Filed 3/14/23 In re G.S. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

opinions not certified for publication or ordered published, except as specified by rule 

8.1115(b). This opinion has not been certified for publication or ordered published for 

purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re G.S., A Person Coming 

Under the Juvenile Court Law.

B322367

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

B.S.,

Defendant and Appellant.

(Los Angeles County

Super. Ct. No.

20CCJP02740A)

APPEAL from orders of the Superior Court of Los Angeles 

County, Gabriela H. Shapiro, Judge Pro Tempore. Conditionally 

affirmed and remanded. 

David M. Yorton, Jr., under appointment by the Court of 

Appeal, for Defendant and Appellant.

Dawyn R. Harrison, Interim County Counsel, Kim Nemoy, 

Assistant County Counsel, and Stephen D. Watson, Senior 

Deputy County Counsel, for Plaintiff and Respondent.
2

The juvenile court assumed dependency jurisdiction over 

G.S. (Minor) after sustaining allegations that her parents, B.S. 

(Mother) and M.L. (Father), engaged in domestic violence and 

substance abuse. Termination of the parents’ reunification 

services and, ultimately, parental rights ensued. Mother appeals

from the parental rights termination order and we consider (1) 

whether the juvenile court erred in denying her change of 

circumstances petition without holding an evidentiary hearing, 

(2) whether the juvenile court erred in finding inapplicable the 

parental benefit exception to law otherwise requiring termination 

of parental rights, and (3) whether reversal is required because 

no sufficient inquiry was made into whether G.S. is an Indian 

child under the Indian Child Welfare Act (ICWA) (25 U.S.C. 

§ 1901 et seq.) and related California law.1

I. BACKGROUND

A. The Department’s Initial Investigation

In April 2020, the Department received a referral alleging 

recurring domestic violence between Mother and Father. 

Department social workers investigated by interviewing Mother, 

Father, and several other family members: maternal 

grandmother C.S. (Maternal Grandmother); maternal uncle A.S. 

(Maternal Uncle); paternal grandmother M.C. (Paternal 

Grandmother); and paternal step-grandfather M.S.

The Department learned Mother was seventeen years old 

when she gave birth to Minor, who was approximately 21 months 

old at the time dependency proceedings commenced. According to 

1 Father, whose parental rights were also terminated by the 

juvenile court, is not a party to this appeal.
3

those interviewed, Mother and Father would frequently yell at 

each other, sometimes in Minor’s presence. Not long before the 

Department began investigating, the parents fought in Minor’s 

presence and Father broke Mother’s cell phone. During an 

earlier fight in Minor’s presence, Father broke Mother’s bedroom 

window. In 2019, Mother hit Maternal Grandmother while she

was holding Minor. Maternal Grandmother and Maternal Uncle 

told Department social workers that Mother and Father 

sometimes neglect to feed Minor, which forces other family 

members to ensure she is fed.

Mother admitted she and Father had verbal arguments, 

but she denied there had been any physical violence between her 

and Father or Maternal Grandmother. Father similarly 

admitted to arguing with Mother, but he stated they do not really 

argue in front of Minor. Father admitted he slammed Mother’s 

phone on the floor during an argument. He also admitted to 

breaking Mother’s window, but both he and Mother asserted it 

was an accident. Mother and Father each denied failing to feed 

Minor. Father admitted to smoking marijuana and drinking 

alcohol, but he asserted he had never been drunk or high around 

Minor.

During her first interview with the Department, Mother 

agreed to complete a 52-week domestic violence program, 

individual and family counseling, and a parenting program. 

Mother made arrangements to begin therapy in May 2020. 

Minor was removed from Father’s custody that same month and 

released to Mother’s care.
4

B. The Dependency Petition and Early Hearings

The Department filed a five-count dependency petition 

alleging Minor was at risk based on Mother and Father’s 

domestic violence, Mother’s violence against Maternal 

Grandmother, and Father’s marijuana abuse. Shortly thereafter, 

Mother and Father both completed ICWA-020 Parental 

Notification of Indian Status forms and informed a Department 

investigator they did not have any Indian ancestry.

