Filed 5/16/23 In re Easton V. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

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 This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

In re EASTON V. et al., Persons Coming Under 

the Juvenile Court Law.

KINGS COUNTY HUMAN SERVICES 

AGENCY,

Plaintiff and Respondent,

v.

M.V.,

Defendant and Appellant.

F085320

(Super. Ct. Nos. 21JD0040, 

21JD0041)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Kings County. Jennifer Lee 

Giuliani, Judge.

Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Diane Freeman, County Counsel, and Risé A. Donlon and Thomas Y. Lin, Deputy 

County Counsel, for Plaintiff and Respondent.

-ooOoo-

* Before Detjen, Acting P. J., Peña, J. and Smith, J.
2.

INTRODUCTION

M.V. (mother) and C.C. (father) are the parents of sons Easton V. (born 

August 2015) and Ethan V. (born March 2020) (collectively, the children). Mother 

appeals from the juvenile court’s order terminating her parental rights pursuant to 

Welfare and Institutions Code section 366.26.1 She contends the juvenile court erred in 

declining to apply the parental-benefit exception to adoption. Additionally, she argues 

the Kings County Human Services Agency (agency) and the juvenile court failed to 

comply with the inquiry requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 

et seq.) (ICWA) and related California law because extended family members were not 

asked about the children’s possible Indian ancestry.2 The agency disagrees the juvenile 

court erred in declining to apply the parental-benefit exception, but concedes prejudicial 

error occurred as to ICWA.

For the reasons discussed herein, we accept the agency’s concession of ICWA 

error. Consistent with our decisions in In re K.H. (2022) 84 Cal.App.5th 566 (K.H.) and 

In re E.C. (2022) 85 Cal.App.5th 123 (E.C.), we conclude “the error is prejudicial 

because neither the agency nor the court gathered information sufficient to ensure a 

reliable finding that ICWA does not apply and remanding for an adequate inquiry in the 

first instance is the only meaningful way to safeguard the rights at issue. ([In re ]A.R. 

[(2021)] 11 Cal.5th [234,] 252–254 [(A.R.)].) Accordingly, we conditionally reverse the 

juvenile court’s finding that ICWA does not apply and remand for further proceedings 

consistent with this opinion, as set forth herein.” (K.H., at p. 591; accord, E.C., at 

pp. 157–158.) In all other respects, we affirm.

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

2 “[B]ecause ICWA uses the term ‘Indian,’ we do the same for consistency, even 

though we recognize that other terms, such as ‘Native American’ or ‘indigenous,’ are 

preferred by many.” (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.)
3.

FACTUAL AND PROCEDURAL BACKGROUND

A. Referral, Petition, and Detention

On March 28, 2021, the agency received a referral on behalf of the children after 

then one-year-old Ethan sustained burns to his face, neck, and torso. Maternal aunt 

Angelica V. had taken the children to the hospital so Ethan could be examined. Mother 

did not accompany them, but informed Angelica that Easton, then five years old, had 

poured shampoo over Ethan, causing the burns. Medical staff confirmed it appeared the 

burns were caused by a substance being poured over Ethan’s eyes, but it was unlikely to

have been caused by hygiene products. Both children were found to be underweight and 

Ethan was diagnosed as failure to thrive. According to Easton, mother’s boyfriend had 

poured soap on Ethan’s eyes. The children were detained. Easton was placed with 

Angelica and Ethan remained hospitalized.

On March 30, 2021, the agency filed a petition on behalf of the children. As to 

Ethan, the petition alleged pursuant to section 300, subdivision (b)(1) (failure to protect) 

and (g) (no provision for support), that mother failed to adequately supervise him as he 

suffered burns to his face, neck, and torso, and her explanation of the cause was 

inconsistent with the injuries. As to Easton, the petition alleged pursuant to section 300, 

subdivisions (g) (no provision for support) and (j) (abuse of sibling), that he was at 

substantial risk of suffering similar abuse or neglect. Father was incarcerated. The 

agency subsequently amended the petition, adding one allegation for both children 

pursuant to section 300, subdivision (b)(1) (failure to protect), due to mother’s substance 

abuse issues as she had tested positive for benzoylecgonine and cocaine.

On April 1, 2021, the juvenile court held a detention hearing and found a prima 

facie showing had been made that the children were described by section 300 and ordered 

them detained. Mother was ordered to participate in supervised visits.
4.

B. Jurisdiction and Disposition

The jurisdiction and disposition report stated the children were both placed with 

Angelica. Mother was participating in supervised visitation. The agency supervised 

five visits. At the beginning of mother and Easton’s first visit, Easton began crying 

happy tears and ran to her when he saw her. Overall, the children were happy and 

excited during visits. Mother was appropriate, attentive, and affectionate. They played 

together and ate. Mother’s visits quickly progressed to third party supervised visits, with 

Angelica as the supervising party.

On July 29, 2021, the juvenile court held a combined jurisdiction and disposition 

hearing where it found the allegations in the first amended petition true. The disposition 

hearing was continued.

On August 10, 2021, the juvenile court held a continued disposition hearing and 

ordered mother to participate in reunification services.

