1

Filed 8/19/24 In re J.A. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re J.A., a Person Coming Under the 

Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT 

OF PUBLIC SOCIAL SERVICES,

Plaintiff and Respondent,

v.

S.A.,

Defendant and Appellant.

E083049, E083588

(Super.Ct.No. DPRI2300122)

OPINION

APPEAL from the Superior Court of Riverside County. Mona M. Nemat, Judge. 

Affirmed.

William D. Caldwell, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Minh C. Tran, County Counsel, Teresa K.B. Beecham and Catherine E. Rupp, 

Deputy County Counsel, for Plaintiff and Respondent.
2

The juvenile court denied defendant and appellant N.V.’s (mother) Welfare and 

Institutions Code section 3881 petition and terminated her parental rights as to J.S. 

(minor, born April 2023). On appeal, mother contends the court erroneously applied the 

caretaker preference in denying her section 388 petition for placement of minor with a 

nonrelated extended family member (NREFM),

2 R.F.3

 Mother additionally maintains 

plaintiff and respondent, the Riverside County Department of Public Social Services (the 

department), committed reversible error by failing to comply with their duty of inquiry 

with respect to the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.). 

We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND4

After mother gave birth to minor, she tested positive for amphetamines and 

opiates; minor tested positive for amphetamines and THC (tetrahydrocannabinol). 

Mother’s prenatal records reflected she had previously tested positive for amphetamines 

while pregnant with minor. When the social worker arrived at the hospital, a nurse 

1

 All further statutory references are to the Welfare and Institutions Code.

2 A NREFM “is defined as an adult caregiver who has an established familial 

relationship with a relative of the child, as defined in paragraph (2) of subdivision (c) of 

Section 361.3, or a familial or mentoring relationship with the child. The county welfare 

department shall verify the existence of a relationship through interviews with the parent 

and child or with one or more third parties. The parties may include relatives of the 

child, teachers, medical professionals, clergy, neighbors, and family friends.” (§ 362.7.)

3 R.F. is the paternal aunt of minor’s half sibling.

4 We granted mother’s motions to consolidate case Nos. E083049 and E083588 

for purposes of briefing, oral argument, and decision.
3

reported that mother was difficult to wake and did not appear cognizant of the 

circumstances. The nurse had significant concerns as to minor’s safety when left alone 

with mother; mother would not feed or change minor. Mother’s progress notes reflected 

previous diagnoses of schizoaffective disorder, bipolar, and methamphetamine use.

Mother admitted smoking marijuana when interviewed by the social worker. She

“did not appear coherent and only answered . . . questions using one-word responses.” 

Mother denied mental health concerns but stated she was diagnosed with schizophrenia. 

She declined services, but asked for clothes for minor.

The guardian of mother’s eldest child reported mother had been diagnosed with 

schizophrenia and bipolar disorder. “The guardian stated she has known the mother for 

12 years and has watched the mother’s mental health decline[]. The guardian became 

aware of mother’s pregnancy in December 2022. She knew the mother was using 

methamphetamine as the mother had tested positive during a urine toxicology test at one 

of her prenatal appointments. The guardian stated the mother has been violent, 

aggressive and ‘scary.’” “The guardian described an event on March 28, 2023[,] where 

she took the mother to a mental health appointment and the mother became erratic, 

screamed, yelled and was combative.”

“The guardian described the mother as disconnected from reality and expressed 

her fears for [minor’s] safety should [he] be allowed to go home with the mother. The 

guardian shared the mother was living with the maternal grandmother who was in denial 

that the mother suffers from severe mental illness. According to the guardian, the 
4

maternal grandmother has blamed the mother for sexual abuse that happened to the 

mother as a child which has caused the mother’s mental health to decline further. The 

guardian stated if [minor] were to be placed with relatives, the mother ‘will come and 

break the windows, bang on the doors. They would not be safe.’ The guardian expressed 

severe concerns for the mother’s well-being and mental health status.” On April 3, 2023, 

department personnel took minor into protective custody pursuant to a warrant.

Mother had a criminal history that included convictions for attempted auto theft, 

two separate convictions for assault with a deadly weapon, trespass, multiple counts of 

shoplifting, and a parole violation.

Mother had an extensive prior dependency history, including one case in which her 

reunification services as to her children D.W. and H.S had been terminated. H.S. had 

tested positive for marijuana at birth. Domestic violence and mental health issues had 

been alleged. The juvenile court had terminated the dependency and placed the children

in a legal guardianship.

In the previous dependency proceeding, “ICWA inquiry was made as the mother 

mentioned potential Blackfoot Apache ancestry. However, it was determined ICWA did 

not apply to the proceedings.” The social worker asked mother about any Native 

American ancestry, but mother was unable to complete coherent sentences during the 

interview.

“The maternal grandmother stated she believed the maternal grandfather has 

connections to the Cherokee Nation. In addition, she has connections with the Blackfoot 
5

Apache tribe. The maternal grandmother stated no one in the family was a registered 

member to [either] Native tribe[].” The social worker reviewed the previous dependency 

proceeding; the juvenile court had found that ICWA did not apply to either mother or the 

maternal grandmother: “There has not been any new information since that dependency 

that would suggest ICWA would apply.”

On April 4, 2023, the social worker contacted the “ICWA Coordinator with the 

Blackfoot Apache tribe but the voicemail was full. Therefore, [she] sent an email to 

inquire about the mother’s connections to the Blackfoot Apache tribe.” On the same date 

she spoke with a representative of the Cherokee Nation. The social worker provided the 

representative “mother’s and maternal relative’s information, as well as the alleged 

father’s information.” The representative responded by email that minor was not an 

Indian child “in relation to the Cherokee Nation as defined in the Federal ICWA.

Cherokee Nation will not be involved based on the information exactly as provided.”

On April 5, 2023, department personnel filed a section 300 juvenile dependency 

petition alleging, as to mother, that she had unresolved mental health issues (b-1), abused 

controlled substances (b-2), demonstrated a limited ability to care for minor (b-3), had a 

prior juvenile dependency history (b-4), and had an extensive criminal history (b-6).5 On 

April 6, 2023, the court issued an order temporarily detaining minor.

