California Court of Appeal Aug 19, 2024 No. E083049Unpublished
Filed 8/19/24 In re J.A. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re J.A., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E083049, E083588
Plaintiff and Respondent, (Super.Ct.No. DPRI2300122)
v. OPINION
S.A.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Mona M. Nemat, Judge.
Affirmed.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant
and Appellant.
Minh C. Tran, County Counsel, Teresa K.B. Beecham and Catherine E. Rupp,
Deputy County Counsel, for Plaintiff and Respondent.
1
The juvenile court denied defendant and appellant N.V.’s (mother) Welfare and
Institutions Code section 3881 petition and terminated her parental rights as to J.S.
(minor, born April 2023). On appeal, mother contends the court erroneously applied the
caretaker preference in denying her section 388 petition for placement of minor with a
nonrelated extended family member (NREFM),2 R.F.3 Mother additionally maintains
plaintiff and respondent, the Riverside County Department of Public Social Services (the
department), committed reversible error by failing to comply with their duty of inquiry
with respect to the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.).
We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND4
After mother gave birth to minor, she tested positive for amphetamines and
opiates; minor tested positive for amphetamines and THC (tetrahydrocannabinol).
Mother’s prenatal records reflected she had previously tested positive for amphetamines
while pregnant with minor. When the social worker arrived at the hospital, a nurse
1 All further statutory references are to the Welfare and Institutions Code.
2 A NREFM “is defined as an adult caregiver who has an established familial relationship with a relative of the child, as defined in paragraph (2) of subdivision (c) of Section 361.3, or a familial or mentoring relationship with the child. The county welfare department shall verify the existence of a relationship through interviews with the parent and child or with one or more third parties. The parties may include relatives of the child, teachers, medical professionals, clergy, neighbors, and family friends.” (§ 362.7.)
3 R.F. is the paternal aunt of minor’s half sibling.
4 We granted mother’s motions to consolidate case Nos. E083049 and E083588 for purposes of briefing, oral argument, and decision.
2
reported that mother was difficult to wake and did not appear cognizant of the
circumstances. The nurse had significant concerns as to minor’s safety when left alone
with mother; mother would not feed or change minor. Mother’s progress notes reflected
previous diagnoses of schizoaffective disorder, bipolar, and methamphetamine use.
Mother admitted smoking marijuana when interviewed by the social worker. She
“did not appear coherent and only answered . . . questions using one-word responses.”
Mother denied mental health concerns but stated she was diagnosed with schizophrenia.
She declined services, but asked for clothes for minor.
The guardian of mother’s eldest child reported mother had been diagnosed with
schizophrenia and bipolar disorder. “The guardian stated she has known the mother for
12 years and has watched the mother’s mental health decline[]. The guardian became
aware of mother’s pregnancy in December 2022. She knew the mother was using
methamphetamine as the mother had tested positive during a urine toxicology test at one
of her prenatal appointments. The guardian stated the mother has been violent,
aggressive and ‘scary.’” “The guardian described an event on March 28, 2023[,] where
she took the mother to a mental health appointment and the mother became erratic,
screamed, yelled and was combative.”
“The guardian described the mother as disconnected from reality and expressed
her fears for [minor’s] safety should [he] be allowed to go home with the mother. The
guardian shared the mother was living with the maternal grandmother who was in denial
that the mother suffers from severe mental illness. According to the guardian, the
3
maternal grandmother has blamed the mother for sexual abuse that happened to the
mother as a child which has caused the mother’s mental health to decline further. The
guardian stated if [minor] were to be placed with relatives, the mother ‘will come and
break the windows, bang on the doors. They would not be safe.’ The guardian expressed
severe concerns for the mother’s well-being and mental health status.” On April 3, 2023,
department personnel took minor into protective custody pursuant to a warrant.
Mother had a criminal history that included convictions for attempted auto theft,
two separate convictions for assault with a deadly weapon, trespass, multiple counts of
shoplifting, and a parole violation.
Mother had an extensive prior dependency history, including one case in which her
reunification services as to her children D.W. and H.S had been terminated. H.S. had
tested positive for marijuana at birth. Domestic violence and mental health issues had
been alleged. The juvenile court had terminated the dependency and placed the children
in a legal guardianship.
In the previous dependency proceeding, “ICWA inquiry was made as the mother
mentioned potential Blackfoot Apache ancestry. However, it was determined ICWA did
not apply to the proceedings.” The social worker asked mother about any Native
American ancestry, but mother was unable to complete coherent sentences during the
interview.
“The maternal grandmother stated she believed the maternal grandfather has
connections to the Cherokee Nation. In addition, she has connections with the Blackfoot
4
Apache tribe. The maternal grandmother stated no one in the family was a registered
member to [either] Native tribe[].” The social worker reviewed the previous dependency
proceeding; the juvenile court had found that ICWA did not apply to either mother or the
maternal grandmother: “There has not been any new information since that dependency
that would suggest ICWA would apply.”
On April 4, 2023, the social worker contacted the “ICWA Coordinator with the
Blackfoot Apache tribe but the voicemail was full. Therefore, [she] sent an email to
inquire about the mother’s connections to the Blackfoot Apache tribe.” On the same date
she spoke with a representative of the Cherokee Nation. The social worker provided the
representative “mother’s and maternal relative’s information, as well as the alleged
father’s information.” The representative responded by email that minor was not an
Indian child “in relation to the Cherokee Nation as defined in the Federal ICWA.
Cherokee Nation will not be involved based on the information exactly as provided.”
On April 5, 2023, department personnel filed a section 300 juvenile dependency
petition alleging, as to mother, that she had unresolved mental health issues (b-1), abused
controlled substances (b-2), demonstrated a limited ability to care for minor (b-3), had a
prior juvenile dependency history (b-4), and had an extensive criminal history (b-6).5 On
April 6, 2023, the court issued an order temporarily detaining minor.
On April 10, 2023, mother completed a Judicial Council Forms, form ICWA-020,
in which she claimed that she might be a member of or eligible for membership in the
5 The first amended petition filed May 15, 2023, made no changes with respect to the allegations pertaining to mother.
5
Blackfoot or Cherokee Indian tribes. The court directed the department to continue with
its ICWA inquiry. The court noted, “I believe I saw in the detention report that they have
done an inquiry previously.” The court confirmed its order detaining minor.
