1

Filed 2/5/24 In re J.D. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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

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

certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

In re J.D., et al., Persons Coming 

Under the Juvenile Court Law.

SOLANO COUNTY HEALTH 

AND SOCIAL SERVICES 

DEPARTMENT,

Plaintiff and Respondent,

v.

A.T., et al.,

Defendants and Appellants.

 A167852

 (Solano County

Super. Ct. No. 

J45190; J45191)

Defendants and appellants A.T. (Mother) and J.D. (Father) appeal the 

juvenile court’s order terminating their parental rights as to their twin 

children after a hearing pursuant to Welfare and Institutions Code section 

366.26.1 Mother contends the court erred in ruling that the parental-benefit 

exception did not preclude the termination of her parental rights. Father 

argues that he was entitled to a continuance to explore tribal customary 

adoption, that plaintiff and respondent Solano County Health and Social 

Services Department (Department) did not discuss with the relative 

1 All statutory references are to the Welfare and Institutions Code.
2

caregivers the possibility of a guardianship, and that the court erred in 

finding the parental-benefit exception inapplicable to him. Each parent joins 

in the other’s arguments. We will affirm.

I. FACTS AND PROCEDURAL HISTORY

The Department filed its initial petition pursuant to section 300, 

subdivision (b)(1) to declare then-seven-month-old twins(the subject of this 

appeal), as well as their half-siblings, dependents of the juvenile court. The 

petition alleged that the children had been exposed to domestic violence, that 

both parents had a history of drug use, and that Mother tested positive for 

methamphetamine at the twins’ birth. At the initial hearing, Father was 

declared the twins’ presumed father, and the children remained in their 

parents’ custody. 

On April 2, 2021, the juvenile court granted the Department’s request 

for a protective custody warrant for the twins after the parents missed 

several drug tests, Mother tested positive for amphetamines, THC, and 

methamphetamines, the Department received a referral concerning 

continuing drug use and violence in the home, and Mother denied the social 

worker access to the children. The Department filed an amended dependency 

petition, and the children were detained. 

A. Jurisdiction/Disposition Hearing and Appeal

After a contested jurisdiction and disposition hearing on June 18, 2021, 

the juvenile court sustained allegations of substance abuse and domestic 

violence and found that the twins were subject to section 300, subdivision (b). 

The twins were placed out of home, and the parents were offered 

reunification services. The parents’ case plan included assessments and 

treatments for mental health and substance abuse, individual counseling, 

parenting education, and random drug testing. 
3

Mother appealed the jurisdiction and disposition orders, arguing that 

the Department failed to comply with the Indian Child Welfare Act, 25 U.S.C. 

§ 1901 (ICWA). The Department stipulated to a reversal and limited remand

on that ground. We reversed the juvenile court’s ICWA findings and 

remanded for ICWA compliance (A163016). 

B. Sixth Month Status Review

The Department filed a Six-Month Status Review Report on November 

29, 2021, recommending that reunification services be terminated. The 

report indicated that the Department had contacted the Kiowa tribe and 

learned that the minors were eligible for membership. The social worker 

helped Father submit membership applications that same day. 

The Department’s report advised that Father and Mother had 

separated. Mother lived with a boyfriend; Father lived in a sober living 

environment, and a worker assisted him with housing. 

Mother continued to have substance use issues, was not in a substance 

abuse treatment program, continued to miss drug tests, and tested positive 

for methamphetamine. She was terminated from therapy for poor 

attendance but completed online domestic violence and anger management 

classes. She was scheduled to visit the twins twice a week for one hour and 

had not missed any visits. Mother was attentive, loving, and engaged with 

the twins, but did better when the maternal grandmother attended visits 

with her. 

Father did not comply with his case plan. He had not engaged in 

counseling, parenting education, or substance abuse treatment. He 

completed only five of 25 drug tests, and all five were positive for 

methamphetamine and marijuana. Father visited the twins twice per week 
4

for an hour; he was very loving and his visits went well overall, but he had 

difficulty keeping an eye on both children. 