After the juvenile court held an initial detention hearing, 

the Department filed an ex parte application seeking to have 

Minor removed from Mother’s care. The petition alleged Mother 

was in contact with Father, was allowing him to have 

unmonitored visits with Minor in Maternal Grandmother’s home

(in contravention of the orders made by the juvenile court at the 

detention hearing), was otherwise spending time with Father, 

and had terminated her counseling sessions. The juvenile court 

held a hearing, detained Minor from Mother, and released her to 

Maternal Grandmother. The court ordered monitored visitation 

for Mother of at least two times per week for two hours.

As of June 2020, Mother was enrolled in a parenting class 

and had restarted individual counseling. Maternal Grandmother 

reported Mother was visiting Minor twice a week for two hours. 

Father had not contacted Maternal Grandmother about any 

visits. Mother also later enrolled in a domestic violence course.

At a jurisdiction and disposition hearing in August 2020, 

the juvenile court sustained an amended count a-1 alleging Minor 

was at substantial risk of suffering serious physical harm 

inflicted non-accidentally by a parent, a count b-2 alleging Minor 

was at substantial risk of suffering serious physical harm from 

Mother’s physical altercation with Maternal Grandmother, and a 
5

count b-3 alleging Minor was at substantial risk of suffering 

serious physical harm from Father’s marijuana abuse. The court 

ordered Mother to participate in a domestic violence support 

group for victims, conjoint counseling with Father, parenting 

courses, and individual counseling to address anger management. 

Father was also ordered to participate in services, and Mother 

and Father were each granted monitored visitation with Minor.

C. Termination of Reunification Services

In the first review period following the court’s assumption 

of jurisdiction over Minor, Mother fell out of contact with the 

Department for several months. By January 2021, Mother had 

attended visits with Minor monitored by Maternal Grandmother, 

but her attendance had become increasingly sporadic. Mother 

had also participated in a parenting program, but she had not 

received a completion certificate because her participation was 

minimal. She had enrolled in a domestic violence course and 

attended 14 victim support group sessions. She had not 

participated in conjoint counseling with Father because she did 

not want contact with him. Additionally, though Mother and 

Maternal Grandmother were referred to conjoint counseling, 

Mother did not appear for the first session. Mother also did not 

act on the Department’s suggestion that she re-enroll in 

parenting and domestic violence classes.

At the 6-month review hearing, the juvenile court 

continued reunification services for Mother and set the matter for 

a 12-month review hearing.
6

In July 2021, the counselor conducting conjoint counseling 

reported Mother had only attended two or three sessions.2 

According to the counselor, Mother’s lack of participation was 

getting in the way of bonding with Minor and learning skills to 

address Minor’s needs. The counselor also reported Minor 

routinely experienced an increase in anxiety during and after 

visits with Mother, which resulted in increased tantrums, biting, 

screaming, and crying. Mother’s apparent lack of respect for 

Maternal Grandmother also had a negative effect on Minor and 

heightened her anxiety.

As of September 2021, Mother’s visitation with Minor was 

inconsistent. Mother attended some visits, but she sometimes 

missed visits without advance notice, showed up late, or left 

early. She was often on her phone during visits and would 

sometimes go the majority of a visit without engaging with 

Minor. A Department social worker observed Minor refer to 

Mother by her given name during a visit, and observed that 

Minor sought out Maternal Grandmother when she needed 

assistance or wanted attention.

Mother had also made minimal progress with her case 

plan. She reenrolled in a domestic violence support group in July 

2021 but she delayed attending. Mother joined the waiting list 

for another parenting class, but she had not completed the intake 

process or attended classes. She was enrolled in individual 

2 The sessions were held at Maternal Grandmother’s home, 

and were scheduled such that Mother could have the session at 

the beginning of her visit with Minor, and then continue to visit 

with Minor afterward.
7

counseling, but she had not enrolled in conjoint counseling with 

Father, whose whereabouts were unknown.

