the parental relationship would be detrimental. 

“Interaction between natural parent and child will always confer 

some incidental benefit to the child. The significant attachment 

from child to parent results from the adult’s attention to the 

child’s needs for physical care, nourishment, comfort, affection 

and stimulation. [Citation.] The relationship arises from day-today interaction, companionship and shared experiences.” 

(Autumn H., supra, 27 Cal.App.4th at p. 575.) The record here 

shows that the children shared day-to-day interaction, 

companionship, and experiences with their maternal aunt, not 

with their mother.
18

The juvenile court did not abuse its discretion by 

terminating parental rights.

E. Legal guardianship

We reject mother’s contention that the juvenile court erred 

by not considering legal guardianship as the children’s 

permanent plan. Adoption is the preferred permanent plan once 

a finding of adoptability has been made. (§ 366.26, subd. (c)(1); 

In re S.B. (2009) 46 Cal.4th 529, 532.) Legal guardianship is an 

alternative to adoption when a “child is living with a relative who 

is unable or unwilling to adopt the child because of circumstances 

that do not include an unwillingness to accept legal or financial 

responsibility for the child, but who is willing and capable of 

providing the child with a stable and permanent environment 

through legal guardianship.” (§ 366.26, subd. (c)(1)(A).) Those 

circumstances do not exist here. The children’s caregivers here, 

maternal aunt and her partner were strongly committed to 

adopting the children.

F. Sibling relationship exception

We need not address mother’s argument that the sibling 

relationship exception requires reversal of the juvenile court’s 

order if this court were to find that terminating parental rights 

would be detrimental to one child but not to the others. No such 

finding is warranted.

II. ICWA

Both parents contend the order terminating parental rights 

must be reversed because the Department and the juvenile court 

failed to ask extended family members, specifically, the paternal 

grandmother, paternal uncle, maternal grandfather, and 

maternal aunt, whether the children are or may be Indian 

children under ICWA. The Department concedes that it failed to 
19

fulfill its statutory duty of initial inquiry by not asking these 

extended family members about the children’s possible Indian 

status. The failure to do so was error. We conclude, however, 

that the error was not prejudicial, given the parents’ disclaimer 

of any knowledge of Indian ancestry and the absence of any 

indication in the record that there was readily obtainable

information likely to bear meaningfully upon whether the 

children are Indian children. (In re Benjamin M. (2021) 70 

Cal.App.5th 735, 744 (Benjamin M.).)

A. Applicable law 

ICWA and related California statutes reflect the 

Legislature’s intent “to protect the best interests of Indian 

children and to promote the stability and security of Indian tribes 

and families by the establishment of minimum Federal standards 

for the removal of Indian children from their families.” (25 

U.S.C. § 1902; see In re K.R. (2018) 20 Cal.App.5th 701, 706, 

fn. 3.) An “Indian child” is defined as any unmarried person 

under the age of 18 who is either a member of an Indian tribe or 

is eligible for membership in an Indian tribe and is the biological 

child of a member of an Indian tribe. (25 U.S.C. § 1903(4); Welf. 

& Inst. Code, § 224.1, subds. (a), (b).)

“Because it typically is not self-evident whether a child is 

an Indian child, both federal and state law mandate certain 

inquiries to be made in each case. These requirements are 

sometimes collectively referred to as the duty of initial inquiry.” 

(Benjamin M., supra, 70 Cal.App.5th at p. 741.) “The duty to 

inquire begins with the initial contact, including, but not limited 

to, asking the party reporting child abuse or neglect whether the 

party has any information that the child may be an Indian child.” 

(§ 224.2, subd. (a).) The court and child welfare department 
20

“have an affirmative and continuing duty” to inquire whether a 

child for whom a petition under section 300 may be or has been 

filed may be an Indian child. (Ibid.)

Under California law, the child welfare department’s initial 

duty of inquiry includes, but is not limited to, “asking the child, 

parents, legal guardian, Indian custodian, extended family 

members, others who have an interest in the child, and the party 

reporting child abuse or neglect, whether the child is, or may be, 

an Indian child and where the child, the parents, or Indian 

custodian is domiciled.” (§ 224.2, subd. (b).) Under ICWA, the 

term “extended family member” is “defined by the law or custom 

of the Indian child’s tribe or, in the absence of such law or 

custom, shall be a person who has reached the age of eighteen 

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

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

second cousin, or stepparent.” (25 U.S.C. § 1903(2).)