C. New Disposition Hearing After ICWA Was Found to Apply

Because of the remand for ICWA compliance, the juvenile court held a 

new disposition hearing on March 23, 2022. The Department advised that 

the twins were now enrolled members of the Kiowa tribe and ICWA applied. 

A Qualified Indian Child Welfare Expert submitted a written declaration and 

testimony. The court found by clear and convincing evidence that continued 

parental custody was likely to cause serious emotional or physical damage to 

the twins, that active efforts were made to prevent the breakup of the Indian 

family, and that the twins’ placement was appropriate. Pursuant to a 

stipulation, the court ordered an additional six months of reunification 

services and set a combined six/12-month review hearing. 

D. Six/12-Month Status Review

The Department filed a status review report in September 2022, 

recommending termination of reunification services as to both parents. 

According to the Department’s report, Mother had told the social 

worker that she moved into a sober living environment, but the social worker 

confirmed that she had not. Mother completed 30 days of inpatient 

treatment from March 8, 2022 to April 6, 2022, but thereafter participated in 

only 11 of 30 drug tests. She tested positive for methamphetamine four 

times, positive for alcohol one time, and positive for THC four times. She 

attempted to deceive on her drug test samples twice. She told the social 

worker that she was in a detoxification facility for a week, but the social 

worker confirmed she was there for just two days. Mother participated only 

partially in outpatient drug treatment. She reported that she was engaged in 

mental health services, but the treatment provider confirmed she was 
5

removed from services due to her missed sessions. She did not appear for five 

of 11 sessions of her domestic violence program but did complete some 

parenting education. 

Father was reportedly homeless, and the housing worker was unable to 

contact him. He did not comply with the counseling component of his case 

plan, had not participated in parenting education or substance abuse 

treatment, and missed all 44 drug tests during the reporting period. 

Mother had visits with the twins twice a week for an hour. The visits 

were positive overall, but they remained supervised due to her inability to 

maintain sobriety, her failure to follow recommendations for in-patient 

treatment, and her lack of consistency with Therapeutic Visitation Services 

(TVS). Mother was referred to TVS to obtain additional coaching during 

visitation and to practice age-appropriate parenting strategies, but she did 

not follow through. 

Father attended most of his weekly visits, which were still supervised. 

The children were observed to respond to Father only about 65 percent of the 

time, indicating an attachment issue. According to the visitation worker, it 

was evident that Father loves the twins and enjoys spending time with them

and his visits were positive for them, but they needed therapy to address the 

attachment issues. The twins were “very stiff” when they first walked into 

visits with Father, and they were very irritable and fussy on the nights after 

his visits. 

At the contested review hearing on November 1, 2022, the Department 

made an offer of proof that arrangements were made for Father to be 

transported to inpatient substance abuse treatment, which he claimed to be 

interested in. Although an Uber driver dropped him off at the program, he 
6

did not enter. The parents objected to the recommendation to terminate 

reunification services and submitted the matter for decision.

The juvenile court terminated reunification services for Mother and 

Father and set a selection and implementation hearing under section 366.26. 

The parents were allowed to visit the twins twice per month for four hours 

per month.2 

E. Section 366.26 Report

In its February 2023 report for the section 366.26 hearing, the 

Department recommended a permanent plan of adoption for the twins. The 

twins had been placed with a maternal great-uncle and great aunt in 

December 2022, and those relative caregivers wanted to adopt them. 

The Kiowa tribal representative reported that the tribe supported

adoption by the relative caregivers if the twins did not reunify with their 

parents. She confirmed the tribe’s support for legal adoption with 

termination of parental rights, rather than a tribal adoption. 

The children were assessed as generally adoptable. They were happy 

toddlers who were growing and thriving in their placement with the relative 

caregivers. They had no unmet needs. They could count to 16 and sing songs

such as the “ABC song.” They slept through the night and enjoyed attending 

daycare three days per week. They had adjusted well to their placement and 

were extra clingy to the relative caregivers after visits with their parents. 