On April 10, 2023, mother completed a Judicial Council Forms, form ICWA-020,

in which she claimed that she might be a member of or eligible for membership in the 

5

 The first amended petition filed May 15, 2023, made no changes with respect to 

the allegations pertaining to mother.
6

Blackfoot or Cherokee Indian tribes. The court directed the department to continue with 

its ICWA inquiry. The court noted, “I believe I saw in the detention report that they have 

done an inquiry previously.” The court confirmed its order detaining minor.

In the April 26, 2023, jurisdiction and disposition report, the social worker 

recommended the court find the allegations in the petition true and deny mother 

reunification services pursuant to section 361.5, subdivision (b)(10) (termination of 

reunification services as to minor’s sibling).

6

 The social worker noted “in the last 

dependency . . . the mother stated she may have connections to the Blackfoot Apache 

tribe. [The department] completed an ICWA inquiry and determined ICWA did not 

apply.” “On April 18, 2023, the mother initially denied any Native American ancestry. I 

informed her the ICWA-020 was filed on her behalf . . . indicating she may be a member 

of the Blackfoot/Cherokee tribe. The mother stated she has Native American ancestry.”7

“On April 4, 2023, the maternal grandmother stated she believed the maternal 

grandfather has connections to the Cherokee Nation. In addition, she has connections 

with the Blackfoot Apache tribe. The maternal grandmother stated no one in the family 

was a registered member to [either] Native tribe[].” A social worker “reviewed a 

dependency when the mother was a minor and discovered that the Court found that ICWA 

6 The social worker also recommended the court deny services to the alleged 

father. Father never participated in the proceedings below and is not a party to the 

appeal.

7 There is no explanation as to who filed the form on mother’s behalf.
7

did not apply to the maternal grandmother nor the mother. There has not been any new 

information since that dependency that would suggest ICWA would apply.”

A social worker contacted both tribes with mother’s, the maternal grandmother’s, 

and the maternal grandfather’s information. A representative from the Cherokee Nation 

responded that minor was not an Indian child, and the tribe would not be involved in the

proceedings.

In response to department inquires, the Yavapi-Apache Nation, Tonto Apache 

Tribe, the Fort Sill Chiricahua Warm Spring Apache Tribe, United Keetoowah Band of 

Cherokee Indians, the Eastern Band of Cherokee Indians, Mescalero Apache Tribe, White

Mountain Apache Tribe, and Jicarilla Apache Nation indicated that minor was not eligible 

for enrollment in the tribe, and that the tribes would not be intervening in the 

proceedings.

In the May 10, 2023, addendum report, the social worker noted that minor was 

“placed in an adoptive home and they expressed a desire to adopt [minor] if the parents 

fail to reunify.” On April 24, and May 2, 2023, mother tested positive for amphetamine, 

methamphetamine, marijuana, and cocaine. Mother failed to show for testing on May 5, 

2023.

At the contested jurisdictional hearing on May 15, 2023, the court found the 

allegations in the petition true. The court noted, “I don’t know if we have enough 

information on ICWA.” Counsel for the department responded, “The maternal 

grandmother said possible ancestry with Cherokee and Blackfoot Apache. We did 
8

conduct further inquiry and filed noticing documentation with the Court on April 27th, 

2023. We also followed up on further tribal responses on May 9th, 2023. We have 

received indication from three pertinent tribes that the child is not an Indian from the 

Cherokee Nation of Oklahoma, from the Yavapai-Apache, and Tonto Apache.” Counsel 

indicated she would follow up at the next hearing. The court replied, “I don’t have 

anything from the Cherokee Nation.” Counsel responded, “That’s in the further inquiry 

that was [filed on] April 27th, 2023.”8 The court found “ICWA does not apply.”

In an addendum report filed June 28, 2023, the social worker recommended 

“temporary educational rights be granted to the current caregivers.” Mother tested 

positive for methamphetamine on May 12, 2023, the day she entered a residential 

treatment program. On June 9, 2023, mother was terminated from a substance abuse 

“program due to testing positive for methamphetamine and admitting to using while” in 

inpatient treatment. On June 14, 2023, mother tested positive for amphetamine, 

methamphetamine, and marijuana.

On June 12, 2023, mother recommended the department place minor with a family 

friend, R.F.; mother provided the social worker with the friend’s phone number and the 

social worker texted her that evening.

At the dispositional hearing on July 3, 2023, the department asked the court “to 

find that ICWA does not apply to this case at this time.” Mother’s counsel noted, “there’s 

mention of an individual, [R.F.], who’s interested in placement. I think she was referred 

8 Some of the tribes listed ante either did not respond until after the hearing, or 

the department did not submit the tribal responses until after the hearing.
9

to [Resource Family Approval (RFA)]. We would ask the Department to follow through 

on the RFA assessment for [R.F.].” The department noted that minor was placed with the 

caretakers on April 10, 2023.

The court removed minor from mother’s custody, denied her reunification 

services, and set the section 366.26 hearing. The court found ICWA did not apply. On 

July 5, 2023, the court gave the caretakers temporary educational rights over minor.

On July 14, 2023, the caretakers applied for de facto parent status. On July 18, 

2023, the court ordered a hearing on the caretakers’ de facto parent request.

On August 18, 2023, mother filed a section 388 petition requesting the court place 

minor with R.F.9 Mother alleged as a change in circumstance that the RFA process had 

begun prior to the dispositional hearing. Mother alleged the change of placement would 

be in minor’s best interest because minor had no relations to the caretakers prior to 

placement, and, that if placed with R.F., minor could “build a relationship with his halfsiblings, . . .” The court ordered an evidentiary hearing on the petition.

In an addendum report filed September 14, 2023, the social worker recommended 

the court deny mother’s section 388 petition. RFA reported that R.F. was approved for 

emergency placement of minor “with concerns.” An investigation into R.F.’s home 

revealed “that there were suspicious circumstances regarding a death at the home in 

2021.” The department was unable to obtain a police report for the alleged incident.

9

 The petition alleges that R.F. is “a paternal aunt to . . . minor’s half-sibling.”
10

The social worker reported, “At this time, the child remains placed in a stable 

placement. Placing the child in a new placement . . . is not in his best interest. On 

August 23, 2023, a Concurrent Plan Review was held[,] and it was determined that the 

permanent plan for the child is adoption.” Minor “was placed in his placement on April 

10, 2023, and these are the only parents he knows. In addition, the current caregivers 

currently hold [e]ducational rights for [minor].” “In addition, the caregivers have been 

granted De Facto Parent status by the Court on July 18, 2023.”10 “The caregivers have 

been vested in the care of [minor] and are making sure that all his needs are being met. 