The juvenile court must also inquire at each participant’s 

first appearance in court whether the participant knows or has 

reason to know that the child is an Indian child. (§ 224.2, subd. 

(c).) In addition, the juvenile court must instruct the parties to 

inform the court if they subsequently receive information that 

provides reason to know the child is an Indian child. (§ 224.2, 

subd. (c).)

If the “initial inquiry creates a ‘reason to believe’ the child 

is an Indian child, then the Agency ‘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.) [I]f that further inquiry results in a reason to know the 

child is an Indian child, then the formal notice requirements of 

section 224.3 apply. (See § 224.2, subd. (c) [court is obligated to 
21

inquire at the first appearance whether anyone ‘knows or has 

reason to know that the child is an Indian child’]; id., subd. (d) 

[defining circumstances that establish a ‘reason to know’ a child 

is an Indian child]; § 224.3 [ICWA notice is required if there is a 

‘reason to know’ a child is an Indian child as defined under 

§ 224.2, subd. (d)].)” (In re D.S. (2020) 46 Cal.App.5th 1041, 

1052.)

Neither the duty of further inquiry nor the ICWA notice 

provisions are at issue here because no one contends there is 

reason to know the children are Indian children.

B. No prejudicial error

The parents’ ICWA challenge is based on the Department’s 

failure to ask extended family members (the maternal 

grandfather, paternal grandmother, paternal uncle, and 

maternal aunt) about potential tribal membership. The juvenile 

court’s alleged dereliction of its duty is the failure to ensure a 

proper inquiry by the Department. The statutory duty to ask 

extended family members about a child’s possible Indian heritage 

is imposed by California law on child welfare agencies only. 

(§ 224.2, subd. (b).) Federal law imposes no such duty. (In re 

S.S. (2022) 75 Cal.App.5th 575, 581 (S.S.); In re A.C. (2021) 65 

Cal.App.5th 1060, 1069.) The failure to inquire of extended 

family members accordingly is an error under state law only. 

Under California law, we may not reverse unless we find that 

error was prejudicial. (Cal. Const., art. VI, § 13; Benjamin M., 

supra, 70 Cal.App.5th at p. 742.)

In determining whether the failure to conduct a proper 

ICWA inquiry was prejudicial, several appellate courts have held 

that reversal is warranted only when the record indicates there 

was readily obtainable information that was likely to bear 
22

meaningfully upon whether the child is an Indian child. 

(Benjamin M., supra, 70 Cal.App.5th at p. 744; In re A.C. (2022)

75 Cal.App.5th 1009, 1017 [applying Benjamin M. court’s 

standard for prejudice]; In re Darian R. (2022) 75 Cal.App.5th 

502, 509 [same]; S.S., supra, 75 Cal.App.5th at p. 581 [same].)

The courts in In re Antonio R. (2022) 76 Cal.App.5th 421, 

435-436 (Antonio R.), and In re H.V. (2022) 75 Cal.App.5th 433, 

438 (H.V.), adopted a different standard, holding that the 

Department’s failure to interview extended family members 

during its initial ICWA inquiry was prejudicial error and 

therefore either reversible per se (H.V.) or above such a low bar 

for prejudice that it was reversible (Antonio R.). In Antonio R.,

the parents both denied knowledge of any Indian ancestry. The 

Department spoke with a paternal great-grandmother, who also 

denied knowledge of any Indian ancestry. The Department did 

not inquire about possible Indian ancestry with any maternal 

extended family members, including the maternal grandparents,

who were designated as the prospective adoptive parents, and 

maternal aunts and a maternal uncle, who were present at the 

disposition hearing. The court in Antonio R. concluded that the 

failure to do so was prejudicial error.

In H.V., the only person asked about possible Indian 

ancestry was the minor’s mother, who filed an ICWA-020 form 

denying knowledge of any Indian ancestry and informed the 

juvenile court that the minor’s alleged father (who did not 

appear) had no Indian ancestry. Although the Department 

interviewed the minor’s maternal great-grandmother and 

maternal great-grandfather, the record did not indicate whether 

the social worker asked any of these relatives about the minor’s 
23

possible Indian ancestry. The court in H.V. concluded that the 

failure to do so was prejudicial and reversible error.

