Filed 11/15/22 In re N.C. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

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

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re N.C., a Person Coming 

Under the Juvenile Court Law.

2d Juv. No. B320724

(Super. Ct. No. 21JV00319)

(Santa Barbara County)

SANTA BARBARA COUNTY 

CHILD WELFARE SERVICES,

 Plaintiff and Respondent,

v.

A.C.,

 Defendant and Appellant.

A.C. (Mother) appeals from the juvenile court order 

terminating her parental rights as to her daughter, N.C., and 

selecting adoption as the permanent plan. (Welf. & Inst. Code, 

§ 366.26.)1 She contends the court erred when it found 

1 Subsequent undesignated statutory references are to the 

Welfare and Institutions Code.
2

inapplicable (1) the parental-benefit exception, and (2) the Indian 

Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA).2 We 

affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Mother and Father3 exposed N.C. to violence and abusive 

behavior when she was six years old. Mother had untreated

mental health issues. Father reported that as a result, Mother 

was unable to recognize N.C. as her daughter and thought she 

was Father’s sister. Mother and Father had a long history of 

domestic violence and substance abuse and continued to use 

methamphetamine. In 2012, the parents lost custody of their two 

older children due to parental neglect. 

The juvenile court found the petition to be true (§ 300, 

subds. (b)(1), (j)), declared N.C. a dependent, and bypassed 

reunification services for both parents (§ 361.5, subd. (b)(10), (11), 

(13)). N.C. was placed with her maternal grandparents, who had 

custody of her siblings. 

At the selection and implementation hearing (§ 366.26), the 

juvenile court found ICWA did not apply. After hearing evidence, 

the court found the parental-benefit exception did not apply. 

(§ 366.26, subd. (c)(1)(B)(i).) The court terminated the parental 

rights of both parents and selected adoption as the permanent 

plan.

Parental-benefit exception

2 We use ICWA to refer to both the federal statute and the 

California law that implements it.

3 Father was a party in the juvenile court proceedings but 

is not a party in this appeal.
3

The juvenile court considered reports from the Department 

of Social Services (the department) and the court appointed 

special advocate (CASA), heard testimony of the social worker 

and both parents, and heard an unsworn statement from the 

CASA.

The department’s report included a summary of Mother’s 

visits with N.C. Mother visited N.C. regularly. At one visit, 

Mother appeared to be under the influence of marijuana and had 

difficulty focusing. During visits, they played together, hugged, 

kissed, and said “I love you.” They also spoke on the phone 

between visits. 

 N.C. reported that when she lived with her parents, she 

was scared because they constantly fought and cussed at each 

other. Being adopted would make her sad because she would not 

be able to live with her parents or see them every day. The 

custodial grandparents had previously adopted and had legal 

guardianship over N.C.’s siblings. They wanted to adopt N.C.

because she would be raised with her siblings in a safe, stable, 

and nurturing home. The department recommended adoption 

and termination of parental rights. 

The CASA report stated that N.C. was doing well in school. 

She “mentions her parents far less frequently.” She was “happy 

and loving and . . . adjusting remarkably well to the rules and 

new structure in her life.” 

The social worker testified N.C. originally said she did not 

want to be adopted but later said she did. N.C. expressed an 

“internal conflict” because she did not want either her parents or 

her grandparents to be sad. She felt safe in her grandparents’ 

house. She loved sharing a bedroom with her older sister and 

continued to build her relationship with her brother. N.C.
4

enjoyed being together with her adoptive family and saw that as 

her home.

Mother testified N.C. lived with her from birth until 

juvenile proceedings began. As her daily caregiver, Mother fed 

her, changed her diapers, put her to bed, and woke her each 

morning. Mother and N.C. were “very close” and had an 

“unbreakable” connection. During visits, they were excited to see 

each other, ran to each other, and hugged and kissed. Mother

continued to be in a relationship with Father. Father testified 

about his role in raising N.C. and admitted recent relapses on 

methamphetamine.

The CASA told the court that although N.C. “loves her 

parents dearly,” she viewed her grandparents’ home as her family

home and described her future with them. 

ICWA

When the case was initiated, both Mother and Father told 

the department about possible Native American heritage on their 

respective parental sides, but they “did not know of any tribal 

affiliation.” In a form attached to the dependency petition, the 

department’s social services worker stated, “This inquiry . . . gave 

me reason to believe the child is or may be an Indian child.” 

At the detention hearing, Mother said she may have 

Cherokee ancestry on her father’s side but wasn’t sure. Father 

said, “We do have Indian in our background, but . . . we don’t 

belong to a tribe or anything like that, no.” The court ordered the 

parents to submit ICWA forms. The department sent Mother an 

ICWA questionnaire, but she did not return it. 

