1

Filed 10/14/22 In re N.A. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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

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 This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re N.A. et al., Persons Coming Under 

the Juvenile Court Law.

SAN BERNARDINO COUNTY 

CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

A.M. et al.,

Defendants and Appellants.

E078838

(Super. Ct. Nos. J286397, J286398, 

 J286399)

OPINION

APPEAL from the Superior Court of San Bernardino County. Steven Mapes, 

Judge. Conditionally reversed and remanded with directions.

Katherine A. Clark, under appointment by the Court of Appeal, for Defendant and 

Appellant, A.M.

Marissa Coffey, under appointment by the Court of Appeal, for Defendant and 

Appellant, D.J.
2

Tom Bunton, County Counsel, and Joseph R. Barrell, Deputy County Counsel, for 

Plaintiff and Respondent.

I.

INTRODUCTION

Appellants D.J. (Mother) and A.M. appeal from a juvenile court order terminating 

their parental rights under Welfare and Institutions Code section 366.26 to their children.1 

Mother and A.M. (Parents) contend that San Bernardino County Children and Family

Services (CFS) and the juvenile court failed to comply with requirements imposed by the 

Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) and California Indian Child 

Welfare Act (§ 224 et seq.), referred to collectively as ICWA. CFS concedes this error

and agrees that a conditional reversal and remand are necessary to allow for further 

compliance with ICWA.

Parents also contend the juvenile court erred in terminating their parental rights 

because there was insufficient evidence that the children were adoptable. We disagree. 

However, a conditional reversal and remand are necessary to allow CFS and the juvenile 

court to comply with ICWA.

1

Unless otherwise noted, all statutory references are to the Welfare and 

Institutions Code. Because ICWA uses the term “Indian,” we do so on occasion as well, 

not out of disrespect, but because of the need for clarity and consistency, even though we 

recognize that other terms, such as “Native American” or “indigenous” are preferrable.
3

II.

FACTS AND PROCEDURAL BACKGROUND

On August 21, 2020, Mother was in a car accident. Her blood alcohol level was 

above the legal limit. Mother’s three children, Ne. (3 years old), Ti. (5 years old), and Ni. 

(6 years old) (the Children) were in the car during the accident. The Children sustained 

abrasions and scrapes, and were transported to the hospital. The car reportedly flipped 

over four times. Ne. reportedly was in a car seat and Ni. and Ti. shared a seatbelt.

CFS received an emergency response referral alleging severe neglect of the 

Children and caretaker absence/incapacity. Mother was arrested. She claimed that T.A. 

was the father of the three Children. Mother and T.A. had criminal histories. Because

T.A. could not be located2and there were no relatives available to care for the Children, 

CFS detained the Children.

A. Petition and Detention Hearing

On August 25, 2020, CFS filed dependency petitions on behalf of the Children 

(Petition). The Petition alleged that Mother had a history of abusing alcohol and a violent 

criminal history; she failed to protect the Children by not properly restraining them in the 

car and got into a car accident; T.A. was not a member of Mother and the Children’s 

household; T.A. had a violent criminal history; and T.A.’s whereabouts were unknown (§

300, subds. (b)(1), (g)).

2

T.A. is not a party to this appeal.
4

At the detention hearing on August 26, 2020, Mother claimed T.A. was the 

biological father of all three Children. The court ordered the Children detained and 

ordered visitation.

B. Jurisdiction and Disposition Hearing

CFS interviewed Mother on September 3, 2020. She denied a history of alcohol 

abuse and claimed that at the time of her car accident, her blood alcohol level did not 

exceed the legal limit. Law enforcement said it was .085 percent several hours after the 

accident. Mother admitted two of her children were improperly restrained in the car and

that she was arrested for driving under the influence (DUI).