In the April 26, 2023, jurisdiction and disposition report, the social worker
recommended the court find the allegations in the petition true and deny mother
reunification services pursuant to section 361.5, subdivision (b)(10) (termination of
reunification services as to minor’s sibling).6 The social worker noted “in the last
dependency . . . the mother stated she may have connections to the Blackfoot Apache
tribe. [The department] completed an ICWA inquiry and determined ICWA did not
apply.” “On April 18, 2023, the mother initially denied any Native American ancestry. I
informed her the ICWA-020 was filed on her behalf . . . indicating she may be a member
of the Blackfoot/Cherokee tribe. The mother stated she has Native American ancestry.”7
“On April 4, 2023, the maternal grandmother stated she believed the maternal
grandfather has connections to the Cherokee Nation. In addition, she has connections
with the Blackfoot Apache tribe. The maternal grandmother stated no one in the family
was a registered member to [either] Native tribe[].” A social worker “reviewed a
dependency when the mother was a minor and discovered that the Court found that ICWA
6 The social worker also recommended the court deny services to the alleged father. Father never participated in the proceedings below and is not a party to the appeal.
7 There is no explanation as to who filed the form on mother’s behalf.
6
did not apply to the maternal grandmother nor the mother. There has not been any new
information since that dependency that would suggest ICWA would apply.”
A social worker contacted both tribes with mother’s, the maternal grandmother’s,
and the maternal grandfather’s information. A representative from the Cherokee Nation
responded that minor was not an Indian child, and the tribe would not be involved in the
proceedings.
In response to department inquires, the Yavapi-Apache Nation, Tonto Apache
Tribe, the Fort Sill Chiricahua Warm Spring Apache Tribe, United Keetoowah Band of
Cherokee Indians, the Eastern Band of Cherokee Indians, Mescalero Apache Tribe, White
Mountain Apache Tribe, and Jicarilla Apache Nation indicated that minor was not eligible
for enrollment in the tribe, and that the tribes would not be intervening in the
proceedings.
In the May 10, 2023, addendum report, the social worker noted that minor was
“placed in an adoptive home and they expressed a desire to adopt [minor] if the parents
fail to reunify.” On April 24, and May 2, 2023, mother tested positive for amphetamine,
methamphetamine, marijuana, and cocaine. Mother failed to show for testing on May 5,
2023.
At the contested jurisdictional hearing on May 15, 2023, the court found the
allegations in the petition true. The court noted, “I don’t know if we have enough
information on ICWA.” Counsel for the department responded, “The maternal
grandmother said possible ancestry with Cherokee and Blackfoot Apache. We did
7
conduct further inquiry and filed noticing documentation with the Court on April 27th,
2023. We also followed up on further tribal responses on May 9th, 2023. We have
received indication from three pertinent tribes that the child is not an Indian from the
Cherokee Nation of Oklahoma, from the Yavapai-Apache, and Tonto Apache.” Counsel
indicated she would follow up at the next hearing. The court replied, “I don’t have
anything from the Cherokee Nation.” Counsel responded, “That’s in the further inquiry
that was [filed on] April 27th, 2023.”8 The court found “ICWA does not apply.”
In an addendum report filed June 28, 2023, the social worker recommended
“temporary educational rights be granted to the current caregivers.” Mother tested
positive for methamphetamine on May 12, 2023, the day she entered a residential
treatment program. On June 9, 2023, mother was terminated from a substance abuse
“program due to testing positive for methamphetamine and admitting to using while” in
inpatient treatment. On June 14, 2023, mother tested positive for amphetamine,
methamphetamine, and marijuana.
On June 12, 2023, mother recommended the department place minor with a family
friend, R.F.; mother provided the social worker with the friend’s phone number and the
social worker texted her that evening.
At the dispositional hearing on July 3, 2023, the department asked the court “to
find that ICWA does not apply to this case at this time.” Mother’s counsel noted, “there’s
mention of an individual, [R.F.], who’s interested in placement. I think she was referred
8 Some of the tribes listed ante either did not respond until after the hearing, or the department did not submit the tribal responses until after the hearing.
8
to [Resource Family Approval (RFA)]. We would ask the Department to follow through
on the RFA assessment for [R.F.].” The department noted that minor was placed with the
caretakers on April 10, 2023.
The court removed minor from mother’s custody, denied her reunification
services, and set the section 366.26 hearing. The court found ICWA did not apply. On
July 5, 2023, the court gave the caretakers temporary educational rights over minor.
On July 14, 2023, the caretakers applied for de facto parent status. On July 18,
2023, the court ordered a hearing on the caretakers’ de facto parent request.
On August 18, 2023, mother filed a section 388 petition requesting the court place
minor with R.F.9 Mother alleged as a change in circumstance that the RFA process had
begun prior to the dispositional hearing. Mother alleged the change of placement would
be in minor’s best interest because minor had no relations to the caretakers prior to
placement, and, that if placed with R.F., minor could “build a relationship with his half-
siblings, . . .” The court ordered an evidentiary hearing on the petition.
In an addendum report filed September 14, 2023, the social worker recommended
the court deny mother’s section 388 petition. RFA reported that R.F. was approved for
emergency placement of minor “with concerns.” An investigation into R.F.’s home
revealed “that there were suspicious circumstances regarding a death at the home in
2021.” The department was unable to obtain a police report for the alleged incident.
9 The petition alleges that R.F. is “a paternal aunt to . . . minor’s half-sibling.”
9
The social worker reported, “At this time, the child remains placed in a stable
placement. Placing the child in a new placement . . . is not in his best interest. On
August 23, 2023, a Concurrent Plan Review was held[,] and it was determined that the
permanent plan for the child is adoption.” Minor “was placed in his placement on April
10, 2023, and these are the only parents he knows. In addition, the current caregivers
currently hold [e]ducational rights for [minor].” “In addition, the caregivers have been
granted De Facto Parent status by the Court on July 18, 2023.”10 “The caregivers have
been vested in the care of [minor] and are making sure that all his needs are being met.