C. Six-Month Status Review

The six-month status review report stated the children were now placed with a 

nonrelative care provider who was previously married to a maternal uncle and had a 

preexisting relationship with the children. This individual was later identified as 

maternal great-aunt Kirstyn.3 The children had transitioned well into their new 

placement. Mother had been participating in services and secured stable housing. She 

finished a parenting class and continued to submit to hair follicle tests, which were still 

positive for cocaine with decreasing levels. Overall, she had been in compliance with all 

components of her case plan. Additionally, she had been consistently participating in 

visits, which were now being supervised by the agency again. Mother and Angelica had 

a falling out, and Angelica reported she no longer wanted to supervise the visits. She said 

mother was being “ ‘toxic and disrespectful.’ ” Their dispute arose because Angelica felt 

3 She was also referred to as “auntie Kristen.”
5.

she could no longer keep the children. The agency described the visits as “supportive and 

meaningful.” The agency recommended that mother continue participating in 

reunification services.

On February 8, 2022, the juvenile court held a six-month review hearing and 

continued mother’s reunification services.

D. Twelve-Month Status Review

The 12-month status review report indicated the children were still in placement 

with Kirstyn, who was willing to provide the children with a permanent plan of adoption 

or guardianship. Although mother had previously been doing well, during this review 

period she had been arrested for driving under the influence and resisting arrest. The 

agency reported she had not demonstrated a behavioral change during the review period 

and was unable to utilize the skills she had learned through her services. Visits again

progressed to third party visits, supervised by Kirstyn. Kirstyn expressed concerns about 

the visits, reporting mother spoke to the children harshly, made inappropriate comments 

during one visit like calling someone a “ ‘crack head,’ ” and was on the phone too much. 

On one occasion, she snapped at Ethan, telling him, “ ‘[H]urry the f*** up and come on 

and stop crying.’ ” When Easton attempted to stop Ethan from running in the street, 

mother yelled, “ ‘[W]hat is your f***ing problem, mind your own business.’ ” 

Thereafter, visits went back to being supervised by the agency who also reported mother 

was on the phone too much during visits and spoke harshly to the children. Due to 

mother’s behavior, Kirstyn no longer wished to engage with her. The agency reported 

mother had been unable to demonstrate patience with the children, or other adults. She 

continued to struggle with self-regulation and the children would “ ‘shut down’ ” when 

mother became angry. The agency recommended terminating mother’s reunification 

services.

On May 26, 2022, the juvenile court held a 12-month review hearing. The court 

terminated mother’s reunification services and set a section 366.26 hearing.
6.

E. Section 366.26

The section 366.26 report stated the children were still in placement with Kirstyn. 

Mother was still participating consistently in visitation and had only missed two visits in 

2022. The agency had been supervising visits. The children and mother appeared happy 

to see each other, enjoyed their time together, and the children transitioned in and out of 

visits well. Kirstyn supervised one visit on Easton’s birthday, which went “very well.”

The children were considered adoptable, and Kirstyn was committed to adopting 

them. Easton stated that if he could not live with mother, he would want to live with 

Kirstyn. Ethan consistently appeared comfortable and happy with her. A social worker 

met with Easton and completed an activity in which he had to place activities and people 

in pretend houses. He stated he would place Ethan, Kirstyn, “KK,” father, and mother in 

his “House of Good Things.” He said mother belonged there because “we love her and 

do fun things with her.” No one belonged in his “House of Worries” or the “House of 

Dreams.” The agency recommended terminating parental rights with a permanent plan of 

adoption.

On September 20, 2022, mother testified at the section 366.26 hearing. When 

asked why the children should not be adopted, she said she felt like they needed “their 

parents.” She said she had “a good bond and connection” with them. She added that it 

was going to mentally and physically “mess them up” because they were used to being 

with her. They always asked when they would be going back home and did not like to be 

with other people. She said, “I just don’t think that it’s right what’s going on. I think I 

should get another opportunity. I did all the classes. I’ve drug tested. I did everything 

that the [c]ourt has asked me to do and it just wasn’t good enough for you guys. I 

shouldn’t be able to never see my kids again until they are 18 or older and, then, have 

remorse against me and not like me or hate me as a person because of a situation that 

happened that it wasn’t even my fault.” Mother described her visits with the children as 

“good.” The children were always happy. They played and talked, and sometimes did 
7.

not want to leave. They called her “mom.” When they arrived at visits, they would run 

to mother’s car and hug her. When it was time to leave, they would give her a hug and 

tell her goodbye.

The assigned social worker testified she assessed the detriment the children would 

suffer if parental rights were terminated and believed there was no indication they would 

suffer detriment. Ethan, who was two, was too young to articulate his feelings. The 

social worker discussed adoption with Easton, explaining he might not see his parents 

again while he is a child. In response, Easton stated that “he misses mommy and that he 

would be sad not to see mommy or daddy, but that he would be happy because he would 

get to stay with auntie [Kirstyn].” She opined that it would not be detrimental to Easton 

to terminate parental rights because he was “adapting to the time that [he was] not seeing 

his parents. He [was] becoming more stable out of their home.... [He was] developing 

like a normal[,] regular[,] happy little kid....” When they spoke about mother and father, 

he would say he was sad but there was not a “dramatic expression of emotion.”

The juvenile court found the children were adoptable and that the parental-benefit 

exception did not apply. In ruling, the juvenile court explained the applicable law and 

then addressed each prong of the exception as follows: 

“As indicated by [county counsel] and [mother’s counsel], the 

first prong of the three-prong test, ... is that there has been regular 

visitation and contact. I don’t believe that it was disputed by anybody that 

there has not been regular visitation and contact between the parents and 

the children.... [I]t does appear that there has been contact with both 

parents. So, certainly, the visitation prong seems to have been met by the 

parents.