At a review hearing in October 2021, the juvenile court 

found the parents’ progress toward alleviating the conditions that 

necessitated placement was not substantial. It terminated 

reunification services and ordered the Department to provide 

permanent placement services to Minor.

D. Developments Following the Termination of 

Reunification Services and Termination of Parental 

Rights

Following termination of reunification services, Maternal 

Grandmother petitioned to adopt Minor. Mother was visiting

Minor approximately once per week. A Department social worker 

observed a visit between Mother and Minor in November 2021 

during which Minor hugged Mother, and the two sat at a table 

and read books together. Mother appeared attentive to Minor 

and interacted with her appropriately. Maternal Grandmother 

reported that during other visits Mother would sometimes 

become impatient with Minor and yell when she did not listen.

In July 2022, Mother filed a change of circumstances

petition requesting reinstatement of reunification services. 

Mother represented she had completed a domestic violence class, 

she had been visiting with Minor four to five times per week and 

the visits were going well, and she was pursing counseling. 

Mother sought an additional six months of reunification services 

to complete more of the case plan and continue to build a bond 

with Minor. The court denied the petition without a hearing.

That same day, the court held a Welfare and Institutions 

Code section 366.26 permanency planning hearing. At the 
8

hearing, the juvenile court inquired as to the status of ICWA 

inquiry efforts in light of the record that reflected only a 

statement and inquiry in 2020, with no further update. The 

Department represented it did not have any new information, 

explaining the case had always been treated as a non-ICWA case. 

The court then inquired directly of Mother, asking whether she 

had any other information regarding any Native American 

heritage, or whether she had any family members who received 

benefits or lived on a reservation. Mother responded, “No, not 

really.” The court asked Mother to clarify what she meant, 

ultimately asking whether anyone ever told her they belonged to 

a tribe or lived on a reservation. Mother responded “No, no. No 

one.” The court then asked whether Mother had any information 

about her father’s ancestry, and Mother responded he had been 

deported to “T.J.” The court thereafter found this appeared to 

not be an ICWA case, and ICWA did not apply.

The court then addressed adoption readiness, stating 

Maternal Grandmother had been caring for Minor for 

approximately two years at that point. The court found there 

was no evidence of sufficient contact between Father and Minor 

such that the court could find it would be detrimental to Minor to 

terminate Father’s parental rights. With respect to Mother, the 

juvenile court acknowledged that Mother had been visiting with 

Minor and contact between Minor and Mother did provide some 

sort of a bond and relationship. The court acknowledged that 

Minor resided with Mother for the first half of her life, but 

emphasized Mother had not been living with Minor more 

recently. The court recognized that under recent Supreme Court 

authority, “there is to be a delicate balancing” that requires the 
9

court to look closely at Mother’s contact with Minor within the 

confines of the visitation order.

The juvenile court believed Mother’s more consistent 

visitation of late was “a new development” and stated on the 

record that there was “no evidence before me that [Minor] won’t 

continue to have contact with her mother if the court were to 

terminate parental rights today, because the maternal 

grandmother is the prospective adoptive parent.” Even assuming 

Mother was visiting consistently and there was a strong positive 

emotional attachment between Minor and Mother, however, the 

court still found terminating parental rights would not be 

detrimental when balanced against the benefits of an adoptive 

home. In so finding, the court again stated that “because the 

maternal grandmother is the prospective adoptive parent, I don’t 

see how that incidental relationship or that continuing conduct 

won’t occur. The same way that I’m not seeing examples of the 

depth of that bond and the emotional attachment, I’m also not 

hearing that the maternal grandmother won’t allow contact and 

won’t engage with the Mother to allow the Mother to see 

[Minor].”

Having found the parental benefit exception inapplicable, 

the juvenile court found Minor adoptable and ordered Mother’s 

parental rights terminated.

II. DISCUSSION

We shall affirm the juvenile court’s orders. The court was 

not required to hold an evidentiary hearing on Mother’s change of 

circumstances petition under Welfare and Institutions Code 

section 388 because there is no evidence that restarting 
10

reunification services would be in Minor’s best interests.3 As to 

the parental benefit exception, Mother is correct that the juvenile 

court should not have considered potential future visitation 

between Mother and Minor, but such consideration was harmless 

because the dearth of evidence that Minor would benefit from 

continuing the relationship with Mother means parental rights 

would have been terminated even without such consideration. 