The department received ancestry information from several 

databases. The department spoke to Father a month after the 

detention hearing. He said N.C. did not have any relevant 
5

ancestry because “nobody in the family has ever been registered 

in any tribe.” He said his mother (N.C.’s paternal grandmother), 

D.G., was adopted and did not know her biological family. He 

said his father (N.C.’s paternal grandfather, who died in 1989)

“was never registered in any tribe and the family doesn’t know 

which tribe his ancestors could have been related to.”

The department spoke with the maternal grandmother, 

P.D. She did not know if Father had any Native American 

ancestry. She declined to provide contact information for “the 

other grandmother” (D.G.) but agreed to call her for further 

information and call the department back. When P.D. failed to 

call, the department left P.D. a voicemail that was not returned. 

The department spoke to the maternal step-grandfather, 

D.D., but there is no indication they discussed ICWA. The record 

does not identify the biological maternal grandfather.

Attached to the department’s jurisdiction and disposition 

report was ICWA information from the 2011 case regarding 

N.C.’s siblings. At that time, the paternal grandmother, D.G., 

said any Native American ancestry was through her deceased 

husband, T.C., on his mother’s side, and is “very, very remote.” 

She said “the best way to get info” was through T.C.’s sister 

(minor’s great aunt), I.H. The department called the number for 

I.H. that D.G. provided, but the phone was disconnected. The 

department called D.G. back and left a voicemail message that 

was not returned. The department also spoke in 2011 to T.C.’s 

mother (N.C.’s paternal great-grandmother), J.C. She said both 

her family and her husband’s family were from Mexico and did 

not have Native American heritage. 

In N.C.’s case, the department sent an ICWA inquiry with 

a family tree to the Bureau of Indian Affairs (BIA). It responded, 
6

“The notice contains insufficient information to determine Tribal 

affiliation.” 

The section 366.26 hearing was continued at the request of 

the department so it could make ICWA inquiries to Cherokee 

tribes. The department then received a response from the 

Cherokee Nation stating that N.C. was not an Indian Child in 

relation to the Cherokee Nation, and neither she nor the parents 

were registered as tribal citizens. Responses from the United 

Keetoowah Band of Cherokee Indians and the Eastern Band of 

Cherokee Indians said N.C. was not eligible and was not 

recognized as a member. The court found ICWA did not apply. 

DISCUSSION

Parental-benefit exception

Mother contends the juvenile court erred when it failed to 

apply the parental-benefit exception to bar adoption as the 

permanent plan. We disagree.

After reunification services have been terminated, the court 

sets a section 366.26 hearing “‘to select and implement a 

permanent plan for the child.’” (In re Caden C. (2021) 11 Cal.5th 

614, 630.) The statutory preference is termination of parental 

rights and placing the child for adoption. (§ 366.26, subd. (b)(1).) 

The parental-benefit exception allows the court to choose an 

option other than adoption “‘in exceptional circumstances.’” (In 

re Caden C., at p. 631.)

The parental-benefit exception has 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., supra, 11 Cal.5th at p. 631; § 366.26, subd. 

(c)(1)(B)(i).) The parent must establish these three elements by a 
7

preponderance of the evidence. (In re Caden C., at p. 629.)

We review for substantial evidence the first two elements—

consistent visitation and benefit from continuing the relationship. 

(In re Caden C., supra, 11 Cal.5th at pp. 639-640.) For the third 

element—detriment to the child if the relationship is terminated 

—we review for substantial evidence factual determinations such 

as “specific features of the child’s relationship with the parent,” 

“the harm that would come from losing those specific features,” 

and “the benefit of adoption.” (Id. at p. 640.) In so doing, we do

“‘not reweigh the evidence, evaluate the credibility of witnesses, 

or resolve evidentiary conflicts.’” (Ibid.) We review for abuse of

discretion the “delicate balancing” of “the harm of losing the 

relationship against the benefits of placement in a new, adoptive 

home.” (Ibid.) “A court abuses its discretion only when ‘“‘the 

trial court has exceeded the limits of legal discretion by making 

an arbitrary, capricious, or patently absurd determination’”’” 

such that “‘“‘no judge could reasonably have made the order.’”’” 

(Id. at p. 641.)

The juvenile court here discussed In re Caden C. and 

applied its standards. The court was not required to make 

factual findings or describe the evidence that supported its 

decision. (In re A.L. (2022) 73 Cal.App.5th 1131, 1156.) We 

presume the judgment is correct; Mother has the burden to 

affirmatively demonstrate error. (Id. at p. 1161.) 