“The next prong is that the [c]ourt must find a relationship between 

the parents and the children, the continuation of which would benefit the 

child. I don’t believe there’s any[ ]way that, especially with regard to 

Easton, that the [c]ourt cannot find that there is a relationship between the 

parents and Easton. It looks like Easton is now seven. He was out of his 

mother’s care for about a year, from 2018 to 2019, while she participated in 

family reunification services. It looks like the children have been out of 
8.

care for about a year-and-a-half now. With regard to [Ethan] it looks like 

[Ethan] was about a year old when he was removed from [mother] and it’s 

been about a year-and-a-half that he’s been out of [her] care. I believe I can 

certainly find that there is a relationship between the parents and the 

children.

“With regard to Easton, it is arguable, although I don’t have any 

solid evidence—it’s speculation—that Easton certainly would benefit from 

continuing that relation[ship]. I agree with [mother’s counsel]. It is sort of 

speculative [of] the effect with regard to Ethan as he has been out of care of 

both of his parents for longer than he was ever in their care.

“The last prong, which always is the most difficult prong, is that the 

[c]ourt must find that termination of the relationship between the parents 

and the children would be detrimental to the child. And every parent who 

testifies at these kinds of hearings says the exact same thing. They say my 

children or our children need to be with their parents. And I don’t have any 

doubt that every parent who testifies believes that that is the truth. What 

the parents don’t have that the attorneys have what I have [is] the 

knowledge, I suppose, of reading all of the cases that come down from the 

appellate courts and the Supreme Court that deals with what does detriment 

mean. So there are a bunch of cases out there that really talk about what 

that has—what do parents have to prove when they are talking about 

detriment and it being detrimental to the child. And those cases are pretty 

clear that that detriment has to be shown. Not just I think it would be bad. 

I think that it would be hard for them. I think that wouldn’t be right for 

them. That’s not enough as far as the cases go to support the position that it 

would be detrimental to the kids. It’s not enough, according to the cases, 

that a child says it’s going to make me sad if I don’t see my parents. [The 

social worker] testified today that she talked to Easton and explained that 

he may not see his parents again until he is a grown-up, until he’s older, 

and he said it made him sad, but making him sad doesn’t meet the 

requirements of detriment, according to the law. And I know it feels like 

for every parent who testifies that ... it should be a no-brainer that 

removing or terminating parental rights would be detrimental to a child and 

that’s not supported by the cases that have come out of the appellate courts 

that have considered that issue.

“The [c]ourt finds that the parental benefit exception, the parents 

have not carried their burden with regard to meeting that exception....”

Accordingly, the juvenile court terminated parental rights and ordered a permanent 

plan of adoption.
9.

On October 20, 2022, mother filed a notice of appeal.

DISCUSSION

I. Parental-Benefit Exception

Mother contends the juvenile court erred in declining to apply the parental-benefit 

exception because termination of the relationship was detrimental to the children.

A. Legal Principles

“If the court cannot safely return a dependent child to a parent’s custody within 

statutory time limits, the court must set a hearing under section 366.26.” (In re Caden C.

(2021) 11 Cal.5th 614, 630 (Caden C.).) “[T]he goal at the section 366.26 hearing is 

‘specifically ... to select and implement a permanent plan for the child.’ ” (Ibid.) “At 

[the] hearing, the court may order one of three alternatives: adoption, guardianship or

long-term foster care.” (In re S.B. (2008) 164 Cal.App.4th 289, 296.) “According to 

[the] procedure [under section 366.26], the court must first determine by clear and 

convincing evidence whether the child is likely to be adopted. [Citation.] If so, and if the 

court finds that there has been a previous determination that reunification services be 

terminated, then the court shall terminate parental rights to allow for adoption. [Citation.] 

But if the parent shows that termination would be detrimental to the child for at least 

one specifically enumerated reason, the court should decline to terminate parental rights 

and select another permanent plan.” (Caden C., at pp. 630–631.) One exception to 

adoption is the parental-benefit exception, which requires the parent to establish, by a 

preponderance of the evidence, “that the parent has regularly visited with the child, that 

the child would benefit from continuing the relationship, and that terminating the 

relationship would be detrimental to the child.” (Id. at p. 629; § 366.26, 

subd. (c)(1)(B)(i).)

“The first element—regular visitation and contact—is straightforward. The 

question is just whether ‘parents visit consistently,’ taking into account ‘the extent 

permitted by court orders.’ [Citation.] Visits and contact ‘continue[] or develop[] a 
10.

significant, positive, emotional attachment from child to parent.’ [Citation.] Courts 

should consider in that light whether parents ‘maintained regular visitation and contact 

with the child’ (§ 366.26, subd. (c)(1)(B)(i)) but certainly not to punish parents or reward 

them for good behavior in visiting or maintaining contact—here, as throughout, the focus 

is on the best interests of the child.” (Caden C., supra, 11 Cal.5th at p. 632.)

“As to the second element, courts assess whether ‘the child would benefit from 

continuing the relationship.’ (§ 366.26, subd. (c)(1)(B)(i).) Again here, the focus is the 

child. And the relationship may be shaped by a slew of factors, such as ‘[t]he age of the 

child, the portion of the child’s life spent in the parent’s custody, the “positive” or 

“negative” effect of interaction between parent and child, and the child’s particular 

needs.’ ” (Caden C., supra, 11 Cal.5th at p. 632.) “[C]ourts often consider how children 

feel about, interact with, look to, or talk about their parents. [Citations.] Doing so 

properly focuses the inquiry on the child ....” (Ibid.)