According to the jurisdiction/disposition report, the children did not have any 

developmental delays, although Ti. appeared to have a speech delay. The children 

reportedly were adjusting well in their foster home. During the jurisdiction/disposition 

hearing in September 2020, the court sustained the Petition allegations, declared the 

Children dependents, and ordered reunification services for Mother. The court found 

T.A. was the alleged father of the Children and not entitled to reunification services. The 

court ordered supervised two-hour visits for Mother once a week.

C. Six-Month Hearing

In November 2020, maternal great grandmother (MGGM) reported that Mother

was incarcerated after turning herself in on an outstanding warrant. She was released 

from custody in January 2021. CFS reported that after her release, Mother failed to show 

up for drug testing 10 out of 11 times. Mother and the Children’s maternal and paternal 
5

grandparents regularly visited the Children. On December 25, 2020, the Children’s 

caretaker, MGGM, died in the Children’s presence. The Children were placed with their 

maternal grandmother (MGM) and then in the foster home of Ms. N. on January 6, 2021.

On December 30, 2020, Ni.’s biological father, A.M., contacted CFS, claiming to 

be Ni.’s father. He had just been released from prison and informed of the juvenile 

dependency matter. Mother denied A.M. was Ni.’s father.

CFS reported in its six-month status review report, filed in March 2021, that the 

Children were all developmentally on target. Ti. was receiving play therapy for 

behavioral issues, which included cursing, physical aggression with his siblings, spitting, 

and throwing heavy objects at his caretakers. Ti.’s pediatrician recommended he be 

evaluated by a psychiatrist for psychotropic medication for a hormone imbalance. After 

MGGM’s death, the Children’s caretaker, Ms. N., complained that when Ti.’s siblings

observed Ti. acting out, they emulated his bad behavior. Ms. N. told the CFS she 

intended to submit a seven-day notice for removal. The social worker intervened and 

deescalated the situation. The Children were all receiving therapeutic services to help 

mitigate the trauma they experienced and their negative behaviors. They remained in Ms. 

N.’s home, which is a certified and licensed County foster home.

During the detention hearing on a section 342 petition in September 2021, the 

court reduced A.M.’s visits with Ni. to once a month. The court adopted CFS’s 

recommended modified findings and orders stated in the September 2021 detention 

report.
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D. Contested Twelve-Month Hearing

CFS reported in the September 2021 status review report that Mother admitted to 

having an alcohol problem and was in another DUI car accident. Mother provided two 

certificates of completion of a substance abuse program and parenting program, but CFS 

was unfamiliar with the programs. T.A. reportedly had been incarcerated and released, 

but did not visit the Children. Ni.’s father, A.M., told CFS he smoked THC and was 

diagnosed with mental health illness, including schizophrenia, anxiety, and PTSD. When 

CFS learned that A.M. was on felony probation for domestic violence, CFS filed a 

section 342 petition on September 9, 2021, on behalf of Ni. CFS alleged in the section 

342 petition that A.M. had an unresolved history of substance abuse, engaged in domestic 

violence in Ni.’s presence, and failed to protect her, thus placing her at risk of neglect and 

abuse. Initially, A.M. was permitted to visit Ni. but the visits became inconsistent, which 

increased Ni.’s behavioral issues, low self-esteem, and abandonment issues.

Ne. was receiving services to help mitigate his behavioral issues (cursing, hitting, 

biting, and verbal abuse) occurring when he emulated his older sibling, Ti’s bad behavior. 

Ti.’s behavioral issues included throwing things at his siblings and adults when upset, 

spitting, cursing, and falsely accusing adults of assaulting him. Ni. often emulated Ti.’s 

bad behavior and tried to boss her siblings. Ms. N. reported the wraparound services 

were helping Ni. CFS reported in its September 16, 2021, status report that Ms. N. 

submitted a seven-day notice several times because of Ti.’s ongoing behavior. 
7

Nevertheless, Ms. Ni. was willing to provide a concurrent family home for the Children

and adopt them.

At the twelve-month hearing on September 23, 2021, the court set the matter for a 

section 366.26 hearing.