Moving [minor] from the caregivers will not be in his best interest.”
At a hearing on September 19, 2023, the department requested the court continue
the hearing on mother’s section 388 petition for the social worker to interview R.F. “It
looks like the family friend was approved for emergency placement with concerns. There
are, unfortunately, more details gathered through the Department interview of the family
friend, [R.F.]. Unfortunately, the supervisor who interviewed her is out this week.” The
court directed the department “to circle back with the NREFM, [R.F.], to get additional
information about the suspicious circumstances indicated in the . . . report.”
In an addendum report filed September 26, 2023, the social worker related that
R.F. “stated that her grandmother passed away on December 24, 2021, in her home.” Her
grandmother stopped breathing; she called 911 and performed CPR until the fire
10 The juvenile court had only granted the caretakers a hearing on their request for de facto parent status. The court did not grant the caretakers’ de facto parent request until November 17, 2023.
10
department arrived. Twenty minutes later the fire department declared her grandmother
dead. Officers interviewed R.F. regarding the incident. They later said, “they were going
to close the investigation because they saw no evidence of foul play.” R.F. had no idea
why it was labeled a “suspicious death.”
At the hearing on September 27, 2023, the department urged the court to deny
mother’s petition based on minor’s best interest. Minor’s counsel joined in the
department’s argument: “Just would indicate to the Court that I don’t see any indication
that there has been any visitation that has occurred between the potential caregiver and
the minor.” “There’s no relationship, that I’m aware of, between the half sibling that is
here today. It’s my understanding the half sibling doesn’t reside with the prospective
caretaker, so it’s not a situation where the minor will be placed with a sibling.”11 The
caretakers have “had this minor, I believe, since April 10th and [are] fluent in all medical
and developmental concerns. That’s the only relationship that the minor has had. I
understand he’s very young. But really by all accounts, I’m asking that the Court find it’s
in his best interest to remain in that home.”
Mother’s counsel conceded R.F. had not visited with minor or his half sibling,
D.W. Nonetheless, mother’s counsel related D.W. “wants a relationship with his younger
brother. What has the Department done to facilitate that? Zero. Family connection. I’m
sure—you know, we use this term ‘half sibling.’ I don’t think [D.W.] sees [minor] as a
half sibling. He sees him as his little brother.” D.W. was in court in support of R.F.
11 R.F. later testified that none of minor’s siblings lived with her.
11
“He’s had a long-time relationship with [R.F.], years and years. And he’s here in support
of [R.F.] The home was approved. The child should be placed there, or at least there
should have been some type of contact between [D.W.], his younger brother, and [R.F],
who is absolutely interested in placement and went through the hoops of resource family
approval.” R.F. was in court “asking for placement.”
The court acknowledged that any delay in placing minor with R.F. “was caused by
the Department itself, maybe rightfully, maybe wrongfully. That can’t really be held
against her. She came forward timely. She went through the process. She was approved,
but for this suspicious death. And now the Department is saying that, well, . . . [maybe]
there’s no issue with that death, but the child—it’s in the child’s best interest to stay
where he’s at because he’s been there so long. That’s kind of circular reasoning there.”
The court inquired whether minor was determined to have “high needs.”
Minor’s counsel responded, “I believe so. [Minor] was being assessed for [Inland
Regional Center (IRC) services]. I don’t know what the status of his needs are, or what
the plan is, but he was being assessed because of positive [drug] exposure.”
The court noted that although minor required services, “he just started receiving
[them] less than a month ago. So how is his best interest not served by placing him with
a [NREFM]”?
Minor’s counsel responded that minor had a relationship with the caretakers: “In
terms [of] my client’s best interest, that’s why I would indicate I think it’s best to stay
12
where he’s at.” In the alternative, minor’s counsel asked for a “transition phase” between
being withdrawn from the caretaker’s home and being placed with R.F.
The court asked whether R.F. was able to take care of a high needs child.
Mother’s counsel responded, “I think she is more than capable of caring for the child.”
Counsel suggested that during visitation, R.F. could learn about any of minor’s needs
from the caretakers.
The court authorized placement of minor with R.F. “to be a transition of over the
course of about a month or so, so that [R.F.] can come up to speed and understand all the
special needs that this child will have, all the appointments.” “I do want her to have
visitation with the child, as well as the adult sibling. They both should be having regular
visitation.”
In the selection and implementation report filed October 16, 2023, the social
worker recommended the court continue the section 366.26 hearing “to complete the
Preliminary Adoption Study for the Prospective Adoptive Parent.” The social worker
also recommended the court find minor “is placed in the Permanent Plan of Adoption”
with the caretakers.
The social worker noted, “At the Jurisdictional Disposition hearing held on July 3,
2023, the Court found that [ICWA] did not apply to the child . . . . No additional
information regarding Native American ancestry has been provided by any individual
during this reporting.”
13
Mother’s whereabouts were unknown. She had been arrested for burglary on
October 3, 2023; she was released on October 6, 2023, and was on probation until
October 5, 2024.12 Minor had been determined to suffer from developmental delays.
Minor “is currently having visitation between [R.F.] and [D.W.] as stated by the
Court as part of the transition plan.” “The Department will be starting visits with [R.F.]
on October 11, 2023. The visits will be for [two] hours each week and is a part of the
transition plan the Court ordered in placing [minor] in [R.F.’s] care.”
The social worker noted, “The Permanent Plan for [minor] is Adoption. The
Department has identified two potential prospective adoptive options, the current
caregivers and NREFM [R.F.]. Based on [minor’s] age, adoption would be appropriate.”
“One preliminary adoption assessment has been completed and submitted for the current
caregivers but the Department is waiting for the Court to address the [section] 388
Continued hearing regarding placement before making a referral for the new [prospective
adoptive parents] to Adoption.”
On October 25, 2023, the caretakers filed a caregiver information form for the
purpose of aiding the court in determining whether to grant their request for de facto
parent status. The caretakers described their home, marriage, and family life with minor
and their two other adopted children. They included numerous photos of their family,
including minor.
12 Mother continued to be “involved in a criminal matter involving mental health court[]” for the duration of the proceedings.