The first and second elements of the exception—regular 

visitation and benefit from continuing the relationship—were 

established. But “[a] showing the child derives some benefit from 

the relationship is not a sufficient ground to depart from the 

statutory preference for adoption.” (In re Breanna S. (2017) 8 

Cal.App.5th 636, 646, disapproved on another ground in In re 
8

Caden C., supra, 11 Cal.5th at p. 637, fn. 6, italics added.) The 

parent bears the burden of proving that termination of parental 

rights would be detrimental to the child. (Ibid.) “Friendly or 

affectionate visits are not enough.” (In re G.H. (2022) 84 

Cal.App.5th 15, 25.) “‘To overcome the preference for adoption 

and avoid termination of the natural parent’s [parental] rights, 

the parent must show that severing the natural parent-child 

relationship would deprive the child of a substantial, positive 

emotional attachment such that the child would be greatly

harmed.” (Id. at p. 25.)

The juvenile court did not abuse its discretion when it 

determined that termination would not be detrimental to the 

child. At the time of the selection and implementation hearing, 

N.C. had been living with her grandparents for over eight 

months. N.C. was happy living with her grandparents and 

siblings and was doing well in school. The court stated, “The 

child sees her current home as her home. It’s the very stability 

that we hope to offer in a permanent home for the child . . . .” 

The juvenile court acted within its discretion when it determined 

that N.C.’s best interest was served by severing parental rights to 

provide a safe and stable home through adoption.

Mother compares the department’s report with the 

“inexplicably terse and analytically uninformative” bonding 

evaluation in In re M.G. (2022) 80 Cal.App.5th 836, 850. There, 

the trial court found the parental-benefit exception was not 

shown based solely on the bonding evaluation, which confused the 

relevant issue of emotional bond with the irrelevant issue of the 

parents’ ability to manage the child’s developmental and medical 

needs. (Id. at p. 851.) Here, the juvenile court’s finding was 

based not only on the reports from the department and CASA, 
9

but on the testimony of both parents and the social worker and

the CASA’s verbal statement. The thoroughness of the report is 

not determinative because Mother, not the department, had the 

burden to establish the parental-benefit exception. (Id. at p. 

846.)

Mother testified her relationship with N.C. was 

“unbreakable.” Father testified about his role in raising N.C. and 

his struggles with addiction. The social worker testified N.C. felt 

safe in her grandparents’ house and viewed it as her home. 

Although N.C. previously told the social worker she did not want 

to be adopted, she more recently said she did. The CASA told the 

court that N.C. viewed her grandparents’ home as her home. The 

CASA felt strongly it was in N.C.’s best interest to remain with 

the grandparents. 

The trial court did not abuse its discretion when it found 

the social worker and the CASA more credible and determined 

that Mother had not met her burden to establish the parentalbenefit exception to adoption. 

ICWA

Mother contends the juvenile court erred when it found 

ICWA did not apply because the department failed to interview 

N.C.’s maternal and paternal grandparents. We disagree 

because the department’s inquiry was reasonable.

ICWA serves “to protect the best interests of Indian 

children and to promote the stability and security of Indian tribes 

and families by the establishment of minimum Federal standards 

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

U.S.C. § 1902; Welf. & Inst. Code, § 224. subds. (a) & (b).) When 

the facts are undisputed, we independently review compliance 

with ICWA. (In re A.M. (2020) 47 Cal.App.5th 303, 314.) We 
10

review the juvenile court’s determination that ICWA does not 

apply for substantial evidence. (In re A.M., at p. 314; § 224.2, 

subd. (i)(2).)

“‘Indian child’ means any unmarried person who is under 

age eighteen and is either (a) a member of an Indian tribe or (b) 

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

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

& Inst. Code, § 224.1, subd. (a).) Whether a child is a member or 

eligible for membership is conclusively determined by the tribe. 

(§ 224.2, subd. (h).)

The court and the department have “an affirmative and

continuing duty to inquire whether a child . . . is or may be an 

Indian child.” (§ 224.2, subd. (a).) The process is divided into 

three phases: an initial duty to inquire in all cases, a duty of 

further inquiry when there is reason to believe the child may be a 

tribal member or eligible for membership, and a duty to provide 

formal notice when there is reason to know the child is a member 

or eligible for membership. (In re D.F. (2020) 55 Cal.App.5th 558, 

566-567.) If the initial inquiry is deficient, that issue becomes 

moot once the department makes reasonable inquiry before the 

juvenile proceedings are concluded. (See In re Baby Girl M. 

(2022) 83 Cal.App.5th 635, 638-639 & fn. 2.) 