“Concerning the third element—whether ‘termination would be detrimental to the 

child due to’ the relationship—the court must decide whether it would be harmful to the 

child to sever the relationship and choose adoption.” (Caden C., supra, 11 Cal.5th at 

p. 633.) The court must determine “how the child would be affected by losing the 

parental relationship—in effect, what life would be like for the child in an adoptive home 

without the parent in the child’s life.” (Ibid.) “[T]he effects [on the child] might include 

emotional instability and preoccupation leading to acting out, difficulties in school, 

insomnia, anxiety, or depression. Yet ... a new, stable home may alleviate the emotional 

instability and preoccupation leading to such problems, providing a new source of 

stability that could make the loss of a parent not, at least on balance, detrimental.” (Ibid.) 

“When the relationship with a parent is so important to the child that the security and 

stability of a new home wouldn’t outweigh its loss, termination would be ‘detrimental to 

the child due to’ the child’s beneficial relationship with a parent.” (Id. at pp. 633–634.) 

“When it weighs whether termination would be detrimental, the court is not comparing 
11.

the parent’s attributes as custodial caregiver relative to those of any potential adoptive 

parent(s).” (Id. at p. 634.) “[T]he section 366.26 hearing is decidedly not a contest of 

who would be the better custodial caregiver.” (Ibid.)

B. Standard of Review

The first two elements are reviewed for substantial evidence. (Caden C., supra, 

11 Cal.5th at p. 639.) “In reviewing factual determinations for substantial evidence, a 

reviewing court should ‘not reweigh the evidence, evaluate the credibility of witnesses, or 

resolve evidentiary conflicts.’ [Citation.] The determinations should ‘be upheld if ... 

supported by substantial evidence, even though substantial evidence to the contrary also 

exists and the trial court might have reached a different result had it believed other 

evidence.’ ” (Id. at p. 640.)

“The third element ... is somewhat different.” (Caden C., supra, 11 Cal.5th at 

p. 640.) “As in assessing visitation and the relationship between parent and child, the 

court must make a series of factual determinations. These may range from the specific 

features of the child’s relationship with the parent and the harm that would come from 

losing those specific features to a higher-level conclusion of how harmful in total that 

loss would be. The court must also determine, for the particular child, how a prospective 

adoptive placement may offset and even counterbalance those harms. In so doing, it may 

make explicit or implicit findings ranging from specific benefits related to the child’s 

specific characteristics up to a higher-level conclusion about the benefit of adoption all 

told. All these factual determinations are properly reviewed for substantial evidence.” 

(Ibid.) “Yet the court must also engage in a delicate balancing of these determinations as 

part of assessing the likely course of a future situation that’s inherently uncertain.” 

(Ibid.) It requires “assessing what the child’s life would be like in an adoptive home 

without the parent in his life.” (Ibid.) “The court makes the assessment by weighing the 

harm of losing the relationship against the benefits of placement in a new, adoptive home. 

And so, the ultimate decision—whether termination of parental rights would be 
12.

detrimental to the child due to the child’s relationship with his parent—is discretionary 

and properly reviewed for abuse of discretion.” (Ibid.)

A court abuses its discretion only when it “ ‘has exceeded the limits of legal 

discretion by making an arbitrary, capricious, or patently absurd determination.’ ” (In re 

Geoffrey G. (1979) 98 Cal.App.3d 412, 421.) “When two or more inferences can 

reasonably be deduced from the facts, the reviewing court has no authority to substitute 

its decision for that of the trial court.” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478–

479.)

C. Analysis

In order to establish the parental-benefit exception, mother was required to show, 

by a preponderance of the evidence, that (1) she regularly visited the children, (2) the 

children would benefit from continuing the relationship, and (3) terminating the 

relationship would be detrimental to the children. (Caden C., supra, 11 Cal.5th at p. 629; 

§ 366.26, subd. (c)(1)(B)(i).) The juvenile court found mother had satisfied the 

first two prongs.4 Thus, the only remaining issue is whether she satisfied her burden 

under the third prong.

As noted, when it comes to the third element, “the court must decide whether it 

would be harmful to the child to sever the relationship and chose adoption.” (Caden C., 

supra, 11 Cal.5th at p. 633.) “[T]he parent must show that terminating [the relationship] 

would be detrimental to the child even when balanced against the countervailing benefit 

of a new, adoptive home.” (Id. at p. 636.) Here, the juvenile court acted within its 

4 Mother argues the juvenile court should have found the second prong satisfied, but 

the court did indeed make such a finding. It stated, “The next prong is that the [c]ourt 

must find a relationship between the parents and the children, the continuation of which 

would benefit the child. I don’t believe there’s any[ ]way that, especially with regard to 

Easton, that the [c]ourt cannot find that there is a relationship between the parents and 

Easton.... I believe I can certainly find that there is a relationship between the parents 

and the children.”
13.

discretion in finding that severing the relationship would not be detrimental to the 

children. Although the evidence showed the children had a beneficial relationship with 

mother, there was no indication the children would suffer detriment from severing the 

relationship within the meaning of the exception. The social worker testified she 

explained what adoption meant to Easton. She told him it meant he might not see his 

parents while he is a child. Easton stated it would make him sad not to see mother, but 

that he would be happy because he would be staying with Kirstyn. Ethan was too young 

to provide a statement, but he had spent 18 months out of mother’s care, which was a 

majority of his life. Additionally, the social worker testified Easton was adapting to not 

seeing mother and was becoming more stable out of her care. When he spoke about 

mother and father, he expressed sadness, but there was no “dramatic expression of 

emotion.” When asked whether he wanted to live with Kirstyn forever and “for her to be 

his mom,” Easton had “a big smile on his face, and he nodded yes.” Indeed, mother 

testified the children had no problem separating from her at the end of visits—they would 

simply hug her and tell her goodbye. As the court noted, “making [Easton] sad doesn’t 

meet the requirements of detriment, according to the law.”