14
The maternal grandmother, maternal aunt, two of minor’s siblings, the caretaker,
and R.F. all appeared at the hearing on October 31, 2023. The department requested a
120-day continuance to complete a preliminary adoption assessment. The department
requested that the court make ICWA inquiries as to the relatives present at the hearing.
The attorney for the caregivers argued there was no relative preference at that
point in time: R.F. “is not a blood relative of the child. And the only parents that this
child knows is the current caretakers.”
The court noted that while R.F. was a NREFM, “she has a sibling living with her.
The child’s sibling [is] living [with] her, so there’s a degree of preference there.” “This is
an issue of preference, because we do have a [NREFM]. We do have a sibling residing
with that [NREFM]. And the goal is to try to keep this child with family, if possible.
And that’s what we’re dealing with.”13 “I fully appreciate that the prospective de facto
parents, the caretakers, who have this child since April, it’s a difficult decision to make.
We have got a child, we have a [NREFM] who has asked for placement as far as back as
—I want to say it was June. But for whatever reason, there were issues that came up that,
you know, ultimately were brought to the Court’s attention and clarified.” “But at the end
of the day, my charge is to do what’s in the best interest of the child.”
The court inquired as to any Native American ancestry of the maternal
grandmother, maternal aunt, and minor’s adult sibling. All indicated they were unaware
of any such ancestry. The court found that ICWA did not apply to the case. The court
13 As noted in footnote 10 ante, none of minor’s siblings lived with R.F.
15
continued the hearing on section 366.26, the de facto parent request, and the section 388
petition.
On November 7, 2023, the caretakers filed a section 388 petition requesting the
court change its order transitioning minor from their home to the home of R.F. The
caretakers contended there had been a change of circumstances because a preliminary
adoption assessment had been completed, which recommended the caretakers become the
prospective adoptive parents. The caretakers noted that it was in minor’s best interest to
remain in their care because they had custody of minor since he was released from the
hospital. They “have loved and cared for the child as though he were their biological
child. They love him and want nothing more than to keep him in their care for
prospective adoptive placement.” They noted that minor had only had three visits with
R.F. and one visit with his half siblings.
In the November 14, 2023, addendum report, the social worker recommended the
court grant R.F. educational rights to minor as part of the court ordered transitional plan.
The social worker detailed, “As part of the transition plan for [R.F.] the Department has
started with [a] supervised visit [on] October 11, 2023. During the week of . . .
November 22[] the Department will be looking to start unsupervised visits between
[minor] and [R.F.]. After about a month of unsupervised visits, the Department will
transition to overnight visits. These overnight visits will generally go on for a month.
After the successful overnight visits, [minor] would be ready for placement with [R.F.].”
16
R.F. “has been having weekly supervised visit[s] with [minor] for [two] hours.”
The visits were reported to “have been going well. [Minor’s] sister came to one visit and
the brother and maternal grandmother have come to two visit[s]. It was reported that
[R.F.] is attentive during the visit[s] and that she is trying to develop a bond with . . .
[minor].” On November 16, 2023, the court ordered an evidentiary hearing on the
caretakers’ section 388 petition.
At the hearing on November 17, 2023, the court observed that two of minor’s
siblings, the maternal aunt, the maternal grandmother, and R.F. were present. The court
queried the adult relatives regarding any Native American ancestry; they all responded
they had none. The court granted the caretakers’ de facto parent request.
The court authorized continued supervised visitation by R.F. with minor.
However, the court wished to consider the caretakers’ section 388 petition, “because at
the end of the day we need to do what is in the best interest of this minor. [¶] We have
got what appears to be—the caretakers and the [NREFM], both who appear to be amply
qualified to take care of the child. The question is, what is in the best interest of the
child.” The court reserved ruling on granting R.F. educational rights to minor. The court
continued the sections 366.26 and 388 hearings.
In the addendum report filed November 30, 2023, the social worker observed that
R.F. “had supervised visits with [minor] at the [department] office on November 21,
2023[,] and November 27, 2023. [R.F.] arrived on time and was prepared for the visit.
During the visit [R.F.] changed [minor], played with toys with [minor], held him up as he
17
took steps, fed him/burped him and changed him. [R.F.] also walked around holding
[minor] and comforting him when he became upset. [Minor’s] older brother . . . showed
up to the visit on November 21, 2023, 35 minutes before the visit ended. [The sibling]
interacted with [minor] by talking and playing with him during the visit. There were no
issues during both of [R.F.’s] visits.”
On December 5, 2023, mother filed a supplemental information in support of her
section 388 petition. Included was a letter from R.F. expressing her desire and ability to
have minor placed with her. She observed that minor’s siblings insisted upon having a
relationship with minor and that studies “show[ed] that a child [who] maintains a
relationship with their biological family has a better life [sic] to maintain a sense of
belonging and connection with relatives.” Also included were numerous letters in
support of placement with R.F., including letters from relatives. Numerous pictures of
visits with minor were also attached.
At the hearing on December 6, 2023, the department requested minor be
maintained with the caretakers. Minor’s counsel agreed with the department. However,
minor’s counsel requested that “if there was going to be movement, that the transition
happens swiftly because the minor has been placed with the current foster parents since
he was about nine days old.” Minor’s counsel noted, “At this point, we believe it’s in his
best interest to remain where he’s placed because that’s really the only home and family
he’s aware of. They’re aware of his medical needs, special medical needs, treatment
plan.”
18
Mother’s counsel informed the court that mother wished minor to be placed with
R.F. The caretakers’ counsel argued “at this point in time, the caretaker preference
applies under [section] 366.26[, subdivision] (k). And there’s case law and other statutes
that I put in my motion indicating that there’s a preference to preserve appropriate
placements when there’s no need to move placements. At this point in time, there is
absolutely no need to move placements. The child is doing great in the care of the de
facto parents.”
“My position is we don’t even get to [section] 361.3 [NREFM preference] because
there’s a caretaker preference. There’s not a relative preference. The Department has
designated a plan in this case to be adoption. And we’re not trying to determine what
adoptive placement that would be. And the best interest indicate it would be continued
with the de facto parents.”