None of the circumstances constituting “reason to know” 

apply here: (1) “[a] person having an interest in the child . . . 

informs the court that the child is an Indian child,” (2) the child, 

parent, or Indian custodian lives on a reservation, (3) a 

designated person “informs the court that it has discovered 

information indicating that the child is an Indian child,” (4) “[t]he 

child . . . gives the court reason to know that the child is an 

Indian child,” (5) the child has been a ward of a tribal court, or (6) 
11

the parent or child has a tribal membership identification card. 

(§ 224.2, subd. (d), italics added.)

The department initially stated there was reason to believe

N.C. might be an Indian child. This determination was based on 

“information suggesting that either the parent of the child or the 

child is a member or may be eligible for membership in an Indian 

tribe.” (§ 224.2, subd. (e)(1).) As detailed below, the department 

made “further inquiry” into N.C.’s status “as soon as practicable,” 

including interviewing extended family members,4 contacting the 

BIA, and contacting tribes and other persons who might have 

information. (§ 224.2, subd. (e); Cal. Rules of Court, rule 

5.481(a)(4).) 

The law does not require the department to contact every 

extended family member including every aunt, uncle, and first 

and second cousin. (See In re Ezequiel G. (2022) 81 Cal.App.5th 

984, 1006-1007.) All that is required is a reasonable inquiry. (In 

re J.K. (2022) 83 Cal.App.5th 498, 508, fn. 7.) Other than the 

parents, the maternal and paternal grandmothers, and the 

paternal great-grandmother, the record does not show that 

extended family members were “readily available” to the 

department. (In re Ricky R. (2022) 82 Cal.App.5th 671, 682; In re 

Josiah T. (2021) 71 Cal.App.5th 388, 403.) 

The department made a reasonable inquiry here. The 

department interviewed Mother, Father, and the maternal 

grandmother. All had only vague information about possible 

Native American ancestors. The maternal grandmother would 

4 “‘[E]xtended family member’” is defined as the “child’s 

grandparent, aunt or uncle, brother or sister, brother-in-law or 

sister-in-law, niece or nephew, first or second cousin, or 

stepparent.” (§ 224.1, subd. (c); 25 U.S.C. § 1903(2).)
12

not provide contact information for the paternal grandmother 

and did not return a call to determine if she had contacted her. 

But in 2011, the paternal grandmother said any Native American 

ancestry was through her deceased husband and was “very, very 

remote.” The department could not contact the paternal 

grandfather because he died in 1989. The record contains no 

information whether the identity of the biological maternal 

grandfather was known.

The paternal great-grandmother, great aunt, and maternal 

step-grandfather all fall outside the definition of “extended family 

member.” Nevertheless, the department spoke to the paternal 

great-grandmother in 2011, who said her family and her 

husband’s family were from Mexico and did not have Native 

American heritage. The department attempted to contact N.C.’s 

great aunt in 2011 but the phone was disconnected. In addition 

to interviewing several relatives, the department also contacted

the BIA and the Cherokee bands, who stated N.C. was not a 

member and not eligible for membership. 

Mother has not shown the existence of “any other person 

that may reasonably be expected to have information regarding 

the child’s membership, citizenship status, or eligibility.” 

(§ 224.2, subd. (e)(2)(C).) Following the department’s “‘“proper 

and adequate further inquiry and due diligence”’” (In re Josiah 

T., supra, 71 Cal.App.5th at p. 408), the court properly concluded 

that ICWA did not apply.

Mother also contends the department failed to file required 

documents. “The petitioner must on an ongoing basis include in 

its filings a detailed description of all inquiries, and further 

inquiries it has undertaken, and all information received 

pertaining to the child’s Indian status, as well as evidence of how 
13

and when this information was provided to the relevant tribes.” 

(Cal. Rules of Court, rule 5.481(a)(5).) The department’s reports 

described its ICWA inquiries. Mother has not shown the 

information was incomplete. The department was not required to 

file copies of the actual inquires because there was no “reason to 

know” N.C. was an Indian Child. (§ 224.3, subds. (a), (b), (c); 25 

C.F.R. § 23.111(a) (2021); In re J.C. (2022) 77 Cal.App.5th 70, 78.)

In summary, because Mother has not shown the

department or the juvenile court failed to comply with their 

duties to inquire into Indian heritage, the court properly 

concluded that ICWA did not apply.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED.

BALTODANO, J.

We concur:

GILBERT, P. J.

YEGAN, J.
Arthur A. Garcia, Judge

Superior Court County of Santa Barbara

______________________________

Christopher R. Booth, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rachel Van Mullem, County Counsel, Lisa A. Rothstein, 

Deputy County Counsel, for Plaintiff and Respondent.