Moving [minor] from the caregivers will not be in his best interest.”

At a hearing on September 19, 2023, the department requested the court continue 

the hearing on mother’s section 388 petition for the social worker to interview R.F. “It 

looks like the family friend was approved for emergency placement with concerns. There 

are, unfortunately, more details gathered through the Department interview of the family 

friend, [R.F.]. Unfortunately, the supervisor who interviewed her is out this week.” The 

court directed the department “to circle back with the NREFM, [R.F.], to get additional 

information about the suspicious circumstances indicated in the . . . report.”

In an addendum report filed September 26, 2023, the social worker related that 

R.F. “stated that her grandmother passed away on December 24, 2021, in her home.” Her 

grandmother stopped breathing; she called 911 and performed CPR until the fire 

10 The juvenile court had only granted the caretakers a hearing on their request 

for de facto parent status. The court did not grant the caretakers’ de facto parent request 

until November 17, 2023.
11

department arrived. Twenty minutes later the fire department declared her grandmother 

dead. Officers interviewed R.F. regarding the incident. They later said, “they were going 

to close the investigation because they saw no evidence of foul play.” R.F. had no idea 

why it was labeled a “suspicious death.”

At the hearing on September 27, 2023, the department urged the court to deny 

mother’s petition based on minor’s best interest. Minor’s counsel joined in the 

department’s argument: “Just would indicate to the Court that I don’t see any indication 

that there has been any visitation that has occurred between the potential caregiver and 

the minor.” “There’s no relationship, that I’m aware of, between the half sibling that is 

here today. It’s my understanding the half sibling doesn’t reside with the prospective 

caretaker, so it’s not a situation where the minor will be placed with a sibling.”11 The 

caretakers have “had this minor, I believe, since April 10th and [are] fluent in all medical 

and developmental concerns. That’s the only relationship that the minor has had. I 

understand he’s very young. But really by all accounts, I’m asking that the Court find it’s 

in his best interest to remain in that home.”

Mother’s counsel conceded R.F. had not visited with minor or his half sibling, 

D.W. Nonetheless, mother’s counsel related D.W. “wants a relationship with his younger 

brother. What has the Department done to facilitate that? Zero. Family connection. I’m 

sure—you know, we use this term ‘half sibling.’ I don’t think [D.W.] sees [minor] as a 

half sibling. He sees him as his little brother.” D.W. was in court in support of R.F. 

11 R.F. later testified that none of minor’s siblings lived with her.
12

“He’s had a long-time relationship with [R.F.], years and years. And he’s here in support 

of [R.F.] The home was approved. The child should be placed there, or at least there 

should have been some type of contact between [D.W.], his younger brother, and [R.F], 

who is absolutely interested in placement and went through the hoops of resource family 

approval.” R.F. was in court “asking for placement.”

The court acknowledged that any delay in placing minor with R.F. “was caused by 

the Department itself, maybe rightfully, maybe wrongfully. That can’t really be held 

against her. She came forward timely. She went through the process. She was approved, 

but for this suspicious death. And now the Department is saying that, well, . . . [maybe]

there’s no issue with that death, but the child—it’s in the child’s best interest to stay 

where he’s at because he’s been there so long. That’s kind of circular reasoning there.” 

The court inquired whether minor was determined to have “high needs.”

Minor’s counsel responded, “I believe so. [Minor] was being assessed for [Inland 

Regional Center (IRC) services]. I don’t know what the status of his needs are, or what 

the plan is, but he was being assessed because of positive [drug] exposure.”

The court noted that although minor required services, “he just started receiving 

[them] less than a month ago. So how is his best interest not served by placing him with 

a [NREFM]”?

Minor’s counsel responded that minor had a relationship with the caretakers: “In 

terms [of] my client’s best interest, that’s why I would indicate I think it’s best to stay 
13

where he’s at.” In the alternative, minor’s counsel asked for a “transition phase” between 

being withdrawn from the caretaker’s home and being placed with R.F.

The court asked whether R.F. was able to take care of a high needs child. 

Mother’s counsel responded, “I think she is more than capable of caring for the child.” 

Counsel suggested that during visitation, R.F. could learn about any of minor’s needs 

from the caretakers.

The court authorized placement of minor with R.F. “to be a transition of over the 

course of about a month or so, so that [R.F.] can come up to speed and understand all the 

special needs that this child will have, all the appointments.” “I do want her to have 

visitation with the child, as well as the adult sibling. They both should be having regular 

visitation.”

In the selection and implementation report filed October 16, 2023, the social 

worker recommended the court continue the section 366.26 hearing “to complete the 

Preliminary Adoption Study for the Prospective Adoptive Parent.” The social worker 

also recommended the court find minor “is placed in the Permanent Plan of Adoption”

with the caretakers.

The social worker noted, “At the Jurisdictional Disposition hearing held on July 3, 

2023, the Court found that [ICWA] did not apply to the child . . . . No additional 

information regarding Native American ancestry has been provided by any individual 

during this reporting.”
14

Mother’s whereabouts were unknown. She had been arrested for burglary on 

October 3, 2023; she was released on October 6, 2023, and was on probation until 

October 5, 2024.12 Minor had been determined to suffer from developmental delays.

Minor “is currently having visitation between [R.F.] and [D.W.] as stated by the 

Court as part of the transition plan.” “The Department will be starting visits with [R.F.] 

on October 11, 2023. The visits will be for [two] hours each week and is a part of the 

transition plan the Court ordered in placing [minor] in [R.F.’s] care.”

The social worker noted, “The Permanent Plan for [minor] is Adoption. The 

Department has identified two potential prospective adoptive options, the current 

caregivers and NREFM [R.F.]. Based on [minor’s] age, adoption would be appropriate.” 

“One preliminary adoption assessment has been completed and submitted for the current 

caregivers but the Department is waiting for the Court to address the [section] 388 

Continued hearing regarding placement before making a referral for the new [prospective 

adoptive parents] to Adoption.”

On October 25, 2023, the caretakers filed a caregiver information form for the 

purpose of aiding the court in determining whether to grant their request for de facto 

parent status. The caretakers described their home, marriage, and family life with minor 

and their two other adopted children. They included numerous photos of their family,

including minor.