E. Combined Section 342 Jurisdiction/Disposition Hearing and Section 366.26 

Hearing

During A.M.’s interview in September 2021, he stated that his contact with Ni. 

had been sporadic because of his multiple incarcerations. On September 28, 2021, 

A.M.’s probation officer reported A.M. had been arrested and was incarcerated on 

charges of expired registration tags and attempting to flee. As of November 2021, A.M.

was no longer in custody.

CFS reported in its section 366.26 report filed on September 29, 2021, that the 

Children’s caregiver, Ms. N., said she loves the Children and if they are not placed with 

relatives, she would like to adopt them. She reported she is invested in them and had 

worked with them to stabilize their emotions and behaviors. CFS stated in its section 

366.26 report filed in January 2022, that many of T.A.’s relatives had requested 

placement and visitation of the Children but CFS concluded it was unlikely the Children

would be placed with them. CFS also concluded it was unlikely MGM would qualify for 

placement. MGM stated that it would therefore be best to place the Children with their 

current caretaker, Ms. N., with whom they had resided since January 6, 2021.
8

The Children’s diagnoses stated in the January 12, 2022, Health and Education 

Passport reports were the same as previously reported. The Children were 

developmentally on-track but continued to display some of the same behavioral issues

and were provided wraparound services, which included individual and group/family

therapy, and mental health and speech services. CFS again reported that Ms. N. was 

committed to providing the Children with long-term care and was prepared to adopt 

them. Ms. N. was willing to allow the Children’s family to maintain contact with the 

Children.

CFS reported in its update report filed in April 2022, that on March 29, 2022, 

Mother reported she obtained employment at a warehouse and had completed her case 

plan, including completing parenting and substance abuse classes. A.M. was in custody.

During the combined section 342 jurisdiction/disposition hearing and section 

366.26 hearing on April 12, 2022, Mother and T.A. requested legal guardianship instead 

of terminating parental rights. The Children’s attorney requested termination of parental 

rights. The juvenile court found that the section 342 petition allegations were true. The 

court also found that A.M. was Ni.’s biological father but denied him reunification 

services. During the section 366.26 hearing, the court terminated parental rights and 

freed them for adoption by Ms. N. The court noted the Children were hyperactive but 

nevertheless concluded they were adoptable. Parents appealed.

III.

ICWA
9

Parents contend, and CFS concedes, that the juvenile court and CFS failed to 

comply with ICWA by not adequately inquiring and investigating the Children’s Native 

American ancestry. The parties also agree that, because of ICWA noncompliance, a 

conditional reversal and remand are necessary. We agree there was noncompliance with 

ICWA.

A. ICWA Procedural Background and Facts

When CFS interviewed Mother on the day of her car accident on August 21, 2020, 

Mother denied any Native American heritage. CFS reported in ICWA-010 forms 

attached to the Petition that CFS asked Mother about the Children’s Native American 

status and she gave no reason to believe the Children were Native American children.

On August 26, 2020, Mother and T.A. filled out ICWA-020 forms stating “no” to 

the statement, “I may have Indian Ancestry.” They also stated, “I have no Indian 

Ancestry as far as I know.” In addition, Mother and T.A. filled out Family Find and 

ICWA inquiry forms denying Native American ancestry. They also denied Native 

American ancestry during the detention hearing. The jurisdiction/disposition hearing 

report stated ICWA did not apply but CFS recommended in the report the court find 

ICWA does or may apply. At the jurisdiction/disposition hearing in September 2020, the 

court found the Children do or may come under ICWA.

CFS stated in the six-month report filed in March 2021, that Ne. and Ti.’s paternal 

great grandmother (PGGM) claimed the Children’s great-great grandfather (PGGGF)
10

may have been Cherokee. In January 2022, Ne. and Ti.’s paternal grandmother (PGM)

claimed possible Cherokee and Osage heritage.