In light of these circumstances, we cannot conclude the juvenile court abused its 

discretion in finding that the benefit of a stable home outweighed any detriment the 

children would suffer as a result of severing the relationship.

II. ICWA

Mother next contends the juvenile court and the agency failed to comply with the 

inquiry requirements of ICWA and related state law because extended family members 

were not asked about the children’s possible Indian ancestry.

A. Additional Background

Prior to the petition being filed, mother denied having Indian ancestry. Father was 

incarcerated and the agency had been unable to inquire of him. However, in a prior 

dependency case involving Easton, the juvenile court had found ICWA did not apply. 
14.

When the agency filed the petition in the current case, it attached an Indian Child Inquiry 

Attachment (ICWA-010(A)) form stating the agency conducted inquiries with mother 

and father and they gave no reason to believe the children could be Indian children.

On April 1, 2021, mother filed a Parental Notification of Indian Status 

(ICWA-020) form denying Indian ancestry. At the detention hearing that same day, an 

inquiry was conducted with mother, and she again denied having Indian ancestry. The 

juvenile court found ICWA did not apply.

On April 28, 2021, father filed an ICWA-020 form denying Indian ancestry.

On July 29, 2021, father filed another ICWA-020 form denying Indian ancestry. 

That same day at a continued jurisdiction and disposition hearing, the juvenile court 

acknowledged receipt of father’s ICWA-020 form. The agency conducted an inquiry 

with father in court. Father testified he did not have Indian ancestry.

The jurisdiction and disposition report, the six-month status review report, and the 

12-month status review report stated ICWA did not apply.

The section 366.26 report stated no additional information had been provided by 

the parents to suggest the children were or could be Indian children and, therefore, a new 

inquiry was not necessary. The agency recommended the juvenile court reiterate its 

previous findings that ICWA did not apply.

On September 20, 2022, at the section 366.26 hearing, the juvenile court signed 

and filed a “FINDING REGARDING ICWA INQUIRY IN ACCORDANCE WITH 

[CALIFORNIA RULES OF COURT,] RULE 5.481(a),” stating that an inquiry had been 

completed and ICWA did not apply.5

B. Legal Principles

“ ‘ICWA is a federal law giving Indian tribes concurrent jurisdiction over state 

court child custody proceedings that involve Indian children living off of a reservation’ 

5 All further references to rules are to the California Rules of Court.
15.

[citations], in furtherance of ‘federal policy “ ‘that, where possible, an Indian child should 

remain in the Indian community’ ” ’ [citations]. ‘ICWA establishes minimum federal 

standards, both procedural and substantive, governing the removal of Indian children 

from their families’ [citations], and ‘[w]hen ICWA applies, the Indian tribe has a right to 

intervene in or exercise jurisdiction over the proceeding.’ ” (K.H., supra, 84 Cal.App.5th 

at p. 594, fn. omitted; accord, E.C., supra, 85 Cal.App.5th at p. 138, fn. omitted.)

“ ‘In 2006, California adopted various procedural and substantive provisions of 

ICWA.’ [Citations.] The Legislature’s ‘primary objective ... was to increase

compliance with ICWA. California Indian Legal Services (CILS), a proponent of the 

bill, observed that courts and county agencies still had difficulty complying with ICWA 

25 years after its enactment, and CILS believed codification of [ICWA’s] requirements 

into state law would help alleviate the problem.’ ” (K.H., supra, 84 Cal.App.5th at 

p. 595; accord, E.C., supra, 85 Cal.App.5th at pp. 138–139.)

“ ‘In 2016, new federal regulations were adopted concerning ICWA compliance. 

[Citation.] Following the enactment of the federal regulations, California made 

conforming amendments to its statutes, including portions of the Welfare and Institutions 

Code related to ICWA notice and inquiry requirements. [Citations.] Those changes 

became effective January 1, 2019 ....’ [Citation.] Subsequently, the Legislature 

amended section 224.2, subdivision (e), to define ‘reason to believe,’ effective 

September 18, 2020.” (K.H., supra, 84 Cal.App.5th at pp. 595–596, fn. omitted; accord, 

E.C., supra, 85 Cal.App.5th at p. 139.)

1. Summary of Duties of Inquiry and Notice

“[W]hether a child is a member, or is eligible for membership, in a particular tribe 

is a determination that rests exclusively with the tribe, and neither the agency nor the 

court plays any role in making that determination. [Citations.] ‘ “Because it typically is 

not self-evident whether a child is an Indian child, both federal and state law mandate 
16.

certain inquiries to be made in each case.” ’ ” (K.H., supra, 84 Cal.App.5th at p. 596; 

accord, E.C., supra, 85 Cal.App.5th at pp. 139–140.)

“In California, section 224.2 ‘codifies and elaborates on ICWA’s requirements of 

notice to a child’s parents or legal guardian, Indian custodian, and Indian tribe, and to the 

[Bureau of Indian Affairs].’ ” (In re A.R. (2022) 77 Cal.App.5th 197, 204.) California 

law imposes “an affirmative and continuing duty [on the court and the county welfare 

agency to inquire whether a child for whom a petition under [s]ection 300, ... may be or 

has been filed, is or may be an Indian child.” (§ 224.2, subd. (a).)