The court noted, “But what happened with the [section 366].26—and this is why I
asked the question before we went on the record about [section] 366.26[, subdivision] (k),
that subsection states that the caretaker preference comes in once adoption is designated
as a permanent plan for the child. [¶] That’s what happened on October 31st, and the
motion was still pending. And so that’s why I asked if the parties are prepared to address
[section] 366.26[, subdivision] (k), because this is really at this point going to become a
legal issue of whether or not the caretaker preference has kicked in, which once you have
your first [section 366].26 and in the recommendations, if you look at the
recommendations, adoption was adopted as a permanent plan for the child.” “I think that
19
in itself with the caretaker preference coming in, the Court does find at this time the
procedural posture of the case has changed since we have had a [section 366].26 and the
permanent plan for adoption has been adopted by the Court.”
The court ruled, “And at this point given the caretaker preference and even absent
the caretaker preference, the fact that the child has been in this home for eight months,
and there’s no indication that there’s any problems with the home that the child is in, the
Court is going to deny . . . mother’s motion, grant the de facto parents’ motion, and leave
the child in place.”
The court permitted mother’s counsel to call R.F. to testify in support of mother’s
petition. R.F. testified that she desired and was prepared to take custody of minor. She
wanted to adopt him: “I feel like we as a family can give [minor] the best support. He
has a lot of family. We work together as a team. Everyone loves him, even if they
haven’t met him, with the pictures and everything that I showed, even my children and
my family. And we come together. We’re a very tight knit family.”
Minor’s half sibling, D.W., testified R.F. would take good care of minor. D.W.
wanted to continue to have contact with minor. “I just feel like he should be with his
family, to be honest. Me and my sister [have] been separated before.” “I just feel like he
should be with his family, honestly.”
The parties stipulated that if the caretakers testified, they would testify “that they
are [in] favor of maintaining the sibling relationships between [minor] and any siblings
and also any other appropriate relatives.”
20
The court noted, “as indicated prior to the testimony, this is more of a legal issue
than anything else. The Court is looking at the best interest of the child and the caretaker
preference has kicked in. [¶] We did have a [section 366].26 hearing. The Court finds
that there’s nothing inappropriate with the current caretakers, and it is in the best interest
of the child, for those reasons, to stay with the current caretaker. [¶] The caretakers have
indicated they are willing to maintain a relationship between the child and the siblings, as
well as any additional relatives.” The court affirmed its ruling.
The court ordered “the Department to work with [D.W.] and [R.F.] and the
caretakers to see if they can agree to some sort of a workable [visitation] schedule.” The
caretakers’ counsel noted that they were open to allowing weekly unsupervised visits for
a couple hours.
On December 13, 2023, the department filed an addendum report informing the
court that the parties had agreed upon a visitation schedule. “The Department is asking
that the Court confirm the [section] 366.26 Selection and Implementation hearing set for
February 28, 2024, and the 366.3 Post Permanency review hearing set for April 16,
202[4].”
At the hearing on December 15, 2023, the court ruled that R.F. was authorized to
transport minor for visits and “to supervise the sibling visits. The goal of these visits is
for the siblings to have contact with the minor[]. So the siblings should be present at the
visits.” The court confirmed the date for the section 366.26 hearing.
21
On February 9, 2024, the department filed an addendum to the section 366.26
report recommending the juvenile court terminate parents’ parental rights, that minor
remain in a permanent plan of adoption with the caretakers, and that visitation with the
biological family be left to the discretion of the caretakers.
In another addendum report filed February 13, 2024, the social worker observed
that minor “was placed with the identified prospective adoptive parents on April 10,
2023. The child continues to build a bond with his prospective adoptive parents, their
children, extended family members and various friends of the prospective adoptive
family. The prospective adoptive parents are excited to have [minor] become a
permanent part of their family. They speak of him as if he was their own and [minor] has
been doing well in their care. This is the only family [minor] knows and he has his
medical, developmental, physical and mental health needs met.”
The social worker attached the preliminary adoption study she asserted had
originally been submitted on October 12, 2023:14 “The family environment has been
very stable and nurturing for [minor]. This has been the only home he has known[,] and
he is building lifelong connections with the prospective adoptive family” “[T]he
prospective adoptive parents are working to ensure his needs are met and he is building
strong bonds with their family.” “The prospective adoptive parents ensure all [minor’s]
physical, emotional, mental, and developmental needs are met daily. He exhibits comfort
with his primary caregivers which is demonstrative of strong attachment.” “The
14 This is the first time the preliminary adoption study appears in the record.
22
prospective adoptive parents are supportive of post-adoption contact with extended
relatives as appropriate.”
At the hearing on February 28, 2024, the court noted “we do have relatives seated
in the back of the courtroom. We have maternal grandmother. We have a godmother on
mother’s side. We also have an adult sibling, a brother who is present. And we have . . .
[R.F.], as well. We have the caregiver for the child . . . .” Counsel for the department
noted, “Your Honor, just to indicate on the record, all the family members present today
have been present at previous hearings and were inquired about ICWA, about Native
American ancestry. And so I just wanted to indicate on the record that that has been
previously done.” The court continued the section 366.26 hearing over the department’s
objection.
On March 20, 2024, R.F., D.W., and D.W.’s grandmother filed section 388
petitions requesting minor be placed in R.F.’s care. The court summarily denied the
petitions on the basis that the requested change was not in minor’s best interest.
At the hearing on March 21, 2024, the court noted, “We have the caregivers, both
of them, maternal grandmother, the sibling, and then two [NREFM’s].” The department
argued, “we do have a favorable adoption assessment. This is a very young child, so we
are asking for permanency in the form of a plan of adoption.” Minor’s counsel submitted
on the recommendation but requested ongoing sibling visitation.
Mother’s counsel complained about the department’s failure to transition minor to
R.F.’s home and failure to assist in visitation; he requested the court order sibling
23
visitation. The caretakers indicated they had no opposition to the court continuing the
current visitation order.
The department noted, “I neglected to mention that further [ICWA] inquiry was
triggered in this case. And I don’t know that I indicated that on the record in prior
hearings.” “We did get information from several of the relatives, including mother, of
possible Native American ancestry, with the following tribes: Blackfeet tribe, Apache
tribe, and Cherokee tribe.” “We generated further inquiry in this case and documentation
was filed with the court on April 27th, 2023, May 9th, 2023, May 22nd, 2023, May 20th,
2023, July 11th, 2023, August 7th, 2023, and August 10th, 2023. All responses filed with
the court and received by the Department have indicated the child is not an Indian child.