They had developed a routine, sought the relative caregivers for comfort, and 

2 The parents’ attorneys filed notices of intent to file a writ petition from 

the order setting the section 366.26 hearing (A166496). (Cal. Rules of Court, 

rules 8.450 & 8.452.) Their attorneys later filed letters stating they found no 

arguable issue. (See Glen C. v. Superior Court (2000) 78 Cal.App.4th 570.) 

No petition was filed, and the matter was dismissed.
7

called the caregivers “daddy” or “papa” and “mom” or “mommy.” The 

caregivers were engaging and positive with them. 

The former FFA (foster family agency) social worker reported that 

there was a period when Mother did not attend visits consistently, claiming 

she overslept or forgot. During visits, Mother and Father were attentive and 

played with the twins, but the twins did not show any distress or hesitation 

saying goodbye to them. The twins easily left the visits with the social 

worker and appeared happy when they saw their relative caregivers. 

One of the relative caregivers supervised Mother’s visits for January 

and February 2023. Mother was 55 minutes late to her visit on January 29, 

2023. She and the maternal grandmother, who accompanied her, gave the 

twins their phones and at times did not watch the children; the caregiver had 

to chase down one of the twins as he ran toward the door. 

During the reporting period, Father missed one visit in November 

2022. He attended two visits in December 2022, struggling at times to 

engage both children at once. He visited on January 11, 2023, but never 

appeared for his visit on January 23, 2023. The Department placed Father 

on a visitation contract, requiring him to confirm his visits two hours 

beforehand or they would be canceled; he failed to timely confirm his visit for 

February 23, 2023, and it was cancelled. As a result, there was no visit in 

February. 

The ICWA expert declaration reported that the tribe agreed to adoption 

by the relative caregivers as opposed to a tribal customary adoption. The 

expert agreed that continued parental custody was likely to result in serious 

emotional or physical damage to the twins, and that active efforts had been 

made and services offered to prevent the breakup of the Indian family and 

reunite the family. The expert observed that the children were in an ICWA 
8

preferred relative placement, which was the most appropriate and least 

restrictive placement that met the twins’ needs. 

F. Mother’s Section 388 Petition

In March 2023, Mother filed a petition under section 388, requesting 

reinstatement of reunification services. The Department opposed, reporting 

that since the termination of reunification services on November 1, 2022, 

Mother had attended only six of 10 visits, she was 45 minutes late to a visit 

in April and did not focus her full attention on the twins during the visit, she 

had not enrolled in outpatient treatment, she failed to appear for a scheduled 

drug test, and she was not returning the social worker’s calls. 

At a hearing on May 9, 2023, the juvenile court ruled that Mother 

failed to make a prima facie showing and denied the section 388 petition. 

G. Contested Section 366.26 Hearing

The contested section 366.26 hearing was held on May 11, 2023. 

Mother was present. Father was not. His attorney did not know why he was 

absent and requested a continuance. The Department objected, noting that 

the social worker left written notice of the hearing along with Father’s gas 

cards at the Department’s office and Father had signed for them. In addition, 

the social worker had spoken to Father that week and reminded him of the 

hearing. The court gave Father’s counsel time to phone and text him, but 

Father did not respond. The court denied the continuance, finding that 

Father had attended the previous hearing and was aware of this one. 

Social worker Kate Liouh testified that she had performed 

approximately 200 adoption assessments over her 15 years in the adoption 

unit. She observed the twins in their placement, where they had been for five 

months. They had a very good relationship with their caregivers, seemed

very comfortable in the home, and sought out the caregivers for comfort when 
9

upset. Liouh testified that the twins were adoptable and the relative 

caregivers wanted to adopt them. 

Liouh recounted issues with Mother’s visits, as reported by the relative 

caregiver who supervised them. Mother had attended only six of 10 visits 

during the reporting period, and the children had no difficulty transitioning 

away from her at the end of visits. 