12 Mother continued to be “involved in a criminal matter involving mental health 

court[]” for the duration of the proceedings.
15

The maternal grandmother, maternal aunt, two of minor’s siblings, the caretaker, 

and R.F. all appeared at the hearing on October 31, 2023. The department requested a 

120-day continuance to complete a preliminary adoption assessment. The department 

requested that the court make ICWA inquiries as to the relatives present at the hearing.

The attorney for the caregivers argued there was no relative preference at that 

point in time: R.F. “is not a blood relative of the child. And the only parents that this 

child knows is the current caretakers.”

The court noted that while R.F. was a NREFM, “she has a sibling living with her. 

The child’s sibling [is] living [with] her, so there’s a degree of preference there.” “This is 

an issue of preference, because we do have a [NREFM]. We do have a sibling residing 

with that [NREFM]. And the goal is to try to keep this child with family, if possible. 

And that’s what we’re dealing with.”13 “I fully appreciate that the prospective de facto 

parents, the caretakers, who have this child since April, it’s a difficult decision to make. 

We have got a child, we have a [NREFM] who has asked for placement as far as back as 

—I want to say it was June. But for whatever reason, there were issues that came up that, 

you know, ultimately were brought to the Court’s attention and clarified.” “But at the end 

of the day, my charge is to do what’s in the best interest of the child.”

The court inquired as to any Native American ancestry of the maternal 

grandmother, maternal aunt, and minor’s adult sibling. All indicated they were unaware 

of any such ancestry. The court found that ICWA did not apply to the case. The court 

13 As noted in footnote 10 ante, none of minor’s siblings lived with R.F.
16

continued the hearing on section 366.26, the de facto parent request, and the section 388

petition.

On November 7, 2023, the caretakers filed a section 388 petition requesting the 

court change its order transitioning minor from their home to the home of R.F. The 

caretakers contended there had been a change of circumstances because a preliminary 

adoption assessment had been completed, which recommended the caretakers become the 

prospective adoptive parents. The caretakers noted that it was in minor’s best interest to 

remain in their care because they had custody of minor since he was released from the 

hospital. They “have loved and cared for the child as though he were their biological 

child. They love him and want nothing more than to keep him in their care for 

prospective adoptive placement.” They noted that minor had only had three visits with 

R.F. and one visit with his half siblings.

In the November 14, 2023, addendum report, the social worker recommended the 

court grant R.F. educational rights to minor as part of the court ordered transitional plan. 

The social worker detailed, “As part of the transition plan for [R.F.] the Department has 

started with [a] supervised visit [on] October 11, 2023. During the week of . . .

November 22[] the Department will be looking to start unsupervised visits between 

[minor] and [R.F.]. After about a month of unsupervised visits, the Department will 

transition to overnight visits. These overnight visits will generally go on for a month. 

After the successful overnight visits, [minor] would be ready for placement with [R.F.].”
17

R.F. “has been having weekly supervised visit[s] with [minor] for [two] hours.” 

The visits were reported to “have been going well. [Minor’s] sister came to one visit and 

the brother and maternal grandmother have come to two visit[s]. It was reported that 

[R.F.] is attentive during the visit[s] and that she is trying to develop a bond with . . .

[minor].” On November 16, 2023, the court ordered an evidentiary hearing on the 

caretakers’ section 388 petition.

At the hearing on November 17, 2023, the court observed that two of minor’s 

siblings, the maternal aunt, the maternal grandmother, and R.F. were present. The court 

queried the adult relatives regarding any Native American ancestry; they all responded 

they had none. The court granted the caretakers’ de facto parent request.

The court authorized continued supervised visitation by R.F. with minor. 

However, the court wished to consider the caretakers’ section 388 petition, “because at 

the end of the day we need to do what is in the best interest of this minor. [¶] We have 

got what appears to be—the caretakers and the [NREFM], both who appear to be amply 

qualified to take care of the child. The question is, what is in the best interest of the 

child.” The court reserved ruling on granting R.F. educational rights to minor. The court 

continued the sections 366.26 and 388 hearings.

In the addendum report filed November 30, 2023, the social worker observed that 

R.F. “had supervised visits with [minor] at the [department] office on November 21, 

2023[,] and November 27, 2023. [R.F.] arrived on time and was prepared for the visit. 

During the visit [R.F.] changed [minor], played with toys with [minor], held him up as he 
18

took steps, fed him/burped him and changed him. [R.F.] also walked around holding 

[minor] and comforting him when he became upset. [Minor’s] older brother . . . showed 

up to the visit on November 21, 2023, 35 minutes before the visit ended. [The sibling] 

interacted with [minor] by talking and playing with him during the visit. There were no 

issues during both of [R.F.’s] visits.”

On December 5, 2023, mother filed a supplemental information in support of her

section 388 petition. Included was a letter from R.F. expressing her desire and ability to 

have minor placed with her. She observed that minor’s siblings insisted upon having a 

relationship with minor and that studies “show[ed] that a child [who] maintains a 

relationship with their biological family has a better life [sic] to maintain a sense of 

belonging and connection with relatives.” Also included were numerous letters in

support of placement with R.F., including letters from relatives. Numerous pictures of 

visits with minor were also attached.

At the hearing on December 6, 2023, the department requested minor be 

maintained with the caretakers. Minor’s counsel agreed with the department. However, 

minor’s counsel requested that “if there was going to be movement, that the transition 

happens swiftly because the minor has been placed with the current foster parents since 

he was about nine days old.” Minor’s counsel noted, “At this point, we believe it’s in his 

best interest to remain where he’s placed because that’s really the only home and family

he’s aware of. They’re aware of his medical needs, special medical needs, treatment 

plan.”
19

Mother’s counsel informed the court that mother wished minor to be placed with 

R.F. The caretakers’ counsel argued “at this point in time, the caretaker preference 

applies under [section] 366.26[, subdivision] (k). And there’s case law and other statutes 

that I put in my motion indicating that there’s a preference to preserve appropriate 

placements when there’s no need to move placements. At this point in time, there is 

absolutely no need to move placements. The child is doing great in the care of the de 

facto parents.”