Finally, no reversal on ICWA grounds is warranted because 

substantial evidence supports the juvenile court’s finding that 

adequate inquiry was made to determine Minor is not an Indian 

child and, in any event, Minor’s placement with her grandmother 

means any assumed inquiry deficiency was harmless.

A. The Juvenile Court Did Not Err in Summarily 

Denying Mother’s Section 388 Change of 

Circumstances Petition

“Section 388 accords a parent the right to petition the 

juvenile court for modification of any of its orders based upon 

changed circumstances or new evidence. [Citations.] To obtain 

the requested modification, the parent must demonstrate both a 

change of circumstances or new evidence, and that the proposed 

change is in the best interests of the child. [Citations.] 

[¶] . . . [¶] To obtain an evidentiary hearing on a section 388 

petition, a parent must make a prima facie showing that 

circumstances have changed since the prior court order, and that 

the proposed change will be in the best interests of the child. 

[Citations.] To make a prima facie showing . . . the allegations of 

3 Undesignated statutory references that follow are to the 

Welfare and Institutions Code.
11

the petition must be specific regarding the evidence to be 

presented and must not be conclusory. [Citation.]” (In re Alayah 

J. (2017) 9 Cal.App.5th 469, 478, fn. omitted (Alayah J.).)

“In determining whether a parent has made a prima facie 

showing under section 388, we may consider the entire factual 

and procedural history of the case.” (In re Daniel F. (2021) 64 

Cal.App.5th 701, 711.) We review the grant or denial of a section 

388 petition for an abuse of discretion. (Alayah J., supra, 9 

Cal.App.5th at 478; In re C.J.W. (2007) 157 Cal.App.4th 1075, 

1079.)

Mother’s section 388 petition alleged she had completed a 

domestic violence class, had been visiting with Minor four to five 

times per week with no issues, and was pursuing counseling. 

Mother’s petition was silent as to another incomplete portion of 

her prior case plan—namely the requirement that she complete a 

parenting course.

Assuming for the sake of argument that this evidence was 

sufficient to demonstrate changed circumstances, Mother’s 

petition was still insufficient to warrant a hearing because 

Mother provided no evidence that restarting reunification 

services would be in Minor’s best interests. Incremental 

compliance with her prior case plan and assertions that renewed 

services would provide her more time to build a bond with Minor 

did not constitute evidence that a revival of reunification services 

would have been in Minor’s best interests. (See, e.g., In re Angel 

B. (2002) 97 Cal.App.4th 454, 463 [“simple completion” of a 

course is not evidence that a changed order would be in the 

child’s best interests].) Particularly when Minor had been in 

Maternal Grandmother’s sole care for approximately two years

and was happy and bonded to Maternal Grandmother, the 
12

juvenile court did not abuse its discretion in summarily denying 

mother’s section 388 petition.

B. The Juvenile Court Should Not Have Remarked on

Future Visitation, but the Error Was Harmless

A juvenile court holds a hearing under Welfare and 

Institutions Code section 366.26 to determine “whether to 

terminate parental rights, making way for adoption, or to 

maintain parental rights and select another permanent plan.”

(In re Caden C. (2021) 11 Cal.5th 614, 625 (Caden C.).) “To ease 

the court’s difficult task in making this important decision, the 

statute provides a carefully calibrated process. Even if a court 

finds by clear and convincing evidence that the child is likely to 

be adopted, the parent may avoid termination of parental rights 

by establishing at least one of a series of enumerated exceptions.”

(Ibid.)

One of these exceptions is the parental benefit exception. 