Father had also attended only six of 10 visits, and the twins had no 

difficulty transitioning away from him. During one visit, Father attempted to 

give the twins a hug, and one of them tried to get away from him. During 

Father’s most recent visit on April 20, 2023, he lost his temper multiple times 

when the children fought over toys and one spilled water. When one of the 

twins cried for “mommy,” referring to the relative caregiver, Father yelled, 

“she’s not your mommy!” When Liouh tried to intervene, he raised his voice 

at her too. 

Mother testified that during her reunification period (which ended in 

May 2023), she missed visits around times she was going into treatment 

programs, but she claimed that the twins would run to her and call her 

“Mommy,” that she comforted them when they got hurt, that she did 

activities with them, that they were happy to see her, and that they would 

cry when visits ended. Mother believed it would hurt the twins if her 

parental rights were terminated because she was a mother figure to them 

and was in their lives since they were born. 

On rebuttal, Liouh testified that she did not recall from the file or the 

FFA social worker that the children screamed or cried at the end of Mother’s 

visits, and based on her own observations in September 2023, the twins left 

the visits easily. 
10

Liouh opined that the benefits of adoption outweighed the benefits of 

maintaining the parent-child relationship in this case. She added that the 

relative caregivers wanted to make the “commitment of adoption,” and “if 

given the choice[,] they wanted to adopt.” 

The tribal representative who attended the hearing recommended 

termination of parental rights and adoption by the relative caregivers. The 

ICWA expert’s declaration, which was accepted in lieu of live testimony, 

concluded that the twins’ placement was “exceptionally positive,” safe, stable, 

and secure, and the caregivers gave the twins the love, support, and 

nurturing they needed. The ICWA expert confirmed that the tribe agreed 

with the case plan. 

Father presented no evidence. His attorney asked the juvenile court to 

select guardianship as the permanent plan. 

Mother’s lawyer argued that Mother established a beneficial 

relationship with the twins and that severance of parental rights would be 

detrimental to them. 

The juvenile court found the twins to be generally adoptable. Although 

Mother had maintained consistent visitation and had a relationship with the 

children, the relationship was not substantial. The court explained: “I didn’t 

hear that this relationship was a substantial relationship, that it is a 

substantial positive emotional attachment such that severing of parental 

rights would cause substantial harm to them, and that harm would outweigh 

the stability and the permanency of adoption.” The court considered the fact 

that the twins were very young, that they lived away from Mother’s care for 

nearly a year and a half, that they formed attachments with their caregivers, 

and that they were finally in a place where they had caregivers willing to 

provide them with permanency. The court found beyond a reasonable doubt 
11

that continued custody of the twins by the parents was likely to result in 

serious physical and emotional damage to them, because it would disrupt 

their stability and the consistency they had in their placement. In addition, 

the court observed that Mother had not made any changes since termination 

of reunification services to address the issues that brought her before the 

court. The court terminated Mother’s and Father’s parental rights and 

selected adoption as the permanent plan. Mother and Father filed timely 

notices of appeal.

II. DISCUSSION

Under section 366.26, the juvenile court selects from permanent plans 

including adoption, legal guardianship, long-term foster care, and, where 

applicable, tribal customary adoption. (§ 366.26, subds. (b)(1)–(b)(7).) Where, 

as here, the juvenile court finds by clear and convincing evidence that the 

child is likely to be adopted, the court must terminate parental rights and 

order the child placed for adoption unless the “court finds a compelling reason 

for determining that ‘termination would be detrimental’ based” on one of the 

statutorily enumerated exceptions. (§ 366.26, subd. (c)(1); In re Autumn H. 

(1994) 27 Cal.App.4th 567, 573–574 (Autumn H.).) It is the parent’s burden 

to show that exceptional circumstances should preclude adoption and 

termination of parental rights. (Autumn H, at p. 574; In re A.S. (2018) 28 

Cal.App.5th 131, 152 [juvenile court presumes that terminating parental 

rights is in the child’s best interests, and the parent has the burden to 

demonstrate a compelling reason for deciding that termination would be 

detrimental to the child due to one of six reasons enumerated in the statute].)