So at this juncture, it does appear that we have no reason to believe that the child is an
Indian child. And we ask the Court [to] make the finding that ICWA does not apply to
this case.”15
The court found that adoption was in minor’s best interest and terminated parents’
parental rights. The court noted that “[i]t is unusual for the Court to order visits after—at
this point after termination of parental rights. In fact, I can’t think of very many instances
where I have allowed for that. It’s typically left to the discretion of the caretakers. [¶]
Given the history of this case, given that the Court has previously noted, this was an
extraordinarily difficult case in that placement decisions were with two equally
compatible homes. I didn’t have a basis to deny one home over the other due to [R.F.] or
15 Although the court did not orally respond to the department, the minute order reflects, “The Indian Child Welfare Act (‘ICWA’) does not apply.”
24
the caretakers.” “At this time, I am going to put in place an order that the visitation
continue with [R.F.], as well as the siblings on prior terms. And my understanding is
every other week.” “So two hours every other week visitation will continue. Certainly[,]
the parties can agree on more if they decide to do that.” The court designated the
caretakers as the prospective adoptive parents.
II. DISCUSSION
A. Application of the Caretaker Preference
Mother contends the court erroneously applied the caretaker preference in denying
her section 388 petition for placement of minor with R.F. We hold any error was
harmless.
Section 388 primarily permits a parent to petition the court “to change, modify, or
set aside any order of court previously made or to terminate the jurisdiction of the court.”
(§ 388, subd. (a)(1).) “To prevail on a section 388 petition, the moving party must
establish that (1) new evidence or changed circumstances exist, and (2) the proposed
change would promote the best interests of the child.” (In re J.T. (2014) 228 Cal.App.4th
953, 965.)
“‘Whether a previously made order should be modified rests within the
dependency court’s discretion, and its determination will not be disturbed on appeal
unless an abuse of discretion is clearly established.’ [Citation.] The denial of a section
388 motion rarely merits reversal as an abuse of discretion.” (In re Amber M. (2002)
103 Cal.App.4th 681, 685-686.)
25
“‘Application of the [NREFM] preference throughout the reunification period is
. . . supported by California’s strong public policy favoring the facilitation of family
reunification, because relative caregivers are more likely to favor the goal of reunification
and less likely than nonrelative caregivers to compete with the parents for permanent
placement of the child.’ [Citation.] Consequently, courts should consider relatives who
have come forward after an initial placement with a nonrelative, and [the department] can
continue to search for relatives during the family reunification period of a case.
[Citation.] For placement determinations after disposition, the statute requires [the
department] to consider one additional factor: ‘In addition to the factors described in
[section 366.26,] subdivision (a), the county social worker shall consider whether the
relative has established and maintained a relationship with the child.’ [Citation.]”
(Amber G. v. Superior Court (2022) 86 Cal.App.5th 465, 491 (Amber G.).) There is “no
authority that requires the Agency to develop a relationship between siblings that did not
exist at the time a juvenile dependency petition was filed.” (In re S.M. (2004) 118
Cal.App.4th 1108, 1122.)
“‘Unlike the relative placement preference, the caretaker preference applies
specifically to applications for adoption. [Section 366.26, s]ubdivision (k) provides,
“Notwithstanding any other provision of law, the application of any person who, as a
relative caretaker or foster parent, has cared for a dependent child for whom the court has
approved a permanent plan for adoption, or who has been freed for adoption, shall be
given preference with respect to that child over all other applications for adoptive
26
placement if the agency making the placement determines that the child has substantial
emotional ties to the relative caretaker or foster parent and removal from the relative
caretaker or foster parent would be seriously detrimental to the child’s emotional
wellbeing. [¶] As used in this subdivision, ‘preference’ means that the application shall
be processed and, if satisfactory, the family study shall be completed before the
processing of the application of any other person for the adoptive placement of the
child.”’ [Citation.]” (Amber G., supra, 86 Cal.App.5th 465, 492-493; see In re K.L.
not apply where, as here, the social services agency is seeking an adoptive placement for
a dependent child for whom the court has selected adoption as the permanent placement
goal.”].)
“Once reunification efforts have failed, and the juvenile court has before it a
proposed permanent plan of adoption, it is the caretaker who has preference.
[Citations.]” (In re M.M. (2015) 235 Cal.App.4th 54, 63-64.) “The relative placement
preference does not apply to an adoptive placement; there is no relative placement
preference for adoption. [Citations.] Instead, at the section 366.26 hearing, the court
must apply the caretaker preference under section 366.26, subdivision (k).” (In re A.K.
(2017) 12 Cal.App.5th 492, 498.)
“[T]he circumstance that triggers the application of the caretaker preference is the
intent to place the child for adoption, not necessarily the termination of parental rights or
the termination of reunification services.” (In re Lauren R. (2007) 148 Cal.App.4th 841,
27
856; see In re M.H. (2018) 21 Cal.App.5th 1296, 1304.) “[T]he caretaker preference
applies to applications for adoption both before and after the termination of parental
rights, . . .” (In re Lauren R., at p. 859; accord, Amber G., supra, 86 Cal.App.5th at
pp. 492-494].)
“Because a child’s best interest evolves quickly, the legislators developed a
spectrum of [placement] preferences . . . . These statutorily created preferences are not to
be automatically applied and should not be treated the same as evidentiary presumptions.
To the contrary, the statutes discussing each preference require the consideration of
multiple factors all dependent on an examination of evidence relating to the minor’s
current circumstances. Consequently, a reflexive approach that children are always better
off with relatives is incompatible with the governing laws . . . .” (Amber G., supra, 86
Cal.App.5th at p. 489.) “[T]here is a preference in favor of keeping a child with
caretakers in the process of adopting them unless something about the minor’s current
circumstances warrants their removal to a different home.” (Id. at p. 504.)