CFS further reported that in October 2020, MGGM stated she suspected their 

family may have Blackfoot or Cherokee heritage. In January 2021, Mother told CFS that 

she may have Cherokee heritage on her father’s side of the family (MGF). PGM said she 

might have Cherokee and Osage ancestry on her side of the family In December 2020, 

A.M. claimed possible Native American ancestry in the Blackfoot tribe. CFS, however,

recommended that the court find ICWA did not apply.

In March 2021, CFS reported that Ni.’s father, A.M., denied Native American 

ancestry. The court ordered CFS to obtain an ICWA-020 form from him. A.M. also 

denied Native American ancestry at the 12-month hearing in June 2021. The ICWA-010 

form attached to the section 342 petition stated Mother and A.M. gave no reason to 

believe Ni. was a Native American child. There was no discussion of ICWA at the 

section 342 detention hearing in September 2021, and it was not addressed at the 12-

month hearing in September 2021. At the section 342 jurisdiction/disposition hearing in 

November 2021, the court stated that CFS had conducted a thorough investigation and 

that it would be appropriate to notice the tribes and Bureau of Indian Affairs (BIA).

CFS reported in its section 366.26 report filed in January 2022, that ICWA did not 

apply. At the combined section 342 jurisdiction/disposition hearing and section 366.26 

hearing on January 20, 2022, the court stated it intended to follow up on the ICWA issue 
11

during the continued hearing set on April 12, 2022. However, at the section 366.26 

hearing on April 12, 2022, the court terminated parental rights without addressing ICWA.

B. Discussion

Federal regulations implementing ICWA require that state courts, at the 

commencement of a juvenile dependency proceeding, “ask each participant in an 

emergency or voluntary or involuntary child-custody proceeding whether the participant 

knows or has reason to know that the child is an Indian child.” (25 C.F.R. § 23.107(a) 

(2022).) Under California law, the court and county child welfare department also “‘have 

an affirmative and continuing duty to inquire whether a child,’ who is the subject of a 

juvenile dependency petition, ‘is or may be an Indian child.’ [Citations.] The child 

welfare department’s initial duty of inquiry includes ‘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).)” (In re Austin J. (2020) 47 Cal.App.5th 870, 883.) State courts must also 

“instruct the parties to inform the court if they subsequently receive information that 

provides reason to know the child is an Indian child.” (25 C.F.R. § 23.107(a) (2022).)

Here, the parties agree, as do we, that CFS and the juvenile court did not

adequately comply with ICWA’s requirements to inquire and investigate the Children’s

Native American ancestry. A conditional reversal and remand are therefore necessary for 

the purpose of allowing CFS and the juvenile court to fully comply with ICWA’s inquiry, 
12

investigation, and notice requirements. If the inquiry produces evidence that the Children 

are or may be Native American children, then the juvenile court must direct the CFS to 

give notice of the underlying proceedings and any upcoming hearing in compliance with 

ICWA.

IV.

SUBSTANTIAL EVIDENCE OF ADOPTIBILITY

Parents contend there was insufficient evidence to support the juvenile court’s 

finding that the Children are adoptable. We disagree.

A. Applicable Law

Whenever the juvenile court sets a section 366.26 hearing, the court is required to 

direct the CFS to prepare an assessment as part of its report to the court. (In re Valerie 

W. (2008) 162 Cal.App.4th 1, 11 (Valerie W.).) “The assessment report is ‘a cornerstone 

of the evidentiary structure’ upon which the court, the parents and the child are entitled to 

rely. [Citations.] The Agency is required to address seven specific subjects in the 

assessment report, including the child’s medical, developmental, scholastic, mental, and 

emotional status. (§ 366.21, former subd. (i).) In addition, the assessment report must 

include an analysis of the likelihood that the child will be adopted if parental rights are 

terminated. (§ 366.21, former subd. (i)(1), (2), (3), (7); In re Crystal J. [1993] 12

Cal.App.4th [407,] 411.)” (Valerie W., supra, 162 Cal.App.4th at p. 11.)