“My position is we don’t even get to [section] 361.3 [NREFM preference] because 

there’s a caretaker preference. There’s not a relative preference. The Department has 

designated a plan in this case to be adoption. And we’re not trying to determine what 

adoptive placement that would be. And the best interest indicate it would be continued 

with the de facto parents.”

The court noted, “But what happened with the [section 366].26—and this is why I 

asked the question before we went on the record about [section] 366.26[, subdivision] (k), 

that subsection states that the caretaker preference comes in once adoption is designated 

as a permanent plan for the child. [¶] That’s what happened on October 31st, and the 

motion was still pending. And so that’s why I asked if the parties are prepared to address 

[section] 366.26[, subdivision] (k), because this is really at this point going to become a 

legal issue of whether or not the caretaker preference has kicked in, which once you have 

your first [section 366].26 and in the recommendations, if you look at the 

recommendations, adoption was adopted as a permanent plan for the child.” “I think that 
20

in itself with the caretaker preference coming in, the Court does find at this time the 

procedural posture of the case has changed since we have had a [section 366].26 and the 

permanent plan for adoption has been adopted by the Court.”

The court ruled, “And at this point given the caretaker preference and even absent

the caretaker preference, the fact that the child has been in this home for eight months, 

and there’s no indication that there’s any problems with the home that the child is in, the 

Court is going to deny . . . mother’s motion, grant the de facto parents’ motion, and leave 

the child in place.”

The court permitted mother’s counsel to call R.F. to testify in support of mother’s 

petition. R.F. testified that she desired and was prepared to take custody of minor. She 

wanted to adopt him: “I feel like we as a family can give [minor] the best support. He 

has a lot of family. We work together as a team. Everyone loves him, even if they 

haven’t met him, with the pictures and everything that I showed, even my children and 

my family. And we come together. We’re a very tight knit family.”

Minor’s half sibling, D.W., testified R.F. would take good care of minor. D.W. 

wanted to continue to have contact with minor. “I just feel like he should be with his 

family, to be honest. Me and my sister [have] been separated before.” “I just feel like he 

should be with his family, honestly.”

The parties stipulated that if the caretakers testified, they would testify “that they 

are [in] favor of maintaining the sibling relationships between [minor] and any siblings 

and also any other appropriate relatives.”
21

The court noted, “as indicated prior to the testimony, this is more of a legal issue 

than anything else. The Court is looking at the best interest of the child and the caretaker 

preference has kicked in. [¶] We did have a [section 366].26 hearing. The Court finds

that there’s nothing inappropriate with the current caretakers, and it is in the best interest 

of the child, for those reasons, to stay with the current caretaker. [¶] The caretakers have 

indicated they are willing to maintain a relationship between the child and the siblings, as 

well as any additional relatives.” The court affirmed its ruling.

The court ordered “the Department to work with [D.W.] and [R.F.] and the 

caretakers to see if they can agree to some sort of a workable [visitation] schedule.” The 

caretakers’ counsel noted that they were open to allowing weekly unsupervised visits for 

a couple hours.

On December 13, 2023, the department filed an addendum report informing the 

court that the parties had agreed upon a visitation schedule. “The Department is asking 

that the Court confirm the [section] 366.26 Selection and Implementation hearing set for 

February 28, 2024, and the 366.3 Post Permanency review hearing set for April 16, 

202[4].”

At the hearing on December 15, 2023, the court ruled that R.F. was authorized to 

transport minor for visits and “to supervise the sibling visits. The goal of these visits is 

for the siblings to have contact with the minor[]. So the siblings should be present at the 

visits.” The court confirmed the date for the section 366.26 hearing.
22

On February 9, 2024, the department filed an addendum to the section 366.26 

report recommending the juvenile court terminate parents’ parental rights, that minor 

remain in a permanent plan of adoption with the caretakers, and that visitation with the 

biological family be left to the discretion of the caretakers.

In another addendum report filed February 13, 2024, the social worker observed 

that minor “was placed with the identified prospective adoptive parents on April 10, 

2023. The child continues to build a bond with his prospective adoptive parents, their 

children, extended family members and various friends of the prospective adoptive 

family. The prospective adoptive parents are excited to have [minor] become a 

permanent part of their family. They speak of him as if he was their own and [minor] has 

been doing well in their care. This is the only family [minor] knows and he has his 

medical, developmental, physical and mental health needs met.”

The social worker attached the preliminary adoption study she asserted had 

originally been submitted on October 12, 2023:

14 “The family environment has been 

very stable and nurturing for [minor]. This has been the only home he has known[,] and 

he is building lifelong connections with the prospective adoptive family” “[T]he 

prospective adoptive parents are working to ensure his needs are met and he is building

strong bonds with their family.” “The prospective adoptive parents ensure all [minor’s] 

physical, emotional, mental, and developmental needs are met daily. He exhibits comfort 

with his primary caregivers which is demonstrative of strong attachment.” “The 

14 This is the first time the preliminary adoption study appears in the record.
23

prospective adoptive parents are supportive of post-adoption contact with extended 

relatives as appropriate.”

At the hearing on February 28, 2024, the court noted “we do have relatives seated 

in the back of the courtroom. We have maternal grandmother. We have a godmother on 

mother’s side. We also have an adult sibling, a brother who is present. And we have . . . 

[R.F.], as well. We have the caregiver for the child . . . .” Counsel for the department 

noted, “Your Honor, just to indicate on the record, all the family members present today 

have been present at previous hearings and were inquired about ICWA, about Native 

American ancestry. And so I just wanted to indicate on the record that that has been 

previously done.” The court continued the section 366.26 hearing over the department’s 

objection.

On March 20, 2024, R.F., D.W., and D.W.’s grandmother filed section 388 

petitions requesting minor be placed in R.F.’s care. The court summarily denied the 

petitions on the basis that the requested change was not in minor’s best interest.

At the hearing on March 21, 2024, the court noted, “We have the caregivers, both 

of them, maternal grandmother, the sibling, and then two [NREFM’s].” The department 

argued, “we do have a favorable adoption assessment. This is a very young child, so we 

are asking for permanency in the form of a plan of adoption.” Minor’s counsel submitted 

on the recommendation but requested ongoing sibling visitation.

Mother’s counsel complained about the department’s failure to transition minor to 

R.F.’s home and failure to assist in visitation; he requested the court order sibling 
24

visitation. The caretakers indicated they had no opposition to the court continuing the 

current visitation order.