“The [state law] duty to inquire begins with the initial contact, including, but not 

limited to, asking the party reporting child abuse or neglect whether the party has any 

information that the child may be an Indian child.” (§ 224.2, subd. (a).) “If a child is 

placed into the temporary custody of a county welfare [agency] pursuant to 

[s]ection 306 ... the county welfare [agency] ... has a duty to inquire whether that child is 

an Indian child. Inquiry includes, but is not limited to, asking the child, parents, legal 

guardian, Indian custodian, extended family members, others who have an interest in the 

child, and the party reporting child abuse or neglect, whether the child is, or may be, an 

Indian child and where the child, the parents, or Indian custodian is domiciled.” (§ 224.2, 

subd. (b).) Additionally, “[a]t the first appearance in court of each party, the court shall 

ask each participant present in the hearing whether the participant knows or has reason to 

know that the child is an Indian child. The court shall instruct the parties to inform the 

court if they subsequently receive information that provides reason to know the child is 

an Indian child.” (§ 224.2, subd. (c).)

“If the initial inquiry provides ‘reason to believe’ that an Indian child is involved 

in a proceeding—that is, if the court or social worker ‘has 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’—then the court or social worker ‘shall make further inquiry’ regarding 

the child’s possible Indian status as soon as practicable.” (In re Ezequiel G. (2022) 81 
17.

Cal.App.5th 984, 999 (Ezequiel G.), citing § 224.2, subd. (e).) “Further inquiry 

‘includes, but is not limited to, all of the following: [¶] (A) Interviewing the parents, 

Indian custodian, and extended family members[;] [¶] (B) Contacting the Bureau of 

Indian Affairs and the State Department of Social Services[; and] [¶] (C) Contacting the 

tribe or tribes and any other person that may reasonably be expected to have information 

regarding the child’s membership, citizenship status, or eligibility.’ ” (Ezequiel G., at 

p. 999.)

“If there is ‘reason to know’ a child is an Indian child, the agency shall provide 

notice to the relevant tribes and agencies in accordance with section 224.3, 

subdivision (a)(5).” (Ezequiel G., supra, 81 Cal.App.5th at p. 999, citing § 224.2, 

subd. (f).) “There is ‘reason to know’ a child is an Indian child if any one of six statutory 

criteria is met—i.e., if the court is advised that the child ‘is an Indian child,’ the child’s or 

parent’s residence is on a reservation, the child is or has been a ward of a tribal court, or 

either parent or the child possess an identification card indicating membership or 

citizenship in an Indian tribe.” (Ezequiel G., at p. 999, citing § 224.2, subd. (d).)

County welfare departments “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 

and when this information was provided to the relevant tribes. Whenever new 

information is received, that information must be expeditiously provided to the tribes.” 

(Rule 5.481(a)(5).)

C. Analysis

1. Summary of ICWA Inquiry and Notice

In the present case, mother filed an ICWA-020 form denying Indian ancestry. The 

disposition report stated father was incarcerated and had not been interviewed, but ICWA 

was found not to apply in Easton’s prior dependency case. At the disposition hearing, an 

inquiry was conducted of mother where she again denied having Indian ancestry, and the 
18.

juvenile court found ICWA did not apply. Before the jurisdiction and disposition 

hearing, father completed two ICWA-020 forms denying Indian ancestry. Father’s first 

appearance was at a jurisdiction and disposition hearing. An ICWA inquiry was 

conducted in court at that time, and he again denied having Indian ancestry. At the 

section 366.26 hearing, the court reiterated that ICWA did not apply.

The record shows the agency was in contact with several extended family 

members. Initially, the children were placed with maternal aunt Angelica. A few months 

later, the children were moved to placement with maternal great-aunt Kirstyn. Maternal 

grandmother, maternal great-grandmother, and maternal great-great-grandmother all 

participated in visits. Additionally, father provided information for the paternal 

grandparents and paternal uncles. There is no indication the agency asked these relatives 

about the children’s possible Indian ancestry. Mother contends the agency’s failure to 

conduct inquires with the extended family members resulted in prejudicial error. The 

agency concedes.

In K.H. and E.C., we addressed ICWA error at the inquiry stage. There, we 

explained our decision not to follow the approaches articulated by other appellate courts 

for determining whether ICWA error requires reversal and concluded that the Supreme 

Court’s decision in A.R. supplies the appropriate framework for assessing prejudice in 

this context. (K.H., supra, 84 Cal.App.5th at pp. 607–608, citing A.R., supra, 11 Cal.5th 

at pp. 252–254; accord, E.C., supra, 85 Cal.App.5th at p. 152.) Applying the standards 

we articulated in K.H. and E.C., as we will discuss below, we agree with the parties and 

conclude the agency’s error is prejudicial and remand for the agency to conduct a proper, 

adequate, and duly diligent inquiry is necessary.

2. Standard of Review

“The juvenile court’s finding that ICWA does not apply to the proceeding rests on 

two elemental determinations, ‘subject to reversal based on sufficiency of the 

evidence.’ ” (K.H., supra, 84 Cal.App.5th at p. 601, quoting § 224.2, subd. (i)(2); accord, 
19.

E.C., supra, 85 Cal.App.5th at pp. 142–143.) First, “[t]he court must find there is ‘no 

reason to know whether the child is an Indian child,’ which is dependent upon whether 

any of the six circumstances set forth in subdivision (d) of section 224.2 apply.” (K.H., at 

p. 601, quoting § 224.2, subd. (i)(2); accord, E.C., at p. 143.) Second, “[t]he juvenile 

court must ... find a ‘proper and adequate further inquiry and due diligence ....’ ” (K.H.,

at p. 601, quoting § 224.2, subd. (i)(2); accord, E.C., at p. 143.)