(§ 366.26, subdivision (c)(1)(B)(i).) The exception is “limited in 

scope” and applies where “‘[t]he court finds a compelling reason 

for determining that termination would be detrimental to the 

child due to one or more of the following circumstances: [¶] (i) 

The parents have maintained regular visitation and contact with 

the child and the child would benefit from continuing the 

relationship.’ (§ 366.26, subd. (c)(1)(B)(i).) From th[is] statute, 

[our Supreme Court] readily discern[ed] three elements the 

parent must prove to establish the exception: (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.” (Caden C., 
13

supra, 11 Cal.5th at 631, third, fourth, and fifth alterations 

added.)

The second element—whether the child would benefit from 

continuing the relationship—depends on “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 632, citing In re Autumn H.

(1994) 27 Cal.App.4th 567, 576 (Autumn H.).) As emphasized in 

Autumn H., cited in Caden C. as “the seminal decision 

interpreting the exception” (Caden C., supra, at 631), the 

parental benefit exception is not concerned with the “incidental 

benefit” that “[i]nteraction between natural parent and child will 

always confer.” (Autumn H., supra, at 575-576 [holding that a 

relationship comparable to that of a “‘friendly visitor’” or “‘family 

friend’” is insufficient to trigger the exception].) Nonetheless, 

juvenile courts “must remain mindful that rarely do ‘[p]arentchild relationships’ conform to an entirely consistent pattern.

[Citations.]” (Caden C., supra, at 632, second alteration added.)

We review the juvenile court’s determination of the 

existence of a beneficial relationship for substantial evidence. 

(Caden C., supra, 11 Cal.5th at 639.) “[T]he ultimate decision—

whether termination of parental rights would be detrimental to 

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

discretionary and properly reviewed for abuse of discretion.” (Id.

at 640.)

The Department argues Mother forfeited the ability to 

complain about the juvenile court’s consideration of the likelihood 

of post-adoption contact between her and Minor because she did 

not object to that consideration below. The Department may well 
14

be right about that, but we would exercise our discretion to 

explain why Mother is not entitled to reversal regardless.

The juvenile court here expressly considered the likelihood 

that Mother would continue to have contact with Minor when 

making its ruling on the parental benefit exception. That should 

not have happened. “Considering a potential future relationship 

between the parents and the minors, for any reason, is 

impermissible at a section 366.26 hearing.” (In re D.P. (2022) 76 

Cal.App.5th 153, 169; see also Caden C., supra, 11 Cal.5th at 633 

[“courts must assume that terminating parental rights 

terminates the relationship”].)

The error, however, was harmless. (See generally In re 

Celine R. (2003) 31 Cal.4th 45, 59-60; In re J.R. (2022) 82 

Cal.App.5th 526, 533 [where “the proper legal standard is already 

established and a party has had a full and fair opportunity to 

present all of their evidence on a contested issue, and yet in the 

end there is simply no evidence that could support a favorable 

finding for them, then any legal error in the court’s reasoning or 

basis for its decision quite obviously is harmless”].) It was 

Mother’s burden to prove the elements of the parental-benefit 

exception, including that Minor would benefit from a continuing 

relationship with her. (§ 366.26, subd. (c)(1)(B)(i); Caden C., 

supra, 11 Cal.5th at 635). Mother could have done so by

adducing evidence Minor had a substantial, positive, and 

emotional attachment to her (see, e.g., In re D.M. (2021) 71 

Cal.App.5th 261, 271 [father testified his children wanted to 

return to him and that the youngest child cried when visits 

ended]; In re J.D. (2021) 70 Cal.App.5th 833, 856 [mother 

introduced logs of virtual visits with her son detailing their 

bond]) or pointing to evidence otherwise in the record (e.g., In re 
15

B.D. (2021) 66 Cal.App.5th 1218, 1229, fn. 4 [evidence that 

children greeted parents with hugs and expressed sadness at end 

of visits suggested they had a “beneficial relationship”].) Mother 

did neither, and our own review of the record confirms that there 

is no substantial evidence of the requisite beneficial relationship.