The department noted, “I neglected to mention that further [ICWA] inquiry was 

triggered in this case. And I don’t know that I indicated that on the record in prior 

hearings.” “We did get information from several of the relatives, including mother, of 

possible Native American ancestry, with the following tribes: Blackfeet tribe, Apache 

tribe, and Cherokee tribe.” “We generated further inquiry in this case and documentation 

was filed with the court on April 27th, 2023, May 9th, 2023, May 22nd, 2023, May 20th, 

2023, July 11th, 2023, August 7th, 2023, and August 10th, 2023. All responses filed with 

the court and received by the Department have indicated the child is not an Indian child. 

So at this juncture, it does appear that we have no reason to believe that the child is an 

Indian child. And we ask the Court [to] make the finding that ICWA does not apply to 

this case.”15

The court found that adoption was in minor’s best interest and terminated parents’ 

parental rights. The court noted that “[i]t is unusual for the Court to order visits after—at 

this point after termination of parental rights. In fact, I can’t think of very many instances 

where I have allowed for that. It’s typically left to the discretion of the caretakers. [¶] 

Given the history of this case, given that the Court has previously noted, this was an 

extraordinarily difficult case in that placement decisions were with two equally 

compatible homes. I didn’t have a basis to deny one home over the other due to [R.F.] or 

15 Although the court did not orally respond to the department, the minute order 

reflects, “The Indian Child Welfare Act (‘ICWA’) does not apply.”
25

the caretakers.” “At this time, I am going to put in place an order that the visitation 

continue with [R.F.], as well as the siblings on prior terms. And my understanding is 

every other week.” “So two hours every other week visitation will continue. Certainly[,]

the parties can agree on more if they decide to do that.” The court designated the 

caretakers as the prospective adoptive parents.

II. DISCUSSION

A. Application of the Caretaker Preference

Mother contends the court erroneously applied the caretaker preference in denying 

her section 388 petition for placement of minor with R.F. We hold any error was 

harmless.

Section 388 primarily permits a parent to petition the court “to change, modify, or 

set aside any order of court previously made or to terminate the jurisdiction of the court.” 

(§ 388, subd. (a)(1).) “To prevail on a section 388 petition, the moving party must 

establish that (1) new evidence or changed circumstances exist, and (2) the proposed 

change would promote the best interests of the child.” (In re J.T. (2014) 228 Cal.App.4th 

953, 965.)

“‘Whether a previously made order should be modified rests within the 

dependency court’s discretion, and its determination will not be disturbed on appeal 

unless an abuse of discretion is clearly established.’ [Citation.] The denial of a section 

388 motion rarely merits reversal as an abuse of discretion.” (In re Amber M. (2002) 

103 Cal.App.4th 681, 685-686.)
26

“‘Application of the [NREFM] preference throughout the reunification period is 

. . . supported by California’s strong public policy favoring the facilitation of family 

reunification, because relative caregivers are more likely to favor the goal of reunification 

and less likely than nonrelative caregivers to compete with the parents for permanent 

placement of the child.’ [Citation.] Consequently, courts should consider relatives who

have come forward after an initial placement with a nonrelative, and [the department] can 

continue to search for relatives during the family reunification period of a case. 

[Citation.] For placement determinations after disposition, the statute requires [the 

department] to consider one additional factor: ‘In addition to the factors described in 

[section 366.26,] subdivision (a), the county social worker shall consider whether the 

relative has established and maintained a relationship with the child.’ [Citation.]” 

(Amber G. v. Superior Court (2022) 86 Cal.App.5th 465, 491 (Amber G.).) There is “no 

authority that requires the Agency to develop a relationship between siblings that did not 

exist at the time a juvenile dependency petition was filed.” (In re S.M. (2004) 118 

Cal.App.4th 1108, 1122.)

“‘Unlike the relative placement preference, the caretaker preference applies 

specifically to applications for adoption. [Section 366.26, s]ubdivision (k) provides, 

“Notwithstanding any other provision of law, the application of any person who, as a 

relative caretaker or foster parent, has cared for a dependent child for whom the court has 

approved a permanent plan for adoption, or who has been freed for adoption, shall be 

given preference with respect to that child over all other applications for adoptive 
27

placement if the agency making the placement determines that the child has substantial 

emotional ties to the relative caretaker or foster parent and removal from the relative 

caretaker or foster parent would be seriously detrimental to the child’s emotional 

wellbeing. [¶] As used in this subdivision, ‘preference’ means that the application shall 

be processed and, if satisfactory, the family study shall be completed before the

processing of the application of any other person for the adoptive placement of the 

child.”’ [Citation.]” (Amber G., supra, 86 Cal.App.5th 465, 492-493; see In re K.L.

(2016) 248 Cal.App.4th 52, 65-66 [“The section 361.3 relative placement preference does 

not apply where, as here, the social services agency is seeking an adoptive placement for 

a dependent child for whom the court has selected adoption as the permanent placement 

goal.”].)

“Once reunification efforts have failed, and the juvenile court has before it a 

proposed permanent plan of adoption, it is the caretaker who has preference. 

[Citations.]” (In re M.M. (2015) 235 Cal.App.4th 54, 63-64.) “The relative placement 

preference does not apply to an adoptive placement; there is no relative placement 

preference for adoption. [Citations.] Instead, at the section 366.26 hearing, the court 

must apply the caretaker preference under section 366.26, subdivision (k).” (In re A.K.

(2017) 12 Cal.App.5th 492, 498.)

“[T]he circumstance that triggers the application of the caretaker preference is the 

intent to place the child for adoption, not necessarily the termination of parental rights or 

the termination of reunification services.” (In re Lauren R. (2007) 148 Cal.App.4th 841, 
28

856; see In re M.H. (2018) 21 Cal.App.5th 1296, 1304.) “[T]he caretaker preference 

applies to applications for adoption both before and after the termination of parental 

rights, . . .” (In re Lauren R., at p. 859; accord, Amber G., supra, 86 Cal.App.5th at 

pp. 492-494].)

“Because a child’s best interest evolves quickly, the legislators developed a 

spectrum of [placement] preferences . . . . These statutorily created preferences are not to 

be automatically applied and should not be treated the same as evidentiary presumptions. 