Under the substantial evidence standard, “ ‘a reviewing court should “not reweigh 

the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts.” 

[Citation.] The determinations should “be upheld if ... supported by substantial 

evidence, even though substantial evidence to the contrary also exists and the trial court 

might have reached a different result had it believed other evidence.” ’ [Citations.] The 

standard recognizes that ‘[t]rial courts “generally are in a better position to evaluate and 

weigh the evidence” than appellate courts’ [citation], and ‘an appellate court should 

accept a trial court’s factual findings if they are reasonable and supported by substantial 

evidence in the record’ [citation]. ‘[I]f a court holds an evidentiary hearing, it may make 

credibility determinations, to which an appellate court would generally defer.’ ” (K.H., 

supra, 84 Cal.App.5th at p. 601; accord, E.C., supra, 85 Cal.App.5th at p. 143.)

The juvenile court’s finding on the second element, however, “is ultimately 

discretionary because it requires the juvenile court to ‘engage in a delicate balancing of’ 

various factors in assessing whether the agency’s inquiry was proper and adequate within 

the context of ICWA and California law, and whether the agency acted with due 

diligence.” (K.H., supra, 84 Cal.App.5th at p. 601, quoting Caden C., supra, 11 Cal.5th 

at p. 640; accord, E.C., supra, 85 Cal.App.5th at p. 143; Ezequiel G., supra, 81 

Cal.App.5th at pp. 1004–1005.) Therefore, we employ a hybrid standard and review the 

court’s determination for substantial evidence and abuse of discretion. (K.H., at p. 601; 

accord, E.C., at pp. 143–144; Ezequiel G., at pp. 1004–1005.)
20.

“ ‘Review for abuse of discretion is subtly different [from review for substantial 

evidence], focused not primarily on the evidence but the application of a legal standard. 

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.” ’ ” 

[Citation.] But “ ‘ “[w]hen two or more inferences can reasonably be deduced from the 

facts, the reviewing court has no authority to substitute its decision for that of the trial 

court[.]” ’ ” [Citations.] [¶] While each standard here fits a distinct type of 

determination under review, the practical difference between the standards is not likely to 

be very pronounced.’ ” (K.H., supra, 84 Cal.App.5th at p. 602; accord, E.C., supra, 85 

Cal.App.5th at pp. 143–144.)

“Review of the juvenile court’s findings under the foregoing standards is 

deferential, but ‘ “an appellate court [nevertheless] exercises its independent judgment to 

determine whether the facts satisfy the rule of law.” ’ [Citations.] Where the material 

facts are undisputed, courts have applied independent review to determine whether 

ICWA’s requirements were satisfied.” (K.H., supra, 84 Cal.App.5th at p. 602; accord, 

E.C., supra, 85 Cal.App.5th at p. 144.)

3. Agency and Juvenile Court Erred

As previously mentioned, when “a child is placed into the temporary custody of a 

county welfare [agency] ..., the county welfare [agency] ... has a duty to inquire whether 

[the] child is an Indian child. Inquiry includes, but is not limited to, asking the child, 

parents, legal guardian, Indian custodian, extended family members, others who have an 

interest in the child, and the party reporting child abuse or neglect, whether the child is, 

or may be, an Indian child and where the child, the parents, or Indian custodian is 

domiciled.” (§ 224.2, subd. (b).) Extended family members include adult grandparents, 

siblings, brothers- or sisters-in-law, aunts, uncles, nieces, nephews, and first or 

second cousins. (25 U.S.C. § 1903(2); § 224.1, subd. (c).)
21.

Here, the agency inquired only of mother and father, which fell short of complying 

with the plain language of section 224.2, subdivision (b), which required the agency to 

inquire of extended family members. “[T]he law demands more than merely inquiring of 

[m]other and [f]ather” (K.H., supra, 84 Cal.App.5th at p. 620, citing In re Antonio R.

(2022) 76 Cal.App.5th 421, 431; accord, In re M.M. (2022) 81 Cal.App.5th 61, 74, 

review granted Oct. 12, 2022, S276099 (dis. opn. of Wiley, J.)), a point the agency does 

not dispute. There may be cases in which there is no one else to ask, but if that is so, the 

record must be developed to reflect that fact and supported by documentation. 

(Rule 5.481(a)(5).) “On a well-developed record, the court has relatively broad 

discretion [in such cases] to determine [that] the agency’s inquiry was proper, adequate, 

and duly diligent on the specific facts of the case.” (K.H., at p. 589; accord, E.C., supra, 

85 Cal.App.5th at p. 157.) Accordingly, the juvenile court’s finding that ICWA did not 

apply was not supported by substantial evidence, and its contrary conclusion was an 

abuse of discretion. (§ 224.2, subd. (i)(2).)

4. Prejudice

“Where, as here, the deficiency lies with the agency’s duty of [...] inquiry and a 

juvenile court’s related finding of ‘proper and adequate further inquiry and due diligence’ 

(§ 224.2, subd. (i)(2)), the error is one of state law ([In re] Benjamin M., supra, 70 

Cal.App.5th at p. 742). Under the California Constitution, ‘[n]o judgment shall be set 

aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of 

the improper admission or rejection of evidence, or for any error as to any matter of 

pleading, or for any error as to any matter of procedure, unless, after an examination of 

the entire cause, including the evidence, the court shall be of the opinion that the error 

complained of has resulted in a miscarriage of justice.’ (Cal. Const., art. VI, § 13.)” 