“‘The overriding concern of dependency proceedings . . . is not the interest of
extended family members but the interest of the child. “[R]egardless of the relative
placement preference, the fundamental duty of the court is to assure the best interests of
the child, whose bond with a foster parent may require that placement with a relative be
rejected.” [Citation.] Section 361.3 does not create an evidentiary presumption that
relative placement is in a child’s best interests. [Citation.] The passage of time is a
significant factor in a child’s life; the longer a successful placement continues, the more
28
important the child’s need for continuity and stability becomes in the evaluation of her
best interests. [Citation.]’ [Citation.]” (Amber G., supra, 86 Cal.App.5th at pp. 493-
494.)
Here, even assuming arguendo that the court erred in applying the caretaker
preference, the court acted within its discretion in denying mother’s petition based on the
court’s determination that it was in minor’s best interest that he remain in the caretakers’
home. First, the caretakers had been caring for minor daily for months, whereas R.F. had
relatively little contact with minor. The department placed minor with the caretakers on
April 10, 2023, immediately upon minor’s release from the hospital. Thus, at the time the
juvenile court denied mother’s petition on December 6, 2023, minor had been living with
the caretakers for nearly eight months, and it was the only home minor had known.
On the other hand, R.F. and D.W. did not begin visiting with minor until October
11, 2023, six months after the department had placed him with the caretakers.16 Since the
department took minor into protective custody immediately after his birth, neither R.F.
nor his siblings had a preexisting relationship with him. The visits were two hours each
week. They never progressed beyond supervised visitation. Thus, at best, R.F. and D.W.
had just shy of two months of visitation or approximately 10, two-hour visits with minor
at the time the court denied mother’s section 388 petition.
16 As the court noted, this was not their fault. Nonetheless, the requirement that the court consider minor’s best interest necessarily involved a comparison of the amount and quality of time minor had spent with the respective persons involved in the placement determination.
29
Second, placement with the caretakers had been successful. The caretakers were
ensuring all minor’s needs were met. The caretakers had an auspicious home, marriage,
and family life with minor and their two other adopted children. Minor was bonded with
the caretakers, their children, extended family members, and the caretakers’ friends.
The caretakers’ home had been stable and nurturing for minor. The caretakers
“have loved and cared for the child as though he were their biological child. They love
him and want nothing more than to keep him in their care for prospective adoptive
placement.” The caretakers understood all minor’s medical and developmental issues.
(Amber G., supra, 86 Cal.App.5th at pp. 493-494 [“The passage of time is a significant
factor in a child’s life; the longer a successful placement continues, the more important
the child’s need for continuity and stability becomes in the evaluation of her best
interests. [Citation.]’ [Citation.]”].)
Third, the caretakers’ home was an adoptive placement. As early as May 10,
2023, three months prior to mother’s filing of the section 388 petition, the department had
identified placement with the caretakers as an adoptive home. A preliminary adoption
study favorable to the caretakers had originally been submitted on October 12, 2023. On
October 16, 2023, the social worker recommended the court find minor “is placed in the
Permanent Plan of Adoption[]” with the caretakers.
Fourth, the court had previously recognized the fortuity of placement of minor
with the caretakers. On July 15, 2023, the court gave the caretakers temporary
30
educational rights over minor. On November 17, 2023, the court granted the caretakers’
de facto parent status.
Fifth, all the parties, except mother, repeatedly recognized that it was in minor’s
best interest to remain in the caretaker’s home. Sixth, the caretakers repeatedly agreed to
maintain minor’s relationship with his siblings and other relatives. They even eventually
agreed to what the court itself maintained was an “unusual” concession, a post-adoption
order permitting continued visitation.
Seventh and finally, the court repeatedly, properly acknowledged that the best
interest of minor was paramount in its determination of the appropriate placement for
minor. “But at the end of the day, my charge is to do what’s in the best interest of the
child.” “[B]ecause at the end of the day we need to do what is in the best interest of this
minor.” “The question is, what is in the best interest of the child.” The court ruled, “And
at this point . . . even absent the caretaker preference, the fact that the child has been in
this home for eight months, and there’s no indication that there’s any problems with the
home that the child is in, the Court is going to deny . . . mother’s motion . . . and leave the
child in place.” “The Court is looking at the best interest of the child . . . .” “The Court
finds that there’s nothing inappropriate with the current caretakers, and it is in the best
interest of the child, for those reasons, to stay with the current caretaker.” The court’s
denial of mother’s section 388 petition was well within its discretion.
31
B. ICWA
Mother contends the department erred by failing to inquire of the maternal
grandfather regarding any Indian ancestry.17 Mother alleges that although the social
worker contacted tribal representatives with information about the maternal grandfather,
the information she provided was “incomplete, and possibly unreliable.” This is because
the social worker provided the tribal workers with “variations of his name and different
birth dates.”
The department concedes that “the notice sent to the tribe contained multiple dates
of birth for maternal grandfather.”18 However, the department maintains any error was
harmless because they communicated with the only tribe to which the maternal
grandfather was purportedly connected, and the “tribe responded that the family could
not be located in the tribal records.”
17 Mother acknowledges that there is a split of authority as to whether the department is required to conduct an ICWA inquiry of extended family members when the child is taken into custody pursuant to a warrant. (In re Delila D. (2023) 93 Cal.App.5th 953, 962, review granted Sept. 27, 2023, S281447 (Delila D.); accord, In re Jerry R. (2023) 95 Cal.App.5th 388, 404; In re V.C. (2023) 95 Cal.App.5th 251, 258-259; see In re D.M. (2024) 101 Cal.App.5th 1016, 1047-1060 (dis. Opn. of Raphael, J.), review granted July 24, 2024. S285537; contra, In re Robert F. (2023) 90 Cal.App.5th 492, 504, review granted July 26, 2023, S279743; In re Ja.O. (2023) 91 Cal.App.5th 672, 677-681, review granted July 26, 2023, S280572 [same]; In re Andres R. (2023) 94 Cal.App.5th 828, 842-856, review granted Nov. 15, 2023, S282054 [same]; In re D.M., at p. 1023 [same].) However, we find it unnecessary to address the issue because we find any error harmless.