To the contrary, the statutes discussing each preference require the consideration of 

multiple factors all dependent on an examination of evidence relating to the minor’s 

current circumstances. Consequently, a reflexive approach that children are always better 

off with relatives is incompatible with the governing laws . . . .” (Amber G., supra, 86 

Cal.App.5th at p. 489.) “[T]here is a preference in favor of keeping a child with 

caretakers in the process of adopting them unless something about the minor’s current 

circumstances warrants their removal to a different home.” (Id. at p. 504.) 

“‘The overriding concern of dependency proceedings . . . is not the interest of 

extended family members but the interest of the child. “[R]egardless of the relative 

placement preference, the fundamental duty of the court is to assure the best interests of 

the child, whose bond with a foster parent may require that placement with a relative be 

rejected.” [Citation.] Section 361.3 does not create an evidentiary presumption that 

relative placement is in a child’s best interests. [Citation.] The passage of time is a 

significant factor in a child’s life; the longer a successful placement continues, the more 
29

important the child’s need for continuity and stability becomes in the evaluation of her 

best interests. [Citation.]’ [Citation.]” (Amber G., supra, 86 Cal.App.5th at pp. 493-

494.)

Here, even assuming arguendo that the court erred in applying the caretaker 

preference, the court acted within its discretion in denying mother’s petition based on the 

court’s determination that it was in minor’s best interest that he remain in the caretakers’ 

home. First, the caretakers had been caring for minor daily for months, whereas R.F. had 

relatively little contact with minor. The department placed minor with the caretakers on 

April 10, 2023, immediately upon minor’s release from the hospital. Thus, at the time the 

juvenile court denied mother’s petition on December 6, 2023, minor had been living with 

the caretakers for nearly eight months, and it was the only home minor had known.

On the other hand, R.F. and D.W. did not begin visiting with minor until October 

11, 2023, six months after the department had placed him with the caretakers.

16

 Since the 

department took minor into protective custody immediately after his birth, neither R.F. 

nor his siblings had a preexisting relationship with him. The visits were two hours each 

week. They never progressed beyond supervised visitation. Thus, at best, R.F. and D.W. 

had just shy of two months of visitation or approximately 10, two-hour visits with minor 

at the time the court denied mother’s section 388 petition.

16

 As the court noted, this was not their fault. Nonetheless, the requirement that 

the court consider minor’s best interest necessarily involved a comparison of the amount 

and quality of time minor had spent with the respective persons involved in the placement 

determination.
30

Second, placement with the caretakers had been successful. The caretakers were 

ensuring all minor’s needs were met. The caretakers had an auspicious home, marriage, 

and family life with minor and their two other adopted children. Minor was bonded with 

the caretakers, their children, extended family members, and the caretakers’ friends.

The caretakers’ home had been stable and nurturing for minor. The caretakers 

“have loved and cared for the child as though he were their biological child. They love 

him and want nothing more than to keep him in their care for prospective adoptive 

placement.” The caretakers understood all minor’s medical and developmental issues.

(Amber G., supra, 86 Cal.App.5th at pp. 493-494 [“The passage of time is a significant 

factor in a child’s life; the longer a successful placement continues, the more important 

the child’s need for continuity and stability becomes in the evaluation of her best 

interests. [Citation.]’ [Citation.]”].)

Third, the caretakers’ home was an adoptive placement. As early as May 10, 

2023, three months prior to mother’s filing of the section 388 petition, the department had 

identified placement with the caretakers as an adoptive home. A preliminary adoption 

study favorable to the caretakers had originally been submitted on October 12, 2023. On 

October 16, 2023, the social worker recommended the court find minor “is placed in the 

Permanent Plan of Adoption[]” with the caretakers.

Fourth, the court had previously recognized the fortuity of placement of minor 

with the caretakers. On July 15, 2023, the court gave the caretakers temporary 
31

educational rights over minor. On November 17, 2023, the court granted the caretakers’ 

de facto parent status.

Fifth, all the parties, except mother, repeatedly recognized that it was in minor’s 

best interest to remain in the caretaker’s home. Sixth, the caretakers repeatedly agreed to 

maintain minor’s relationship with his siblings and other relatives. They even eventually 

agreed to what the court itself maintained was an “unusual” concession, a post-adoption 

order permitting continued visitation.

Seventh and finally, the court repeatedly, properly acknowledged that the best 

interest of minor was paramount in its determination of the appropriate placement for

minor. “But at the end of the day, my charge is to do what’s in the best interest of the 

child.” “[B]ecause at the end of the day we need to do what is in the best interest of this 

minor.” “The question is, what is in the best interest of the child.” The court ruled, “And 

at this point . . . even absent the caretaker preference, the fact that the child has been in 

this home for eight months, and there’s no indication that there’s any problems with the 

home that the child is in, the Court is going to deny . . . mother’s motion . . . and leave the 

child in place.” “The Court is looking at the best interest of the child . . . .” “The Court 

finds that there’s nothing inappropriate with the current caretakers, and it is in the best 

interest of the child, for those reasons, to stay with the current caretaker.” The court’s 

denial of mother’s section 388 petition was well within its discretion.
32

B. ICWA

Mother contends the department erred by failing to inquire of the maternal 

grandfather regarding any Indian ancestry.17 Mother alleges that although the social 

worker contacted tribal representatives with information about the maternal grandfather, 

the information she provided was “incomplete, and possibly unreliable.” This is because 

the social worker provided the tribal workers with “variations of his name and different 

birth dates.”

The department concedes that “the notice sent to the tribe contained multiple dates 

of birth for maternal grandfather.”18 However, the department maintains any error was 

harmless because they communicated with the only tribe to which the maternal 

grandfather was purportedly connected, and the “tribe responded that the family could 

not be located in the tribal records.”

17 Mother acknowledges that there is a split of authority as to whether the 

department is required to conduct an ICWA inquiry of extended family members when 

the child is taken into custody pursuant to a warrant. (In re Delila D. (2023) 93 

Cal.App.5th 953, 962, review granted Sept. 27, 2023, S281447 (Delila D.); accord, In re 

Jerry R. (2023) 95 Cal.App.5th 388, 404; In re V.C. (2023) 95 Cal.App.5th 251, 258-259; 

see In re D.M. (2024) 101 Cal.App.5th 1016, 1047-1060 (dis. Opn. of Raphael, J.), 

review granted July 24, 2024. S285537; contra, In re Robert F. (2023) 90 Cal.App.5th 

492, 504, review granted July 26, 2023, S279743; In re Ja.O. (2023) 91 Cal.App.5th 672,

677-681, review granted July 26, 2023, S280572 [same]; In re Andres R. (2023) 94 

Cal.App.5th 828, 842-856, review granted Nov. 15, 2023, S282054 [same]; In re D.M., at 

p. 1023 [same].) However, we find it unnecessary to address the issue because we find 

any error harmless. 