Here, Mother and Father argue that the juvenile court should have 

applied the parental-benefit exception set forth in section 366.26, subdivision 

(c)(1)(B)(i). We disagree.
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A. Parental-Benefit Exception

The parental-benefit exception applies where “[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 must prove three elements: “(1) regular visitation and contact, and (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, 631–632 (Caden C.).) The first two elements 

are reviewed for substantial evidence. (Id. at p. 640.) The third element 

requires the juvenile court to “assess[] what the child’s life would be like in 

an adoptive home without the parent in his life . . . by weighing the harm of 

losing the [parental] relationship against the benefits of placement in a new, 

adoptive home,” and that finding is reviewed for abuse of discretion. (Ibid.)

1. Mother Failed to Establish the Exception

The Department concedes that, although Mother had periods when she 

did not visit the children and only attended 60 percent of available visits 

between the termination of her reunification services and the section 366.26 

hearing, her visitation was reasonably consistent. However, Mother did not 

establish the other two elements of the exception.

a. Beneficial Relationship Element

The second element, whether Mother’s relationship was beneficial to 

the children, required Mother to show that the twins had a “substantial, 

positive, emotional attachment” to her. (Caden C., supra, 11 Cal.5th at 

p. 636; Autumn H., supra, 27 Cal.App.4th at p. 575.) The focus is on the 

child, and the relationship may be evaluated by considering factors such as 

the child’s age, the portion of the child’s life spent in the parent’s custody, the 
13

positive and negative effects of their interactions, and the child’s needs. 

(Caden C., at p. 632; Autumn H., at p. 576.)

Substantial evidence supports the juvenile court’s conclusion that there 

was no substantial attachment between the twins and Mother. The twins 

were eight months old when they were removed from Mother’s care. By the 

time of the section 366.26 hearing, they were almost three years old and had 

spent over two years—the vast majority of their lives—outside of her care. 

Mother had visitation twice per week (until services were terminated), but 

she had not progressed beyond supervised visits. She failed to follow through 

with TVS to obtain coaching and age-appropriate parenting strategies. From 

the termination of services until the section 366.26 hearing, visits were 

available twice per month, but Mother attended only six of 10 of them. 

According to Liouh’s testimony and the social worker’s recorded observations, 

the twins transitioned easily away from Mother at the end of her visits, and 

the twins were more irritable and fussier after her visits.

Mother points to her own testimony that the children would run to her 

and call her “Mommy,” that she engaged in activities with them, that she 

comforted them when they got hurt, that she and the children were 

affectionate with one another, that they were happy to see her, and that they 

would hug her and not want to let go when arriving and would cry and 

scream when visits ended. However, Mother’s accounts of her visits were 

contradicted by Liouh’s testimony, Department reports, and other evidence in 

the case. We defer to the credibility assessments of the juvenile court, and it 

is not our role to reweigh the evidence. (In re L.Y.L. (2002) 101 Cal.App.4th

942, 947; Autumn H., supra, 27 Cal.App.4th at p. 576.) Substantial evidence 

supports the court’s conclusion that the relationship was not substantial. 

(See In re Brian R. (1991) 2 Cal.App.4th 904, 924 [“pleasant and cordial”
14

parent-child visits are not enough by themselves to mandate a permanent 

plan other than adoption].)

b. Detriment Element

As to the third element, Mother had to show that the twins’ 

relationship with Mother was so important to them that the security and 

stability of a new home would not outweigh its loss. (Caden C., supra, 11 

Cal.5th at pp. 633–634.) She fails to demonstrate that the juvenile court 

abused its discretion in concluding that she failed to do so.