We decline to adopt the standard applied by the courts in 

Antonio R. and H.V. We apply instead the standard for 

prejudicial error articulated by the court in Benjamin M., supra,

70 Cal.App.5th 735.

The record in this case reveals no readily obtainable 

information that was likely to bear meaningfully on whether the 

children were Indian children, and neither parent asserts that 

such information exists. Both mother and father told the social 

worker that they had no knowledge of any Indian ancestry. Both 

parents filed ICWA-020 forms stating they had no Indian 

ancestry to their knowledge. Both parents appeared at the 

detention hearing at which the juvenile court found, based on the 

parents’ representations, that it had no reason to know that 

ICWA applied. Both parents were instructed by the juvenile 

court to make the court, the Department, and the parents’ 

attorneys aware of any new information concerning possible 

ICWA status. Both parents were in contact during the case with 

paternal and maternal extended family members. The family 

lived in the maternal grandfather’s home at the outset of the 

case. The children moved to the paternal grandmother’s home in 

June 2019 and the parents initially agreed to have the paternal 

grandmother assume legal guardianship over the children. The 

children were then placed with maternal aunt, who monitored 

the parents’ visits with the children and with whom the parents 

remained in contact throughout the case. Neither parent brought 

to the Department’s or the juvenile court’s attention any 

additional information relevant to ICWA.
24

Benjamin M., supra, 70 Cal.App.5th 735, In re Josiah T. 

(2021) 71 Cal.App.5th 388, and In re Y.W. (2021) 70 Cal.App.5th

542 (Y.W.), on which the parents rely, are factually 

distinguishable. The father in Benjamin M. never appeared in 

court and was never asked whether he had reason to believe the 

subject minor was an Indian child. (Benjamin M., at p. 744.) The 

child welfare agency never asked the father’s brother and sisterin-law, whom the agency contacted in an effort to locate the 

father, about the minor’s possible Indian ancestry. The court in 

Benjamin M. noted that the father’s brother’s knowledge of his 

own Indian heritage was likely to bear meaningfully on the 

father’s status. (Id. at p. 745.) Josiah T. similarly involved a 

missing father who was not available to claim or deny Indian 

ancestry. (Josiah T., at pp. 393-394, 403.) Although the paternal 

grandmother in that case claimed Cherokee ancestry, the agency 

then failed to disclose or follow up on that claim. Here, in 

contrast, both parents appeared in the juvenile court, both filed 

ICWA-020 forms denying any knowledge of Indian ancestry, and 

both repeatedly denied knowledge of any Indian ancestry. No 

extended family member, including paternal relatives with whom 

the children were initially placed and who wanted the children 

placed with them, claimed to have any Indian ancestry. 

Maternal aunt, with whom the children were subsequently 

placed and who wanted to adopt the children, also never informed 

the Department of any possible Indian ancestry.

In Y.W., supra, 70 Cal.App.5th 542, the mother, who was 

adopted, filed an ICWA-020 form stating she had no knowledge of 

Indian ancestry. The social services agency interviewed the 

adoptive maternal grandmother, who did not know whether 

mother’s biological family had any Indian ancestry. The adoptive 
25

maternal grandmother told the social worker that she knew the 

name of mother’s biological father but had no additional 

information about him or his relatives. The adoptive maternal 

grandmother further stated she could obtain contact information 

for the mother’s biological maternal aunt. The agency never 

followed up or sought to obtain further information about the 

mother’s biological parents. (Id. at p. 549.) The court in Y.W. 

held that the agency’s failure to do so was prejudicial error. (Id. 

at pp. 552-553.) In this case, neither parent was adopted, and 

mother and father repeatedly denied any knowledge of Indian 

ancestry.