18 There were two birth dates listed for the maternal grandfather. There were also 

two names listed for the maternal grandfather; however, the differences in those names 

consisted only of his full first name and its generic sobriquet.
33

We hold substantial evidence supported the court’s determinations that ICWA did 

not apply. Even assuming the department was required to make direct inquiries of the 

maternal grandfather, we hold any error was harmless.

“‘“‘Federal regulations implementing ICWA . . . require that state courts “ask each 

participant in an emergency or voluntary or involuntary child-custody proceeding 

whether the participant knows or has reason to know that the child is an Indian child.” 

[Citation.] The court must also “instruct the parties to inform the court if they 

subsequently receive information that provides reason to know the child is an Indian 

child.”’”’ [Citations.] ‘State law, however, more broadly imposes on social services 

agencies and juvenile courts (but not parents) an “affirmative and continuing duty to 

inquire” whether a child in the dependency proceeding “is or may be an Indian child.”’” 

(In re J.C. (2022) 77 Cal.App.5th 70, 77.)

“‘“‘The juvenile court must determine whether proper notice was given under 

ICWA and whether ICWA applies to the proceedings.’” [Citation.] “If the court makes a 

finding that proper and adequate further inquiry and due diligence as required in 

[section 224.2] have been conducted and there is no reason to know whether the child is 

an Indian child, the court may make a finding that [ICWA] does not apply to the 

proceedings, subject to reversal based on sufficiency of the evidence.”’” (In re J.C., 

supra, 77 Cal.App.5th at p. 78.)

Mother and the maternal grandmother informed the social worker they might have 

Native American ancestry through the Blackfoot and Cherokee tribes, ancestry to the 
34

latter tribe was purported to be through the maternal grandfather. The social worker 

made extensive inquires of minor’s purported tribal connections with all relevant tribes 

mentioned by mother and the maternal grandmother. All the responding tribes indicated 

that minor was not eligible for enrollment, and that the tribes would not be intervening. 

The fact that the social worker gave the tribes two different birth dates for the maternal 

grandfather should not have impacted that determination; in fact, if someone had given 

the social worker both birth dates for the maternal grandfather, she would have been 

remiss in not including them both.

The maternal grandmother stated that no one in the family was a registered 

member of any Native tribe. The court repeatedly inquired of relatives in the courtroom

regarding Indian ancestry; mother and the maternal grandmother, repeatedly and 

contradictorily, indicated they had no Native American ancestry. (In re S.R. (2021) 64 

Cal.App.5th 303, 312, 316 [Where the parents represented that the minor did not have 

Native American ancestry, the court’s ICWA finding was “plainly supported at the time it 

made the finding.”].) The court’s determinations that ICWA did not apply were 

supported by substantial evidence.

“[I]n ICWA cases, a court must reverse where the record demonstrates that the 

agency has not only failed in its duty of initial inquiry, but where the record indicates that 

there was readily obtainable information that was likely to bear meaningfully upon 

whether the child is an Indian child.” (In re Benjamin M. (2021) 70 Cal.App.5th 735, 744

[The department “failed its duty of inquiry by not asking ‘extended family members’ . . . 
35

whether there is reason to believe [the child was] an Indian child.”]; compare In re 

Dezi C. (2022) 79 Cal.App.5th 769, 779, review granted Sept. 21, 2022, S275578 [“[A]n 

agency’s failure to conduct a proper initial inquiry into a dependent child’s American 

Indian heritage is harmless unless the record contains information suggesting a reason to 

believe that the child may be an ‘Indian child’ within the meaning of ICWA, such that the 

absence of further inquiry was prejudicial to the juvenile court’s ICWA finding.”]; contra, 

In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1003, 1006 [“[A]n automatic reversal 

approach to claims of ICWA inquiry errors is not compelled by the statute, harms the 

interests of dependent children, and is not in the best interests of Indian communities.” 

“Plainly, complying with the literal language of the statute—that is, making an initial and 

further ICWA inquiry of every member of a child’s extended family . . . is absurd at best 

and impossible at worst.”]; contra, In re M.B. (2022) 80 Cal.App.5th 617, 629-630 [per se

reversal where department and juvenile court failed their duties of ICWA inquiry].)

Obviously, appellate courts have come to myriad disparate conclusions regarding 

the harmless error standard applicable in cases in which the department has failed to 

make an “adequate” inquiry. (See In re K.H. (2022) 84 Cal.App.5th 566, 608, and the 

cases cited therein.) The issue is presently before our Supreme Court in In re Dezi C., 

supra, 79 Cal.App.5th 769, review granted September 21, 2022, S275578. We apply the 

precedent of our own district and division. (In re Benjamin M., supra, 70 Cal.App.5th 

735, 744.) 
36

Here, to the extent the department neglected to make proper inquiry, the record 

does not reflect that there was any further “information that appears to have been both 

readily available and potentially meaningful.” (In re Benjamin M., supra, 70 Cal.App.5th 

at p. 744.) The maternal grandfather’s address or phone number are not contained in the 

record, so it is difficult to understand how the social worker was supposed to contact him. 

He never appeared at any of the hearings nor was he present during any of the interviews 

conducted by the social worker. He certainly was not “readily available.” Regardless, as 

discussed ante, the department made sufficient inquiries regarding the purported Indian 

ancestry of the maternal grandfather. 

Moreover, in a previous dependency proceeding pertaining to minor’s maternal 

half siblings, the juvenile court determined that ICWA did not apply. No new information 

that would affect that determination had been forthcoming. Thus, to the extent the 

department was even required to inquire of the maternal grandfather regarding Native 

American ancestry, any error was harmless.
37

III. DISPOSITION

The orders are affirmed. 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

Acting P. J.

We concur:

MILLER

J.

MENETREZ

J.