As mentioned, there was ample evidence that the twins had no 

substantial relationship or bond with Mother. On the other hand, there was 

ample evidence that an adoptive home would provide the twins with security 

and stability. The twins were well-adjusted, happy, comfortable, growing, 

and thriving in their placement with their relative caregivers and prospective 

adoptive parents. The relative caregivers were positive and engaging with 

the twins, who had no unmet needs. The twins had developed a routine and 

sought the caregivers for comfort. The twins called the caregivers “daddy” or 

“papa” and “mom” or “mommy.” Mother conceded that the relative caregivers 

were taking excellent care of the children, and she believed they would 

continue their commitment to the children. As the juvenile court further 

noted, the twins were very young and they had been out of Mother’s care for a 

substantial amount of time. Finally, the tribe agreed with the termination of 

parental rights and legal adoption.

Mother argues that the juvenile court improperly considered whether 

she had “resolved the problems resulting in the dependency.” She notes that 

the court stated, in explaining part of its reasons for its ruling: “I considered 

the fact that since family reunification services ended in November, I didn’t 

see and I didn’t hear any changes as they pertain to mom that indicated to 
15

me that the issues that brought her before the Court were actually addressed.

[¶] I do find and I find this beyond a reasonable doubt that continued custody 

of the child by the parent is likely to result in serious emotional and physical 

damage to the child and that is because again it would disrupt the stability of 

these minors, the consistency that they have in their placements, the fact 

that I’m not convinced mother’s issues that brought her before the Court have 

been addressed to the point that there are no safety concerns for the minors.”

(Italics added.) She argues that Mother’s ongoing problems cannot be 

considered under Caden C. 

Mother is incorrect. Caden C. stated that a parent’s inability to 

overcome the issues that led to the dependency cannot be used as a 

“categorical bar” to the parental-benefit exception. (Caden C., supra, 11 

Cal.App.5th at p. 637, italics added.) As Caden C. explains, “the parent’s 

struggles with issues such as those that led to dependency are relevant only

to the extent they inform the specific questions before the court: would the 

child benefit from continuing the relationship and be harmed, on balance, by 

losing it.” (Ibid., italics added.) That was the general context in which the 

juvenile court mentioned Mother’s struggles here. In any event, unlike 

Caden C., the court in this case did not rely solely on the parent’s continued 

struggles with substance abuse and failure to reunify. Here, substantial 

evidence indicated there simply was not a sufficiently significant 

relationship, the loss of which would outweigh the benefits of adoption, in 

light of the twins’ age, time away from parental care, and the detriment that 

would arise from a disruption of their current care.

3 Mother fails to 

demonstrate an abuse of discretion.

3 Mother’s reliance on In re B.D. (2021) 66 Cal.App.5th 1218, 1228–1229 

and In re Dy.P. (2022) 76 Cal.App.5th 153, 168 is misplaced. In those cases, 
16

2. Father Failed to Establish the Exception

Father claims that he “met his burden to prove all three of [the]

elements” of the parental-benefit exception “and the juvenile court relied on 

improper factors in deciding otherwise.” But Father did not invoke the 

parental-benefit exception in the juvenile court. In any event, he fails to 

demonstrate the exception would apply to him.

a. Forfeiture

The failure to raise a statutory exception to adoption and termination 

of parental rights at the section 366.26 hearing forfeits the issue on appeal.

(In re Daisy D. (2006) 144 Cal.App.4th 287, 292 [no sua sponte duty to 

consider sibling relationship exception to adoption, so parent’s failure to raise 

it in the juvenile court precludes her from raising it on appeal from 

termination of her parental rights]; In re D.P. (2023) 92 Cal.App.5th 1282, 

1292–1293 [forfeiture applies in dependency proceedings].)

Father did not appear at the section 366.26 hearing, his attorney 

presented no evidence on his behalf, and his attorney did not raise the 

parental-benefit exception specifically. Father’s argument for the parentalbenefit exception, raised for the first time on appeal, is forfeited.

b. The Exception Did Not Apply

Even if Father had not forfeited the issue, there was more than enough 

evidence to support the rejection of the parental-benefit exception as to him.