(K.H., supra, 84 Cal.App.5th at p. 606; accord, E.C., supra, 85 Cal.App.5th at p. 151.)

“ ‘[T]o be entitled to relief on appeal from an alleged abuse of discretion, it must 

clearly appear the resulting injury is sufficiently grave to manifest a miscarriage of 
22.

justice’ [citations], and California law generally interprets its constitutional miscarriage 

of justice requirement ‘as permitting reversal only if the reviewing court finds it 

reasonably probable the result would have been more favorable to the appealing party but 

for the error.’ ” (K.H., supra, 84 Cal.App.5th at pp. 606–607; accord, E.C., supra, 85 

Cal.App.5th at pp. 151–152.)

However, in A.R., the Supreme Court “recognized that while we generally apply a 

Watson[6]likelihood-of-success test to assess prejudice, a merits-based outcome-focused 

test is not always appropriate because it cannot always adequately measure the relevant 

harm. [Citation.] In other words, where the injury caused by the error is unrelated to an 

outcome on the merits, tethering the showing of prejudice to such an outcome misplaces 

the measure, at the expense of the rights the law in question was designed to protect.” 

(K.H., supra, 84 Cal.App.5th at p. 609, italics omitted.)

As we explained in K.H., “ ‘ICWA compliance presents a unique situation ....’ ” 

(K.H., supra, 84 Cal.App.5th at p. 608.) “ICWA is not directed at reaching, or 

protecting, a specific outcome on the merits.” (Id. at p. 609; accord, E.C., supra, 85 

Cal.App.5th at p. 154.) Rather, “ ‘[t]he purpose of ICWA and related California statutes 

is to provide notice to the tribe sufficient to allow it to determine whether the child is an 

Indian child, and whether the tribe wishes to intervene in the proceedings’ [citation], and 

an adequate initial inquiry facilitates the information gathering upon which the court’s 

ICWA determination will rest.” (K.H., at p. 608; accord, E.C., at pp. 152–153.) Yet, 

“while the appealing party is usually a parent, parents do not bear the burden of gathering 

information in compliance with ICWA [citations], and parents may raise the claim of 

error for the first time on appeal.” (K.H., at p. 608; accord, E.C., at p. 153.) Further, the 

ultimate determination whether a child is an Indian child rests with the tribe, not with a 

parent, the agency, or the juvenile court. (K.H., at p. 590; accord, E.C., at pp. 139–140.) 

6 People v. Watson (1956) 46 Cal.2d 818, 836.
23.

“[W]here the opportunity to gather the relevant information critical to determining 

whether the child is or may be an Indian child is lost because there has not been adequate 

inquiry and due diligence, reversal for correction is generally the only effective 

safeguard.” (K.H., at p. 610, citing A.R., supra, 11 Cal.5th at pp. 252–254; accord, E.C.,

at p. 155.)

Here, the agency’s inquiry, limited only to mother and father, “ ‘fell well short of 

that required to gather the information needed to meaningfully safeguard the rights of the 

tribes, as intended under ICWA and California law’ ” (E.C., supra, 85 Cal.App.5th at 

p. 156, quoting K.H., supra, 84 Cal.App.5th at p. 620), and “[a] finding of harmlessness 

on this record would necessarily require speculation and ‘is at odds with the statutory 

protections that ICWA and California law intend to afford Indian children and Indian 

tribes.’ ” (E.C., at p. 155, quoting K.H., at p. 611.) Therefore, the error is prejudicial and 

reversal is required.

Accordingly, the juvenile court’s finding that ICWA does not apply is 

conditionally reversed and the matter is remanded. The juvenile court is instructed to 

ensure the agency conducts “ ‘a proper, adequate, and duly diligent inquiry under 

section 224.2, subdivision[s] (b) [and (e)], and document its inquiry in the record in 

compliance with rule 5.481(a)(5).’ ” (E.C., supra, 85 Cal.App.5th at p. 157, quoting 

K.H., supra, 84 Cal.App.5th at p. 621.) “ ‘This should not be interpreted as requiring an 

exhaustive search for and questioning of every living relative of [the children]’ but ‘[w]e 

leave that determination for the juvenile court in the first instance because it is better 

positioned to evaluate the evidence provided by the [agency]. So long as the court 

ensures the inquiry is reasonable and of sufficient reach to accomplish the legislative 

purpose underlying ICWA and related California law, the court will have an adequate 

factual foundation upon which to make its ICWA finding. (§ 224.2, subd. (i)(2).)’ ” 

(E.C., supra, 85 Cal.App.5th at p. 157, quoting K.H., supra, 84 Cal.App.5th at p. 621.)
24.

DISPOSITION

The juvenile court’s finding that ICWA does not apply is conditionally reversed, 

and the matter is remanded to the juvenile court with directions to order the agency to 

comply with the inquiry and documentation provisions set forth in section 224.2, 

subdivisions (b) and (e), and rule 5.481(a)(5). The juvenile court is directed to comply 

with inquiry provisions of section 224.2, subdivision (c). If, after determining that an 

adequate inquiry was made consistent with the reasoning in this opinion, the court finds 

that ICWA applies, the court shall vacate its existing order and proceed in compliance 

with ICWA and related California law. If the court instead finds that ICWA does not 

apply, its ICWA finding shall be reinstated. In all other respects, the juvenile court’s 

order is affirmed.