Section 366.21, subdivision (i) requires that the assessment report contain: “A 

preliminary assessment of the eligibility and commitment of any identified prospective 
13

adoptive parent or legal guardian, including the prospective tribal customary adoptive 

parent, particularly the caretaker, to include a social history including screening for 

criminal records and prior referrals for child abuse or neglect, the capability to meet the 

child’s needs, and the understanding of the legal and financial rights and responsibilities 

of adoption and guardianship . . . .” (§ 366.21, subd. (i)(1)(D).)

Statements should be included regarding “[t]he relationship of the child to any 

identified prospective adoptive parent or legal guardian, the duration and character of the 

relationship, the degree of attachment of the child to the prospective relative guardian or 

adoptive parent, the relative’s or adoptive parent’s strong commitment to caring 

permanently for the child, the motivation for seeking adoption or guardianship, a 

statement from the child concerning placement and the adoption or guardianship, and 

whether the child, if over 12 years of age, has been consulted about the proposed relative 

guardianship arrangements, unless the child’s age or physical, emotional, or other 

condition precludes his or her meaningful response, and if so, a description of the 

condition.” (§ 366.21, subd. (i)(1)(E).) The assessment report must also include “A 

description of efforts to be made to identify a prospective adoptive parent or legal 

guardian . . . .” (§ 366.21, subd. (i)(1)(F).)

On review, we determine whether there is “substantial evidence from which the 

juvenile court could find clear and convincing evidence that the child was likely to be 

adopted within a reasonable time. [Citations.]” (Valerie W., supra, 162 Cal.App.4th at p. 
14

13.) “We give the court’s adoptability finding the benefit of every reasonable inference 

and resolve any evidentiary conflicts in favor of the judgment.” (Ibid.)

B. Forfeiture

CFS argues that Parents forfeited their objections to the adoptability finding 

because they failed to raise in the juvenile court deficiencies in the assessments included 

in the section 366.26 hearing report. CFS further argues that Parents’ contention that

there was insufficient evidence of adoptability is also forfeited because it is based entirely 

on their forfeited objection to the section 366.26 report.

We recognize that “[g]enerally, points not urged in the trial court cannot be raised 

on appeal.” (Tahoe National Bank v. Phillips (1971) 4 Cal.3d 11, 23, fn. 17; In re Brian 

P. (2002) 99 Cal.App.4th 616, 623.) However, the contention that a judgment is not 

supported by substantial evidence is a well-established exception to the rule. (Tahoe

National Bank v. Phillips, supra, 4 Cal.3d at p. 23, fn. 17; In re Brian P., supra, at p. 

623.) Parents therefore are not precluded from raising for the first time on appeal their

challenge to the sufficiency of evidence supporting the juvenile court’s finding the 

Children are adoptable. “[W]hile a parent may waive the objection that an adoption 

assessment does not comply with the requirements provided in section 366.21, 

subdivision (i), a claim that there was insufficient evidence of the child’s adoptability at a 

contested hearing is not waived by failure to argue the issue in the juvenile court.” (In re 

Brian P., supra, 99 Cal.App.4th at p. 623; see also In re Mary C. (2020) 48 Cal.App.5th 
15

793, 801 [Parents’ objections to the adequacy of adoption assessment report forfeited 

because not raised in the trial court].)

Parents thus did not forfeit their contention that there was insufficient evidence of 

adoptability. Parents did, however, forfeit their objections to the adequacy of the 

submitted reports relied on by the court in assessing the Children’s adoptability.

C. The Children’s Behavioral Issues

Adoptability can be established as either general adoptability or specific 

adoptability. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.) When determining 

adoptability, the court “usually focuses on whether the child’s age, physical condition and 

emotional health make it difficult to find a person willing to adopt that child. [Citation.] 

If the child is considered generally adoptable, we do not examine the suitability of the 

prospective adoptive home. [Citation.] When the child is deemed adoptable based solely 

on a particular family’s willingness to adopt the child, the trial court must determine 

whether there is a legal impediment to adoption. [Citation.]” (Valerie W., supra, 162 

Cal.App.4th at p. 13.)