As mentioned, the second element of the exception requires the parent 

to show that the child has a “significant, positive, emotional attachment” to 

the parent. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) 

the record was not clear that the juvenile court had relied on facts other than 

the failure to overcome the issues that led to the dependency (without linking 

that failure to the elements of the exception) or other improper factors.
17

Considerations include the child’s age, the portion of the child’s life spent in

parental custody, the positive or negative effect of the interaction between the 

parent and the child, and the child’s particular needs. (Caden C., supra, 11 

Cal.5th at p. 632.) Here again, the twins were removed from Father’s care at 

eight months of age, and by the time of the section 366.26 hearing, they were 

34 months old and had spent 26 of those months out of Father’s care. During 

visits with Father, as late as the 12-month review, the twins were responding 

to Father only 65 percent of the time and needed therapy to address their 

attachment issues. They were stiff at the start of his visits and were fussier 

and more difficult to comfort on the days Father visited. In the six months 

before the section 366.26 hearing, Father participated in only six of 10 visits. 

One of the twins had tried to escape from his attempt to hug them. Finally, 

the twins easily transitioned from Father’s visits back to their caregivers.

As to the third element, ample evidence, which we have already 

described, supported the conclusion that any detriment to the twins in 

terminating their relationship with Father was outweighed by the 

permanency and stability of adoption.

Father argues that the twins looked forward to his visits, he was 

loving, and his visits were “generally good.” However, he ignores the 

evidence to the contrary, and it is not our role to reweigh the evidence. He 

fails to demonstrate error.

C. Father’s Request to Continue the Section 366.26 Hearing

Father contends “the juvenile court made an error of law when it 

denied [his] counsel’s request to continue the section 366.26 hearing for 

father’s presence, . . . specific to Indian children that allows for a continuance 

for father to present tribal adoption as the more appropriate plan.” He notes 

that section 352 gives the court discretion to continue a hearing upon a 
18

parent’s request and showing of good cause, provided the continuance is not 

contrary to the minor’s interest (such as the minor’s need for prompt 

resolution of custody status). (§ 352, subds. (a)(1), (2).) He also notes a 

provision in section 366.24, which allows the juvenile court to continue a 

section 366.26 hearing to allow a tribe to complete the proceedings necessary 

for a tribal customary adoption. From this, he concludes the court had the 

power to grant Father a continuance for this purpose. But Father never 

requested a continuance for that purpose, and there was no basis for him to 

do so. 

1. Forfeiture

Father’s counsel requested a continuance of the section 366.26 hearing 

solely on the ground that Father was absent and had not been in contact with 

his attorney. There was no request to continue the matter so he could pursue 

tribal customary adoption as the permanent plan. Furthermore, Father was 

aware of the section 366.26 hearing as of the termination of reunification 

services on November 1, 2022, but he never asked for an analysis of tribal 

customary adoption at any of the five court hearings between the 

six/12-month review and the section 366.26 hearing. Father has therefore 

forfeited this argument. (In re D.P., supra, 92 Cal.App.5th at pp. 1292–1293; 

In re I.P. (2014) 226 Cal.App.4th 1516, 1526 [parent forfeited argument that 

tribal customary adoption should have been considered by failing to assert it 

in the juvenile court].)

In his reply brief, Father argues that he did not forfeit the argument 

because his lawyer sought a continuance of the hearing, and because the 

issues at stake at the hearing included section 366.24 after the court had 

found that the children were Indian and that ICWA applied. Not so. The 

tribe had not pursued tribal adoption, so section 366.24 was not at issue. 
19

Father’s other arguments pertaining to whether he has standing are 

immaterial.

2. Tribe’s Right, Not Father’s

Contrary to Father’s argument, section 366.24, subdivisions (c)(6) and 

(c)(7), do not afford a parent the right to request a continuance to explore 

tribal customary adoption.