18 There were two birth dates listed for the maternal grandfather. There were also two names listed for the maternal grandfather; however, the differences in those names consisted only of his full first name and its generic sobriquet.
32
We hold substantial evidence supported the court’s determinations that ICWA did
not apply. Even assuming the department was required to make direct inquiries of the
maternal grandfather, we hold any error was harmless.
“‘“‘Federal regulations implementing ICWA . . . require that state courts “ask each
participant in an emergency or voluntary or involuntary child-custody proceeding
whether the participant knows or has reason to know that the child is an Indian child.”
[Citation.] The court must also “instruct the parties to inform the court if they
subsequently receive information that provides reason to know the child is an Indian
child.”’”’ [Citations.] ‘State law, however, more broadly imposes on social services
agencies and juvenile courts (but not parents) an “affirmative and continuing duty to
inquire” whether a child in the dependency proceeding “is or may be an Indian child.”’”
(In re J.C. (2022) 77 Cal.App.5th 70, 77.)
“‘“‘The juvenile court must determine whether proper notice was given under
ICWA and whether ICWA applies to the proceedings.’” [Citation.] “If the court makes a
finding that proper and adequate further inquiry and due diligence as required in
[section 224.2] have been conducted and there is no reason to know whether the child is
an Indian child, the court may make a finding that [ICWA] does not apply to the
proceedings, subject to reversal based on sufficiency of the evidence.”’” (In re J.C.,
supra, 77 Cal.App.5th at p. 78.)
Mother and the maternal grandmother informed the social worker they might have
Native American ancestry through the Blackfoot and Cherokee tribes, ancestry to the
33
latter tribe was purported to be through the maternal grandfather. The social worker
made extensive inquires of minor’s purported tribal connections with all relevant tribes
mentioned by mother and the maternal grandmother. All the responding tribes indicated
that minor was not eligible for enrollment, and that the tribes would not be intervening.
The fact that the social worker gave the tribes two different birth dates for the maternal
grandfather should not have impacted that determination; in fact, if someone had given
the social worker both birth dates for the maternal grandfather, she would have been
remiss in not including them both.
The maternal grandmother stated that no one in the family was a registered
member of any Native tribe. The court repeatedly inquired of relatives in the courtroom
regarding Indian ancestry; mother and the maternal grandmother, repeatedly and
contradictorily, indicated they had no Native American ancestry. (In re S.R. (2021) 64
Cal.App.5th 303, 312, 316 [Where the parents represented that the minor did not have
Native American ancestry, the court’s ICWA finding was “plainly supported at the time it
made the finding.”].) The court’s determinations that ICWA did not apply were
supported by substantial evidence.
“[I]n ICWA cases, a court must reverse where the record demonstrates that the
agency has not only failed in its duty of initial inquiry, but where the record indicates that
there was readily obtainable information that was likely to bear meaningfully upon
whether the child is an Indian child.” (In re Benjamin M. (2021) 70 Cal.App.5th 735, 744
[The department “failed its duty of inquiry by not asking ‘extended family members’ . . .
34
whether there is reason to believe [the child was] an Indian child.”]; compare In re
agency’s failure to conduct a proper initial inquiry into a dependent child’s American
Indian heritage is harmless unless the record contains information suggesting a reason to
believe that the child may be an ‘Indian child’ within the meaning of ICWA, such that the
absence of further inquiry was prejudicial to the juvenile court’s ICWA finding.”]; contra,
In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1003, 1006 [“[A]n automatic reversal
approach to claims of ICWA inquiry errors is not compelled by the statute, harms the
interests of dependent children, and is not in the best interests of Indian communities.”
“Plainly, complying with the literal language of the statute—that is, making an initial and
further ICWA inquiry of every member of a child’s extended family . . . is absurd at best
and impossible at worst.”]; contra, In re M.B. (2022) 80 Cal.App.5th 617, 629-630 [per se
reversal where department and juvenile court failed their duties of ICWA inquiry].)
Obviously, appellate courts have come to myriad disparate conclusions regarding
the harmless error standard applicable in cases in which the department has failed to
make an “adequate” inquiry. (See In re K.H. (2022) 84 Cal.App.5th 566, 608, and the
cases cited therein.) The issue is presently before our Supreme Court in In re Dezi C.,
supra, 79 Cal.App.5th 769, review granted September 21, 2022, S275578. We apply the
precedent of our own district and division. (In re Benjamin M., supra, 70 Cal.App.5th
735, 744.)
35
Here, to the extent the department neglected to make proper inquiry, the record
does not reflect that there was any further “information that appears to have been both
readily available and potentially meaningful.” (In re Benjamin M., supra, 70 Cal.App.5th
at p. 744.) The maternal grandfather’s address or phone number are not contained in the
record, so it is difficult to understand how the social worker was supposed to contact him.
He never appeared at any of the hearings nor was he present during any of the interviews
conducted by the social worker. He certainly was not “readily available.” Regardless, as
discussed ante, the department made sufficient inquiries regarding the purported Indian
ancestry of the maternal grandfather.
Moreover, in a previous dependency proceeding pertaining to minor’s maternal
half siblings, the juvenile court determined that ICWA did not apply. No new information
that would affect that determination had been forthcoming. Thus, to the extent the
department was even required to inquire of the maternal grandfather regarding Native
American ancestry, any error was harmless.
36
III. DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J. We concur:
MILLER J.
MENETREZ J.
37
AI Brief
AI-generated · verify before citing
Holding. The juvenile court did not err in its denial of the mother's section 388 petition for placement with a nonrelated extended family member (NREFM) or in its finding that the Indian Child Welfare Act (ICWA) did not apply. The court properly exercised its discretion by prioritizing the minor's best interests and confirming that the department fulfilled its duty of inquiry regarding potential Native American ancestry.
Issues
Did the juvenile court err in denying the mother's section 388 petition for placement with a nonrelated extended family member?
Did the department fail to comply with its duty of inquiry under the Indian Child Welfare Act (ICWA)?
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“The juvenile court denied defendant and appellant N.V.’s (mother) Welfare and Institutions Code section 3881 petition and terminated her parental rights as to J.S.”
“The court found “ICWA does not apply.””
“At the end of the day, my charge is to do what’s in the best interest of the child.”