In re A.C., supra, 75 Cal.App.5th 1009, another recently 

decided case, is distinguishable for similar reasons. Like the 

adopted mother in Y.W., the mother in A.C. lived in foster care, 

separated from her biological relatives much of her life. Although 

the mother in A.C. denied knowledge of any Indian ancestry 

during an initial interview with the social worker and filed an 

ICWA-020 form indicating she had no known Indian ancestry, 

the Department nevertheless concluded for unidentified reasons 

that ICWA “‘may apply.’” (Id. at p. 1013.) There was no 

indication that the Department conducted an ICWA inquiry of 

any extended family members, including a maternal cousin and 

maternal aunt with whom the minors were placed. (Ibid.) The 

appellate court noted that the mother, who was a product of 

foster care, may not have known her cultural heritage, whereas 

the same was not true of the maternal relatives. The court 

therefore held that the Department’s failure to ask the maternal 

relatives about possible Indian ancestry constituted prejudicial 

error. (Id. at p. 1017.)
26

Cases cited by father, In re T.G. (2020) 58 Cal.App.5th 275 

and In re S.R. (2021) 64 Cal.App.5th 303, are equally 

distinguishable. The courts in those cases found prejudicial error 

when the agency failed to conduct a further ICWA inquiry of 

extended family members after a claim of Indian ancestry. (T.G., 

supra, at pp. 282-285 [mother claimed Cherokee heritage]; S.R., 

supra, at pp. 308, 310, 315-316 [maternal grandmother reported 

that maternal great-grandmother was a member of federally 

recognized tribe].) No claim of Indian ancestry was made in this 

case.

The facts here are similar to those in In re Darian R.,

supra, 75 Cal.App.5th 502 and S.S., supra, 75 Cal.App.5th 575. 

In Darian R., both parents filed ICWA-020 forms denying 

knowledge of Indian ancestry, and the juvenile court ordered the 

parents to keep the Department and the court apprised of any 

new information relating to possible ICWA status. The court 

rejected the mother’s argument that the Department’s failure to 

interview the maternal grandfather and maternal aunt about 

their Indian ancestry was prejudicial. The court noted that in a 

previous dependency case, the juvenile court had found ICWA did 

not apply to two of the three children, that all three children had 

the same parents, and hence, the same ancestry. (Darian R., at 

p. 509.) The court in Darian R. further noted that the mother at 

various times had lived with the maternal relatives she claimed 

the Department failed to interview and that she had been 

ordered to continue to update the Department and the court with 

any information relevant to ICWA. (Darian R., at p. 510.) Here, 

as in Darian R., the children and the parents lived with maternal 

and paternal relatives at the outset of the case. Mother and 

father also had ongoing contact with maternal aunt, with whom 
27

the children were subsequently placed. The parents were 

instructed to continue to provide relevant ICWA information to 

the Department and the juvenile court. After denying any Indian 

ancestry, mother and father provided no additional ICWA 

information.

In S.S., supra, 75 Cal.App.5th 575, the court concluded the 

Department’s failure to ask the maternal grandmother about the 

child’s possible Indian ancestry was not prejudicial because the 

maternal grandmother, the mother’s counsel, and the minor’s 

counsel had all requested placement with the maternal 

grandmother. Under ICWA, when an Indian child is the subject 

of foster care or adoptive placement proceedings, preference must 

be given to a member of the Indian child’s extended family. (25 

U.S.C. § 1915(a), (b).) The requested placement, the court 

reasoned, gave rise to a strong incentive to bring to the juvenile 

court’s attention any facts suggesting the minor was an Indian 

child. The failure to do so implied that the maternal 

grandmother was unaware of such facts. (S.S., supra, at p. 582.) 

The children in this case were initially living with paternal 

relatives with whom the parents wanted to have the children 

placed. The children were subsequently placed with a maternal 

aunt who wanted to adopt the children. Like the maternal 

grandmother in S.S., the extended family members in this case 

had a similarly strong incentive to make the Department aware 

of any relevant ICWA information.

On the record presented here, we cannot conclude that the 

Department’s failure to ask the maternal grandfather, paternal 

grandmother, paternal uncle, and maternal aunt about the 

children’s Indian ancestry was prejudicial error.
28

DISPOSITION

The orders terminating parental rights and freeing the 

children for adoption are affirmed.

________________________

CHAVEZ, J.

We concur:

________________________

LUI, P. J.

________________________

ASHMANN-GERST, J.