Section 366.24, subdivision (c)(6) states: “If the tribe identifies tribal 

customary adoption as the permanent placement plan for the Indian child, 

the court may continue the selection and implementation hearing governed 

by Section 366.26 for a period not to exceed 120 days to permit the tribe to 

complete the process for tribal customary adoption and file with the court a 

tribal customary adoption order evidencing that a tribal customary adoption 

has been completed.” (Italics added.) The statute allows only the tribe, but 

not a parent, to identify tribal customary adoption as the permanent plan. 

The tribe did not pursue tribal customary adoption, so section 366.24, 

subdivision (c)(6), does not apply.

Section 366.24, subdivision (c)(7) allows birth parents, among others, to 

“present evidence to the tribe regarding the tribal customary adoption and the 

child’s best interest.” (Italics added.) But that does not change the fact that 

only the tribe can propose tribal customary adoption as the permanent 

placement. Here, the tribe did just the opposite: it agreed with the legal 

adoption by the relative caregivers as proposed by the Department.

Father’s reliance on In re H.R. (2012) 208 Cal.App.4th 751 is misplaced. 

There, the court of appeal determined that tribal customary adoption is the 

preferred permanent plan for an Indian child if it is recommended by the 

child’s Indian tribe. (Id. at pp. 761–762.) Tribal customary adoption is not 
20

available unless the tribe consents and participates. (Id. at p. 766; see In re 

I.P., supra, 226 Cal.App.4th at pp. 1528–1529.) That did not occur here.

D. Option of Relative Guardianship

Father contends the social worker failed to tell the relative caregivers 

about the relative guardian exception to adoption. According to Father, this 

failure “deprived the juvenile court [of] any meaningful opportunity to 

ascertain the child’s best interests under section 366.26, subdivision (h)(1) 

and whether [the] relative guardian exception under section 366.26, 

subdivision (c)(1)(A) applied to preserve parental rights.” Therefore, Father 

argues, the “court’s findings that no exceptions to adoption applied and 

adoption was the best permanent plan for the children are not supported by 

substantial evidence.” The argument is meritless.

First, Father failed to raise the argument below. At the contested 

366.26 hearing, Father’s counsel asked the juvenile court to select legal 

guardianship as the permanent plan, but never argued that the court could 

not terminate parental rights because the Department had failed to speak to 

the care providers about possible permanency options. Thus, Father forfeited 

the argument. (In re D.P., supra, 92 Cal.App.5th at pp. 1292–1293.)

Second, Father’s assumption that the Department did not discuss the 

option of guardianship with the relative caregivers is speculative. In fact, 

substantial evidence supports the contrary conclusion: that the Department 

did discuss relevant placement options with the caregivers. Liouh testified 

that she usually talks to the caregivers about permanency and, in this case, 

the caregivers did not say they refused to do a guardianship, but that they 

wanted to adopt “if given the choice.” (Italics added.) This suggests they 

were aware of at least two choices—adoption and legal guardianship. 

Furthermore, Father cites no authority to support his argument that the 
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Department was required to discuss every permanency option with the 

relative caregivers. 

Third, the relative guardian exception to adoption does not apply here. 

It applies only where the “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, and the removal of the child from 

the custody of their relative would be detrimental to the emotional well-being 

of the child.” (§ 366.26, subd. (c)(1)(A); italics added.) Here, the relative 

caregivers were willing to adopt the twins. 

Finally, and regardless of the foregoing, the juvenile court was not 

deprived of the ability to appropriately assess permanency options. Both 

parents’ attorneys asked the court to enter a guardianship rather than 

adoption as the permanent plan. The option of a tribal adoption was not 

possible, because the tribe did not pursue it. Overwhelming evidence 

supports the conclusion that the court chose the best permanent plan for the 

twins, consistent with section 366.26.

III. DISPOSITION

The order is affirmed.
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CHOU, J.

We concur.

JACKSON, P. J.

SIMONS, J.

In re J.D. / A167852