1. General Adoptability

Parents argue there was insufficient evidence of general adoptability because the 

Children had unresolved behavioral issues, including Unspecified Trauma and StressorRelated Disorder. Parents note that the Children’s caregiver had several times submitted

a seven-day notice requesting removal of the Children because of their bad behavior. 

Parents also maintain that the assessment reports provide insufficient, minimal 
16

information about each child, CFS’s adoption assessment was incomplete, and CFS failed 

to speak to the Children (ages 3, 5, and 6) about adoption.

The Children’s young ages and healthy physical condition support a finding of 

general adoptability. (Valerie W., supra, 162 Cal.App.4th at p. 13.) However, there is 

evidence in the record that the Children’s emotional health and bad behavior was 

challenging for their caretaker. The most recent Health and Education Passport reports

state that the Children had difficulty appropriately expressing their feelings and 

communicating their needs in an age and developmentally appropriate way, resulting in 

angry and emotional outbursts and verbal aggression.

Although the Children were diagnosed with Unspecified Trauma and StressorRelated Disorder and CFS reported they have behavioral issues, the diagnoses were made 

in February 2021. Since then, the Children’s behavior reportedly improved as a result of

receiving treatment for those issues through wraparound services, including intensive 

therapy and speech services. The Children’s behavioral problems were attributed in part 

to trauma experienced during a car crash caused by Mother driving with a blood alcohol 

level above the legal limit, and from experiencing MGGM dying in their presence on 

Christmas day in 2020.

Because of the Children’s behavioral problems, the Children’s caretaker, Ms. N.,

submitted several seven-day notices requesting removal of the Children. Ms. N., 

however, changed her mind regarding removal and repeatedly told CFS that she wished 

to adopt the Children. Although the record shows that the Children’s behavioral issues 
17

were challenging for Ms. N., she reported that the Children had shown significant 

improvement as a result of services provided to address their issues and she was 

committed to providing long-term care of the Children, including adoption. Although 

there is evidence the Children continued to have behavioral issues, evidence of their

progress in improving their behavior through therapy and other services supports the 

court’s finding of general adoptability of the Children. (In re Sarah M. (1994) 22 

Cal.App.4th 1642, 1651 [attributes indicating adoptability include “the minors’ young 

ages and their good physical and emotional health, progress in therapy, intellectual and 

academic growth, and ability to develop interpersonal relationships”].)

Even though there is evidence that the Children had behavioral problems, there is 

substantial evidence supporting the juvenile court’s finding of adoptability, based on 

clear and convincing evidence that the Children’s emotional health and needs do not rise 

to the level that would undermine their general adoptability.
18

2. Specific Adoptability

There is also substantial evidence supporting a finding of specific adoptability of 

the Children by a prospective adoptive parent. A finding that a child is specifically 

adoptable requires a determination that there are no legal impediments to adoption and 

there is a prospective adoptive parent who is able to meet the needs of the child. (In re 

Helen W. (2007) 150 Cal.App.4th 71, 80; In re B.D. (2019) 35 Cal.App.5th 803, 817 (In 

re B.D.)

Parents argue the juvenile court improperly based its determination of adoptability 

on the sole factor that the caregiver, Ms. N., desired to adopt the Children. Parents assert 

that Ms. N. submitted several seven-day removal notices for all of the Children and this 

undermines the adoptability finding without more information provided to explain Ms. 

N.’s willingness to have the children removed.

“Usually, the fact that a prospective adoptive parent has expressed interest in 

adopting the minor is evidence that the minor’s age, physical condition, mental state, and 

other matters relating to the child are not likely to dissuade individuals from adopting the 

minor. In other words, a prospective adoptive parent’s willingness to adopt generally 

indicates the minor is likely to be adopted within a reasonable time either by the 

prospective adoptive parent or by some other family.)” (In re Sarah M., supra, 22 

Cal.App.4th at pp. 1649-1650, citing In re Scott M. (1993) 13 Cal.App.4th 839, 844.)