Rather, the evidence in the record suggests that while the 

visits between Mother and Minor were generally positive, Mother 

barely engaged with Minor during some visits, Minor at least 

sometimes referred to Mother by her given name, and Minor 

often sought out Maternal Grandmother, not Mother, for 

assistance or attention during visits. There is no indication in 

the record that the visits conferred upon Minor anything more 

than the “incidental benefit” that “[i]nteraction between natural 

parent and child will always confer.” (Autumn H., supra, 27 

Cal.App.4th at 575.) Because there was no evidence that could 

support a favorable finding for Mother, the juvenile court’s error 

was harmless, and reversal is unwarranted.4

C. Substantial Evidence Supports the Juvenile Court’s 

ICWA Findings and, Regardless, Any Assumed Error 

Was Harmless

ICWA reflects a congressional determination to protect 

Indian children and to promote the stability and security of 

Indian tribes and families by establishing minimum federal 

standards a state court must follow before removing an Indian 

4

In light of our holding on this score, we need not address 

Mother’s contention that the juvenile court also utilized improper 

factors to analyze whether termination of parental rights would 

be detrimental to Minor.
16

child from his or her family. (25 U.S.C. § 1902; In re Isaiah W.

(2016) 1 Cal.5th 1, 7-8; In re Elizabeth M. (2018) 19 Cal.App.5th 

768, 784.) Under ICWA, the Department and the juvenile court 

have “an affirmative and continuing duty to inquire whether a 

child . . . is or may be an Indian child.” (§ 224.2, subd. (a); see 

also Cal. Rules of Court, rule 5.481(a).) We review the juvenile 

court’s ICWA findings for substantial evidence. (In re Hunter W. 

(2011) 200 Cal.App.4th 1454, 1467; In re Barbara R. (2006) 137 

Cal.App.4th 941, 950.)

Here, both Mother and Father signed ICWA-020 forms 

indicating they had no Indian ancestry and made similar 

assertions to Department employees. The juvenile court also 

questioned Mother at the termination hearing, inquiring as to 

whether any family members had ever said anything like “I 

belong to a tribe” or “I live on a reservation.” Mother responded 

no one had, and there is no contrary evidence in the record. The 

juvenile court’s ICWA finding was thus supported by substantial 

evidence. (In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1014.)

Furthermore, in readily conceding error, the Department 

neglects to discuss the significance of Minor’s placement with 

Maternal Grandmother (and her status as the prospective 

adoptive parent). As another court has held, and as holds true 

here, placement of a minor with a family member who necessarily 

shares any assumed maternal Indian ancestry that Minor has5

means any posited deficiency in conducting ICWA-related inquiry 

would be harmless. (In re J.W. (2022) 81 Cal.App.5th 384, 390

[“Assuming for the sake of argument that an inquiry would have 

5 When asked on the record, Mother said Father’s parents 

were Mexican.
17

discovered that J.W.’s maternal family held Indian roots, the 

purpose of ICWA—to prevent the removal of Indian children from 

their Indian families—is not implicated by the juvenile court’s 

final disposition. When J.W. was found adoptable, her 

prospective adoptive parent was her maternal grandmother, who 

had already adopted J.W.’s half-brother. J.W. was not facing 

alienation or separation from any assumed Indian ancestry”].)

BAKER, Acting P. J.
In re G.S.

B322367

Separate Opinion of Kim, J.

I join all but Section II.C. of Justice Baker’s opinion. As to 

the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et 

seq.) issue raised and discussed in that section, I conclude the Los 

Angeles County Department of Children and Family Services 

(Department) did not comply with the requirements of ICWA and 

related California law because the Department did not interview 

maternal grandmother and maternal uncle about Indian 

ancestry. (In re H.V. (2022) 75 Cal.App.5th 433, 438.) Further, 

the Department’s placement of the child with the maternal 

grandmother does not render the failure to comply harmless. (In 

re J.W. (2022) 81 Cal.App.5th 384, 392–393 (dis. opn. of Wiley, 

J.).)
2

The disposition of the appeal is accordingly this: the 

juvenile court’s orders are conditionally affirmed and the cause is 

remanded for additional ICWA-related inquiry of available 

maternal relatives, including maternal grandmother and 

maternal uncle.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

I concur:

MOOR, J.