A.M. argues the instant case is similar to In re Amelia S. (1991) 229 Cal.App.3d 

1060, in which the court of appeal reversed an order terminating parental rights because 
19

there was insufficient evidence of adoptability. There, the minors “had various 

developmental, emotional and physical problems, some of a serious nature.” (Id. at 

1063.) The Amelia S. court found the evidence inadequate to satisfy the clear and 

convincing standard on adoptability. The court explained: “Here, the permanency 

hearing report indicated a few foster parents were considering adoption. This is a far cry, 

however, from the clear and convincing evidence required to establish the likelihood of 

adoption . . . . [¶] Rather, what is required is clear and convincing evidence of the 

likelihood that adoption will be realized within a reasonable time.” (Id. at 1065, italics 

added, original italics.)

The instant case is distinguishable from Amelia S. in that the section 366.26 report

and other evidenced demonstrated that Ms. N. was not only seriously “considering 

adoption,” but had repeatedly stated that, even though she was well aware of the 

Children’s behavioral problems, she wanted to continue to care for them and adopt them.

Mother cites B.D. for the proposition the order terminating parental rights should 

be reversed because CFS failed to provide essential information to the court, including 

providing an adoptive assessment in compliance with section 366.22, subdivision (c)(1). 

Mother argues that the planning/adoption assessment in the section 366.26 report was 

woefully inadequate, with essentially no helpful information. She complains there was 

no assessment of any prospective adoptive parent’s eligibility and commitment; no social 

history, including a criminal history screening and screening for child abuse and neglect; 

and no assessment of the prospective adoptive parent’s ability to meet the child’s needs 
20

and other requirements. But any such deficiencies in the section 366.26 report here do 

not constitute reversible error and B.D. is distinguishable.

In B.D., the juvenile court terminated parental rights based on the social services 

agency’s recommended finding the child was likely to be adopted by his foster parents. 

Less than a month after termination of parental rights, the child was removed from the 

foster home upon the agency discovering the child had suffered physical abuse while in 

the foster home. During a series of subsequent hearings regarding the child’s removal 

from his foster parents, it came to light that the agency social worker had failed to 

disclose in the section 366.26 report that there had been a prior investigation of possible 

sexual abuse of the child by his foster parent. (B.D., supra, 35 Cal.App.5th at p. 810.)

During a post-judgment hearing, the agency accepted responsibility for the 

incomplete section 366.26 report. On appeal of the order terminating parental rights, the 

agency did not argue it complied with the obligation to provide a statutorily mandated,

informative report. Rather, the agency argued harmless error. The B.D. court disagreed

and reversed the order terminating parental rights, finding that it was clear that the

juvenile court never would have found the child to be specifically adoptable had the 

juvenile court known the true facts omitted from the report. (B.D., supra, 35 Cal.App.5th

at pp. 822, 827.)

The instant case is distinguishable from B.D. in that, here, the issue of a deficient 

section 366.26 report was not raised in the juvenile court and evidence was presented 

demonstrating that the Children were adoptable. There was no evidence presented that 
21

the prospective adoptive parent had a history of sexual abuse or had sexually abused the 

Children and could not legally adopt them. Unlike in B.D., the record does not show any 

prejudicial error and there is substantial evidence of adoptability.

The section 366.26 report filed on January 12, 2022, provided much of the 

information required by section 366.22, subdivision (c)(1). Ms. N. is identified in the 

report as the prospective adoptive parent. Information is limited but sufficient regarding 

her social history, including her capability to meet the Children’s needs and 

understanding of the legal and financial rights and responsibilities of adoption and 

guardianship. The January 12, 2022, report further states that the Children were 

appropriate for adoption. CFS states in the report that Ms. N. was committed to the 

Children’s long-term care, and the Children had acclimated well to their placement. The 

Children had resided with her for one year (since January 6, 2021). Ms. N. and the 

Children had reportedly developed a mutual attachment with each other, and Ms. N. 

stated she was committed to raising them to adulthood.

The section 366.26 hearing report states that Ms. N. “is capable to adopt. The 

children are an appropriate age, and have developed successfully under the care, and 

tutelage, of [Ms. N.] [Ms. N.] requests open adoption, and wants to maintain the 

children’s biological relationships. [Ms. N.] is prepared for the adoption process and 

continues to support the needs of the children.” Although the report does not provide 

specific information on whether Ms. N. has any criminal or CFS history, Parents did not 

object to these omissions during the section 366.26 hearing, and CFS reported Ms. N.’s 
22

home had been certified and licensed as a county foster home. This suggests she did not 

have a criminal or CFS history, and Parents did not request an update or supplemental 

information, thereby forfeiting any deficiency in the information provided in the report. 

Although CFS’s reports may not have fully complied with the requirements of section 

366.22, Parents forfeited any objections by not objecting to any such deficiencies. 

Furthermore, substantial evidence supports findings of general and specific adoptability 

of the Children.

Mother also relies on Valerie W., supra, 162 Cal.App.4th 1, in which the court 

reversed an order terminating parental rights on the ground there was insufficient 

evidence to support the juvenile court’s finding of adoptability because the assessment 

report was egregiously deficient. (Id. at pp. 4-5, 14.) The court in Valerie W., noted that 

“‘Deficiencies in an assessment report . . . go to the weight of the evidence,’” but “‘if 

sufficiently egregious may impair the basis of a court’s decision to terminate parental 

rights.’” (Id. at p. 14.) Mother argues Valerie W. is factually similar to the instant case. 

We disagree.

In Valerie W., the assessment report failed in most respects to comply with the 

section 366.21, subdivision (i) requirements by failing to report the medical testing 

results of one of the children who suffered from seizures; failing to identity both 

prospective adoptive parents; and failing to include a social history for each prospective 

adoptive parent, the relationship between each child and each of the prospective adoptive 

parents, each prospective adoptive parent’s motivation to jointly adopt, the absence of an 
23

approved home study, the lack of any assessment of the prospective adoptive parents’ 

ability to meet the needs of the child who may have had a serious genetic or neurological 

disorder; and the lack of evidence of that child’s condition, prognosis and treatment 

needs. (Valerie W., supra, 162 Cal.App.4th at pp. 13-14.)

The Valerie W. court concluded these deficiencies in totality were so egregious as 

to undermine the basis of the court’s decision to select adoption as the children’s 

permanent plan and terminate parental rights. (Valerie W., supra, 162 Cal.App.4th at pp. 

14-15.) In addition, in Valerie W., unlike here, the juvenile court failed to determine 

whether there was a legal impediment to the prospective adoptive parent and her daughter 

jointly adopting the children, or whether the court was even aware that both intended to 

adopt the children jointly. (Valerie W., supra, at p. 15.)

Here, the facts significantly differ from those in Valerie W. and, unlike in Valerie 

W., the deficiencies in the assessment report are nowhere near as prolific or as egregious

as to impair the basis of the juvenile court’s finding of adoptability and decision to 

terminate parental rights.

V.

DISPOSITION

The judgment terminating parental rights to the Children is conditionally reversed. 

The matter is remanded to the juvenile court with directions to comply with the inquiry 

and notice provisions of ICWA. On remand, the court must inquire of A.M. as to 

paternal Native American ancestry, and ensure that CFS fully investigates and takes 
24

reasonable steps to ascertain whether the Children have paternal Native American 

ancestry and gives ICWA notices, as appropriate.

If ICWA notices are required and properly given, and the tribes or the BIA do not 

respond to the ICWA notices, or respond that the Children are not Native American 

children, the judgment terminating parental rights to the Children shall immediately be 

reinstated and further proceedings shall be conducted, as appropriate. If any tribe or the 

BIA determines the Children are Native American children, the court shall proceed 

accordingly.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

Acting P. J.

We concur:

FIELDS

J.

RAPHAEL

J.